Decree of Necessity and Urgency (“DNU”) No. 70/2023, published in the Official Gazette on December 21, 2023, its Title IV addresses both individual and collective labour relations. The relevant aspects of the new labour regulations are listed and detailed below. It is important to clarify that the DNU does not have retroactive effects.
Labour is divided into 4 chapters, namely: REPEALS, LABOUR REGISTRATION, LABOUR CONTRACT LAW, AND SPECIAL REGIMES.
1. REPEALS
– Repeal of fines derived from irregular employment contract registration: The DNU repeals all provisions of the National Employment Law (No. 24,013) that establish fines and indemnity aggravations for the lack of registration or deficient registration of the employment relationship.
– Repeal of Law 25,323: It also repeals the mentioned law that established fines in case of dismissal due to irregular registration (section 1) as well as for failure to pay severance pay for unjustified dismissal within the legal deadline and after a worker’s demand (section 2).
– Repeal of Section 9 of Law 25,013: The fine that establishes that in case of non-payment within the term of the severance pay for unjustified dismissal or of a homologated agreement, the existence of the reckless and malicious conduct contemplated in Section 275 of the Labour Contract Law (LCT) will be presumed, is repealed.
– Repeal of Sections 43 and 45 of Law 25,345: The following fines are null and void: a) Fine established in Section 132 bis of the LCT for the retention of worker contributions to social security agencies, which was equivalent to the monthly salary accrued in favor of the worker, until the employer credibly proved having made the payment of the withheld funds; and b) The fine established in Section 80 of the LCT, which provided for a fine equivalent to three (3) salaries in case of failure to deliver the employment certificate and documented contribution records within the legal deadline.
– Repeal of Sections 44 and 46 of Law 25,345: The last paragraph of Section 132 of the LCT, which imposed the obligation to forward proceedings to the AFIP in case of a final judgment or homologated settlement agreements arising from the lack or deficient registration of the worker, is repealed;
– Repeal of Section 15 of Law 26,727: The prohibition on hiring temporary rural workers through placement agencies or labour supply agencies is repealed.
– Repeal of Section 50 of Law 26,844. Domestic Workers Regime: The provision that provided for double indemnification in case, at the time of dismissal, the employment relationship was not registered or was registered deficiently, is repealed.
2. LABOUR REGISTRATION (LAW No. 24.013)
– Labour registration. Sections 7, 7 bis, 7 ter, and 7 quater of Law 24,013. The new Section 7 aims to simplify worker labour registration. The existence of registration will be verified through a simple and immediate process established by regulation, using electronic means.
– Section 7 bis establishes that, in accordance with Sections 29 and 30 of the Labour Contract Law (LCT), registration carried out in the terms of Section 7 is considered fully effective when it has been done by any of the parties involved (contractors and subcontractors). This eliminates the lack of registration in cases of temporary personnel provision, as long as the worker is registered with the provider or the principal.
– Section 7 ter states that the worker may report the lack of labour registration to the Applicable Authority, which must provide an electronic means for this purpose, to the Federal Administration of Public Revenue (AFIP), or to local labour authorities.
– Section 7 quater establishes that in the case of a final court judgment determining the existence of a defficient or not registered employment relationship, it must be reported to the AFIP, along with any omitted social security obligations for the purpose of determining any existing debt, if applicable. In cases where it concerns an employment relationship mistakenly categorized as a work or service contract, the amounts already paid under the applicable regime will be deducted, and a less burdensome interest system and payment facilities will be established.
– Modification of Section 18 of Law 24,013. According to the new text of Section 18 of the National Employment Law, subSection (a) has been modified, and the term “health insurance” is replaced by “provider of the National Health System chosen by the worker.” This equals prepaid medical companies to social security providers.
3. LABOUR CONTRACT LAW
A) Scope of Application. Amendment to Section 2 of the Labour Contract Law.
The mentioned provision determines the scope of application of the labour Contract Law and explicitly establishes exclusions (public administration workers, domestic workers, and agricultural workers). It also incorporates subSection (d), which excludes “Contracts for work, services, agency, and all those regulated in the Civil and Commercial Code of the Nation” from its application.
B) Principle of Interpretation. Amendment to Section 9 of the Labour Contract Law.
