A-Infos (en) Argentina, FORA, Organizacion-Obrera #101: LABOR LEGISLATION, THE REFORMS OF THE OMNIBUS LAW PROJECT ON LABOR AND PENSION MATTERS - LEONARDO ELGORRIAGA (ca, de, fr, it, pt, tr)[machine translation]

The bill prepared by the new national government called "Law of Bases 
and Starting Points for the Freedom of Argentines", also known as 
"Omnibus Law", contains a broad and extensive delegation of legislative 
powers of exclusive jurisdiction of the National Congress. in favor of 
the National Executive Branch, granting it the sum of the power of the 
State to implement an entire policy of fierce adjustment on the most 
vulnerable sectors of society and give free rein to the concentrated 
sectors of economic power to impose their conditions at the expense of 
the most needy. In short, what the bill calls "foundations and starting 
point for the freedom of Argentines" is nothing other than the freedom 
of the powerful to take even more advantage of society as a whole and 
make the poor pay. workers the consequences of a crisis that they did 
not generate.

The reforms that the Omnibus Law project introduces in labor and pension 
matters are analyzed below:

LABOR "WHITENING":

As a measure to try to reduce the rates of unregistered employment, the 
project establishes a regime generally known as "laundering", which 
consists of setting a period of 90 calendar days from the entry into 
force of the law, so that employers regularize unregistered or 
incorrectly registered workers.

Employers who carry out such regularization within the established 
period may be exempt from criminal action for tax crimes and from paying 
fines and infractions, as well as having their debts for contributions 
and contributions owed reduced, among other measures.

It establishes that workers thus regularized will have contributions 
computed for up to a maximum of 5 years. If the regularized worker had 
worked without registering for more than that time, contributions will 
not be computed for all that excess time in order to comply with the 
years of service required to obtain the retirement benefit and for the 
benefit. due to unemployment.

In addition, contributions will be computed, not on the salary actually 
earned, but on a remuneration equivalent to the minimum vital and mobile 
salary. The months thus regularized will not be computed for the 
purposes of calculating retirement assets. This may affect those workers 
who are close to retiring because, if in the regularized months the 
salaries actually earned were high, since they are not taken into 
consideration for the calculation of retirement assets, this could 
eventually have a negative impact on retirement assets. that they are 
going to perceive.

The implementation of "laundering" systems such as the one provided for 
in this project was implemented on other occasions in our country, such 
as the cases of law 24,013 (1991) and law 26,940 (2014), and did not 
give significant results to the purposes of reducing the rates of 
unregistered work.

The failure of this type of measures is due to the fact that the 
employers' decision to regularize the workers does not depend on the 
debts for contributions and the sanctions that may arise for the time in 
which the workers worked. without labor registration. The usual practice 
of employers when regularizing a worker is to record the registration 
date as a false entry date and not the real date of entry into the 
company. In this way, employers avoid having to pay debts for 
contributions and any possible sanctions they may have, for the periods 
in which the worker worked without labor registration.

This is a measure clearly intended to appear that an attempt is made to 
do something with unregistered work, especially after DNU No. 70/2023 
repealed all compensation for unregistered work in favor of affected 
workers. The truth is that, with the devaluation measures and the 
shrinking of the economy through the reduction of consumption, the SME 
sectors where the highest rates of unregistered work are recorded will 
continue to adjust on the side of the workers and labor informality will 
continue and even will grow.

CRIMINALIZATION OF THE STRIKE AND PROTEST:

The bill, within the chapter dedicated to "Internal Security", contains 
regulations on public demonstrations, introducing severe reforms and new 
criminal types into the Penal Code with the clear purpose of 
criminalizing strikes and social protests, the content of which It 
refers to the darkest periods of our history. The shrinking of the State 
apparatus encouraged by the new self-proclaimed "libertarian" government 
is limited to making it possible for the concentrated sectors of 
economic power to impose their conditions and ensure their business 
profitability. On the other hand, with regard to the freedoms of 
workers, the presence of the State is even greater to facilitate 
repression against workers' and popular resistance to adjustment.

