The time in the employment contract
The individual right of work is embodied in the employment contract, which by the way of predetermining its validity, can assume two different formats.
The first of these is the indefinite term contract, which is the one that does not have a valid term and, therefore, does not foresee a termination date either. The second is the term contract, which has the distinctive feature that it has a pre-established term of validity. In turn, each of these two types of contracts have different forms of termination, with different procedures and consequences.
- The indefinite term contract: it can adapt two forms, continuous execution or discontinuous execution. The term contract: distinguishes the term modalities of the Labor Contract Law (LCT) and the special contracts of the new law 25.013.
What we have expressed can be summarized in the following table:
Employment Contract in Argentina
The indeterminate time contract.
It is the traditional and ordinary contract of Labor Law, which has a certain beginning, but does not have a pre-established term of validity, nor an expected expiration date. Thus, it is based on the fiction that the validity of the contract is born with the hiring and in theory it ends when the person is in a position to retire.
The LCT sets forth the general principle in article 90, stating that the employment contract will be held for an indefinite period, unless the contrary has previously been agreed, for which purpose the employer must prove these ends, by means of an express agreement. and in writing.
Certain authors maintain that in the fiction of the indeterminacy of the term it is linked to job stability, where the contract has as vertex of its combination the opportunity in which the worker retires and enters into passivity (Art. 91 LTC). However, reality informs that the technological and organizational changes experienced by companies produce a significant turnover of workers. Currently, not only do companies produce the rotation of their dependents, but the workers themselves lose ties and motivations to stay in a single job, and seek new alternatives in other companies, therefore, the indefinite term contract is today a true fiction.
Indetermination of the Term (art. 90)
The employment contract will be understood to be concluded for an indefinite period, unless its term results from the following circumstances:
- That the time of its duration has been expressly set in writing; That the modalities of the tasks or activity, reasonably appreciated, justify it.
It should be noted that there are contracts concluded as fixed-term or temporary work that constitute contracts for an indefinite period. It will be considered an indefinite-term contract and not a fixed-term or eventual contract, if the company does not demonstrate the objective reasons that led it to depart from the general regime; since although the link between the parties was not permanently defined or indeterminate, it does not imply that it is framed within the strictly transitory if the contract of each actor had a temporary validity subject to the business need that motivated it, which responds to a true and concrete event.
Scope of the contract for an undetermined period (art. 91)
- Resignation of the worker Termination by the concurring will of both parties Due to force majeure or lack or reduction of work Due to death of the worker or the employer Due to bankruptcy or bankruptcy of the employer Due to retirement of the worker or physical or mental disability or incapacity Due to just cause
The trial period (art. 92 bis).
This is the name given to the initial section of indefinite-term contracts, which is intended to verify whether the worker meets the conditions to occupy the job for which he or she is hired, a period in which the parties can denounce the link without no indemnity liability, both by notice, and by seniority.
Trial Period in the Employment Contract
Text according to Law 25013.
The highlights of the trial period:
Term of validity:
The trial period has two deadlines with different effects. The first is the legal term, which extends for the first 30 days of the employment relationship. In turn, the law admits that, through a collective agreement, an extension of up to a maximum of 6 months is agreed between employers and unions.
Utilization
The employer who has hired a worker more than once, may use the trial period only at the first opportunity.
Formal requirements
The employer must record the trial period in the special book of Art. 52 LCT.
Rights during the trial period.
The worker will have the same rights pertaining to their category and to the unions.
Termination of contract
During the first 30-day section, either party may terminate the employment relationship, without invoking cause and without indemnity liability. If the trial period is extended, it may agree to a reduction of up to 50% of the notice and compensation for seniority.
Social Security obligations.
Employers are exempt from paying pension contributions. However, contributions for Social Work, family allowances and Work Risks must be paid. On the other hand, during the extension of the trial period, contributions and contributions for social security must be fully paid.
Occupational risk and blameworthy diseases
The obligations for occupational risks, illnesses and risk of incrimable accidents will be fulfilled during the trial period.
Exclusion of Art. 212 4 to paragraph of the LCT.
The worker's right to access disability compensation is excluded.
Computation of length of employment
The 30-day legal trial period is only computable as seniority time if the worker continues working at the end of said period. If the link is extinguished within those 30 days, the work time will not be computed as seniority.
Collective agreements, limitations
Collective agreements may establish limitations on the use of the trial period.
If the trial period ends, and the worker continues working, we will automatically find ourselves within the framework of the contract for an indefinite period.
Labour reform. Text according to Law 25250 (date of sanction 11/05/2000, coming into force on 06/11/2000)
Under this title, it seeks to promote indefinite hiring. For this, the probationary regime is modified, changing the meaning it had in the previous legislation, and a system of reduction of employer contributions is implemented for the employer that increases its payroll of workers hired indefinitely in effective ways.
