Tag: ILO Conventions

The Tricky Language of Argentine Labor Law: Termination (Part 2 of 2)

2. photo by rawpixel-via unsplash

Photo by Rawpixel via Unsplash

In my last post on the tricky language of Argentine labor law, we took a look at the concept of “remuneración” (remuneration) and some of its legal and linguistic tricks and traps. If you made it all the way to the end of that post, you learned about 20 words that labor lawyers use almost on a daily basis in Argentina and what the legal implications of those words really are. In this post, I will argue that the second most important concept to employers and workers alike is that of “despido” (dismissal or termination of employment at the initiative of the employer).

Once again, when it comes to termination, Argentine labor law is worker-oriented and its aim is to protect workers from any kind of unjustified or wrongful termination. In fact, some leading experts argue that the law is designed to protect workers from being fired altogether, creating strong economic incentives for employers to keep even their most inept workers on their payroll. While the cost of dismissing a worker may be high, the only way to know if that’s true is by conducting a cost-benefit analysis on a case by case basis comparing the cost of keeping the worker in question to the cost of dismissing him or her.

Either way, firing people is expensive in Argentina. Employers often prefer to put up with unfit employees than bear the cost of firing them and, in turn, unfit employees have incentives to stay on board, do a bad job, and hope to get fired and receive a nice “indemnización por despido” (severance package consisting of severance allowance plus other separation benefits). This, however, is just one of the many problems with protectionist pieces of legislation like Argentina’s Labor Contract Act (Ley de Contrato de Trabajo), but our focus is on language, so we can leave the rest up to Congress and the Courts.

When and how can employers dismiss their employees without compensation?

When there’s “justa causa” (just cause). Consistent with article 4 of the ILO Termination of Employment Convention of 1982, employment can be terminated when “there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.” Article 4 basically defines “justa causa” in a nutshell. Of course, this is not easy to prove and Argentina’s Labor Contract Act also establishes a series of requirements for dismissing employees with just cause.

First, employees must be notified in writing that they are being dismissed. You can’t just blurt out “You’re fired!” à la Donald Trump and then weasel out of compensating your former employee. Second, your employee must have committed, and been previously sanctioned for, an “injuria” (terminable offense).

Are there exceptions?

Of course. Immediately terminable offenses, i.e. the kind where you can just blurt out “You’re fired” and not be expected to compensate your former employees do exist, but there’s a catch: only a judge can determine that an offense was immediately terminable; and a not-so-quick look at Argentine case law shows that is rarely ever the case. Courts are reluctant to declare employee offenses as immediately terminable; instead, they usually save the exception for really serious offenses, like getting caught stealing from your employer, physically attacking people at work, or getting arrested for a crime that affected your employer.*

Are there more catches?

Yes. Imagine an employee says, “I quit!” and then walks out the door. Logic dictates all they’re entitled to in terms of compensation is whatever was owed to them until the moment they quit, right? Wrong! Under Argentine labor law, the employer has to send the employee an “intimación” (similar to a Notice of Delinquency) asking them to come to work within 2 business days. If the employee does not show up, then and only then is the employment terminated and the employer safe, provided the Notice made it abundantly clear that if they didn’t show up, their employment would be indeed terminated. And I can’t stress just how clear that has to be!

So, what if they do show up and you don’t want them back? Well, then you’re better off negotiating a severance package, because the courts are very reluctant to let employers off the hook, even when an employee has been systematically absent or actually said they quit before leaving.

The Takeaway

Terminating employment in Argentina is neither cheap nor simple. The logic of Argentina’s Labor Contract Act is not always easy to follow, but it makes a lot more sense when looked at in the historical, economic, and sociological context in which it was drafted, as explained in my first post. Your lawyer will be able to explain that to you and your lawyer-linguist can help you understand all those complicated terms in your own language. So, if you’re doing business in Argentina and struggle a bit with the language, make sure you have a qualified legal team, including a lawyer-linguist, on your side.


* Oddly enough, there’s an interesting precedent where an employee was arrested at their workplace for a criminal offense, was fired on the spot, and was still entitled to compensation because the employer had not been directly affected by the crime that employee had been arrested for.

