WORLD WORLDWIDE ARGENTINA News Journal Update - (en) Argentina, FORA, Organizacion-Obrera #101: LABOR LEGISLATION, THE MAIN LABOR REFORMS OF THE MEGA DNU DE MILEI - LEONARDO ELGORRIAGA (ca, de, fr, it, pt, tr)[machine translation]

 Mega DNU No. 70/2023 issued on December 20 came into force on December

29. It contains a broad and varied reform in labor matters, with a
clearly regressive tint and removal of rights for workers and their
union organizations. The content of this labor reform goes hand in hand
with the devaluation measures adopted by the Minister of Economy Luis
Caputo, aimed at shrinking the economy by sharply lowering the
consumption of the popular sectors due to the depreciation of salaries
and retirements, which will imply producing and selling less, with the
consequent layoffs, greater precariousness of working conditions and
closure of establishments, especially in the SME sector where the
effects of the economic crisis were felt even more.

It is for this reason that the labor reform carried out by DNU No.
70/2023 clearly aims to reduce or eliminate compensation for dismissal
and unregistered work, as well as to introduce a wide variety of other
reforms aimed at liberalizing hiring conditions, This means that it is
the employer who imposes working conditions without legal limitations,
taking advantage of the enormous weakness in which workers find
themselves to resist such impositions as a result of the general crisis
and the threat of dismissal, To which we must add the lack of combative
union presence as a result of the surrendering position of the current
union bureaucracy.

Next, we will make a brief summary of the main reforms in labor matters:

Severance pay:

Trial period: The trial period is changed from 3 months as it is
currently to 8 months. This means that the employer may dismiss within
that period without having to pay severance pay. This considerable
extension of the period of the trial period may also encourage employers
to resort to permanent hiring for that period to avoid having to pay
compensation, something that with the previous period of 3 months was
more cumbersome due to the short period.

Severance compensation: The severance payment is reduced by removing
some items that make up the salary that is taken as the basis for its
calculation. The SAC proportional and any salary item for semiannual or
annual payment are removed from it.

On the other hand, the compensation provided for in the event that the
employer does not pay dismissal compensation on time and forces the
worker to have to sue, which increased such compensation by 50%, is
completely repealed. This may encourage employers to refuse to pay
severance payments, as there is no economic aggravation to discourage
such behavior.

Labor severance fund: Collective bargaining agreements are authorized to
modify the current compensation regime for dismissal and replace it with
a severance fund regime similar to the one in force for the contraction
regime. It would consist of a monthly contribution made by the employer
to said fund and, once the separation occurs, the worker would receive
only what has been accumulated in that fund. The DNU does not say
anything about how much the employer's contribution should be, it only
says that a contribution greater than 8% of the salary cannot be agreed
upon, which implies not only a lower percentage than that contributed in
the current pension regime. construction, which is 12% during the first
year of the employment relationship, but rather it is a ceiling on
collective bargaining in favor of the employer, making it impossible to
agree on a higher percentage.

Compensation for unregistered work:

All compensation for unregistered or incorrectly registered work in
favor of male and female workers is repealed. This clearly encourages
black contracting because it does not imply greater economic
consequences for the employer, in a country whose unregistered work rate
is around 40%. At the same time, in these cases, the workers would not
have any economic compensation for having been working illegally, a
situation that implies not having enjoyed the majority of labor rights.

Outsourcing:

Until now, those workers who have been hired by someone to work in
another person's company were considered employees of the latter for all
legal purposes and in many cases it was considered that the employment
relationship was poorly registered, corresponding to the payment of
compensation for unregistered work. It is a typical form of fraud and
labor outsourcing widely used, as is the case of temporary services
companies that hire workers to do tasks in other companies without there
being any eventuality in the tasks.

The DNU now reverses this situation and considers in all cases that the
real employer is always the one who registers it, even if he performs
the tasks in another person's establishment. It is a legalization of
outsourcing and labor fraud in favor of companies.

Work day - Hour bank:

Working day regime: The DNU authorizes collective agreements to modify
the current working day regime, as well as the overtime and compensatory
francs regime. This is an invitation to negotiate downwards and modify
the legal limit of the working day of 8 hours and 48 hours a week.

Hour bank: Collective bargaining is also authorized to implement the
hour bank regime, which constitutes a regime that makes it possible to
exceed the legal limits on the working day of 8 hours a day and 48 hours
a week, without the need to pay hourly surcharges. extras, compensating
the hours worked in excess with fewer hours of work in subsequent weeks.
The hours bank regime, in addition to exempting the employer from having
to pay salary surcharges for overtime, allows the employer to make
working hours more flexible, being able to permanently modify them, thus
altering the life plan that the worker wants to have. .

Telecommuting:

The DNU modifies the teleworking law with regard to reversibility for
those workers who have started working in person and have later moved to
the teleworking modality. The law said that at any time the worker could
choose to return to face-to-face work. Now, this possibility must be
"agreed upon" with the employer, this means that it depends on whether
or not the employer wants to return to face-to-face training.

Maternity leave:

Before the entry into force of the DNU, the 90-day maternity leave had
to begin 45 days before the probable date of birth, with the worker
having the option of taking it 30 days before that date and accumulating
60 days after the birth. . Now, with the DNU there is the option of
making it up to 10 days before the probable date of delivery, a
situation that, depending on the activity and the particular situation
of each worker, can be extremely risky for health to work so close to
the delivery date. Although it is an option that the worker must
exercise, it is known that it can turn out to be an imposition by the
employer.

