Employment contract and labor rights
Unit I: Labor Law. Work contract
Human Work
Concept
Human work could be defined as man's action on nature to "dominate" it, and thus become lord of it, instead of being its slave. The whole process of development of social, economic and work life, insofar as it has a human meaning, constitutes a step in the task of liberating man from the rationing to which nature submits him.
Since the human being is constitutively social, this task is carried out together with others. The relations of work, as well as those of socioeconomic life, aim to satisfy the needs of man and facilitate his development as a person.
Social life offers, or should offer, the possibility of achieving a “good life”, through what could be called a “provision system”: food, shelter, culture, medical care, security, etc.
Work, conceived as the action that dominates nature, is the incorporation of that action into the system of "social provision". Therefore, all work is service rendered to the brother (his characteristic is alienness).
In some cases the work is provided directly (for example in the production of goods) and in other cases they constitute an enrichment to achieve a greater subsequent capacity for service (for example the student).
Main aspects of work
to. Social: it is about producing goods and services for others, and at the same time, obtaining what is necessary for the development of your life and that of your family.
b. Psychosocial: work builds the world and frees man from his biological, security, psychic, and self-sufficiency needs. Therefore it promotes it (however this has not always been the case in historical experience, for example during the Industrial Revolution).
c. Economic: man through it can achieve a better life and transmit a richer and richer heritage to future generations.
d. Legal: Law places the emphasis on the recognition and respect of the dignity of man. Men are considered to be linked not only by a “contract”, but by their participation in the same community. This fact imposes on them, above what is agreed, a series of obligations and rights.
Kinds of work
There are two fundamental ways:
• Autonomous: it is carried out under the “economic risk” of the person who does it (who runs it on his own account). For example: a doctor doing an exam.
• Directed, dependent, subordinate, or in a dependent relationship: it makes the work capacity available to the tenant so that he can use it within the “terms of the contract”. The use of the work corresponds to this one, who in compensation has to pay a salary. The employer bears the financial risk.
Work in history
In Antiquity (Greece and Rome) work, especially bodily work, was considered unworthy of the free man. This conception of life led the peoples to unload the bulk of the work necessary for the maintenance of the community on the slaves. There were also free workers: artisans, who had the right to associate. Thus, organizations were created with a mutual purpose, but they also got to deploy some political actions (especially in Rome, due to the difficult situation between patricians and commoners). This caused those organizations to be suppressed in Caesar's time.
The spread of Christianity brought with it a new conception of work, including the manual. The new doctrine is founded on the natural equality of men. The fundamental law is love and help for the poor and needy.
In the Middle Ages, corporations were created and spread, bringing together people who had the same trade or carried out the same commercial activity. Its purpose was to establish the rules to which the exercise of the profession would be subject. They recognized three grades or classes: teachers, classmates and apprentices, subject to different statutes. That structuring was adapted to the social reality of the time. Then when the conception of life that gave rise to it changes, this institution begins to break down. The rigidity of its rules was no longer in line with the new era, which was endowed with greater dynamism.
In France they banned the operation of corporations and deposed that "it will be free for everyone to do any business or exercise any profession, art or trade." The worker could carry out his work without having to join any organization; in exchange for his freedom, he lost the security of obtaining certain conditions.
In the 18th century, the Industrial Revolution modified not only working conditions, but also the prevailing conception of life. Liberalism founded capitalism. The new philosophy of life considers the economic to be fundamental and the economic process focuses on production. In this way, man is not the ideal, but he is subordinated to that aspect. Man's ability as a consumer is taken into account, but he is not appreciated for his dignity but for what he pays. This entails work carried out in subhuman conditions. Economic power (and consequently social and political) belongs to those who own capital. As a practical consequence of the conception of the time, the domination of capital imposed unfair working conditions, forgot the man who performs it.
Labor Law
Concept
The birth of Labor Law is one of the consequences of the Industrial Revolution. A flourishing time when it comes to economic growth is accompanied by social underdevelopment. In this climate, under the guise of exercising freedom of contract and autonomy of will, one of the parts of the relationship is the one that imposes the conditions.