Section 9 of the Labour Contract Law is modified and is now worded as follows:
“Section 9: The principle of the most favorable rule for the worker (“in dubio pro operario”). In case of doubt about the application of legal or conventional rules, the one most favorable to the worker shall prevail, considering the rule or set of rules that govern each of the institutions of labour law. If doubt arises in the interpretation or scope of the law, or in the assessment of evidence in specific cases, judges or those in charge of its application shall decide in favour of the worker when they have exhausted all means of investigation within their reach, and an insurmountable doubt in evidence persists, while considering the principles of consistency and defense in litigation. In this regard, the general procedural rule shall apply, under which facts must be proven by the party invoking them, with full respect for the authority of the judges in obtaining the objective truth and respect for legal certainty.”
The regulatory modification includes the highlighted text in bold, which aims to limit the automatic application of the “in dubio pro operario” principle and subject its application to objective standards and the application of the procedural principle of the burden of proof.
C) Principle of Non-Waiver. Amendment to Section 12 of the Labour Contract Law.
Section 12 of the Labour Contract Law is modified and is now worded as follows:
“Section 12 – Protection of Workers. Non-waiver. Any agreement between the parties that eliminates or reduces the rights provided for in this law, professional statutes, and collective labour agreements, whether at the time of their conclusion or execution, or the exercise of rights arising from their termination, shall be null and void. When agreements are entered into regarding modifications of essential elements of the employment contract or termination under the terms of Section 241 of this Law, the parties may request the approval of such agreements from the supervisory authority, in accordance with the terms of Section 15 of this Law.”
The regulatory modification returns to the text prior to the reform of Law 26,574 and eliminates individual employment contracts from the cases of nullity.
It incorporates the possibility and authority to submit novations/modifying or termination agreements made under the terms of Section 241 of the labour Contract Law for approval.
D) Presumption of Existence of an Employment Contract. Amendment to Section 23 of the Labour Contract Law.
Section 23 of the Labour Contract Law is modified and is now worded as follows:
“Section 23 – Presumption of the existence of an employment contract. The fact of rendering services shall presume the existence of an employment contract unless, due to the circumstances, relationships, or causes that motivate it, the opposite is demonstrated.
The presumption contained in this Section shall not apply when the relationship concerns contracts for works or professional or trade services, and the corresponding receipts or invoices for such forms of contracting are issued, or payment is made in accordance with the banking systems determined by the corresponding regulations. This absence of presumption shall apply to all effects, including Social Security.”
The regulatory modification aims to reduce the intensity of the presumption. The new text is in line with the modification of Section 2 and the exclusion from the scope of application of the Labour Contract Law of “contracts for work, services, agency, and all those regulated in the Civil and Commercial Code of the Nation.” It is relevant to note that the provision extends the absence of presumption to Social Security purposes.
E) Intermediation. Amendment to Section 29 of the Labour Contract Law. Section 29 of the Labour Contract Law is modified and is now worded as follows:
“Section 29 – Mediation. Intermediation. Solidarity. Subsidiarity. Workers shall be considered direct employees of those who register the employment relationship, regardless of whether they were hired for the purpose of using their services or providing them to third-party companies.
The user company shall be jointly liable for labour and social security obligations with respect to the provided workers.”
The amendment establishes the opposite principle to the previous text, and therefore, in cases of intermediation, workers must be considered direct employees of those who register the employment relationship. The company beneficiary from the provided services is jointly liable for labour and social security obligations concerning the involved workers.
F) Labour Certifications. Amendment to Section 80 of the Labour Contract Law. Section 80 of the Labour Contract Law is amended and is now worded as follows:
“Section 80 – Delivery of certificates. The National Executive Power shall establish, with regard to the obligation to deliver the certificates referred to in Section 80 of Law No. 20,744, an optional mechanism for compliance through a virtual platform. Such obligation by employers shall be considered effectively fulfilled when the relevant certificates have been incorporated into the virtual platform. Likewise, it shall also be considered fulfilled when the information is updated and available to the worker through the social security agency’s website.”
As previously mentioned, the fine (equivalent to 3 best monthly normal and habitual remunerations) has been eliminated, and a mechanism for fulfilling the obligation through an optional virtual platform, to be incorporated by the National Executive Power, has been established. The obligation is also considered fulfilled when the information is updated and available to the worker through the social security agency’s website.
