Contributed by Arturo Bronstein
The National Constitution was adopted in 1853, and has been amended several times since then. The last revision dates back to 1994. Under its Constitution, Argentina is organized as a Federal State, with distinct powers being accorded to the Federal State and the provinces.
The National Executive is headed by a President elected by universal suffrage under a system of double tour election (ballotage). His/her term of appointment is four years, and he/she may hold only two consecutive mandates.
The Legislative Congress is composed of two chambers, namely the Chamber of Deputies and the Senate. The Members of the Chamber of Deputies (currently 257 deputies) represent the people of the provinces and the City of Buenos Aires. Each province (there are 23 provinces) and the City of Buenos Aires are separate districts, and elect their deputies to the National Legislative from lists established by the political parties, under a proportional system. Deputies hold office for a term of four years and may be re-elected, and the Chamber is renewed by half every two years.
Further to the 1994 amendment of the Constitution, the Senate (72 seats) is made up of three senators for each province, and three for the City of Buenos Aires, jointly and directly elected, corresponding to two seats for the political party obtaining the majority of votes, and the other seat to the political party coming in second. Senators hold office for a term of six years and may be re-elected; but the Senate is renewed by one-third of the constituencies every two years.
The adoption of a law requires the approval by both chambers of the Legislature, and promulgation by the President, who may reject it partially or totally. The Presidential veto can, however, be overturned by a qualified majority of two thirds of the votes in each Chamber.
The Judicial Power is vested in a Supreme Court (nine Judges appointed by the President with the approval of the Senate) and in lower courts. Depending on the substance of the dispute at stake, or the nature of the parties to a judicial procedure, legal cases may be heard either by federal or by provincial jurisdictions.
The federal capital is the City of Buenos Aires, and since the Constitutional Amendment of 1994 it elects its own local government, headed by a Major (Intendente).
The Congress is empowered to approve or reject treaties concluded with other nations and international organizations, and concordats with the Holy See. Once ratified, treaties and concordats have supremacy over laws.
The following international covenants have also constitutional hierarchy: The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Women; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child They can only be denounced by the National Executive Power after the approval of two-thirds of all the members of each House.
Labour rights in the Constitution
Section 14 bis of the Constitution establishes a number of workers' rights, including dignified and equitable working conditions; limited working hours; paid rest and vacations; fair remuneration; minimum vital and adjustable wage; equal pay for equal work; participation in the profits of enterprises, with control of production and collaboration in the management; protection against arbitrary dismissal; stability of the civil servant; free and democratic labour union organization. It also guarantees trade union rights to enter into collective bargaining, to resort to conciliation and arbitration, the right to strike, and the protection of union representatives. This list of workers' rights calls for further development by law, as the wording of the constitutional provision does not allow for direct implementation. Some of the above rights have been actually implemented by laws or regulations, while others (e.g. profit sharing and co-determination) have not.
Web link to the Constitution: in English: http://www.senado.gov.ar/web/constitucion/english.html; in Spanish: http://www.senado.gov.ar/.
Though Argentina is a Federal State, under the country's Constitution the National Legislative (i.e. the House of Deputies and the Senate) is competent to adopt labour legislation with national coverage.
The first labour legislation in Argentina was first adopted in the early decades of the XX th century. Like many other Latin American countries, the first areas to be regulated, even before 1910, were weekly rest, and work by women and minors. In 1915 a Law was adopted, on industrial accidents and occupational diseases. Further legislation addressed issues such as hours of work (1929), and termination of employment (1934). Paid leave and trade union organization were regulated in the forties, by the then Secretary of Labour, Colonel Perón, and collective bargaining was regulated in the fifties.
Law on Contract of Employment
As the labour legislation became more sophisticated, and as it was being further enriched by collective agreements and judicial decisions, it became indispensable to have a consolidated text. This was done in 1974, and took the form of a Law on Contract of Employment (Ley de Contrato de Trabajo, LCT), which underwent a major revision in 1976.
