Labor reform, a thematic analysis of regulations

On September 26, decree 713/2014 was published in the official gazette, which regulates the Labor Reform contained in the Bases Law promulgated last July.

In this regulation, important guidelines were established for the new labor regime of our country that seek to modernize it and provide greater flexibility to promote job creation.

Among the main aspects the following stand out:

Labor Money Laundering

The regulations of Title IV of the Base Law seek to regularize labor relations that were not registered or were registered in a deficient manner, either due to the date of entry or the amount of remuneration.

The public sector and the private household staff service are expressly excluded, that is, it only applies to labor relations in the private sector that began prior to the date of enactment of Law 27,742.

Among the benefits were established (i) social security debt forgiveness of 90% for non-profit entities, for micro and small businesses, 80% for medium-sized businesses and 70% for the largest; (ii) the elimination of the Registry of Employers with Labor Sanctions (REPSAL) (iii) recognition of up to 60 months of service for workers, which will allow them to reach the minimum number of years required to retire.

The percentage of debt not forgiven may be paid through an AFIP facility plan or with a 50% discount in case of cash payment.

The deadline to regularize labor relations expires on December 24, 2024.

Now, this is a great opportunity for private sector companies to correctly register labor relations, with a very important debt forgiveness, among other benefits, and in this way avoid claims from employees that may end up being placed in dismissal situation with the economic consequences that this entails.

Labor Termination System

Both the worker and the employer may agree on the termination system that best suits their needs, replacing the compensation contemplated in article 245 of the Employment Contract Law that established “a salary per year worked or fraction greater than three months.” . This system must be agreed upon within a collective agreement and cannot be imposed unilaterally on any of the parties.

That is, the parties are given the freedom to establish different forms of compensation for the end of the employment relationship in the collective labor agreement for the activity. From now on, the amount, terms and modalities of severance payments will depend on what is negotiated in each CCT.

Collective labor agreements may agree on severance systems with different conditions, modalities and amounts depending on the type and characteristics of the company, activity or subsector.

This new system will have the characteristics of being mutually agreed between the worker and the employer; and the collection of commissions, fees or amounts destined for employers or unions will not be permitted.

There will be three types of Cessation system:

• Individual cancellation system: maintains the current direct payment method at the end of the employment relationship, with the possibility of agreeing on payment terms and modalities in collective agreements. In this system you do not need to create a special bank account or any fund.
• Severance Fund System: Monthly contributions will be made that will accumulate to cover payments at the end of the employment relationship. The percentage of the remuneration or fixed amount will be determined in the collective agreement, and the accounts and funds will be guarded by the BCRA and the CNV.
• Termination Insurance System: Employers may contract insurance to cover termination of employment with insurers authorized by the National Insurance Superintendency (SSN).

The truth is that for the implementation of this new system, a negotiation between the employer and the unions will be necessary, which will be very difficult to implement and that in many companies (which do not have a significant staff turnover), it will only entail one more expense than in the They currently do not have any plans, especially in the case of the Severance Fund and Termination Insurance System.

Probation

The trial period in the Argentine labor system is extended from three to six months. In addition, by collective agreement it can be extended up to 8 months in companies with between 6 and 100 workers and up to 1 year in smaller companies (up to 5 workers).

These guidelines apply to labor relations initiated after the enactment of the basic law, a point that had given rise to several debates (as to whether it could be applied to labor relations that were undergoing their trial period at the time of the promulgation of the law). law 27,742) and that the regulations bring clarity.

Independent Worker with collaborators

The regime for independent workers will be implemented through the figure of the monotax. Workers must declare to the AFIP their independent status and may have up to three collaborators under their care. No limitations will be imposed by sector or amount, and collaborators will be able to carry out activities simultaneously.

This is a regime that, in my opinion, is aimed at small businesses to put an end to clandestine hiring. Likewise, and to prevent this modality from being used fraudulently by concealing an employment relationship, each independent worker may only hire three collaborators simultaneously, and they may carry out other activities.

Presumption of service contracts

Based on the Bases Law, the existence of an employment contract will not be presumed in the contracting of works or professional services if the corresponding receipts or invoices are issued. This provision will apply even if multiple invoices or receipts are issued.

The modification introduced in this regard by Law 27,742 with the regulations under analysis puts an end to multiple claims made by those who provided a service and claimed that after said contract a black labor relationship was concealed. Now, it is also true that in the case under analysis, as in the case of collaborators in productive ventures, the typical notes of the employment relationship cannot be configured, which are economic, legal and technical dependency.

It will be the Labor Court that will have the last word in the event of claims related to the incorrect application of these contracting modalities.

Lawyer Specialist Business and Labor Law. Cardozo Lawyers Studio. www.cardozoabogados.com.ar