G) Trial Period. Amendment to Section 92 bis of the Labour Contract Law. Section 92 bis of the Labour Contract Law is amended and is now worded as follows:
“Section 92 bis – Trial Period. An indefinite-term employment contract, except for the one referred to in Section 96, shall be considered to be entered into on a probationary basis for the first 8 months of its validity. Either party may terminate the relationship during that period without stating a reason, with no right to compensation upon termination, but with an obligation to provide notice as established in Sections 231 and 232. The trial period shall be governed by the following rules:
– An employer cannot hire the same worker more than once using the trial period. If done so, it shall be deemed that the employer has waived the trial period.
– The abusive use of the trial period to avoid the permanent employment of workers shall be subject to sanctions provided for in the regulations on violations of labour laws. In particular, the conduct of an employer who successively hires different workers for the same permanent nature job shall be deemed abusive.
– The parties shall have the rights and obligations inherent to the employment relationship, with the exceptions established in this Section. This recognition regarding the worker includes union rights. The parties are obliged to pay contributions and social security contributions, with the benefits established in each case.
– The worker is entitled, during the trial period, to benefits for work-related accidents or illnesses. Also, for non-work-related accidents or illnesses, which shall only last until the end of the probationary period if the employer terminates the employment contract during that period. The application of the fourth paragraph of Section 212 is excluded.”
The main amendment is the extension of the probationary period from 3 to 8 months.
H) Remuneration. Amendment to Section 124 of the Labour Contract Law. Section 124 of the Labour Contract Law is amended and is now worded as follows:
“Section 124 – Remunerations in cash owed to the worker must be paid, under penalty of nullity, in cash, a check payable to the order of the worker to be personally cashed by him or someone he designates, or by crediting it to an account opened in his name with a banking institution, an official savings institution, or other categories of entities that the authority in charge of the payment system deems suitable, secure, interoperable, and competitive.”
The reform consists of the highlighted text, but it also eliminates the following:
“This special account shall be named a salary account and, under no circumstances, may have withdrawal limits or any cost for the worker, regarding its establishment, maintenance, or fund withdrawal within the entire banking system, regardless of the withdrawal method used.”
The regulatory authority may establish that in certain activities, companies, operations, or establishments, or in specific areas or periods, the payment of wages owed to the worker shall be exclusively made through one or more of the provided methods and under the control and supervision of officials or agents under the authority’s jurisdiction. Payments made without such supervision may be declared void.
In all cases, the worker may demand that their remuneration be paid in cash.
I) Permitted withholdings. Amendment of Section 132 of the Labour Contract Law.
SubSection c) of Section 132 of the LCT is replaced by the following:
SubSection c) payment of installments, periodic contributions, or contributions that workers are obligated to make under legal norms or arising from collective labour agreements or resulting from their status as members of professional worker associations with union recognition or members of mutual societies or cooperatives, as well as for social services and other benefits provided by such entities, only if there is explicit consent from the employee authorizing the same.”
The reform requires explicit consent from the employee.
J) Permitted withholdings. Amendment of Section 132 of the Labour Contract Law.
Section 136 of the LCT is replaced by the following:
“Section 136 – Contractors and intermediaries. Without prejudice to the retention power established in Section 30 of this law, workers hired by contractors or intermediaries shall have the right to request from the main employer for whom these contractors or intermediaries provide services or carry out works, that they withhold from what these are owed and pay on behalf of their employer the amounts owed in the form of salaries, indemnities, or other money-appreciable rights arising from the employment relationship.”
In accordance with Section 30 of Law No. 20,744 (as of 1976) and its amendments, the principal shall be empowered to withhold, without prior notice, the amounts that contractors or intermediaries owe to social security organizations due to the employment relationship with workers hired by such contractors or intermediaries.
These sums shall be deposited on behalf of the respective organizations in the manner and under the conditions determined by regulations. Within 90 days of the enactment of this law, the AFIP shall establish a simplified mechanism to facilitate the withholding for social security as provided in this Section.
As evident, this establishes a mechanism that reduces the risk of non-payment of wages, indemnities, and also the withholding of amounts owed to social security organizations due to the employment relationship maintained with workers hired by the subcontractor.
