7.1. Labor Laws
Under Argentine labor law, we notice that there are general principles –shared with the other branches of law– and particular principles that cause it to have specificity. Article 14 bis of the National Constitution determines the guiding criteria to be followed by the legislator. Such principles have been embodied in various laws in the Argentine legal system, including:
- In relation to individual employees:
The primary law is the Employment Contract Law No 20,744 (“LCT”). The Law No 11,544 is also significant and regulates matters such as working hours, and the Law No 24,557 refers to occupational accidents and professional diseases. The Laws Nos 24,013 and 25,323 provide increases to labor indemnities in the event of labor fraud, and also –in the former case– it regulates various matters on the subject of employment.
- In relation to trade unions:
The Law No 14,250 (1953) regulates all matters concerning Union Agreements, i.e. agreements entered into between entities representing the relevant workers and businesses, the purpose of which is to regulate any employment contracts within their scope of applicability. The law is still in force to date, but with amendments, the latest of which is the Law No 25,877 (2004). We should also note the enactment of the Law No 23, 551, which provides legislation in relation to trade unions. Finally, the Law No 14.786 regulates union disputes and the Government’s role therein.
7.2. Characteristics of Labor Law
An employment contract is not subject to any formalities. Although it is an informal type of contract, for certain acts the LCT requires a specified formality (e.g. notice of penalties, resignation from employment, notice of dismissal, etc.).
In order for a contract to exist, a meeting of the minds is required (under section 21 of the LCT). Employment involves a personal service, so the name given by the parties or and formalities are irrelevant. There is technical, legal and financial subordination between the employee and the employer, which includes the power to give directions, with the consequent duty of the employee to comply with such directions, and the right to receive compensation for his/her work. Under the LCT a minimum age of 14 is required to enter into a contract as an employee.
The general principle in the LCT is a contract for indefinite time (section 90). A typical contract under individual labor law has no ending term and lasts until the employee is in a position to apply for retirement, with the exception of certain grounds for termination prescribed by law. A contract is presumed entered into for an indefinite period of time, unless there is contrary evidence, which must be furnished by the employer.
Although the LCT encourages employment contracts for indefinite time, the law itself provides certain exceptions so that the employer –in certain exceptional circumstances– may make a contract for a specified period of time; this time may result specifically from the contract, or be unspecified but specifiable. The use of this type of contract not only depends on the will of the employer, but also –apart from fulfilling the requirements prescribed by law– there must be, and it must be proven that there are, objective reasons that justify a departure from the general principle of indefinite time of employment. Such exceptional systems are a fixed-term contract, an occasional contract, a season contract, a team contract and a part-time contract.
Also, there are certain non-labor contract systems such as traineeships and fellowships. The purpose of such contracts is training and education of the future employee. A traineeship is primarily governed by the Decree 340/92 and the Law No 25,165. Fellowships are accepted by legislation reference, but do not have a specific regulation of their own.
7.3. Contributions and Social Payments
Our labor legislation, among other things, includes the concept of social security, meaning a number of media or instruments by which the community is organized in a systematic manner, so as to provide coverage for events such as illness, unemployment, motherhood, old age and death.
The employer has the duty, under serious penalties, to make relevant withholdings on the worker’s compensation, which must be paid to the Sistema Integrado de Jubilaciones y Pensiones (Integrated Retirement and Pension System) and the Régimen Nacional de Obra Social (National Social Security System). Employee contributions to finance the Social Security system amount to about 17 % of the employee’s compensation.
Likewise, the employer has the duty to make, in due time and manner, employer payments for which it is solely responsible. In this case, the contributed percentage is about 23 % of the employee’s compensation, which is also redirected to the National Social Security Systems (Retirement, PAMI, family costs, Fondo Nacional de Empleo) and Social Health Care (medical care) entities.
The procedure to determine and make payments and contributions is regulated under various provisions and resolutions, and is carried out with a computer system in accordance with current applications).
An employer also has the duty to take Mandatory Collective Life Insurance to insure against the risk of death of its permanent employees, under the Decree No 1567/74. This insurance is independent from any other social benefit, insurance or indemnity, of any type whatsoever, prescribed by union agreement, law or contract. The cost of such insurance must be paid fully by the employer. Upon the employer failing to take this insurance, it is liable to pay the benefit, apart from any penalties as the case may be. The amount to be insured (as from April 01, 2010) is Arg$ (Twelve thousand pesos), and the annual cost per person is Arg$ 35.14 (Thirty-five Pesos and 14/100).