The LCT was further amended on several occasions. The most far-reaching amendments where those of 1991, which gave a legal framework to many atypical contracts of employment, 1995, 1998 and 2000.
The LCT is a very detailed regulation (around 300 sections); it deals with the following subjects: contract of employment, rights and obligations of employers and employees, special contracts of employment (such as part-time, fixed-term contracts, seasonal employment), remuneration and protection of wages, hours of work, public holidays and paid leave, maternity protection, minimum age and protection of young workers, suspension and termination of the contract of employment, transfer of enterprises.
Special laws have been enacted, to regulate employment relations in a number of occupations, such as construction workers, salespersons, janitors, journalists, home workers and domestic helpers.
Laws on Collective Labour Relations
Separate regulations address respectively trade unions, collective bargaining, settlement of collective labour disputes and strikes.
Whereas trade unions were formed in Argentina as early as the XIX th Century, no specific regulation was adopted in this field until 1945, when Decree no. 23852 was issued. This Decree organized trade unions under an industry-wide and single-union structure. At the same time, the Secretary (later upgraded to Minister) of Labour was given far-reaching powers in union recognition procedures. At the union higher level structure, only one Workers' Confederation was recognized, namely the General Confederation of Workers, CGT. Decree 23852 was amended several times. Yet the industry-based and single-union structure remains the prevailing pattern in the country. The Ministry of Labour is still a key stakeholder in union recognition procedures. Present regulation is laid down in Law no.23551, of 1988.
Collective bargaining was initially regulated by law 14250 in 1954, which underwent further reforms. A consolidated text was adopted in 1988; a further amendment was enacted in 2000.
Collective Labour Disputes are regulated by various texts, the most noteworthy of which is Law 14786, on conciliation and arbitration in industrial disputes, adopted in 1958 (Ley 14786 de conciliacion obligatoria.doc.)
The right to strike is guaranteed under the constitution, and it is normally granted in all activities, it being understood that a minimum service must be guaranteed where a strike affects an essential service. In 2000 a law was repealed, which permitted the public authority to submit a labour conflict to compulsory arbitration (as a matter of fact this law had very rarely been invoked).
Other sources of labour regulation
Under the Constitution, the Government is empowered to issue instructions and rules necessary for the enforcement of the laws of the nation, without altering their spirit with regulatory exceptions. Only in exceptional circumstances can the President issue decrees on grounds of necessity and urgency, provided such is decided by a general agreement of ministers who shall countersign them together with the Chief of the Ministerial Cabinet.
It should, however, be observed that as the constitutional order in Argentina was interrupted not less than six times between 1930 and 1983, it became customary that in the absence of the Legislative, the President assumed law-making powers, and regulated substantial issues by Decree-Laws. According to judicial interpretation, Decree-Laws have the same force as laws, and do not need to be confirmed by the Legislative once the constitutional order is re-established. As a matter of fact, some of the most outstanding labour legislation in the country was first introduced by Decree-Laws between 1943 and 1945 by the then Secretary of Labour, Colonel Peron.
Collective agreements may also play an important role in labour regulation, particularly because they are legally binding, and usually cover very a wide range of industries or branches of industries. As a matter of fact, most workers are covered by a collective agreement. However, their actual impact varies widely from one industry to another, and in most cases apart from fixing wages they are not a meaningful source of labour regulation.
Case law plays a certain role, however limited, in actual labour regulation, to the extent that leading judicial decisions may clarify the actual bearing of labour law provisions. According to the country's legal system, legal interpretation as laid down through decisions by superior tribunals is mandatory on lower tribunals with respect to similar cases. Furthermore it should be noted that the Supreme Court is empowered to dismiss the application of any legal rule which it considers not compatible with the Constitution 1. Whereas the decision it may take in such a case would not legally repeal such a rule it would, however, be binding on any other individual case where the application of the same rule would be at stake. This means that the State would actually be obliged to amend the said rule, so that it becomes consistent with the Constitution. While labour litigation normally does not reach the Supreme Court, in some cases it has, and some rulings by this Court contribute to Argentinean Labour Law 2.