K) Payroll Receipts. Amendment to Section 139 of the labour Contract Law.
Section 139 is replaced by the following:
“Section 139 – Modality. The receipt shall be prepared by the employer and a faithful copy of the original shall be delivered to the worker, which may be issued electronically.”
L) Payroll Receipts. Amendment to Section 140 of the Labour Contract Law.
Section 140 is replaced by the following:
“Section 140 – Necessary Contents. The payment receipt must necessarily contain, at a minimum, the following information:
– Full name or business name of the employer and their address and Tax Identification Number (C.U.I.T).
– Name and surname of the worker, their professional qualification, and their Labour Identification Number (C.U.I.L).
– Total remuneration received, with substantial indication of its determination. If it involves percentages or sales commissions, the total amounts of these, and the percentage or commission assigned to the worker, shall be indicated.
– The requirements of Section 12 of Decree-Law No. 17,250/67.
– Gross total of the basic or fixed remuneration, the percentage earned, and the corresponding time. In jobs paid by the day or hour, the number of days or hours worked, and if it involves remuneration per piece or measurement, the number of these, the unit amount adopted, and the total amount for the liquidated period.”
– Amount of deductions made for retirement contributions or others authorized by this law; garnishments and other legally applicable deductions.
– Net amount received, expressed in numbers and letters.
– In the case of Sections 124 and 129 of this law, signature and seal of the officials or agents dependent on the authority, which may be electronic and supervision of payments.
– Date of entry or recognized seniority and task performed or category in which he/she actually worked during the payment period.
– Total contributions paid by the employer by legal provision”.
M) Receipts. Modification of Section 143 of the Labour Contract Law.
Section 143 of the LCT is replaced by the following:
“Section 143.- Conservation – Term. The employer shall keep the receipts and other proofs of payment during the entire term corresponding to the statute of limitations of the benefit in question.
For the purpose of keeping the receipts and other proofs of payment, they may be digitalized, which shall have the same validity as in paper format.
The payment made for a last or subsequent periods does not make the payment of the previous ones presumed.”
N) Maternity protection. Amendment of Section 177 of the Labour Contract Law.
Section 177 of the LCT is replaced by the following:
“Section 177.- Prohibition to work. Preservation of Employment. Female personnel or pregnant women are prohibited from working during the 45 days prior to delivery and up to 45 days after delivery.
However, the person concerned may choose to have the leave prior to childbirth reduced, which in such case shall not be less than 10 days; the rest of the total leave period shall be accumulated to the rest period after childbirth. In the case of pre-term birth, the entire period of leave not taken before the birth shall be accumulated to the subsequent rest period, in order to complete the 90 days.
The worker or pregnant woman must reliably communicate her pregnancy to the employer, with the presentation of a medical certificate stating the presumed date of delivery, or request its verification by the employer.
She shall keep her employment during the periods indicated, and shall enjoy the allowances granted by the social security systems, which shall guarantee her the receipt of a sum equal to the remuneration corresponding to the period of legal leave, all in accordance with the demands and other requirements provided for in the respective regulations.
Every pregnant woman or pregnant person during pregnancy shall be guaranteed the right to employment stability, which shall have the character of an acquired right as from the moment in which she gives the notification referred to in the preceding paragraph.
In the event of being absent from work for a longer period of time, as a consequence of an illness which, according to medical certification, is due to pregnancy or childbirth and makes her unable to resume work after those periods have expired, the woman or pregnant person shall be entitled to the benefits provided for in Section 208 of this law”.
O) Workday. Distribution of working time. Hour bank. Modification of Section 197 of the labour Contract Law.
Section 197 bis is incorporated into the LCT with the following text:
“Section 197 bis.- Collective bargaining agreements, respecting the unavailable minimum of 12 hours of rest between each working day for reasons of health and safety at work, as well as the legal limits according to the nature of each activity, may establish regimes that adapt to changes in production modalities, the conditions of each activity, especially considering the benefit and interest of the workers.
To this end, collective arrangements may be made for overtime, bank of hours, compensatory time off, among other institutions relating to the working day”.
P) Dismissal with just cause. Modification of Section 242 of the Employment Contract Act.
Section 224 of the LCT is replaced by the following:
“Section 242.- Just cause. One of the parties may terminate the employment contract in the event of non-compliance by the other party of the obligations resulting from the same which constitute an offence and which, due to their seriousness, do not allow the continuation of the relationship.