Penal modifications:

The project considerably increases the penalties provided for in 
criminal types generally used to criminalize strikes and social 
protests, and creates new open criminal types to further extend the 
criminalizing action against all people related to acts of protest or 
popular demonstration.

The penalty provided for in art is aggravated. 194 of the Penal Code for 
crimes against the operation of transport, going from 3 months to 2 
years as it is currently, to the penalty of 1 year to 3 years and 6 
months in prison. The objective of this considerable aggravation of the 
sentence is to ensure that those convicted can have an effective 
sentence, thus discouraging the exercise of the rights to social protest.

There is also a penalty of 2 to 5 years in prison for those who direct, 
organize or coordinate a meeting or demonstration that prevents, hinders 
or hinders circulation.

The project considers as organizer or coordinator of a meeting or 
demonstration any human person, legal entity, recognized or not, or 
group of them that: A. calls on other people to participate in the 
meeting; B. coordinate people to carry out the meeting; C. provides any 
type of material or logistical means to hold the meeting; D. Call roll, 
record presences or absences by any written or image recording means.

It is an open criminal type aimed at being able to criminalize any 
person related to a social protest, as well as their union, political 
and social organizations, trying to transform acts of defense of the 
rights and needs of the most needy. in alleged crimes.

Finally, punishment with prison or confinement of 3 to 6 years to those 
who through intimidation, simulating public authority or false order 
from the authority, under promise of remuneration or under threat of 
withdrawal or assignment of a benefit, plan, subsidy of any kind, force 
another to attend, remain or move away from a mobilization or protest.

This last type of crime follows a stereotyped and stigmatizing vision, 
which considers that all those who attend a demonstration or social 
protest do so under the promise of obtaining benefits or under the 
threat of losing them. On the contrary, with the recent announcements of 
the new government under the formula "He who cuts does not get paid", we 
can effectively see the use of threats so that those who want to attend 
a march or protest do not do so for fear of losing social benefits, 
carrying out the government itself what is described in the new criminal 
type.

The depth and breadth of the new criminal types that this reform seeks 
to introduce not only aim to criminalize and prevent the effective 
exercise of the rights to strike and social protest, but also reach 
union, political and social activity as a whole.

Regulation of meetings and demonstrations:

The project regulates the right of assembly and demonstration, making 
the Ministry of Security the enforcement authority on the matter. The 
inclusion of this regulation within the chapter dedicated to "Internal 
Security" and the fact that the enforcement authority is the Ministry of 
Security, denotes the stigmatizing and criminalizing position of the 
project with respect to those who demonstrate and demand their rights.

It defines "gathering" or "demonstration" as the intentional and 
temporary congregation of three or more people in a public space for the 
purpose of exercising the rights referred to herein. That is to say, 
once three people gather in a public space, it is considered a meeting 
or demonstration and the regulations apply to them. The small number of 
people to whom the regulations would be applicable shows that its 
purpose is not to make protest compatible with other rights, such as the 
right to be able to circulate on public roads, given that such a small 
number of people would in no case It may imply an impediment to 
circulation, and it is not necessary to apply any regulation in those 
cases. The true purpose is to provide the repressive apparatus of the 
State with regulations designed to prevent the exercise of the most 
basic freedoms of any person, implementing a regulation of public space 
similar to that of military dictatorships and a virtual state of siege 
regarding to demonstrations and rallies. It is paradoxical that these 
provisions are contained in a bill called: "Bases and Starting Points 
for the Freedom of Argentines", which shows that it refers to the 
freedom of a few.

The regulations establish that any meeting or demonstration must be 
reliably notified to the Ministry of National Security, no less than 48 
hours in advance. In said notification, they must detail the 
characteristics of the demonstration, the data of the human or legal 
person who organizes it, detailing the names and personal data of its 
organizers, delegates or authorities, regardless of whether or not they 
participate in the meeting or demonstration; the object and purpose, the 
location and route, duration and estimated number of attendees.

If we take into consideration that this regulation covers meetings made 
up of three people, this obligation to notify the Ministry of Security 
in advance of its implementation involves the exercise of overwhelming, 
unnecessary and limiting control of the most basic freedoms of people, 
by a true Police State that places security and strict control of the 
population as its primary objectives.

