National Labour Law Profile: Republic

of Argentina
Contributed by Arturo Bronstein

1. Constitution
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/ .

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).

Contract of Employment
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.

Probation
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.
Notice

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.

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.

Overtime rate is 50 per cent, for work performed from Monday, until 1 pm on
Saturdays, and 100 per cent for work performed thereafter, and on public holidays.

Paid leave
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.

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.

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.

Strike Regulation
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.
Texto completo (International Labour Association) disponible en
https://www.ilo.org/ifpdial/information-resources/national-labour-law-
profiles/WCMS_158890/lang--en/index.htm