The assessment shall be made prudentially by the judges, taking into consideration the nature of the relationship resulting from an employment contract, as provided for in this Act, and the personal modalities and circumstances in each case.
Participation in lock out or takeovers of establishments constitutes serious industrial injury. Serious offence is presumed to exist when, during a direct action measure, the freedom of work of those who do not adhere to the measure is affected by acts, deeds, intimidation or threats:
1- The freedom of work of those who do not adhere to the measure of force is affected, by means of acts, deeds, intimidation or threats;
2- The entry or exit of persons and/or things into or out of the establishment is totally or partially prevented or obstructed;
3- Damage is caused to persons or things belonging to the company or to third parties located on the premises (installations, merchandise, supplies and raw materials, tools, etc.) or they are improperly withheld.
Prior to the dismissal, the employer must give notice to the worker to cease the injurious conduct, except in the case of damage to persons or things foreseen in paragraph c), where the production of the damage renders the notice useless”.
The reform incorporates the highlighted text into section 242 of the LCT It expressly incorporates as just cause the cases of lock out or takeovers of establishments, which it considers to be serious offences that justify dismissal with cause in accordance with the guidelines established in the incorporated paragraphs.
Q) Severance pay. Modification of Section 245 of the Employment Contract Act.
Section 245 of the LCT is replaced by the following:
“Section 245.- Severance pay for length of service or dismissal.
In cases of dismissal by the employer without just cause, whether or not prior notice has been given and after the probationary period has elapsed, the worker shall be paid an indemnity equivalent to 1 month’s salary for each year of service or fraction of more than 3 months, taking as a basis for calculation the best monthly, normal and customary remuneration earned during the last year or during the time of service if this is less.
The basis for calculating this indemnity shall not include the mandatory annual bonus (known as SAC OR Supplementary Annual Salary), or biannual or annual payment concepts.
For those workers paid on commission or with variable monthly remunerations, the average of the last 6 months shall apply, or of the last year if it is more favourable to the worker.
This base may not exceed the equivalent of 3 times the monthly amount of the sum resulting from the average of all the remunerations provided for in the collective bargaining agreement applicable to the worker, at the time of dismissal, for the legal or conventional working day, excluding seniority. The Authority of Application shall be responsible for fixing and publishing the resulting average, together with the wage scales of each collective bargaining agreement. For those workers excluded from any collective bargaining agreement, the ceiling established in the previous paragraph shall be that of the agreement applicable to the establishment where they render services or to the most favourable agreement, in the event that there is more than one.
The basis for calculating the indemnity may in no case be less than 67 % of the amount corresponding to 1 month’s salary, obtained in accordance with the method described in the first and second paragraphs hereof.
The indemnity shall in no case be less than 1 month’s salary calculated on the basis of the system established in the first and second paragraphs hereof.
By collective bargaining agreement, the parties may replace this system of severance pay by a severance fund or system, the cost of which shall always be borne by the employer, with a monthly contribution that may not exceed 8 per cent of the computable remuneration.
For their part, employers may contract a private capitalization system at their own cost, in order to pay the indemnity provided for in this Section and/or the sum freely agreed between the parties in the event of termination by mutual agreement in accordance with Section 241 of this law”.
As can be seen from the text, Section. 245 of the LCT has undergone several modifications, which are listed below:
– It reiterates that the indemnity does not apply to cases of probationary period.
– It excludes from the indemnity base mandatory annual bonuses, prizes or concepts of annual or half-yearly periodicity (in a way, it ratifies the doctrine of the CNAT’s plenary ruling “TULOSAI”) The exclusion of the SAC is relevant for the SCBA’s jurisprudence.
– It normatively incorporates the Supreme Court doctrine of the “VIZZOTTI” ruling on compensation ceilings.
– It establishes the possibility of agreeing, by means of a collective bargaining agreement, the replacement of the current compensation system by a “severance fund” similar to the one in force for the Construction Regime on the basis of a monthly contribution of no more than 8% of the computable remuneration to be paid exclusively by the employer.
– It establishes the employer’s power to opt for contracting a private capitalisation system at his own cost, in order to pay the indemnity of Section 245 of the LCT and/or the sum that may eventually be agreed in the event of termination by mutual agreement in accordance with Section 241 of the LCT.
