Referencias
Ámbito de aplicación
Tamaño de las empresas excluidas (≤): ninguna
Categorías de trabajadores excluidas: funcionarios publicos
Article 10 of Labour Code: Concept of employer.- The person or entity, of any kind whatsoever, for the account or order of which the work is carried out or to whom the service is provided, is called an entrepreneur or employer.
The State, provincial councils, municipalities, and other legal entities governed by public law have the status of employers with respect to workers in national or local public works. Such works are understood not only to be constructions, but also to maintain them and, in general, to carry out all material work related to the provision of public service, even if the workers have had their appointment and any other the form or period of payment. They have the same quality of employers with respect to the workers of the industries that are in their charge and that can be exploited by individuals.
They also have the quality of employers: the State Railroad Company and the fire departments regarding their workers.
CDD regulados: Si
Article 11of Labour Code provides that employment contracts might be:
a) Express or tacit, and the first, written or verbal; b) For salary, salary, participation and mixed; c) For a fixed time, for an indefinite time, seasonal, eventual and occasional; d) Trial Period; e) For certain work, for task and piecework; f) By hitch; g) Individual, group or team.
Razones de utilización legítima de CDD: sin restricción
Fixed-term contracts might be concluded for objective and material reasons or for no objective reason, but for a limited period: i) Fixed term contracts for permanent activities, however limited in time, from a minimum of 1 year to a maximum of 2 years (article 11c, 14 and 184 of Labour Code), ii) seasonal contracts for cyclic and discontinuous activities, repeated each season (article 11c and 17 of Labour Code) and the worker is entitle to severance payment if not hired for the next season, iii) eventual contracts to: a) replace a worker on vacation, illness, maternity leave or b) to attend an increase on demand of goods and services limited to 6 months within a period of 1 year (article 17 of Labour Code), iv) contracts to attend extraordinary non-core activities of the employer, limited to 30 days within a period of 1 year (article 17 of Labour Code), v) Contracts for specific work or service, which in its nature is of limited duration (article 16 of Labour Code).
Número máximo de CDD consecutivos: sin restricción
Duración máxima acumulativa de CDD consecutivos: 2año(s)
Article 14 of Labour Code provides a minimum period of stability of one year, of any fixed-term or indefinite-time contract, that workers enter into with companies or employers in general, when the activity or work is of a nature stable or permanent, without for this circumstance the contracts for an indefinite time becoming term contracts, such workers must be considered for the purposes of this Law as stable or permanent.
The following are excepted from the provisions of the preceding paragraph: a) Contracts for certain work, which are not habitual in the activity of the company or employer; b) Eventual, occasional and seasonal contracts; c) Those of domestic service; d) Those for learning; e) Those held between artisans and their operators; f) Trial contracts; g) The others that the law determines.
Article 184 (2) establishes that in fixed-term contracts, the duration of which may not exceed two non-renewable years, its termination must be notified at least thirty days in advance, and if not, it will become an indefinite-time contract, except for the cases in which the nature of the contract is transitory (Article 170 of Labour Code).
Duración máxima acumulativa de CDD consecutivos: sin limitación
Article 14 of Labour Code provides a minimum period of stability of one year, of any fixed-term or indefinite-time contract, that workers enter into with companies or employers in general, when the activity or work is of a nature stable or permanent, without for this circumstance the contracts for an indefinite time becoming term contracts, such workers must be considered for the purposes of this Law as stable or permanent.
The following are excepted from the provisions of the preceding paragraph: a) Contracts for certain work, which are not habitual in the activity of the company or employer; b) Eventual, occasional and seasonal contracts; c) Those of domestic service; d) Those for learning; e) Those held between artisans and their operators; f) Trial contracts; g) The others that the law determines.
Article 184 (2) establishes that in fixed-term contracts, the duration of which may not exceed two non-renewable years, its termination must be notified at least thirty days in advance, and if not, it will become an indefinite-time contract, except for the cases in which the nature of the contract is transitory (Article 170 of Labour Code).
Duración maxima del periodo de prueba (en meses): 90 día(s)
Article 15 of Labour Code - Trial contract.
(1) In any contract of those referred to in the first paragraph of the article 14, when it is held for the first time, a trial time may be concluded, with a maximum duration of ninety days. Once this term has expired, it will automatically be understood to continue in effect for the time remaining to complete the 1 year. Such a contract may not be concluded but once between the same parties.
(2) During the trial period, either party can freely terminate it.