Major sources of the Labour Law
The web site of the Ministry of Labour publishes the most relevant labour laws: http://www.trabajo.gov.ar/documentacion/legislacion/index.html
As a general rule the contract of employment is understood to be concluded for an unlimited period of time. Fixed-term contracts of employment are, however, permitted, provided they are in writing, and they cannot be concluded for more than five years. It is also possible to conclude a contract for casual work to meet exceptional and temporary requirements, whose duration cannot be foreseen at the time of concluding the contract. Also, it is permitted to conclude contracts of employment under modalities such as part-time work and apprenticeship.
The first three months of a contract of employment are considered a probation period, during which the contract may be terminated at any time by either party, provided the contract has been duly registered with the competent authority in charge of labour. Collective agreements may, however, extend probation up to six months. In small enterprises (i.e. enterprises that employ 40 workers or less, and whose billing does not exceed a prescribed ceiling) the probation period is six months, and it can be further extended by collective agreement up to twelve months in respect of skilled workers.
Suspension of the contract of employment
The contract of employment can be suspended on various grounds, such as the employee's sickness, or maternity, holding of public office or of trade union office, and military service. Other grounds for suspension are lack of work because of a downturn in demand, and disciplinary reasons, in which cases the suspension cannot be for more than thirty days within a twelve month period.
Termination of the contract of employment
A contract of employment may be terminated, other than on the initiative of the employer, in the following circumstances:
- unilaterally by the worker;
- by mutual agreement of the parties;
- on the death of the worker, or that of the employer when it results in the employer's activities coming to an end;
- on expiry of the agreed term, on account of bankruptcy or liquidation of the employer, and
- on the worker's retirement.
Also, the employer may unilaterally terminate the contract of employment with a valid reason for such termination, connected with the conduct of the worker, or on economic grounds owing to lack or shortage of work, or force majeure. In fact, he/she may terminate the contract of employment on any grounds, or with no grounds whatsoever provided he/she gives notice and makes a severance payment.
Below is a summary of the rules that apply in the case of termination of employment on the initiative of the employer:
- termination based on the worker's conduct: the employer may terminate the contract of employment by summary dismissal if the worker fails to discharge his or her obligations under the contract to an extent that is prejudicial to it, and if the seriousness of this failure means that the relationship cannot continue. In this case no notice is required, and no severance pay is due.
- termination based on economic grounds: when the contract of employment is terminated because of lack or shortage of work, the employer must give advance notice of the termination, and make a severance payment, the amount of which is roughly equal to half a month's salary for each year of service.
- termination without just cause or without any cause at all: in such cases, the employer must give notice, or payment in lieu thereof, and make a severance payment, the amount of which is roughly one month's salary for each year of service.
When the contract terminates on the initiative of the employee, the notice period is 15 days.
When the contract terminates on the initiative of the employer, notice depends on the employee's length of service, in accordance with the following scale: 15 days when the employee has less than three months of service, one month when the worker's length of service is between three months and five years, and two months, when the length of service is more than five years, except in small enterprises, where the notice period is never more than one month.
Notice must be given in writing with a sufficiently clear indication of the grounds for the termination of the contract. If the grounds are challenged by the worker, the burden of proving the existence of a valid reason for the termination rests on the employer.
A worker may terminate the employment relationship by constructive dismissal, if the employer fails to discharge his or her obligations under the contract. In this case the worker is entitled to payment in lieu of notice, and to an indemnity equal to that which is payable by the employer in the case of dismissal without cause.
Under Law 25323 (Official Bulletin of 11 October 2000) the amount of severance pay and compensation in lieu of notice is paid at twice the base rate (i.e. a 50 per cent increase) if the employer failed to register the employment relationship. This measure was adopted to fight against undeclared employment, which in 1999-2000 affected more than one third of all wage earners.