In order to regulate the labor relationship, a labor legislation is being developed that over time becomes a meticulous regulation of labor relations, which constitutes one of the dimensions of the so-called “New, Social or Labor Law”.
Like the other legal branches, Labor Law has a "three-dimensional dimension". It is made up of norms, human behaviors and a purpose. In other words, it is not a mere legislation (norms), but also takes into account the “for whom” (coexistence in the community) and the “so that” (embody the value of justice in relationships, in order to achieve more forms human beings that take into account, not only the quantity, but also the quality or genre of life).
The difference with the other branches of Law is determined by the kind of coexistence that it tries to regulate. It is given by what is established on the occasion of the relations that occur between men as a result of the "provision" and the "reception" of directed or dependent work. (Not all kinds of coexistence due to the provision of work falls within this discipline. For example, the self-employed person, as well as the one offered to a person under public law, according to different circumstances, are incorporated into Commercial Law, the Civil or Labor. The LCT excludes the departments of public administration, domestic service workers and those of the agrarian sector)
Purpose
Given the characteristics of the employment relationship, the law intends to protect the weakest party (the worker), in order to balance the relationship. To do this, it uses certain technical means and general principles of a special nature. As a consequence of them, in a certain way, protection turns the worker into a “minor”; the possibility of exercising the autonomy of their will is restricted, which is reduced by the existence of non-derogable minimums and maximums. In this way, he is protected from the possibility that he may become a victim of those who, thanks to their greater negotiating capacity, could obtain advantages.
Sources
• Materials: they are made up of the social reality in which the life of the communities unfolds. In reference to Labor Law, it is the situation of the man with rights that the law does not confer on him, as they predate it. They are rooted in human nature itself: with indigences to cover, with aspirations for equality and participation in the social and economic process of production and distribution of goods and services, in the various specific circumstances in which the lives of women are developed. different communities (with their various moral, social, economic characteristics: injustices, unions, technological development, etc.) The real effective law cannot be known if the social reality to which it tries to govern is disregarded.
• Formal: they are made up of the different channels through which the positive normative expression is specified. The main formal source is the Constitution of the Argentine Nation (art.14bis). Others are: International Treaties, National and Provincial Laws, Collective Agreements, Arbitration Awards, Uses and Customs, etc.
Beginning
The main ones are analyzed, especially those that have been accepted in the Labor Contract Law (LCT).
1. Protective
As already indicated, it has a protective nature for the employee, in order to ensure substantive and real equality, for which purpose the unevenness of their negotiating capacity must be taken into account. Consequently, it does not fully govern the principle of the autonomy of the will. This principle is expressed in three fundamental rules, as regards the application and interpretation of the rule.
to. In dubio pro operario: it acts as a directive, given to the judge or the interpreter, to choose among the various possible meanings of the rule, the one that is most favorable to the worker (art. 9 °, LCT). According to this rule, the weakest are protected. Its application is only in case of doubt in the application or interpretation of the law, agreement, contract or facts.
b. Rule of the rule most favorable to the worker: this does not refer to the doubts in the interpretation of the rule (in dubio pro operario), but to the cases in which several rules come to be applicable to the same legal situation.
c. More beneficial condition: according to this rule, when a previous situation is more beneficial for the worker, it must be respected. The modification that is introduced should be to expand, not to decrease the rights of the former.
2. Irrevocability
The law protects the worker's right, in such a way that it declares it IRRENUNCILABLE. The resignation is not valid, it does not terminate the contract, it is unenforceable to the worker, it is legally ineffective (art, 12, LCT).
The principle of inalienability suffers some exceptions in certain circumstances, such as: resignation from employment (the law tries to ensure that the decision made by the worker does not suffer from any vice that will invalidate it as an expression of its will. In order to guarantee the free expression of the renouncer, it is required that the resignation has been expressed through a means that under normal conditions allows to affirm that there has been no coercion, such as: the collated telegraphic dispatch or letter document, carried out personally or the manifestation formulated before the labor administrative authority (art. 240 para. 1, LCT)). Another exception is conciliation (in the face of litigation, both parties meet to agree, renouncing certain aspects of what they claim,in order to reach a solution in which neither party is harmed. To avoid violating the worker's right, the LCT requires the intervention of the judicial authority).
