Zang, Bergel & Viñes

1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

There are specialised courts that have jurisdiction on claims between employers and employees (“Fuero Laboral”). Different rules apply depending on the place (territorial jurisdiction) where the claim is filed.


The Main Sources Of Employment Law

The main sources of employment law are “Ley de Contrato de Trabajo” or Labour Contract Law N° 20.744, other laws and decrees, labour ministry resolutions, collective bargaining agreements, individual contracts, company rules and regulations and, court decisions. There are further sources of employment law, such as the Constitution, International Treaties (International Labour Organization) and custom and practice.


National Law And Employees Working For Foreign Companies

Our “Ley de Contrato de Trabajo” states that Argentine law is applicable when services are rendered within Argentina. Therefore, national laws are applicable to all employees working for foreign companies within Argentina.


National Law And Employees Of National Companies Working In Another Jurisdiction

As a general principle, employees of national companies working in another jurisdiction are subject to the labour laws applicable to that jurisdiction. Notwithstanding the foregoing, an employer and employee may agree in writing that their labour relationship will be subject to Argentine labour law.


Data privacy

Data privacy is regulated in Argentina by Law N° 25.326 (“Ley de Protección de Datos Personales”). As regards personal data collected and processed by employers (including personal data of their employees), Law N° 25.326 dictates that such personal data records should be duly registered before the “Agencia de Acceso a la Información Pública”, the local authority in charge of enforcing Law N° 25.326.

2

HIRING THE EMPLOYEE

Legal Requirements As To The Form Of Agreement

There are no formal requirements regarding the employment agreement.


Mandatory Requirements
  • Trial Period

    • The labour law establishes a mandatory trial period of three months. Such a trial period may be waived by the employer.

  • Hours Of Work

    • There is a maximum of 8 hours a day or 48 hours a week. There are two exceptions:

    Where an employee is engaged in unhealthy work (as defined by the Labour Ministry) the employee cannot work longer than 6 hours per day. Unhealthy work is similar to unsafe work.

    Employees who work night shifts between 9pm and 6am cannot work longer than 7 hours.

  • Special Rules For Part-time Work

    • Part Time Work is regulated in Section 93 of the Labour Contract Law for cases in which employees work less than two-thirds of a complete 8 hour workday.

  • Earnings

    • There is a statutory minimum vital and adjustable wage which is set by Government annually. In addition, there are minimum wages set by collective bargaining agreements. The current minimum wage is ARS 20.587 as of December 1st. 2020.

  • Holidays/Rest Periods

    • Employees are entitled to a minimum of 14 days holiday a year. This entitlement increases with each year of service the employee completes. Employees are entitled to a maximum of 35 days holiday per year. Other holidays are included. Employees are also entitled to various mandatory daily and weekly rest periods.

  • Minimum/Maximum Age

    • The minimum age for a person to be employed is 18 years, although 16-year olds can enter into labour contracts with their parents’ consent as long as they live on their own. There is no maximum age limit.

  • Illness/Disability

    • Argentinean legislation establishes a medical examination, which is mandatory for the employer before the employee starts working. Employees are protected by labour law and the period of the illness will be paid for a specific period.

  • Location Of Work/Mobility

    • There is no requirement for an employer to specifically set out an employee’s location of work/mobility.

  • Pension Plans

    • Contribution by the employers and employees to a public pension plan is mandatory.

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • There are different rules regarding each case. In the case of maternity leave, women cannot work during the month before birth. Fathers are entitled to two days paternity leave after the birth/adoption.

  • Compulsory Terms

    • The employer must record the labour relationship in a special book and in the “Sistema Único de Registro Laboral” or Unique System of Labour Registration as set out by the National Employment Law. Also, the employer has to establish the level of pay, the hours of work, holiday entitlement, provisions relating to sickness or injury, provisions relating to pension and pension schemes, place of work, length of notice or anticipated fixed term, any collective agreements which apply and certain information regarding grievance and disciplinary procedures. In general terms labour laws are considered under the criteria of “Labour Public Order” which grants a tuitive approach (in dubio pro operario) in favour of the employee.

  • Non-Compulsory Terms

    • The parties are free to agree other non-compulsory provisions as long the agreed non-compulsory term do not contravene the law or collective bargaining agreements.


Types Of Agreement

All employment relationships are eventually contractual in nature, whether or not the terms have ever been put in writing. Contracts of employment (whether express or implied) exist in several different forms: fixed term, full-time, part-time or seasonal. The compulsory terms apply regardless of the type of contract contemplated.

There are discrimination laws which prevent employees from being treated less favourably than other employees because of working part-time or working on a fixed term contract.


Secrecy/Confidentiality

Labour Contract Law establishes that employees are subject to a duty of fidelity/confidentiality. Written confidentiality and non-compete agreements are used in particular cases regarding the activities or employee degree.


Ownership of Inventions/Other Intellectual Property (IP) Rights

The employee’s personal inventions are his or her own property, unless the employee is hired for investigation or research or the discovery is the result of industrial procedures, in which case inventions are the employer’s property.


Pre-Employment Considerations

A preoccupation health exam is mandatory to enter into an employment relationship as set forth in Resolution 37/2010 issued by the Labour Risk Superintendence.


Hiring Non-Nationals

There is a procedure to hire non- nationals. The company interested in hiring non-nationals should present immigration information to the relevant public agency in order to get an authorization to hire this kind of employee(s). The local company must file and obtain the authorization from de National Migratory Agency to act as “Foreign Personnel Petitioner”. Mercosur members are exempt from immigration authorization.