It even establishes that spontaneous manifestations must be notified as 
far in advance as possible, which is an absurdity that escapes the 
slightest sense of rationality and an impossible obligation because they 
are precisely "spontaneous" manifestations. This is a requirement that 
seeks to find an excuse to criminalize these demonstrations.

It provides that the Ministry of Security may oppose the holding of the 
meeting or demonstration for security reasons, and may also propose 
another date, time or place for its holding.

Finally, it establishes that in meetings or demonstrations that do not 
comply with the regulations, the Ministry of Security will inform the 
organizers to comply with them, under penalty of fines and sanctions. It 
also makes the organizers of the meetings or demonstrations jointly and 
severally liable for any damage that the protesters cause to third 
parties or property in the public or private domain, as a result of the 
meeting or demonstration.

It is a regulation clearly intended to criminalize strikes and social 
protests, imposing abusive, arbitrary and impossible to comply 
restrictions, with the clear purpose of preventing the exercise of these 
rights.

PUBLIC EMPLOYMENT REFORMS:

National Public Employment Regime:

Modifications are introduced to the legal regime of National Public 
Employment provided for in Law 25,164 (LEP). Many of these reforms aim 
to regulate the consequences on those permanent workers who will be 
affected by layoffs and by the modification of the structure of the 
National State, as a consequence of the elimination or suppression of 
organizations within the National Public Administration. .

Within this framework, it can be seen that the modifications to the 
legal regime of national public employment are aimed at trying to 
regulate the transfer of those affected state workers to the field of 
private employment or to what the project calls "self-employment", but 
without It can be seen that this goal can be truly achieved and that the 
new private jobs that they may obtain maintain the same level of salary 
income that they had.

The project establishes the automatic transfer to availability for a 
maximum period of 12 months of all permanent workers whose positions 
have been eliminated due to restructuring measures, thus eliminating the 
procedure of relocation to vacant positions and job reconversion as is 
currently contemplated.

In line with this modification, the project creates a "Labor 
Reconversion Fund" through a trust financed in the national budget, 
whose objective is to pay the salaries of workers who have become 
available, as well as that of pay these workers compensation in the 
event that they have not formalized a new employment relationship once 
the availability period has ended. In order to receive such 
remuneration, workers must accept the training provided by the State in 
self-employment programs and solidarity-based associative forms, and/or 
also carry out tasks in outsourced State services.

The aforementioned training in what the project calls "self-employment" 
programs or "solidarity associative forms" is nothing other than 
training so that the worker can face with their own resources the 
situation of unemployment in which They will soon meet, without there 
being concrete guarantees that they will be able to maintain the income 
levels they had before the dismissal or even be able to survive after 
the separation. Likewise, the obligation to have to provide tasks in 
outsourced services of the State, in itself implies a new paradigm, 
moving from the legal protection of the worker against labor outsourcing 
to the legal obligation of having to accept this form of job insecurity. .

The project eliminates the paragraph that establishes that agents who 
are on leave due to illness or accident, pregnancy or marriage, until 
the period of their leave has expired, cannot be placed on availability. 
Therefore, this elimination would indicate that these workers could be 
made available.

On the other hand, although the project maintains the clause that 
establishes that staff delegates with a current mandate or within the 
one-year guardianship period cannot be made available, the clause that 
establishes that in the case of deletion of the organization, they must 
be affected to another, within the same jurisdiction and area of action. 
This elimination creates a legal vacuum regarding the situation of these 
union delegates, which can allow the employer State to carry out abuses 
and take anti-union measures.

The project establishes that, during the availability period, the 
affected workers have the following options: 1) accept to fill a vacancy 
in the National Public Administration, if there is one and they meet the 
requirements for it; 2) be hired if required by private employers within 
the benefits established for these purposes; or 3) formalize another 
employment relationship through their own means.

Regarding the possibility of being hired by private employers within the 
benefits that are established, the project announces the creation of a 
promotion regime "for the private labor reintegration of public agents", 
but the only specific reference to that regime It is the possibility 
that the enforcement authority in matters of national public employment 
can exempt from social charges for a limited period of time those 
private employers who hire state workers in a situation of availability. 
That is to say, the project announces the creation of a regime whose 
content is not regulated and which would consist of a possible exemption 
from social charges at the decision of the implementing authority.

