Changes To The Contract
Under Argentine labour law, the principle of ius variandi entitles the employer to make any necessary and reasonable change to the employment agreement. Such changes cannot be arbitrary, modify essential provisions of the employment agreement, or cause any damage to the employee. “Ius variandi” principle is provided by section 66 Law N° 20.744 and says: is provided by article 66 LCT and states:
“Art. 66. — The employer is authorized to introduce all those changes related to the form and modalities in which the work is provided, as long as these changes do not involve an unreasonable exercise of that power, nor do they alter essential modalities of the contract, nor do they cause material or moral damage to the worker.
When the employer provides for measures prohibited by this article, the worker will have the possibility of choosing to consider himself dismissed without cause or to take action seeking the reestablishment of the altered conditions. In the latter case, the action will be substantiated by the summary procedure, and it will not be possible to innovate in the working conditions and modalities, unless these are general for the establishment or section, until a final ruling is issued.”
Change In Ownership Of The Business
Where there is a change in the ownership of the business, the employees are automatically transferred to the new employer under the same terms and conditions as their previous employer.
Social Security Contributions
Employers and employees are required to make social security contributions. Employers are also required to contribute towards allowances payable to employees during their employment. These allowances include sick pay, maternity pay and paternity pay.
Accidents At Work
Argentine law provides for a special law called Labour Risk Law (Ley de Riesgos del Trabajo). This law provides for work-related accidents and illnesses. It is a specific law to regulate the periods in which employees do not work in cases of illness.
Discipline And Grievance
The employer may enforce disciplinary measures on the employee. In the event that the conduct of the employee being subjected to disciplinary measures has resulted in harm that calls for the termination of the labour relationship, the employer may dismiss the employee without compensation. Companies can use their own discipline and grievance procedures, but these procedures have to be applied in accordance with labour law. The procedures have to be drawn to the employee’s attention and easily available for them to be enforceable. Discipline and grievance measures have to be subject to a reasonable, progressive and proportional criteria.
Harassment/Discrimination/Equal pay
Labour Contract Law forbids any type of discrimination of employees due to sex, race, religion, nationality, political reasons, trade unions or age. The law does not provide for equal pay. There are no specific regulations in labour law which addresses harassment. However, the judges determine whether discrimination or harassment has taken place and they will apply the relevant penalties.
Compulsory Training Obligations
Compulsory training is not specifically required although training should be provided and is implied by virtue of the general obligations that exist between the parties (principles of good faith, diligence and collaboration, proper conduct of the worker etc.).
Offsetting Earnings
Employers are allowed to offset employees’ earnings but subject to a maximum of 20% of the total remuneration. In cases of alimentary debts there is no top rate.
Payments For Maternity And Disability Leave
There are not additional payments for maternity and disability leave rather than the monthly remuneration for the time the leave occurs. In the case of maternity leave such payments are made through social security system (Anses National Security System Agency) and in the case of disability leave the coverage is through the work risk insurance company.
Compulsory Insurance
It is mandatory to enter into a contract of Work Risk Insurance and hire the services of a Labour Risk Assessment Bureau or Work Risk Insurance Company (Aseguradora de Riesgos del Trabajo) to cover accidents, disabilities and illnesses at work.
Absence For Military Or Public Service Duties
Compulsory military service has been abolished in Argentina since 1994. Employees are entitled to time off work for public services or trade unions services.
Works Councils or Trade Unions
It is mandatory to recognize Trade Unions. An employee who is a member of a Trade Union has certain rights in relation to his or her employment. For example, dismissal for membership of, or for taking part in the activities of, an independent Trade Union is automatically unfair for the purposes of unfair dismissal and higher awards of compensation may, in some circumstances, be made. Action short of dismissal against an employee or subjecting an employee to a detriment for membership of, or for taking part in the activities of, an independent Trade Union gives the employee the right to complain to a tribunal which may award him or her compensation. A Trade Union member has the right to paid time off work to take part in Trade Union activities.
Unions must have legal capacity to represent employers. This legal capacity is given by the Labour Ministry.
Employees’ Right To Strike
The right to strike is provided for by the Argentinean Constitution (section 14 bis). A strike must be declared by a trade union. The right to strike is subject to limits where public services are concerned.
Employees On Strike
Employers can still dismiss employees on strike if the strike was not properly authorized. Even if the strike was validly authorized, after a certain period the employer can dismiss employees. Other courses of action may also be open to the employer depending on the circumstances (e.g. withholding pay, seeking an injunction, claiming damages for financial loss).
Employers’ Responsibility For Actions Of Their Employees
Employers are responsible for the acts of their employees, except where the employee was acting wholly outside the course of his or her employment.