3. Continuity
The employment contract is successive. In general, it has a vocation of permanence until its extinction, either due to death, retirement of the worker, due to the expiration of the agreed term, or for other justified reasons or not. This characteristic of the contract provides the employee with security, not only financial (knowing that he has assured future income), but also psychological (fixed occupation, which avoids the problems of unemployment, with its consequent frustration). It also produces benefits for the business community, which has an interest in avoiding excessive turnover of its members given the cost (not only economic) that the recruitment, learning and experimentation tasks of the people who join it entail.That continuity translates into greater experience and is embodied in a seniority award. The practical application of this principle is specified in the following rules:
to. Preservation of employment: to the extent that the reliable notification of terminating the employment contract is not accredited, it is presumed that the legal relationship is maintained.
b. Preference for indefinite duration contracts: the LCT privileges them.
c. Admission of transformations: the employment contract is distinguished by its dynamism, which is reflected in the status of the employee (in the community, in salary, in responsibility, in office). Although the original contract is maintained, some of its conditions change as time progresses.
d. Maintenance of the contract: although certain clauses are annulled, the contract is still in force, since these are replaced by those established by law.
and. Criminalization of resolution without cause: dismissal without cause is considered to be a legal anomaly. The LCT penalizes the attitude of the employer through a compensation fee.
F. Interpretation of certain interruptions as suspensions: certain interruptions (illness, strikes, etc.) occur in the employment relationship that are not considered as termination of the contractual relationship, but rather suspension of some of the obligations of the parties.
g. Maintenance of the contract in case of change of employer: the law admits the transfer of the contract, where it remains with the new one, producing a subjective novation.
4. Primacy of reality. Presumption of the existence of the labor figure
When there is no correlation between what happened in the events and what was agreed, the truth of the facts prevails. Therefore, contractual stipulations have only a presumption value that falls before the evidence of the facts.
5. Good faith
The LCT takes this principle as basic, regarding the conduct that the parties must have in compliance with their obligations. This principle includes the duty to act with fidelity, from the celebration, execution and termination of the relationship (honest, loyal, prudent, faithful, etc.)
6. Social justice
It is about all members being able to unfold their existence as human beings and social beings. In this way we can all live together in peace and harmony, in the enjoyment of the goods and services that are necessary to them. It is not only those who do not pay the due salary that violate social justice, but also those who do not offer the community their contribution to a more humane world.
7. Equity
Given the possibility of a invaluable solution to a situation by written application of the rule, the judge has the power to deviate from the deed. This not as an act of arbitrariness, but to achieve a more just and harmonious solution that is resolved outside the legal text, without questioning its authority.
8. Prohibition of discrimination
The LCT does not admit that there is unequal treatment among workers based on sex, race, nationality, religion, politicians, unions or age.
9. Free legal and administrative proceedings
It is not enough that the law establishes rights, but it is necessary that it facilitate the worker's access to the judicial platform or to the labor administration, in order to obtain recognition of them. The LCT establishes the benefit of gratuitousness in judicial or administrative procedures, professional statutes or collective labor conventions.
characteristics
- Limiting the autonomy of the will
Labor law differs from Civil Law, as it restricts the scope of the parties' negotiation and gives the rules the character of a public labor order.
- Limitation of the hierarchical powers of the employer
The employer is not an omnipresent boss, since his hierarchical powers must be exercised according to a framework established by law, by collective agreement, or by custom and customs.
- Privileged treatment of workers' collective bargaining power
In addition to the minimum or maximum provisions, below or above which it is not possible to agree, there are collective agreements where workers (through their professional organizations) establish laws based on the LCT. Employers have an obligation to attend meetings convened by the Ministry of Labor and Social Security, in order to negotiate the agreement with their employees.
- Recognition of collective labor autonomies
The parties (employers and workers) are recognized through their union organizations the right to self-regulate working conditions.
- Administrative control
In Labor Law, there is a public body that controls compliance with the standards. This is the Undersecretariat of Labor and Social Security (Labor Police). Accordingly, in the absence of compliance with a standard, the worker can make the corresponding claim and the labor administration has the power to sanction the infraction.