Probationary Period (Art. 1º) - Replaces Art. 3 of Law 25013, which modifies Art. 92 bis of RCT, Law 20744
- Application to contracts concluded for an undetermined time, except the seasonal one. The hiring of temporary staff has not been excluded from the regime. Duration:
- Large company: 3 months expandable to 6 months by CCT. SMEs: 6 months expandable to 12 months by CCT.
- When the Worker has already worked under the employer's dependency relationship, When the probationary period is abused (When the employer successively replaces different employees to fill the same jobs). The consequences of abusive use of the trial period may suffer penalties provided in regimes on violations of labor laws.
The disengagement must be notified during the trial period, by means of a document letter, which must be received by the worker no later than the last day of the trial. For this reason, it is recommended that the shipment be made at least a couple of days before.
If the worker has an accident during the test, the monetary benefits must be recognized until the day of final discharge.
The time worked on probation must be computed as seniority, for example, for the payment of family allowances, that is, for all labor and social security purposes, the period on probation must be computed as service time.
Reduction of employer contributions (Art. 2º)
It is established that the net increase in the workforce will entitle a reduction in employer contributions. The law has left in the hands of the regulation the criteria to determine when this increase occurs, so for the moment this rule is not applicable. The reduction will be equal to 1/3 of the current contributions, for each new worker who increases the endowment, if the growth of the establishment took place by the incorporation of men of 45 years or more, women "heads of household of any age", or young people of both sexes up to 24 years old, the extension will be 50% of the current contributions. It is applied as of the new worker is effective.
Cooperatives of Work (Art. 4º)
In order to prevent abuse, it is established that the INAC (National Institute of Cooperative Associations) will not authorize the operation of work cooperatives that, for the fulfillment of their social objective, foresee the contracting of cooperative services by third parties, using the forms of work. of its associates. At the same time, it determines which activities are included within this prohibition: Placement, cleaning, security, mail distribution and eventual services agencies. The new law comes to ratify the exposed criterion, providing:
- Empower labor inspection bodies to control the operation of cooperatives, detect situations of fraud and proceed to denounce and prosecute such irregularities. Assimilate, as dependent workers, members incorporated in circumstances that distort the cooperative figure. Ratify the prohibition. to act as temporary service companies, placement agencies, season.
Special forms of contracting.
These have, among other characteristics, that of having a determined or determinable term, with some exceptions.
Special forms of contracting.
The modalities of the LCT.
These are for term contracts, and are:
- Fixed-term contract: it is the one that is agreed in writing and for a certain period based on an objective cause that gives it the time-limited framework. The eventual employment contract: it is the contract envisaged to cover a job in exceptional circumstances, when these cannot be established with a certain term in advance, even when the term is finally determined. The Season contract: it is the contract of indefinite time and discontinuous provision, where the worker carries out his activity at certain times of the year pre-established in advance, and is repeated in the future due to the nature of that activity. The team contract:It is the contract concluded by a company with an organizer or coordinator representing a group also organized, of workers who carry out a common activity. The part-time employment contract (Part-Time): this is the name of the contract that establishes a reduced working day of less than 2/3 of the usual working day, with an express prohibition on overtime work. The apprenticeship employment contract: this is the name of the contract by which the object is the theoretical-practical training of the apprentice according to the description that will be reflected in a predetermined program, with a maximum duration of one year.
Fixed Term Contract
Duration of the fixed-term contract (art. 93)
It should be clarified that the rule says nothing about the legal minimum, however it can never be less than a month. In case of exceeding five years, the term contract has been transformed into another for an indefinite period.
Duty to notify. Conversion of the contract (art. 94)
In the fixed-term contract, notice is a confirmation of the term and that there is no vocation to transform it into an indefinite-term contract.
In the forward contract, although the law does not mention it, the advance notice will run from the day following the reception of the notification.
In this regard, the employer must notify the same within the agreed period, with an anticipation of no more than 2 months, nor less than 1. If it does not do so, it will be considered that the automatic novation of the contract has been chosen, making it one of indeterminate time.
Dismissal before the expiration of the term. Compensation (art. 95)
The employer who claims that the contract uses this modality will be in charge of the proof of his assertion.
There is an eventual employment contract when it comes to satisfying concrete results according to specific extraordinary services, previously or extraordinary or transitory requirements.
It is a circumstantial task and destined to be exhausted that does not admit the expectation of its continuity or permanence.
There is temporary work when:
- These are extraordinary services determined in advance. They are those that are outside the normal activity of the company. Eg A fire (Case of force majeure). It corresponds to extraordinary and transitory demands of the company. They are related to his habitual turn but they are related to a transitory activity and alien to his normal development. Everything ends with the completion of the work, the act or the provision.
The employer that invokes the existence must prove the extraordinary or temporary nature of the work that caused the beginning and justifies the end of the relationship. The written test is convenient and necessary, considering the collections required by Art. 90º, which are concurrent and not independent.
As for work accidents, the casual worker has the right to be compensated.
Eventual Employment Contract
The Season contract.
It is the contract of indeterminate time and discontinuous provision, where the worker carries out his activity at certain times of the year pre-established in advance, and is repeated in the future due to the nature of that activity.
