Employment contract system amendments

On December 15, 2016 in the official bulletin was published the modifications from the articles 54, 71, 75, 147 y 255 of the employment contract system Law N° 20.744.

Those amendments established that:

Law N° 27.321 modifies the Section 54 of the “LCT” (Ley de contrato de trabajo). Labor contract form and proof, registers, payrolls and other control elements. Presumptions application: in relation to the labor contract form and proof the judges will merit, in relation from the specific functions of each case, the registers, payrolls or other control elements demanded by the law and their regulatory norms, by professional by-laws or collective labor conventions.

The present article needs to be interpreted harmoniously with the Section 55 of the “LCT”, which devoted the presumption in favor of the employee affirmation about the circumstances that must be included in the salary and wages book.  With this legal form, the judges, in a specific dispute could interpret that it should be considered inside that presumption the information from the registers, payrolls or other control elements demanded by the law, regulatory norms, professional by- laws or collective labor conventions.  In practical terms, the no exhibition by the employer of the registers, payrolls or other control elements previously individualized, could activate the veracity presumption of the words formulated by the employee in each specific case.

Law N° 27.321 modifies the Sections 71 of the “LCT” (Ley de contrato de trabajo). Personal control system: in relation to the rights and obligations of the parties, the new legal norm established that personal workers control intended for the protection of the employee's assets, as well as the workers activity relation, will need to be known by this article.

This legal reform substantially modified the rights and obligations interactions from the parties of the work relationship in cases where irregularities occur and that generate the logical necessity of perform investigations or related audits, direct or indirectly. With “the activity” of the employee in the company. With this new legal prevision, the judge could consider unenforceability to the employee the conclusions from the audits, investigations or others methods control of the employees activities, if the employer doesn’t accredit that the dependent had prior knowledge of such methods control.  The employer consequently, in order to fulfill with this norm, will need to periodically inform to the employee about the implementations – actual or potential- about the methods of control that estimate necessarily in order to take care of the interests, while the may affect the dependent activity.

Law N° 27.321 modifies the Sections 75 of the “LCT” (Ley de contrato de trabajo). Duty of employer security:  The reform established that the employer must enforce the patterns and limitations for the working time established by the law and their regulatory norms, and adopt the measures that according to the type of work, experience and skills are necessary to protect the psychophysics integrity and the employee’s dignity, which should to avoid the pernicious effects of the difficult and risk task or old age determinant or premature exhaustion, as well as those derivate from unhealthy and noisy environment. It’s obligated to attend the legal and regulatory dispositions relevant to the health and safety at work. The employee may refuse the labor compensation, without causing him loss or decrease in the compensation, if required in transgression of such condition, as long as exist imminent damages of harm or if it has configured of the obligation failure, through the arrear constitution, or the competent authority declare the unhealthiness work place, the employer will not do the work or neither provide the element established by these authority.

This reform, which substantially modified the previous redaction from the same legal institute, considerably increases the amount of obligations that the employer must accomplish, as the derivation of the generic security obligation, which impacts in those aspects like the working day, the dignity and psycho-physical integrity of the employee, avoid pernicious difficult and risky task, determinants of old age or premature exhaustion and derived from unhealthy or noisy environment, etc.  

A new aspect of the new wording is the faculty that it expressly grant to the employee to retain tasks, without salary loss or diminution, if the employer fails with the obligations previously refers, As long as exist imminent damages of harm or if it has configured of the obligation failure, through the arrear constitution or if after a declaration of unhealthiness the employer will not do the work established by these authority.

Law N° 27.321 modifies the Sections 255 of the “LCT” (Ley de contrato de trabajo). Reentry employee, deduction of compensation received: in the case of the worker reentry, deduction of compensations received. Workers seniority will be established according to Sections 18, 19 of each Law, but if there had been re-entry to the orders of the same employer will be deducted from the compensation of the Sections 245, 246, 247, 250, 251, 253 and 254 which was paid in nominal form by the same cause of the previous termination. In any case the resulting compensation shall not be lower than the one that the employee should have been paid if the period of service would have been the last one and not considering the periods before the reentry.

This reform maintains the general scheme contemplate in the earlier version as long as allows the employer, in case of worker dismissal and further re-entry to the orders of the same employer will be deducted from the compensation by seniority in de diverse modalities admitted by the “LCT” or if the employer has previously paid for the same cause.  The novelty of the actual redaction is that the norm expressly refers to what was paid “in nominal form” by the same cause of previous termination, established that in any case the resulting compensation shall not be lower than the one that the employee should have been paid if the period of service would have been the last one and not considering the periods before the reentry.

Law N° 27.321 modifies the Sections 147 of the “LCT” (Ley de contrato de trabajo). Share of compensations attach: it is incorporated a third paragraph in connection to the untouchability fee of the compensations that indicates the lock of any preventive or executive untouchability that affects the employee´s salaries will need to instrumented before the employer in order to perform the withholdings that are legally recognized, not being able to attach in any case the remuneration account.   Once attach, within forty eight (48) hours, the employer must make known the employee the ordered measure, must deliver a copy of the judicial resolution that orders it. 

The legal reform incorporate two relevant aspects which limits the attach compensations: (a) the attach cannot be practice by the banking institution which administrate the credit of assets account for which it is intended to instrumented, should the interested party refer exclusively to the employer, who to such purpose will practice the provisional and taxes withholdings; and (b) it established that the employer must make known the employee the ordered measure within forty eight (48) hours delivering a copy of the judicial resolution that orders it.