7.4. Trial Period
Under section 92 bis of the LCT, a contract for an indefinite period of time, other than a season contract, is deemed entered into on trial for the first 3 months of its effective time.
During this time, any of the parties may terminate the employment without cause and without right to severance pay by reason of the termination, but with the duty of giving advance notice under sections 231 and 232 of the LCT. To this end, there is a 15-day term from the day immediately following the notice date. If the advance notice is not given, an indemnity for lack of advance notice is payable for such 15 days.
The trial period counts as service time for all employment and social security purposes, and the parties are obliged to make payments and contributions to social security.
7.5. Termination of Employment
Stability in time is the right of an employee to maintain the labor relationship for all the agreed time, either definite or indefinite. Under Argentine legislation, relative job security (estabilidad impropia) refers to the condition where the employee is not guaranteed that the employment relationship will last in time, but that the employee will have an indemnity in the event of dismissal without cause. Now, if the dismissal is for cause, the employee is not entitled to any indemnity whatsoever.
The LCT provides for a rated redress, which by principle comprises all the damages resulting from a decision to terminate without cause. In order for emotional damage to be available (i.e. an indemnity above the damage rated by the legislator), courts have held by exception that the employer must have an additional and fraudulent behavior beyond the contract scope, i.e. an unlawful act in addition to the termination.
In the event of a termination without cause the employer has the following duties:
- Giving written advance notice to the employee: the notice must be given one month ahead, if the employment time of the worker is less than five years, and two months if the employment time is longer. During the trial period, notice must be given 15 days in advance. The employee must only give notice 15 days in advance, regardless of the employment time. If the notice is omitted, the employer must pay: 1. an indemnity in substitution for the advance notice, i.e. an amount equal to the compensation that would accrue to the employee during the terms described above, and 2. payment of the month of dismissal (except in the trial period), i.e. an amount equal to the salaries relating to the days missing until the last day of the month of dismissal.
- Paying severance indemnity under the LCT or the applicable Union Agreement: such indemnity is rated. Under section 245 of the LCT, indemnity in respect of seniority applies by multiplying the highest monthly, normal and habitual compensation of the employee, for his/her employment time in years (or fraction in excess of three months). Such compensation is accrued with a ceiling: the National Supreme Court of Justice, in 2004, held that the applicable ceiling is as indicated in section 245, but only up to 33 % of the monthly, normal and habitual compensation to be calculated (“Vizzoti” case).
- In addition to the duty to pay the days actually worked during the month of dismissal, holidays and the annual bonus must be paid proportionally in either case, further to any special indemnities as the case may be (e.g. indemnity aggravated by marriage, maternity, fines under the Laws Nos 24,013 or 25,323, dismissal of union representatives, dismissal during sick leave, etc).
The employer is also entitled to terminate the employment contract by reason of force majeure or lack of work beyond the employer’s control, validly justified. In this event, the employee is entitled to receive a payment equal to one half of the indemnity contemplated under section 245 of the LCT. In such cases, the dismissal must commence by the least senior personnel in each specialization. With respect to personnel who joined in the same semester, the dismissal must start by the personnel having least family payments, even if this alters the order of seniority. Such grounds for dismissal are reviewed by case precedents in a very restrictive manner.
A dismissal notice must be given in writing to be able to give a valid indication of the asserted grounds. In the event of a court action, the grounds for dismissal indicated in the relevant notice may not be changed (invariability of the cause).
With reference to special contracts, the system varies from case to case, we highlight two:
- In fixed-term contract, if the contract is one year long or more and is deemed fulfilled, the indemnity is 50 % of the indemnity prescribed under section 245 of the LCT for dismissal without cause. If the dismissal occurs prior to expiration, the employee is paid the indemnity under section 245 of the LCT, plus the indemnity for damages, which is usually equal to the months remaining to end the contract.
In an occasional contract, a resignation or expiration of the contract by reason of fulfillment of the assigned task, or by reason of completion of the project, or of the cause that gave rise to it, does not accrue any indemnity, with the obvious exception of mandatory payments (proportional payment of the annual bonus and holidays). If the employer dismisses the employee without cause, the employee accrues the same indemnities contemplated under a contract for an indefinite period of time.