Hours of work
The legal working time is eight hours per day and forty-eight hours per week. However, the regular working week does not exceed 44 hours for daily work, 42 hours for night work, and 36 hours where work is performed in hazardous or unhealthy environments. This is because work is normally not permitted on Saturday afternoon and Sunday. Nonetheless, the competent authority may authorize exceptions to this rule, and in practice it does.
Paid leave is granted to workers who have completed at least six months of service with the same employer over a period of twelve calendar months. Its length depends on the worker's seniority: it is 14 calendar days, when the worker has less than 5 years of service, 21 calendar days from 5 to 10 years of service, 28 calendar days from 10 to 20 years of service and, 35 calendar days when the workers' length of service is 20 years or more.
Maternity leave and maternity protection
It is forbidden to employ women workers between a period of 45 days before and 45 days after childbirth. Upon the worker's request, pre-birth leave may be reduced to thirty days, in which case post-birth leave would be extended to 60 days. During maternity leave the female worker is entitled to cash benefits paid out of Social Security funds.
Furthermore, it is unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on maternity leave, except on grounds unrelated to the pregnancy or birth. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth rest on the employer. Consequently, any dismissal that operates within a period of 7 ½ months before and 7 ½ months after childbirth is presumed to be due to pregnancy or maternity, provided the worker has submitted in due time a certificate proving she is pregnant. If the employer fails to prove that the reason for dismissal is unconnected to pregnancy or maternity he/she would be obliged to pay an indemnity worth one year's salary, in addition to severance pay and notice that are due for regular termination of the contract of employment at the employer's initiative.
A woman worker is entitled to two daily breaks, of thirty minutes each, to breastfeed her child. This entitlement lasts for one year after childbirth, but it may be extended upon submission of a medical certificate.
Other leave entitlements
A worker has the right to sick leave with full pay for a period of up to three months per year, if his/her length of service is 5 years or less, and for a period of up to six months if his/her length of service is of more than 5 years. If the worker has family charges, these entitlements are extended respectively to 6 and 12 months. The worker is also entitled to sick leave without pay for a further period of 12 months, during which the employer is obliged to maintain the employment relationship.
The above entitlements are granted for each illness that prevents the worker from reporting to work.
Special leave with pay may be granted in certain circumstances, such as the birth of a child (2 days), marriage (10 days), death of a relative (3 days), and to attend an examination in secondary or university education (2 days for each examination, with a ceiling of 10 days per year).
Minimum age and protection of young workers
It is forbidden to employ minors of 14 years old in any kind of activity. The public authority may, however, authorize these minors to work in enterprises in which only members of the same family are employed, provided the enterprise is not engaged in arduous, unhealthy or hazardous activity. It is neither permitted to employ minors aged more than 14 years old who have not completed compulsory schooling, except when the public authority has expressly authorized the minor to perform work, provided his/her work is indispensable for his/her maintenance or that of his/her family, and he/she has completed a minimum of scholarity.
The working week for young workers between 14 and 18 years of age should be not more 6 hours per day and 36 hours per week. Young workers over 16 years of age, may, however, be authorized to work the normal working hours (i.e. 8 per day and 48 per week).
Young workers may not perform night work (i.e. work performed between 20 hours and 6 hours the following day).
Any worker aged more than 18 years of age has the right to earn a remuneration not less than the minimum wage that has been fixed by the competent authority. However, the minimum wage of most workers is determined in fact by collective agreements, which are negotiated at the industry or the branch level, and are legally binding on all workers and employers in the respective industries or branches. This minimum may be increased by company level agreements or the individual contract of employment.
In addition to regular pay, any worker is entitled to a bonus worth a month of remuneration, and called aguinaldo. It is calculated on the basis of the average annual pay, and is made in two equal payments, respectively in June and December.
Very detailed regulations protect wages, so that employers are prevented from limiting in any manner the freedom of the worker to dispose of his/her wages. In the case of insolvency of the employer, the workers' claims are protected by a privilege so that they enjoy priority with regard to other creditors, including the State and the Social Security, but not secured creditors in respect to assets which are attached by a mortgage or a mechanic lien. Although a law of 1986 provided for the establishment of a wage guarantee scheme, it was never implemented.