The LCT points out that there will only be a season when originated by the activities of the normal business of the company, the activity is carried out at certain times of the year only and is subject to being repeated in each cycle.
Characterization of the seasonal employment contract (art. 96)
Regarding the way to summon the worker, the LCT establishes that with an anticipation of not less than 30 (Thirty) days, the employer must notify in person or by public means, the summons to the following season. The worker must respond to it, within 5 (Five) days of notification.
The behavior of the parties at the time of the restart of work
The worker is obliged, before the start of each season, to declare to his employer that he is at his disposal, to carry out the position.
The worker's silence must be considered as a conclusion of the labor link that is without effect, that is, there is no resignation of the worker, nor abandonment, nor is there a so-called tacit resignation.
Responsibility
If the employer is not aware of the repetition of the activity in the case of the worker who expressed his willingness to work, he responds for it. To this end, it must pay compensation for seniority or dismissal and omission of notice.
In the seasonal work contract, wages and eventual compensation must be calculated according to the scales that apply to the seasons, and the worker can be considered a creditor for these by the mere fact of having been summoned to restart tasks.
The team contract
Characterization-Direct relationship with the employer. Substitution of members. Collective salary. Distribution. Collaborators (art. 101)
Group Contract
It is the contract concluded by a company with an organizer or coordinator representing a group also organized, of workers who carry out a common activity. This form of contracting is deprecated.
The Part-Time Contract
This is the name of the contract that establishes a reduced working day of less than 2/3 of the normal working day of the activity, expressly prohibiting overtime.
The apprenticeship employment contract
This is the name of the contract by which the object is the theoretical-practical training of the apprentice according to the description that will be reflected in a predetermined program, with a maximum duration of one year.
This is a non-labor contract, which has the following characteristic elements:
- Purpose: The purpose is to train an apprentice, in an art, trade or profession. Requirements: It must be formalized in writing between the employer and the apprentices who must be between 15 and 28 years old. Legal Nature: Introduced the reform by law 25.013 the apprenticeship contract is of a labor nature, although the object is not to provide services, perform works or perform acts, but to learn. Thus, their periodic benefits are salary, subject to contributions and contributions, and the trial period cannot be used. Renewal: The apprenticeship contract expired the maximum term, cannot be renewable. Prohibition:Apprentices cannot be hired if a previous employment contract is registered with the same employer. Working Day: The working day established for apprentices over 18 years of age, has a weekly limit of 40 (Forty) hours., without specifying the total daily hours. In the case of minors between 14 and 16 years old, they must work 6 (Six) hours. Daily and 36 (Thirty-six) hours. Weekly. Between 16 and 18 years old they can extend the daily working hours to 8 (Eight) hours. Daily and 48 (Forty-eight) hours. Weekly. Maximum contracts: The employer may not contract under this modality more than 10% of the contracts for an indefinite period counted by establishment. Advance notice:The employer must give 30 (thirty) days advance notice of the end of the contract, or indemnify the apprentice with ½ month's salary when he omits it. Special prohibition: Temporary service companies and work cooperatives may not use this form of contracting.
The forms of non-labor contracting
This is the name given to a series of contracts that were created with the central purpose of training a future dependent worker in an art, trade or profession and providing them with basic training, so that later they are in conditions of sufficient professional and practical suitability as to enter into a dependency relationship with those who carried out the aforementioned process, or with another employer that requires them.
Non-employment contracts, or also called pre-employment contracts, occur after the selection process and before the hired person enters as a dependent worker with a work contract at the employer's orders. Currently, this type of hiring is recognized by legislation as an alternative means of solving the scourge of unemployment.
Scholarships and internships.
It is a non-labor contract consisting of the commitment by the scholarship company to train and train the scholarship recipient or recipient in an art, trade or profession, which allows their job placement in the same company that hired the scholarship or in another that requires their services.
Scholarships or rented practices are non-labor contracts that have been used since the first retirement law (Art. 9, 10, and 11, Law 18.037) admitted non-remuneration benefits to scholarship subsidies.
Currently, the following standards have been set in these contracts:
- The scholarship contract must be signed in writing; The subsidy will be monthly and does not have a salary nature; The contract must be accompanied by the training and training program and the evaluation system; At the end of the scholarship, the company will grant a Certificate in which the training and trainings received will be recorded, as well as the specialty or trade acquired by the scholarship holder.
Pronaps
It is a non-labor contract that aims to recruit the unemployed without any training so that, through a company, they can train in an art trade or profession, with the payment of a non-remunerative subsidy by the State.
Internships
This is the name given to non-labor contracts that are intended to educate and train young people who are studying at recognized public or private educational institutions.
It is a non-labor contract, where technical school students are especially encouraged to exchange an internship at the company in exchange for a non-remunerative subsidy to train and train in an art, trade or profession.
The system does not have an indemnity regime at the end of the internship term, which is capped at the term of 4 (four) years.
As for the practice in the company, it cannot exceed 6 hours a day or 36 hours a week.
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