R) Discriminatory dismissal. Aggravation of compensation. Incorporation of Section 245 bis of the Employment Contract Act.
Section 245 bis is incorporated into the LCT with the following text:
Section 245 bis.- Aggravation of compensation for dismissal due to a discriminatory act. Dismissal due to an act of discrimination shall be considered as that which originates on grounds of ethnicity, race, nationality, sex, gender identity, sexual orientation, religion, ideology, or political or trade union opinion.
In this case, the proof shall be in charge of the person who invokes the cause, and in the event of a court ruling that corroborates the discriminatory origin of the dismissal, a special aggravated indemnity shall be paid, which shall amount to an amount equivalent to 50% of that established by Section 245 of Law N° 20.744 (t.o. 1976) and its amendments or of the indemnity for seniority of the special regime applicable to the case.
Depending on the seriousness of the facts, the judges may increase this compensation up to 100%, in accordance with the parameters referred to above. The compensation provided for in this Section shall not be cumulative with any other special regime that establishes compensation increases.
Dismissal shall, in all cases, result in the termination of the employment relationship for all purposes”.
In general terms, it should be noted that the reform incorporates a specific and subsequent rule on discrimination in the employment contract that should prevail over the (generic) provisions of Law 23.592 with its exhaustive list of grounds for discrimination.
– It determines the criterion of the burden of proof on whoever invokes the discriminatory fact.
– The increase in compensation (between 50% and 100% of the seniority compensation) will depend on the seriousness of the facts.
– It may not be accumulated with other compensations or aggravations for the same fact and eliminates the possibility of reinstatement of the dismissed worker in case of discrimination.
S) Reinstatement of the worker. Deduction of severance pay. Modification of section 255 of the Employment Contract Act.
Section 255 of the LCT is replaced by the following:
“Section 255.- Reinstatement of the worker. Deduction of indemnities received.
The worker’s seniority shall be established in accordance with the provisions of Sections 18 and 19 of this law, but if he/she has been re-employed by the same employer, the compensation provided for in Sections 245, 246, 247, 250, 251, 253 and 254 shall be deducted from what was duly paid, updated by the Consumer Price Index (CPI) plus a pure interest rate of 3% per annum, for the previous cause of termination.
In no case may the resulting indemnity be less than that which would have corresponded to the worker if his period of service had only been the last and regardless of the periods prior to reinstatement”.
In no case may the resulting compensation be less than that which would have corresponded to the worker if his or her period of service had only been the last and regardless of the periods prior to reinstatement”.
The current DNU modifies the rule by establishing that the indemnity discount must be made by updating the amount received by the Consumer Price Index (CPI) plus a pure interest rate of 3% per annum. It does not apply to the cases of Section 241 LCT.
T) Updating of labour credits. Modification of section 276 of the Labour Contract Law.
Section 276 of the LCT is replaced by the following:
Section 276.- “Updating and repotentiation of labour credits due to monetary depreciation. Claims arising from individual employment relationships shall be updated and/or revalued and/or shall accrue interest.
The amount resulting from such updating and/or restatement and/or application of interest may in no case exceed the amount resulting from calculating the historical capital updated by the Consumer Price Index (CPI) plus a pure interest rate of 3% per annum.
This provision is of federal public order and shall be applied by the judges or by the administrative authority, ex officio or at the request of a party, including in cases of bankruptcy of the debtor, as well as after the declaration of bankruptcy”.
The rule establishes that the credits coming from “individual labour relations” must be: a) updated; and/or b) repotentiated and/or c) accrue interest BUT in no case may it be higher than that resulting from calculating the historical capital updated by the Consumer Price Index (CPI) plus a pure interest rate of 3% per annum.
U) Payment in court. Modification of section 277 of the Labour Contract Act.
Section 277 of the LCT is replaced by the following:
“Section 277.- Payment in court. All payments to be made in labour lawsuits shall be made by means of a bank deposit in the file to the order of the Court involved and personal money order to the holder of the credit or his rightful claimants, even in the event of having granted power of attorney.
It is forbidden to agree on the payment of the quota litis in excess of twenty percent (20%), which, in each case, shall require personal ratification and judicial approval.