Trade union regulation
Trade unions are regulated by law 23351, adopted in 1988. Under this law all workers have the right to establish and to join trade union associations of their choice, without prior authorization. This include the right not to join a union, and to withdraw from a union.
Workers are free to set up industry or branch level unions, craft unions or company level unions. Two or more unions may establish a federation, and two or more federations may establish a confederation.
Trade union leaders must be appointed by direct and secret ballot of the rank and file. They may hold office for no more than four years, but they can be re-elected.
Collection of union dues by check off is mandatory under the trade union law. This includes ordinary and extraordinary union dues that are due by all union members, as well as special contributions that may be due by all workers, including non union members, when a new collective agreement enters into force, and an agency shop clause has been agreed upon.
Trade union personality
Any trade union is granted the right to represent their individual members. However, for a union to be granted collective representation rights it is indispensable that it be certified as a trade union with union personality (personería gremial), upon fulfilment of the following requirements: (a) the union is officially registered and has been acting for at least six months; (b) its membership covers not less than 20 per cent of the workers it intends to represent; (c) it is the most representative trade union in the respective industry or branch, within a given territorial scope (frequently a city or a province, but may also be the national territory).
Apart from very few exceptions, only one union in each branch or industry, and within a given geographical area, is granted trade union personality. This means that in practice the country has a single-union structure, since a union that is merely registered does not enjoy collective representation rights. Moreover, enterprise level unions cannot be granted trade union personality where a branch level or an industry level union with trade union personality covers the respective geographical area for the industry or category corresponding to that enterprise. In fact, enterprise level unions are all but inexistent.
The Ministry in charge of labour is the competent authority to register unions and to grant trade union personality. It also determines which union represents such or such group of workers in case two or more unions compete for the representation of the same workers. Its decisions may be challenged before the National Labour Court of Appeal.
Unfair Labour practices
The Trade Union Law specifies a number of unfair labour practices. These include employers' interference in trade union activities, employers' economic support of a workers' union, anti-union discrimination, dismissal or other prejudicial measures against workers who engage in trade union activities; refusal to engage in collective bargaining, or obstruction of the collective bargaining process, or the refusal to provide a staff list for the purpose of holding internal elections of staff delegates.
Collective Bargaining and Agreements
Collective Bargaining is regulated by Law 14250, of 1954, which underwent a far-reaching reform in 2000. Collective bargaining may be held at different levels, namely national, the provincial, local, industry-wide, branch-wide and company level. It is also possible to conclude a collective agreement targeted at particular categories of workers within a given bargaining unit. Yet, most workers are covered by national and industry-wide collective agreements, many of which date back to 1975 (only the pay scales have been updated since then). This is why, under the recent reform (Law 25250, of 2000 Nueva Ley de Empleo Estable.doc) the Ministry in charge of Labour is to establish a calendar to renegotiate these agreements, within a timeframe of two years. A slightly different provision applies to more recent collective agreements. In any case it is now foreseen that collective agreements whose duration has expired may be denounced by either party, and would eventually cease to be binding after a transitional period has elapsed.
The parties to collective bargaining are on the one hand an employer, a group of employers, or an employers' association, and on the other hand a trade union enjoying trade union personality. In practice, most national wide agreements are signed between a workers' federation or a national trade union, on the one side, and an Employers' Chamber with national coverage on the other side.
Company level agreements are signed by the individual enterprise, on the one hand, and a local level union, on the other hand, to the extent it enjoys trade union personality (not an enterprise level union, which normally does not enjoy trade union personality). Under the newly approved law 25250 workers' delegates will be admitted at the bargaining table, which was not guaranteed under the previous law.
Law 25250 also provides for rules to harmonize lower and upper levels of negotiation. In general the lower level agreement would prevail over the upper level agreement, but the parties are left free to negotiate a different arrangement.
