Food tickets are part of the salary

On September 1, 2009 the Argentine Supreme Court of Justice (Corte Suprema de Justicia de la Nación or "CSJN") determined that food tickets were part of the salary in a decision passed in connection with the writ of complaint filed by Disco S.A. in re "Pérez, Aníbal v. Disco S.A.". The CSJN declared the unconstitutionality of section 103 bis, subsection “c” of the Employment Contract Law (the “ECL”) that established that food tickets were social benefits not considered part of the salary. Therefore, the CSJN established that food tickets should be included in the basis for the calculation of severance payments.

 

The unanimous decision of the CSJN in re "Pérez Aníbal v. Disco SA" was based on two different grounds, one given by Judges Lorenzetti, Petracchi, Maqueda and Zaffaroni and the other by Judges Highton de Nolasco, Fayt and Argibay. The CSJN judges unanimously established that food tickets are "undoubtedly ‘income’ arising from or as a consequence of the employment contract or ‘relationship’”.

 

Judges Ricardo Lorenzetti, Enrique Petracchi, Juan Carlos Maqueda and Eugenio Zaffaroni maintained that "the service rendered by one of the parties, the worker, is a human activity that cannot be separated from the individual person and therefore from his/her dignity".  And they added: "As is the case of the mentioned food tickets, they undoubtedly constitute an ‘income’ for the worker which undoubtedly arises from or as a consequence of the employment contract or relationship and if it is not part of the salary it is inadmissible”.

 

In addition, Judges Elena Highton de Nolasco, Carlos Fayt and Carmen Argibay based their decision on the Parliamentary reports, grounds and debates based on which the Argentine Congress derogated the above mentioned section 103 bis, subsection "c", by Law No  26,341. In such regard, they maintained that considering that food tickets are not part of the salary "affects the constitutional principle of a fair remuneration related to the remunerative basis on which the constitutional right to protection against dismissal without cause is calculated".

 

The three judges pointed out that section 103 bis, subsection “c” of the ECL adversely affected the labor rights of workers and was in breach of the international treaties that protect them, including, without limitation those of the International Labor Organization (Convention No 95 of the ILO). "The basis for the calculation of the applicable severance payment shall be reasonably in line with the elements included in the remuneration, i.e. with the consideration received by the worker as a consequence of the employment contract”, they further said.

 

The CSJN also considered the report related to our country issued by the Commission of Experts on the Application of Conventions and Recommendations of the International Labor Organization in connection with Convention No 95 concerning the Protection of Wages.