Individuals and legal entities covered by Law No. 24.467, before a condemnatory judicial sentence, shall be entitled to accept the total payment thereof in up to a maximum of twelve (12) consecutive monthly instalments, which shall be adjusted in accordance with the guidelines established in Section 276 of this Law.
The withdrawal by the worker of actions and rights shall be ratified personally in court and shall require homologation.
Any payment made without observing the prescribed provisions, as well as the agreement of the quota litis or the withdrawal not homologated, shall be null and void.
The liability for the payment of the costs of the proceedings, including the professional fees of all kinds accrued therein and corresponding to the first or only instance, shall not exceed twenty-five per cent (25%) of the amount of the judgement, award, settlement or instrument that puts an end to the dispute. If the fee regulations made in accordance with the tariff laws or local customs, corresponding to all professions and specialities exceed said percentage, the judge shall proceed to apportion the amounts among the beneficiaries.
For the computation of the indicated percentage, the amount of the professional fees that have represented, sponsored or assisted the party sentenced in costs shall not be taken into account”.
The novelty of DNU 70/2023 is that it establishes that Small and Medium Corporations (Law No. 24.467) may benefit from the payment of a judgment in up to 12 monthly instalments adjusted by an update for the Consumer Price Index (CPI) plus a pure interest rate of 3% per annum.
Individuals and legal entities covered by Law No. 24.467, before a condemnatory judicial sentence, shall be entitled to accept the total payment thereof in up to a maximum of twelve (12) consecutive monthly instalments, which shall be adjusted in accordance with the guidelines established in Section 276 of this Law. The withdrawal by the worker of actions and rights shall be ratified personally in court and shall require homologation. Any payment made without observing the prescribed provisions, as well as the agreement of the quota litis or the withdrawal not homologated, shall be null and void. The liability for the payment of the costs of the proceedings, including the professional fees of all kinds accrued therein and corresponding to the first or only instance, shall not exceed twenty-five per cent (25%) of the amount of the judgement, award, settlement or instrument that puts an end to the dispute. If the fee regulations made in accordance with the tariff laws or local customs, corresponding to all professions and specialities exceed said percentage, the judge shall proceed to apportion the amounts among the beneficiaries. For the computation of the indicated percentage, the amount of the professional fees that have represented, sponsored or assisted the party sentenced in costs shall not be taken into account”. The novelty of DNU 70/2023 is that it establishes that Small and Medium Corporations (Law No. 24.467) may benefit from the payment of a judgment in up to 12 monthly instalments adjusted by an update for the Consumer Price Index (CPI) plus a pure interest rate of 3% per annum.
4. SPECIAL REGIMES
1) Scheme for traveler salesmen. Repeal
The Law No. 14,546 – Traveling Salesperson Regime is repealed.
The repeal of Law No. 14,546 does not affect the individual rights of those workers currently covered by the regime established in the repealed law.
New contracts entered into after the entry into force of this law will be governed by the general rules, individual contracts, and applicable collective agreements.
2) Legal Regime of the Telework Contract (Law 27.555).
a. Teleworking. Care tasks.
Section 6 of Law 27.555 is replaced by the following:
Section 6. Care tasks. Persons working under this modality and who can prove that they are in charge of the care of persons under thirteen (13) years of age, disabled persons or elderly persons who live with the person working and who require specific assistance, shall have the right to coordinate with the employer, as long as it does not affect the requirements of their work, schedules compatible with the care task in their charge and/or the sporadic interruption of their working day, compensating such periods of time in accordance with the assigned tasks.
This Section shall not apply when the employer pays any legal, conventional or contractual compensation for care work expenses. Specific guidelines for the exercise of this right may be established by collective bargaining or within the scope of employment contracts.
b) Teleworking. Reversibility.
Section 8 of Law 27.555 is replaced by the following:
Section 8 – Reversibility. The request or the consent given by the person working in a face-to-face position to change to the teleworking modality, may be reversed by mutual agreement between the worker and the employer, as long as the conditions exist in the company’s facilities for the person to be able to resume his or her work in a face-to-face manner. Depending on the needs of each job, the teleworking modality may be reverted to the face-to-face modality, in those cases in which the characteristics of the activity so require.
c) Telework. Transnational benefits.