If the 12-month availability period expires without a new employment 
relationship having been formalized, the affected workers will be 
automatically separated from the national public sector, having the 
right to receive compensation that will be financed by the Labor 
Reconversion Fund. , equal to one month's salary for each year of 
service or fraction greater than three months.

From the terms of the project it can be interpreted that those 
available workers who formalize a new employment relationship in the 
private sector within that period would be deprived of the compensation 
provided therein, despite having ended their employment relationship 
with the National State. and without there having been a just cause for 
dismissal.

The project reaches the height of abuse by empowering the National 
Executive Branch to establish guidelines for the proportional return of 
the aforementioned compensation, in those cases in which workers 
re-enter the national public sector before five years of their effective 
separation. . It is not necessary to elaborate on the obvious fact that 
a future re-entry into the public sector does not involve reparation for 
the damages caused by the arbitrary dismissal, which does not explain 
the duty of the worker to have to return the compensation that they 
received. were paid for having been fired without just cause.

On the other hand, the project eliminates the need for the express 
consent of the worker so that they can be geographically mobilized to 
other dependencies. This modification would allow their compulsive 
transfers.

Likewise, the days of unjustified absence and the number of insufficient 
qualifications to be able to lay off workers are reduced. It goes from 
10 discontinuous unjustified absences in the year to 5, and from 5 
continuous unjustified absences to 3. As for the insufficient grades to 
be able to be dismissed, it goes from 3 continuous grades to 2, and from 
4 alternating grades in the last 10 services to 3.

The project doubles the statute of limitations for applying sanctions. 
To apply a warning or suspension, the statute of limitations increases 
to 1 year from the commission of the offense, when it is currently 6 
months. For unemployment, the limitation period is increased to 2 years, 
when it is currently 1 year. Regarding the exoneration, it increases the 
limitation period to 4 years, when it is currently 2 years.

The project eliminates the possibility that collective bargaining 
agreements must provide for participation and control mechanisms of 
union associations in the selection processes to fill vacant positions.

A new article is incorporated that prohibits male and female workers 
from: "Devoting their public service working hours to doing any type of 
tasks linked to electoral and/or party campaigns . " The breadth of this 
subsection can also be understood to include union elections, such as 
the election of delegates, which is why it can be limiting to union 
activity in the workplace.

It can be seen that the main modifications that are intended to be 
introduced to the legal regime of national public employment are focused 
on regulating the consequences for those permanent workers who are 
dismissed as a consequence of the restructuring measures and/or 
elimination of organizations within of the National Public 
Administration, with the obvious purpose of facilitating this process 
and reducing the levels of protection of these workers, pretending to 
introduce reforms aimed at enabling insertion into private employment, 
but whose guarantees that this happens are not found in any way. insured 
form.

Reforms are also introduced to facilitate the application of layoffs and 
other sanctions, as well as to reduce union participation in vacancy 
selection processes and limit union activity in the workplace.

Regime of collective labor agreements in the national public sector:

The bill introduces modifications to Law 24,185 that regulates the 
collective bargaining regime in the National Public Administration, with 
a clear profile aimed at defunding union organizations in the sector and 
discouraging the exercise of the right to strike.

Firstly, the project establishes that the solidarity quotas agreed upon 
in the collective labor agreements in favor of the union associations 
participating in the negotiation will be valid only for the workers 
affiliated with these union associations. In the case of non-affiliated 
workers, the project establishes that in these cases their express 
authorization will be required for the discounts to be made.

Currently, the clauses that establish solidarity quotas are valid for 
both members and non-members, as long as they are within the scope of 
application of the collective bargaining agreement and thus enjoy the 
benefits provided therein. The justification for this is that 
non-members also benefit from the collective bargaining agreement, so it 
would be fair for them to contribute financially to the union 
association that negotiated it.

The project introduces a new article that establishes: "The deduction of 
the proportional salary will be mandatory for the days in which the 
employee has decided to make use of his right to strike . " The striking 
thing about this new provision is that it imposes on the employers the 
"obligation" to deduct the salaries corresponding to the days of strike. 
This obligation would make it impossible for the parties in the 
framework of a collective dispute to agree on the recognition of the 
payment of salaries during strike days. Once again, the objective is to 
discourage workers from making use of their right to resort to strike.