Discriminatory dismissal:

The DNU establishes that, in the case of discriminatory dismissal for
reasons of ethnicity, race, nationality, sex, gender identity, sexual
orientation, religion, ideology, or political or union opinion, the
affected worker may claim aggravated compensation that It can be between
50% and 100% of the severance payment.

The DNU establishes that, in all these cases, discriminatory dismissal
produces full extinguishing effects of the employment relationship. In
other words, one cannot claim the annulment of the discriminatory
dismissal and reinstatement in the job as could be done currently, as
was done in cases of dismissal of union activists. This modification is
a hard blow for those who have union activity in the company and lack
union protection.

Labor fraud:

Service rental contracts and others: One of the most used forms of labor
fraud is to use other different forms of contracting to hide the labor
nature of the relationship and thus avoid the application of labor law
regulations. In this regard, the DNU establishes that the provisions of
the Employment Contract Law will not be applied to those who hire
personnel through work contracts, service contracts, agency contracts
and through any other contracting modality provided for in the Civil and
Commercial Code of the Nation. .

This is a true blank check in terms of labor fraud that allows
employers, without any restriction, to choose whether or not they want
to comply with labor regulations, and in the latter case they can use
any other contracting modality provided for in the Civil Code. and
Commercial of the Nation, to hide the labor nature of the relationship
and avoid having to apply labor regulations.

The independent worker with collaborators: In addition to all the
contractual modalities provided for in the Civil and Commercial Code,
the DNU creates a new legal figure to avoid the application of labor
regulations. This is the so-called independent worker with
collaborators, which is the case of a person who has a productive
enterprise and has up to five workers. In this case, the DNU establishes
that there is no employment relationship between the owner of the
enterprise and the people he hires to work there, and the former may
benefit from a special regime that will be defined by decree of the
Executive Branch. In fact, the new DNU makes it possible for a company
with up to five workers to leave them out of labor regulations.

Assemblies:

The DNU establishes that union representatives within the company,
delegates, internal commissions or similar organizations, as well as the
authorities of the different sections of the union associations, will
have the right to call assemblies and congresses of delegates without
harming the normal activities of the company. company or affect third
parties.

This means that, if the employer considers that the assembly is
detrimental to the normal activity of the company because the workers
are going to stop working to participate in the assembly, they could
disauthorize it and take some measure against its holding.

This is a serious impediment to the possibility of workers being able to
meet in their workplaces with their delegates and discuss the problems
that exist in the establishment.

Strike:

Dismissal due to strike: The DNU creates participation in blockades or
takeovers of establishments as grounds for dismissal with cause. And he
adds that there is a presumption of serious injury and, therefore,
reason to dismiss with just cause, when in the framework of a direct
action measure: a) The freedom to work of those who do not adhere to the
forceful measure is affected, through acts, facts, intimidations or
threats; b) The entry or exit of people and/or things to the
establishment is totally or partially prevented or obstructed; c) Damage
is caused to people or things owned by the company or third parties
located in the establishment (facilities, merchandise, supplies and raw
materials, tools, etc.) or they are improperly retained.

This reform thus enables dismissal for just cause when any of these
events occur within the framework of a forceful measure.

Strike in essential services: The DNU modifies the legal regime on
strikes in essential services. Until the entry into force of the DNU,
only health and hospital services, the production and distribution of
drinking water, electricity and gas, and air traffic control were
considered essential public services.

Now, the DNU includes within this category: Telecommunications services,
including internet and satellite communications; Commercial aeronautics
and air and port traffic control; including beaconing, dredging,
mooring, stowage and towing of vessels; customs and immigration
services, and others linked to foreign trade; and child care and
education at nursery, preschool, primary and secondary levels, as well
as special education.

In the event that direct action measures are provided for these
activities, the DNU establishes that a minimum service coverage of no
less than 75% of the normal provision must be established. This means
that only 25% of the people who work in those sectors could exercise the
right to strike.

As if this were not enough, the DNU creates a new category, which it
calls "activities or services of transcendental importance", which
includes almost all existing activities. These are:

to. Production of medicines and/or hospital supplies;
b. Maritime, river, land and underground transportation of people and/or
merchandise through the different means used for this purpose;
c. Radio and television services;
d. Continuous industrial activities, including steel and aluminum
production, chemical activity and cement activity;
and. Food industry throughout its value chain;
F. The production and distribution of construction materials, aircraft
and ship repair services, all port and airport services, logistics
services, mining activity, refrigeration activity, mail, distribution
and marketing of food and beverages, agricultural activity and its
supply chain. worth;
g. Banking, financial services, hotel and gastronomic services and
electronic commerce; and
h. The production of goods and/or services of any activity, which were
affected by export commitments.

In these cases, the minimum service may not be less than 50% of the
normal provision. Which means in fact that only half of the workers can
exercise their right to strike in what, practically, would be almost all
existing activities.

With the new DNU, the right to strike is seriously limited and curtailed
for the majority of workers.

These are the main reforms introduced by DNU No. 70/2023 in labor
matters. A true stoning of rights for the benefit of companies and to
the detriment of those who work. At this point it is more than evident
that the true caste was the workers and that the freedom for those who
govern is that of the powerful to impose their conditions and exploit
the working class even more. This reform is the declaration of war by
the government and the dominant sectors of the business community
against working people, to introduce profound regressive labor reforms
and take away rights won directly or indirectly by the labor organization.

https://organizacion-obrera.fora.com.ar/2024/01/08/las-principales-reformas-laborales-del-mega-dnu-de-milei/
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