This Tuesday, the government presented the proposals contained in the final report of the May Council, which will be submitted to the National Congress for discussion extraordinary meetings. Including the project of “Work modernization”who thinks the deletion of unlimited ultraactivity from collective agreementsreviewing their priority and reducing the labor tax burden, among others.
However, Chief of Staff Manuel Adorni assured that the full text would be uploaded Argentina.gob.ar that night, until this Wednesday it had not been released. However, it is already known that the initiative contains some controversial aspects, such as: Extension of the working day from 8 to 12 hours; the payment of severance pay in installments and the overtime bank.
Labor reform: the controversial issues that could lead to future litigation
In the hallways of courts and in the offices of labor lawyers, they are analyzing the text and already preparing strategies to challenge the rule if it is adopted.
According to the sources consulted by iProfessionalThese are some of the points that could lead to a greater number of legal representations:
Extension of the working day
Law 20,744 on employment contracts, currently in force and to be amended, stipulates that it may not exceed 8 hours per day or 48 hours per week. For night work, the maximum daily working time is 7 hours, for minors it is 6 hours per day or 36 hours per week. If the duration is more than 6 hours, an additional break of at least 30 minutes must be allowed.
This right is protected by Article 14bis of the National Constitution, which states: “limited working day”. Therefore, any change would constitute a breach of current regulations and would be contrary to Magna Carta.
Vacation
If a division is allowed, which would allow employers to grant the days in parts, Argentine case law considers that the purpose of the vacation is to rest and to allow the employee to recover from the activity of the entire year over a longer period. These objectives would be completely defeated if they were divided into very short periods of time. As for the distribution of payments, labor law experts say it represents a direct attack on property rights. But it is also a form of precarity, as the focus is on the impairment of the worker’s rights guaranteed in Article 14bis.
Remuneration in installments and only up to 10 salaries
The project aims to establish that SMEs have the opportunity to pay compensation and fines from court judgments in up to 12 monthly installments. In addition, it is proposed that in the event of termination without giving reasons, the employer will only have to pay up to 10 maximum salaries, regardless of seniority. The idea is to protect companies from having to pay millions of dollars in lawsuits.
But here too it violates the LCT, which provides for a monthly salary for each year of service based on the best monthly compensation of the previous year and in no case sets a limit. As far as payment in installments is concerned, the proposal clashes with basic typical elements regulated not only in the LCT but also in the Civil and Commercial Code itself.
Current labor law requires payment to be made in full and within the fourth business day The law stipulates that the creditor is not obliged to accept partial payments. Beyond the government’s good intentions, the proposal violates the right to property under Article 14 of the National Constitution and the rights enshrined in Article 14 of the Constitution. 14 bis, because the employee would go from free disposal of his capital to an income that would be compulsorily managed by the company, which would be impermissible.
Overtime bank
The official proposal envisages the introduction of a system that would allow the employee to accumulate in an individual account the hours worked overtime during certain periods and then compensate for them during periods of less activity through breaks or shorter days. However, its application is subject to negotiations between unions and employers under any collective agreement.
Trade union activists believe that the introduction of this system would be completely detrimental to workers as it would negatively impact their salaries. Currently, under the LCT, the employer must pay a surcharge of 50% if overtime occurs on regular days and 100% if it occurs on Saturdays after 1 p.m., Sundays and public holidays.
Benefits in kind
As a symbol of the work flexibility of the 90s, vouchers for the purchase of food in supermarkets or restaurants, issued in addition to salary, could return to the world of work. This resulted in its value not being taken into account when calculating pension contributions, bonuses or compensation, leading to numerous lawsuits. This situation could repeat itself if the system returns to the same way it worked during Menemism, according to the consultations carried out.
At the moment, The voucher system is not included in the LCT because Congress repealed it in 2007 following a bill by then MP Héctor Recalde.
In addition, there is case law on this topic: in 2009 the Supreme Court noted “the salary nature” of basket tickets and meal vouchers when analyzing the case of a worker who had been laid off in 2004.
Ultraactivity of collective agreements
The government project is looking abolish the automatic extension of its clauses until a new one is agreed. Here too, the door would open to denounce the unconstitutionality of the norm, since Article 14 bis guarantees the rights of trade unions, including the conclusion of these agreements. In addition, it protects union representatives through guarantees of their leadership and job stability.
If the agreements are made more flexible, “Collective peace is under attack,” The rights guaranteed by the International Labor Organization (ILO), according to the unions, insist that they are already resisting this possible change and are considering how to take legal action if necessary. Furthermore, these agreements are constitutionally guaranteed by Article 75, paragraph 22 of the Magna Carta.
In summary, the labor reform – if passed in this way – could raise serious constitutional questions as it would entail a change in the specific part of the labor reform LCT without changing its general part.
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