Section 17 of Law 27.555 is replaced by the following:
Section 17. “Transnational benefits. In the case of transnational teleworking services, the law of the place where the worker performs the tasks shall apply to the respective contract”.
d) Telework. Registration.
Section 18 of Law 27.555 is replaced by the following:
Section 18.- The National Executive Power shall establish a simple, electronic and automatic method of registration of this contractual modality at the time of registration or at the moment of incorporation of the worker to the present regime.
3) Self-employed worker
Section 96 of the DNU provides for a new regime of self-employed workers who may have up to 5 independent collaborators to carry out a productive undertaking. It will be based on an autonomous relationship, with no dependency link between them.
A special unified regime shall be created with an individual contribution that includes the social security system, social security, health system and A.R.T. (Worker’s Health Insurance).
Section 96.- The self-employed worker may have up to FIVE (5) other self-employed workers to carry out a productive undertaking and may benefit from a special unified regime to be regulated by the National Executive Power.
This shall be based on an autonomous relationship, without the existence of a dependency relationship between them or with the persons contracting the services or works, and shall include, both for the self-employed worker and for the collabourating workers, the individual contribution of a monthly fee that includes the contribution to the Pension System, to the National System of Social Works and the National Health Insurance System and to the Occupational Risks System, under the conditions and requirements established by the regulations.
4) Essential Services
Finally, the DNU replaces Section 24 of Law No 25.877 with the following text, highlighting in bold the amendments introduced:
Section 24.- Collective disputes that may affect the normal provision of essential services or activities of transcendental importance are subject to the following minimum service provision guarantees.
With respect to the provision of minimum services, in the case of essential services, in no case may the parties negotiate or impose a coverage of less than SEVENTY-FIVE PERCENT (75%) of the normal provision of the service in question. In the case of activities or services of transcendental importance, in no case may it negotiate or impose on the parties a coverage of less than FIFTY PERCENT (50%). The following activities shall be considered essential services in the strict sense:
– Health and hospital services, as well as the transport and distribution of medicines and hospital supplies and pharmaceutical services;
– The production, transport and distribution and marketing of drinking water, gas and other fuels and electricity;
– Telecommunications services, including internet and satellite communications;
– commercial aeronautics and air and port traffic control; including beaconing, dredging, mooring, stevedoring and towing of ships;
– customs, immigration and other services related to foreign trade; and
– childcare and education at nursery, pre-school, primary and secondary levels, as well as special education.
The following activities are considered to be of major importance:
1. Production of medicines and/or hospital supplies;
2. Maritime, river, land and underground transport of people and/or goods by the different means used for this purpose;
3. Radio and television services;
4. Continuous industrial activities, including iron and steel and aluminium production, chemical activity and cement activity;
5. Food industry throughout its value chain;
6. The production and distribution of construction materials, aircraft and ship repair services, all port and airport services, logistics services, mining activity, refrigeration activity, postal services, distribution and marketing of food and beverages, agricultural activity and its value chain;
7. Banking, financial services, hotel and restaurant services and e-commerce; and
8. The production of goods and/or services of any activity, which were affected to export commitments.
An independent and autonomous commission, called the GUARANTEE COMMISSION, composed, as established in the regulations, of five (5) members of recognised technical, professional or academic solvency in the field of labour relations, labour law or constitutional law and with an outstanding track record, may, by means of a well-founded resolution, classify an activity not included in the preceding lists as an essential service or a service of transcendental importance, when any of the following circumstances are present:
1. The extent and duration of the interruption of the activity in question could endanger the life, health or safety of persons in all or part of the community;
2. The activity affected constitutes a public service of major importance or of public utility;
3. The interruption or suspension of the service is likely to cause a situation of acute national crisis which would endanger the normal conditions or existence of part of the population; and
4. The interruption or suspension of production could endanger the adequate supply of critical products for the population and/or affect collection goals associated with fiscal balance policies.
The National Executive Power shall issue the corresponding regulations and the Authority of Application shall issue the necessary complementary, clarifying and operative rules.
5. CONCLUSION
As can be seen, the work carried out summarises the normative modifications derived from the DNU, the magnitude and impact of which are huge, but their analysis will require greater depth and extension, without prejudice to the political derivations regarding their validity and eventual test of constitutionality.