PENSION REFORMS:

The project contains a new adjustment for retirees with the objective of 
reducing the fiscal deficit at the expense of the latter, transferring 
resources intended for the payment of retirements and pensions to the 
national treasury to attend to the State's debts with external creditors.

Firstly, the project suspends the retirement mobility regime currently 
in force, a practice that has been done for years every time a new 
government takes office. In this way, each government that takes office 
suspends and/or modifies the existing mobility formula in a way that is 
more detrimental to retirees.

The project empowers the Executive Branch to establish by decree a new 
mobility formula that has criteria of "equity and economic 
sustainability." The fact that the mobility formula must follow criteria 
of economic sustainability shows that the objective is not to ensure 
retirements and pensions that at least cover all the essential needs of 
a retiree, but rather to pay retirements and pensions that adjust to the 
income levels of the State collection, making them pay the consequences 
of an economic crisis for which they have no responsibility.

While the Executive Branch has not defined the new mobility formula, the 
project authorizes it to establish by decree periodic increases that 
must primarily serve the lowest-income beneficiaries. In this way, the 
government is allowed to give increases when and for the amount it 
wants, without having to follow any specific guidelines, which means a 
free way to continue applying the adjustment to retirees.

On the other hand, the project establishes the total transfer of the 
assets of the Sustainability Guarantee Fund to the National Treasury, 
assets that may be used to meet the debts of the National State with its 
creditors. The Sustainability Guarantee Fund was created as a financing 
guarantee for the retirement and pension regime, in the event that it 
suffers from a situation of lack of resources for the payment of 
retirements and pensions. The project is literally destroying this fund 
to use it to pay the State's debts with resources that belong to retirees.

These pension reforms are intended to achieve the fiscal balance imposed 
by IMF policies, further reducing the benefits of retirees, as well as 
using the funds belonging to the latter.

CONCLUSIONS:

The bill known as the "Omnibus Law" contains a wide, varied and massive 
delegation of legislative powers in favor of the National Executive 
Branch, to the point of importing a concentration of power in the head 
of the executive, to be able to implement without difficulties or delays 
the fierce adjustment measures against all workers.

The reforms it introduces to the legislation applicable to labor and 
pension matters are intended to criminalize strikes and social protests 
at such levels that they violate the most basic freedoms of any person. 
The modifications to the national public employment regime are also 
aimed at enabling dismissals within the National Public Administration 
and discouraging the exercise of the right to strike. Finally, the 
reforms to the pension system aim to further adjust the income of 
retirees, allocating funds from the pension system to pay the State's 
debts with its creditors.

These legislative reforms are inserted within the framework of greater 
adjustment, deregulation and shrinking of the State in terms of 
employment and social action, in a context of serious economic crisis, 
growth in poverty and resounding loss of the purchasing power of 
salaries and income. of the most vulnerable sectors. The project is 
aimed at strengthening and expanding the repressive apparatus of the 
State in a manner inversely proportional to the reduction in economic 
and social matters, in order to try to confront the growth of conflict 
and social protest that will inevitably awaken the adjustment policies 
that they continue to be implemented.

The (not so invisible) hand of the Market is accompanied by the strong 
hand of the State to achieve full freedom for the powerful to live at 
the expense of the working people, without the latter being able to use 
their weapons of struggle as a class. But the collective reaction to 
what is perceived as social injustice is part of the human essence, 
leaving it up to us that workers, retirees and other popular sectors 
organize in the streets and in the workplace to stop the adjustment and 
achieve better conditions. life conditions.

https://organizacion-obrera.fora.com.ar/2024/01/08/las-reformas-del-proyecto-de-ley-omnibus-en-materia-laboral-y-previsional/
_________________________________________
A - I N F O S  N E W S  S E R V I C E
By, For, and About Anarchists
Send news reports to A-infos-en mailing list
A-infos-en@ainfos.ca
Subscribe/Unsubscribe https://ainfos.ca/mailman/listinfo/a-infos-en
Archive: http://ainfos.ca/en