- Cooperation and unification at the international level
As the socialization process intensifies and countries become more closely linked, a trend develops towards achieving minimum conditions, not only at the national level, but also at the global level. The ILO (1919) has done extensive work to achieve this goal.
Globalization. MERCOSUR standards. Trends
Concept
The employment contract gives rise to the employment relationship. It is an agreement of wills between two people with a legal object. One of these must be physical, or a group of them, which undertakes in exchange for remuneration, to put their work capacity (which can be translated into the performance of acts, execution of works or provision of services) at the disposal of the other, that directs it for a certain time or not in its extension.
In this way, both parties carry out an exchange relationship, which is not only an isolated benefit, but is of a successive nature and brings others of loyalty, cooperation, solidarity, which commits everyone.
The employment contract is bilateral (both parties assume reciprocal obligations), onerous, commutative, consensual, non-formal, nominated or typical and of successive execution.
Requirements
a) Capacity: the LCT (art. 32, para. 1) establishes that this is achieved at 18 years of age. The married woman does not need authorization from her husband to contract. Notwithstanding this guideline, the ability to enter into an employment contract is acquired at age 14. The law determines that those “who with knowledge of their parents or guardians live independently of them” enjoy said capacity, unless their parents prove a prohibition. If you are emancipated by marriage, your capacity is full. The labor capacity extends to that of acting in court in its own right in the exercise of "actions related to the contract or employment relationship".
b) Consent: the LCT explicitly establishes that “the fact of the provision of services” presumes the existence of an employment contract, unless due to the circumstances, the relationships or cause that motivate it, the contrary is demonstrated.
c) Purpose: it consists of a “provision to do”: one party makes his or her work capacity available to the other, through the performance of acts, execution of works or legal services. The receiving party has the power to direct and use this capacity within the limits set by the parties, the law or collective agreements, and remunerate it.
The work cannot be contrary to morals and good customs. The law distinguishes between the illegal and the prohibited object:
• Illicit object: it is tempered for those exceptional cases in which it is consented, tolerated or regulated by administrative provisions (for example the game). The effect of this contract is that of its absolute nullity, its conclusion or execution does not produce consequences between the parties.
• Prohibited object: corresponds to work prohibited to certain people or in certain tasks, times or conditions (for example, work in unhealthy places, for minors, pre and post partum period, etc.). This contract is unenforceable to the worker, so it does not lose its right to claim wages, compensation, etc., which correspond to the termination of the contract. The law establishes the prohibition only for the worker.
d) Cause: the cause is constituted by the purpose pursued by the contracting parties and manifested
as such (in the case of joining a work group or company to carry out the work activity and obtain the necessary income for their expenses, etc.)
Shape
According to the LCT rules, the conclusion of the employment contract is not subject to any formality. The parties can choose the one that suits them best (art. 21 and 48 LCT). Payments must be instrumented in writing (receipts) and signed by the worker.
There are four atypical figures (law 24.013) for whose agreement it is required to comply with the formal requirements, as well as the conditions, that the norm foresees. If these requirements are not met (celebration in writing, registration in the Single Labor Registry System), the relationship is considered common, that is, for an indefinite period. Small companies can enter into contracts of this type without these requirements and neither can they pay compensation due to the termination of the contract or due to the expiration of the agreed term.
When the exercise of a professional activity requires some special documentation, the lack of it cannot translate into the non-application of the pertinent regime. The employer who did not demand compliance with the collection is not exempt from the obligations, except in the case of a profession that requires a title issued by the competent authority (for example, a doctor). In the latter case, since it is a regulated activity for reasons of common good, the lack of authorization allows the contract to be declared null and void.
Test
All the evidentiary means admitted by the procedural laws can be used to prove the provision of service, performance of acts or execution of works, in favor of another who directs them, with which the existence of a contractual relationship is presumed.
The law requires the employer to keep a special book that must be registered and initialed by the administrative labor authority. The lack of this record can be sanctioned.
Employment law 24.013 establishes a special regime, in order to guarantee the registration of workers, which must be carried out: in the special book established by art. 52LCT and in the Single Labor Registry System, in charge of the Executive Power.
