A-Infos (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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