For a collective agreement to be binding, it must be approved by the ministry in charge of labour (this is called homologación). Once approved, it is legally binding on all employers and workers included in the industry or the branch, within its territorial scope.
Collective agreements normally regulate wages and other conditions of work. They also include provisions concerning interpretation and application, which is usually left to the competence of a tripartite commission.
Workers' representation in the enterprise
Workers' representation at the enterprise level is held by workers' delegates, or by internal committees. Workers' delegates and members of internal committees are elected by all the workers in the enterprise, but they must be union members, and should have been working in the enterprise for at least one year before the election is held. They hold office for two years, and can be re-elected. They are granted a credit of paid hours of delegation, in keeping with the relevant collective agreement, and are protected against dismissal except the case of serious misconduct. Such protection starts as from the moment they put forward their candidature and lasts until twelve months after their mandate has come to an end. During such period they can neither be suspended from employment, transferred to another job or position, or otherwise prejudiced in their conditions of work.
Workers' delegates and internal committees may submit grievances to the employer, and they may accompany labour inspectors when the latter undertake inspections in the enterprise. Pursuant to Law 25250, of 2000, they also have the right to participate at the bargaining table when collective bargaining is undertaken at the enterprise level.
For a strike to be legal it is indispensable that a cooling off period of not more than 15 days be observed, during which a conciliation must be tried before the public authority. The conciliator may extend such period for five additional days, after which, if no agreement is reached the parties are left free to engage into industrial action.
When a strike is called, the parties are obliged to maintain a minimum service, so that essential services are not interrupted. The competent authority is empowered to determine the extent of such minimum service in case the parties fail to reach agreement on this question.
There is no legal definition of what is meant as essential service or minimum service.
Law 25250 has repealed previous legislation (however, rarely used), which permitted the public authority to submit a collective labour dispute to compulsory arbitration. This Law has also created a Federal Service of Mediation and Arbitration, as an independent and technical body which would mediate in collective labour dispute. This part of that law as yet has not been implemented.
Settlement of individual labour disputes
Individual labour disputes are settled by tribunals established under the jurisdiction of the provinces. However, in the city of Buenos Aires labour disputes are dealt with by national judges, since as yet there has been no transfer of judicial competences from the Nation to the City. This is why labour judges in the city of Buenos Aires are still called National Judges, although they hear cases that in principle should fall within a territorial (provincial) jurisdiction.
Most of the provinces, and the State, have established a specialized jurisdiction to deal with individual labour disputes. In all cases it is made up of magistrates. Tripartite tribunals to deal with labour disputes are unknown in Argentinean practice.
Decisions by first degree judges can be appealed before a Chamber of Appeal. In the City of Buenos Aires there is a National Labour Chamber of Appeal, which in addition to hearing individual cases in appeal, is empowered to resolve recourses against decisions of the public authority on union recognition and union representation issues. It is also competent to hear complaints concerning unfair labour practices.
The Supreme Court is not normally a jurisdiction in labour disputes. It can however hear complaints, when a law or a decree is challenged on the ground it is not compatible with the Federal Constitution.
The rules of procedure vary depending upon each jurisdiction. For example, the procedure before the national jurisdiction, in the city of Buenos Aires, is mainly in writing, while it is oral before some provincial jurisdictions.
A conciliatory phase is mandatory within the jurisdiction of the City of Buenos Aires, before a complaint can be submitted to a labour tribunal.
Ministry of Labour, Employment and Human Resources Training:
- Ministry of Labour, Employment and Human Resources Training
- ILO Conventions ratified by Argentina
- Comments of the ILO Supervisory Bodies on Argentina
- NATLEXILO Database of National Legislation
1 Judges of inferior tribunales may also hold that such or such rule is not compatible with the Constitution. Yet, their decisions may be appealed before superior tribunals, so that eventually it would be up to the Supreme Court to take the final decision on the constitutional validity of any rule.
2 This was, for example, the case of a ruling made by the Supreme Court on the direct application of ILO Standards in national law.