In the event that the employer does not comply with the law (when he does not properly register the worker, when there is less remuneration than the one paid, etc.) the worker or the Trade Union Association that represents him, must be intimate so that he fulfills his duty. If the employer complies within the following 30 days, he is exempt from the compensation.
The registrations contained in the workbook must be supported by the respective documentation (receipts signed by the worker, etc.). Without this requirement, they do not prove anything against the worker, but they do to the detriment of the employer (since the veracity of the annotations is presumed).
The norm establishes some directives to judge the value of certain facts and circumstances related to the proof of compliance with the obligations that arise with the contract:
to. The worker's silence (such as not replying to an intimation to return to employment) cannot be considered as a presumption that forces the resignation of employment or any other right.
b. The employer's silence for a reasonable period of time, not less than two business days, in the face of an intimation reliably made by the worker (relative to the fulfillment of the obligations derived from the contract) is valid as a presumption against him. Notwithstanding the text of the law, with respect to certain breaches (for example, when it states that it is denied work) it is not necessary to wait two days to consider that the employer's silence means recognition of the facts.
c. The signature is an essential condition in all acts carried out privately, on the occasion of the employment contract. Whoever manifests the non-veracity of what is signed must prove it through legal action. As long as the act is not declared null, it deserves faith.
For those who do not know how to sign, the law admits the validity of digital printing.
Regarding the additions to the forms used by the employer (for example, incorporation of declarations or amounts) they will be appreciated by the judges in favor of the worker.
Receipts must be made under the condition that they must be duly discriminated in concepts and amounts, since otherwise it can be interpreted as a way of making them appear as canceled credits, which have not really been.
Rights and duties of the parts
The new text of the LCT states: "they must be celebrated, interpreted and executed in good faith and in accordance with the credibility the parties understood or could understand, acting with care and foresight"
The parties to the employment contract (employer and worker) are obliged to act, in addition to what is implicitly or explicitly agreed upon by them, but also by the provisions of the respective legal or conventional norm that is incorporated into the job. Their debts and rights must be judged on the basis of "collaboration and solidarity".
Members should not act as enemies, but as members of a community, they should collaborate in solidarity and in good faith. From celebration to termination and liquidation, the parties have to act as a good employer and a good worker.
When a legal relationship is tied, the rights and obligations of compliance and conduct are distinguished.
Original text
EMPLOYER RIGHTS |
DUTIES OF THE EMPLOYEE |
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Receive the job |
(art.21-26-84-85). Make your capacity available to the employer |
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Exercise the power of management and "ius variandi" |
(art. 64-65-86-87). Accept, within agreed and reasonable limits, the exercise of the power of management and the "ius variandi" exercised by the employer |
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Exercise disciplinary authority |
(art. 68-69-219-220). Accept, within reasonable limits, the employer's disciplinary authority |
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Adopt personnel control systems |
(Art. 210-6 ° and cons., Law 19587 staff medical controls). Accept the exercise of control systems, within reasonable limits (do not violate the duties of confidentiality) |
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Being preferred in exploiting the worker's personal inventions |
(art. 83-10- Law 24481 on patents). Give preference to the employer in the exploitation of personal inventions |
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DUTIES OF THE EMPLOYER |
EMPLOYEE'S RIGHTS |
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Give effective and adequate occupation |
(art. 78). To that of occupation |
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Compliance with other legal duties |
(art. 79). To be satisfied with legal duties |
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Respect the free expression of the worker and his dignity as a person |
(art. 68-70-73-75). To have your person and freedom of expression respected |
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Provide security and decent working conditions |
(art. 75-77). To be offered acceptable working conditions |
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Do not discriminate against the worker |
(art. 17-81, 11 Law 25013). Not to be subject to unjustified discrimination |
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Pay the remuneration and reimburse the expenses |
(art. 74-76). To the collection of the remuneration and reimbursement of the expenses incurred that correspond to the employer |
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Make the deposits of social security and union. Grant work certificate |
(art. 79-80). To the diligence of the employer for the enjoyment of their rights (pension and Social Work). Obtain work certificate |
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Maintain secrecy regarding the worker's personal inventions. Respect the property right |
(art. 82-83, 10-Law 24481 property of your personal inventions). To receive, as the case may be, "supplementary remuneration" or "economic compensation" Download the original file
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