 

Hiring Specified Categories Of Individuals

Law for the Integral Protection of the Disabled states that it is the obligation of the State, public entities and public utility corporations to hire disabled people, who shall represent no less than 4% of the total staff. Private Companies which hire people with disabilities will have certain tax and provisional benefits.


Outsourcing And/Or Sub-Contracting/Temporary Agency Work

In certain cases, the law extends responsibility to the sub-contractor so that joint and several liability is established between the employer and the sub-contractor. Under certain circumstances labour contract law allows to hire temporary employees through authorized and registered temporary work agencies (Section 29 bis of Law N° 20.744) Such circumstances are met when the employee is hired to accomplish specific goals or due to extraordinary and transitory requirements of the company and the term to terminate the contract cannot be predicted.

3

MAINTAINING THE EMPLOYEE RELATIONSHIP

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.


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 “Ley de Riesgos del Trabajo” or Labour Risk Law. 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.


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

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.


Compulsory Insurance

It is mandatory to enter into a contract of Life Insurance and hire the services of an “Aseguradora de Riesgos del Trabajo” or Labour Risk Assessment Bureau to cover accidents 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 obligatory to recognise 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 authorised. Even if the strike was validly authorised, 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.

4

FIRING THE EMPLOYEE

Procedures For Terminating the Agreement

Labour Contract Law lists the different grounds on which an employment contract can be terminated e.g., fair dismissal, employee’s resignation, employer’s bankruptcy, etc. The law provides various rules which are applicable in each case.


Instant Dismissal

In the event that the employee is responsible for gross misconduct, the employer is entitled to dismiss him instantly without any severance pay.


Employee's Resignation

The employee’s resignation is only effective if notice of the employee’s intention to resign is communicated to the employer by means of a registered telegram or the employee notifies an administrative authority.


Termination On Notice

The employee may terminate an agreement by giving the employer 15 days advance notice. In order for the employer to terminate the contract by notice, the employer has to give the employee one month or two months advance notice, depending on the employee’s seniority and date the employee started at the company. The party that fails to provide the due notice within the required minimum period must compensate the other party.


Termination By Reason Of The Employee's Age

Argentinean legislation sets an age for retirement. That is 70 years old.


Automatic Termination In Cases Of Force Majeure

There is a crisis procedure that must be followed before suspending or dismissing employees due to force majeure.


Collective Dismissals

Dismissals, reductions of working hours or suspensions both for reasons of force majeure and for economic reasons; or lack or reduction of work in accordance with the provisions of Section 247 of the Employment Contract Law that affect more than 15% of the total payroll in companies with less than 400 employees, the 10% of the total payroll in companies with more than 400 and less than 1000 employees and 5% in companies with more than 1000 employees must be carried out through a special Crisis Preventive Procedure in accordance to Section 98 of Act No. 24.013.


Termination By Parties’ Agreement

The parties are entirely free to agree termination on any grounds they desire. Where the parties agree to terminate the employment, the agreement should be in writing and placed before the Labour Ministry or a Notary Public. The employee has to be present in the agreement.


Directors Or Other Senior Officers

If the directors or senior officers are employees, they are subject to the same rules as everyone else.


Special Rules For Categories Of Employee

Trade unions delegates are subject to special employment rules. In addition, there are some situations in which an employee is entitled to a higher compensation (e.g. fair dismissal during pregnancy, illness, etc.) Trade Union delegates are protected from dismissal for one year from the date of appointment.


Specific Rules For Companies in Financial Difficulties

The contract of employment may be terminated due to lack of or decrease in the workload, for which the employer is not liable. The employer must pay the employee a reduced compensation, previously the company has to initiate a procedure before the Labour Ministry named “Procedure for Companies in crisis”.

In the event of the employer’s reorganization proceeding (Chapter 11), the collective bargaining agreement will cease to be in effect for three years or until the date on which the reorganization plan is fully performed, whichever is shorter.


Restricting Future Activities

An employer can restrict the future activities of employees unless the restriction injures an employee’s rights.


Whistleblower Laws

There are no specific or special whistleblower laws in Contract Law N° 20.744.


Special Rules For Garden Leave

There are no specific or special rules for garden leave.


Severance Payments

A severance payment is calculated according to the employee’s seniority (a monthly salary per year worked or a period over 3 months). Also, the company has to pay advance notice (calculated on the same basis as the severance payment with a limit of two monthly salaries), unpaid holidays and a proportional 13th of the employee’s salary.


Special Tax Provisions And Severance Payments

Severance payments are not within the scope of social security contributions (i.e. retirement funds, etc). Furthermore, if the severance payment is calculated and paid in accordance with the Labour Contract Law, income tax is not levied upon it. However, if the parties agree on a higher compensation than the employee is entitled to under the Labour Contract Law, income tax is levied on that part of the compensation which is beyond the scope of the law.


Allowances Payable To Employees After Termination

Employers are not under a mandatory obligation to pay an allowance to employees at termination but in some situations parties can agree some type of allowance.


Time Limits For Claims Following Termination

The time limit for presenting a claim following termination in the Court is two years.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

Due to the impact of the economic crisis resulting from the Covid-19 Pandemic, the Argentine government disposed the prohibition of dismissals without cause until May 31st 2021, Further to the prohibition to dismiss employees without cause, the government has disposed that severance payments will be charged with an extra severance payment of AR$ 500.000 until December 31st 2021.



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Contact a Contributing Author:
Alejandro Mao
Zang, Bergel & Viñes
Buenos Aires, Argentina

Disclaimer:

© 2021, Zang Bergel & Vines. All rights reserved by Zang Bergel & Vines as author and the owner of the copyright in this chapter. Zang Bergel & Vines has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021