(3) The employer may not simultaneously maintain workers with a trial contract for a number that exceeds fifteen percent of the total of its workers. However, employers that start operations in the country, or existing ones that expand or diversify their industry, activity or business, will not be subject to the fifteen percent percentage during the six months after the start of operations, expansion or diversification of activity, industry or business. In the case of expansion or diversification, the exemption of the percentage will not be applied with respect to all the workers of the company but exclusively on the increase in the number of workers of the new commercial or industrial activities.
Excluded from protection against dismissal: No
According to Article 15 (2) parties may freely terminate an employment contract during the trial period.
Obligación de motivar el despido: No
Motivos autorizados (despido justificado):
Motivos prohibidos: embarazo, licencia de maternidad, afiliación sindical y actividades sindicales
Article 187 of Labour Code provides that the employer cannot unfairly dismiss the worker who is a member of the board of the workers' organization. If it did, it will compensate the worker with an amount equivalent to the remuneration of one year, without prejudice to continuing to belong to the board until the end of the period for which the worker was elected.
This guarantee will be extended during the time that the leader exercises the functions and one more year and will protect, equally, the leaders of organizations made up of workers from the same company, as well as those of workers made up of different companies, provided that in the latter case the employer is notified, through the labor inspector, of the election of the manager, who works under the worker´s dependency.
Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores, mujeres embarazadas o con licencia de maternidad, trabajadores que desempeñan servicio militar/servicio alternativo, trabajadores con licencia temporal por enfermedad
Articles 153 provides that the employment contract cannot be terminated due to the pregnancy of the working woman and the employer cannot definitively replace her within the twelve-week period after the labour.
Article 174 provides special protection against termination of employment to: 1. For temporary incapacity for work due to the worker's non-professional illness, as long as it does not exceed one year; 2. In the event of absence motivated by military service or the exercise of compulsory public office; 3. Due to the absence of the worker based on the maternity or paternity leave, due to childbirth, is indicated in article 153 of this Code, without prejudice to the provisions of number 1.
In addition, article 452 provides that, except in the cases of article 172, the employer may not dismiss any of its workers, from the moment they notify the respective labour inspector that they have met in general assembly to form a union or works council, or any other workers' association, until the first directive is integrated. This prohibition covers all workers who have or have not attended the constituent assembly.
Forma de la notificación del despido al trabajador: escrita
According to article 184 (desahucio) of Labour Code, each party who decides to terminate the employment contract, must request that the Labour Inspector notify the other party about the intentions.
Indemnización sustitutiva de preaviso: Si
No statutory provisions for prior notice for individual dismissals, however the article 184 of Labour Code determines the payment of 25% of desahucio (eviction) bonus, for each year of lenght of service, in case of an unfair dismissal.
Notificación a la administración: Si
In cases involving dismissals for misconduct or just cause, the employer must seek approval by the Labour Inspector.
Article 188 provides that when the employer leaves a written record of its willingness to unilaterally terminate an individual employment contract, that is, without just cause, the labor authority that is aware of the dismissal, will order the employer to appear, and to ratify this in fact, In the next forty-eight hours, he must deposit the total amount corresponding to the dismissed worker for compensation.
If the employer in the indicated appearance is not ratified in the constant dismissal in the pertinent writing, alleging for the effect that the writing in which the dismissal appears is not his or that of representatives of the company with the capacity to terminate the labor relations , the immediate reinstatement of the worker to his work will be arranged.
Notificación a los representantes de los trabajadores: No
Aprobación de la administración publica o de organismos judiciales: Si
The employer that desires to dismiss a worker for any of the reasons established by article 172 of Labour Code must file a request before the Labour Inspector., who will will qualify the request for prior approval and notify the worker, who may oppose to the request formally. The Labour Inspector might determine an investigation at the workplace, after which the final resolution, granting or rejecting, the prior approval (“visto bueno”) will be issued (articles 172, 545 (5), 621 and 622 Labour Code). Upon request of the employer, the Labour Inspector may determine the temporary suspension of the employment contract for one month while the procedures take place, since the amount related to the respective salary is deposited. If the Labour Inspector decides to reject the prior approval, the deposit shall be reverted in benefit of the worker, who might also be reinstated or be entitled to the payment of indemnities corresponding to unfair dismissal (“despido intempestivo”).