7.6. Occupational Risks
The Occupational Risk Law No 24,557 (LRT), as regulated, provides the regulatory environment for an occupational accident and certain professional illnesses included in a list prepared by the National Executive.
The law provides a system of payments in kind (medical and pharmaceutical assistance; prostheses and orthopedic items; rehabilitation; professional re-qualification and funeral services) and money payments (as a lump-sum or in installments; referring to temporary or permanent disability to work; which may be temporary or final, in whole or in part; gross disability; death) for the benefit of a worker (or its successors), which contemplates any contingencies sustained by the worker, and the subsequent rehabilitation and occupational re-insertion thereof.
The duty to make payments in money or in kind under the LRT relates to certain private-law for-profit institutions referred to as Occupational Risk Insurers (ARTs). It is the duty of an employer to insure its permanent employees in an ART, by the payment of a monthly installment.
Several notions of the system are being subject to judicial review, such as the type of redress, the scope of liability of an employee, or ascertaining the occupational nature of certain illnesses.
7.7. Foreign Employee Regulations
Under Argentine immigration law, a foreign person may work in Argentina and is protected by law to do, only during the time of permitted residence, any compensated or lucrative business, on his/her own behalf or under permanent employment.
This is prescribed under the Law No 25,871 on Migrations, Title II, where it refers to admissibility of foreigners in Argentina, and determines the conditions and classes in which they may be accepted to engage in different activities.
7.7.1. Applicable Labor Law
The general principle in the subject is contemplated in section 3 of the Law No 20,744, which determines its scope and the performance of the employment contract within Argentina, whether the contract is entered into inside or outside Argentina.
Accordingly, the validity, rights and duties of the parties, etc of an employment contract performed in Argentina is governed by Argentine labor legislation.
In general, our country does not determine quotas or restrictions for the employment of foreigners, provided that the relevant parties comply with immigration regulations, i.e. a valid residence permit, issued by the National Directorate for Migrations. The Regulation for Professional Journalists and the Regulation for Administrative Employees of Journalist Businesses are exceptions, insofar as they provide for maximum quotas of foreign workers.
7.7.2. Immigration Law Requirements
Under the Law No 25,871, a foreigner wishing to work in Argentina must obtain a Visa enabling or authorizing the relevant party to work for compensation in Argentina.
The Visa is issued by the Argentine Consulate at the place of origin or nationality of the foreigner or expatriate, and consists in a permit to enter a foreign country. The Visa obtained by a person applying to the Argentine Consulate of the habitual place of residence is personal and individual, and may not be requested or managed by any other individual or entity.
Once in the country, the expatriate must appear with his/her visa to the National Migration Directorate, and apply for a residence permit subject to the Law No 25,871, and attaching the required documentation.
7.7.3. Admission and Residence of Foreigners. Work Permit Granting
Acceptance for entrance and residence of a foreigner may be permanent, temporary, transitory or precarious.
A permanent residence may carry on any compensated or lucrative work or business, either self-employed or under employment, with the protection of labor laws (section 51) throughout Argentina, unless the residence has been restricted to a certain location.
Whoever is accepted as a temporary resident may be employed during the effective time of the permit granted by the immigration authority, within the Ministry for the Interior.
A temporary resident may not work or carry on any compensated or lucrative tasks, either self-employed or under employment, except those included in the subclass “Seasonal Migrating Workers”, or if they are specifically authorized by the National Directorate for Migrations. Under the same Law (section 23), a Migrating Worker is whoever enters the country to engage in any lawful and compensated business, with permission to remain in the country for a term no to exceed three (3) years, which may be extended, with multiple entrances and exits, with permission to work under employment.
A person with a precarious residence, by exception, may be authorized to do work within the term, locations and in the manners determined by the immigration authority (section 52).
The Law No 24,493 specifically prohibits “to provide work or any compensated activity” and “housing” to any foreigners residing illegally in Argentina, subject to a fine. The law also provides that the ability to obtain employment in Argentina, in any activity, is reserved o “Argentine labor” consisting of “native or nationalized Argentine citizens and foreigners permitted under immigration legislation to carry on compensated tasks. |
