4 enero 2019

The Labor Reform As a Social and Political Need

The announcements by Production Minister Dante Sica about structural labor reforms sector by sector are related to the idea of producing changes that can help create sustainable, quality jobs in an attempt to reverse the current trend where there is a slight increase in work off the books in the clandestine economy, like in the case of work during the tourist season.

Published in El Cronista on January 02, 2019
Undoubtedly, the sectorial activity is welcomed but for the medium- and long-term it is necessary to design mechanisms to resolve pressing issues of employment, giving new job opportunities.

If we focus on less irritating issues that require a reasonable legal solution, we should pay attention to employment at tech companies and telework or remote work.

In this regard, it is crucial to discuss important matters, such as the payment of utility rates by employers, facilities and equipment, travel expenses, working hours according to Internet connection, employee’ pay based on results, liability for occupational hazards different from occupational accidents and illnesses, compliance with preventative rules on health, hygiene and safety, a combination of day and night shifts, rotating shifts, among other things.

As to job promotion and productivity, there are some 120 provisions under the Employment Contract Act [Ley de Contrato de Trabajo], the Act on Collective Bargaining Agreements [Ley de Convenios Colectivos] and the Act on Unions [Ley de Asociaciones Gremiales] that could lead to new hires by removing some obstacles and anachronistic rules.

For instance, many female workers cannot benefit from the daycare allowance under collective bargaining agreement, and many women work off the books in domestic service. If a rule were passed establishing that daycare expenses may apply in those cases where domestic service is duly registered, indicating that daycare is intended for children under 5, then female workers could receive the allowance, and domestic services female workers could access the benefits of registered employment.

The same can be said about the broad scope of the so-called prevalence of company-wide collective bargaining agreements over industry-wide collective agreements [disponibilidad colectiva], where unions and company could change the legal scheme under the substantive law through collective bargaining agreement provisions, such as splitting up vacation time, changing weekly, daily and occasional rest periods, modifying the schedule of working hours and implementing new forms for workdays, compensating workers according to results, and not based on working time, and many more.

In a revolutionary breakthrough, the rules used by UBER and the so-called sharing economies, such as RAPPI, PEDIDOS YA, GLOVO, and others, could be applied to implement a work scheme that is not related to the typical employment relationship because the main characteristic is not there: an employee-employer relation.

In the abovementioned apps, anyone who provides services should be required to be registered as freelancers [monotributista] and those who offer rides should also take out third-party civil liability insurance especially for the customers that are being transported.

Another option is the one under the law for domestic service where contributions are made in one payment to include social security benefits, and the relationship is governed by specific rules on services contract under the New National Civil and Commercial Code.

Who could oppose reforms that are intended to close gaps in the law and promote job creation and new job opportunities?

For the prophets of doom who may be reading these lines, I would like to make clear that any sustainable construction cannot ignore preceding rules, and lawmakers are assigned the essential duty of fulfilling the constitutional mandate: labor in all its different forms shall have the protection of the law (see J. Rodriguez Mancini).

Article 14 bis (Argentine Constitution) refers to the protection of the law without making any distinction about what kind of work should be protected, and therefore ANY KIND OF WORK should be reasonable protected, even those disrupting jobs that today are being developed in our society, giving new job opportunities, whether as self-employment, salaried employment, or under any other new form.

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