Acuerdo de los representantes de los trabajadores: No
Definición de despido colectivo (número de empleados afectados) Although there is no specific definition of collective dismissals, article 193 of Labour Code provides employers that are going to definitively liquidate their businesses will give workers notice one month in advance, and this announcement will have the same effects as eviction. If due to the liquidation of businesses, the employer terminates the labour relations, it must pay the unemployed workers the bonus and compensation provided for in articles 185 and 188 of this Code, respectively, without prejudice to what the parties have agreed upon in collective bargaining.<br/>
Notificación a la administración No
Notificación a los sindicatos (representantes de los trabajadores) No
Notificación a los representantes de los trabajadores: No
Acuerdo de los sindicatos (representantes de los trabajadores) No
Acuerdo de los representantes de los trabajadores No
Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio) No
Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...) Yes
Article 193 of Labour Code provides that If the employer reopens the same company or business within a period of one year, either directly or through an intermediary, he is obliged to admit the workers who served him, in the same conditions as before or in better conditions.
Reglas de prioridad para la re-contratación No
:
According to articles 185 and 188 of Labour Code, severance pay shall be paid considering lenght of service:
1) Up to three years of service, with the value corresponding to three months of remuneration; and,
(2) Over three years, with the value equivalent to one month of remuneration for each year of service, without in any case that value exceeding twenty-five months of remuneration.
Bonus for “desahucio” is due in the amounts to 25% of last monthly salary per year of service (which would be paid in case of desahucio according to article 184 of Labour Code).
If dismissal is for an alleged just cause but the prior approval (“visto bueno”) of Labour Inspector is denied, then an additional amount of one monthly salary deposited by the employer is paid to the employee, in addition to severance pay and bonus for desahucio. This situation only applies if the employer requests the suspension of the employee during the prior approval (“visto bueno”) procedure.
: 1 mes(es)
: 2 mes(es)
: 3 mes(es)
: 4 mes(es)
: 6 mes(es)
: 7 mes(es)
: 12 mes(es)
: 22 mes(es)
:
There is no specific provisions concerning redundancies, but in case of dismissals generated by closure of enterprises, the employer must pay severance compensation for unjustified dismissal (despido intempestivo) and the indemnity correspondent to desahucio (articles 185, 188 and 193 of Labour Code).
: 1 mes(es)
: 2 mes(es)
: 3 mes(es)
: 4 mes(es)
: 6 mes(es)
: 7 mes(es)
: 12 mes(es)
: 22 mes(es)
mineros: No
: Si
Si
Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): In case of unjustified dismissal, severance payment and bonus for desahucio should be paid by the employer. According to articles 185 and 188 of Labour Code, severance pay shall be paid considering lenght of service:<br/>1) Up to three years of service, with the value corresponding to three months of remuneration; and,<br/>(2) Over three years, with the value equivalent to one month of remuneration for each year of service, without in any case that value exceeding twenty-five months of remuneration.<br/><br/>Bonus for “desahucio” is due in the amounts to 25% of last monthly salary per year of service (which would be paid in case of desahucio according to article 184 of Labour Code).<br/><br/>If dismissal is for an alleged just cause but the prior approval (“visto bueno”) of Labour Inspector is denied, then an additional amount of one monthly salary deposited by the employer is paid to the employee, in addition to severance pay and bonus for desahucio. This situation only applies if the employer requests the suspension of the employee during the prior approval (“visto bueno”) procedure.
directores/ gerentes: Si
Although article 14 of Labour Code provides job stability for employees during the first year of employment, there is no provision of reinstatement in the case of unfair dismissal. In case of dismissal with just cause, if the Labour Inspector rejects the request for prior approval (“visto bueno”), an order of reinstatement might be issued. If theit ill have to pay indemnities corresponding to unfair dismissal, according to article 622.
For all the situations in which there is a special protection against dismissals to the workers, reinstatement is possible, but the employer might choose to pay the corresponding compensation instead.
policía: Si
According to article 576 of Labour Code - Preliminary conciliation hearing. Once the demand has been presented and within two days after its reception in court, the judge will classify the demand, order that the defendant be summoned, giving him a copy of the demand and summon the parties to the preliminary hearing of conciliation, answer to the demand and formulation of evidence, previously verifying that the summons has been complied with, a hearing that will be held within twenty days from the date the demand was qualified. In this preliminary hearing, the judge will seek an agreement between the parties that, if it occurs, will be approved by the judge in the same act by means of a judgment that will be enforceable. If conciliation is not possible, at this hearing the defendant will answer the demand. Without prejudice to his oral presentation, the defendant must present his answer in written form.
According to Art. 568 of Labour Code - Jurisdiction and jurisdiction of labor judges.- Labour judges exercise provincial jurisdiction and have exclusive jurisdiction to hear and resolve individual conflicts arising from employment relationships, and which are not subject to the decision of another authority.
Arbitraje: Si
According to article 188 of Labour Code, monetary compensation respective to termination of employment might be increased if parties decide to reach an agreement before Arbitration Tribunals.
Carga de la prueba: ambos
Articles 577 and 593 of Labour Code.