The Tricky Language of Argentine Labor Law: Remuneration (Part 1 of 2)

1. david-siglin-87978.jpg

Photo by David Siglin via Unsplash

The most important legal concept to both employers and workers in Argentina is that of “remuneración.” The term “remuneración” translates into English as payment, compensation or, literally, remuneration. In this post, I’ll use the English term remuneration for the simple reason that Argentina’s Labor Contract Act (Ley de Contrato de Trabajo) follows the same terminology as the ILO Conventions, several of which have been ratified by Argentina.

Why is the concept of remuneration so important under Argentine labor law?

Mainly for historical and ideological reasons. Argentina’s labor law was ideologically conceived as an attempt to even the playing field between “powerful” employers and “exploited” workers. It is not uncommon when reading labor law jurisprudence in Argentina to find references to Marxist theory.

From a historical point of view, Argentina’s current labor law was initially reshaped by Juan Domingo Perón, who focused a significant part of his political platform on workers’ rights. During the administration of president Edelmiro Farrell, Perón (then Director of the National Department of Labor and Pensions) reformed the Argentine labor system to include unemployment compensation (indemnización por desempleo), compensation for workplace injury (indemnización por accidente laboral), mandatory yearly bonuses (aguinaldo), paid vacation days (vacaciones pagas), and other measures that earned him enough popularity among the Argentine working class to eventually rise to power and win his first presidential race in 1946.

Argentine labor law is, therefore, ideologically charged and aimed at protecting workers and ensuring the rights enshrined in the Constitution. Whether or not it is successful (or even fair) in that quest is a whole other story that exceeds the scope of this post. What you need to know if you’re doing business in Argentina is that the Labor Contract Act is designed to protect workers, not employers.

What do you need to know about remuneration to understand Argentina’s Labor Contract Law?

Remuneration in Argentina has eleven characteristics arising out of different labor law principles. Each has its own distinct name that you will hear a lot when discussing labor law with Argentine lawyers or when reading the Labor Contract Act. Let’s take a look at them:

1) Remuneration is patrimonial in nature: Luckily for you, the Spanish word for patrimonial is identical to its English counterpart. This is because both in English and in Spanish, the word “patrimonial” derives from the Latin word “patrimonium,” meaning a paternal estate or inheritance from a father. In the context of labor law, when Argentine lawyers say that “remuneration is patrimonial in nature” what they mean is that, once payment is made to a worker, that remuneration goes to his or her patrimony, which under civil law implies that it will be part of the worker’s “assets and liabilities capable of monetary valuation and subject to execution for a creditor’s benefit” (Black’s Law) and that it may ultimately be part of the estate, legacy or heritage left behind by that worker. So, the practical implication of this is that it can be taken away from the worker by his her or creditors (subject to certain legal limitations) and that, if the worker should happen to die, his or her heirs may demand whatever remuneration said worker was owed.

2) Remuneration must be equal and fair (“igual y justa”): You may be wondering why I chose “fair” and not “just” to translate “igual y justa.” As an English speaker, you know there is a significant, albeit abstract, difference between the words “justice” and “fairness” (the later having found its way into Old English via it’s long lost cousin, Old High German). Spanish had no such marriage with German and therefore uses the word “justicia” (and its adjective form “justa”) to mean both “justice” and “fairness.” Can this get confusing? Not really. Spanish-speaking lawyers are philosophically equipped to handle both levels of analysis when determining whether a decision was fair or justice was served. They’ll just express that with the same word. With that in mind, what they mean when they say that remuneration must be “igual y justa” can basically be summed up as equal pay for equal work.

3) Remuneration is not subject to any kind of substitution (“insustituible”): In plain English, remuneration must take the form of an actual payment (as opposed to, for example, social benefits or allowances).

4) Remuneration is monetary in nature (“carácter dinerario”): While it may seem obvious to readers in the English-speaking world that you pay your workers with money, this was not always the case in Argentina, where workers were often paid in kind or in a different legal tender (such as paper money, coins or banknotes) that was not valid at a national level and could often only be used at a provincial level. Thus, Argentina’s Labor Contract Act specifies that workers must be paid at least 80% of their salary or wage in the country’s designated money (moneda de curso legal), which today is the Argentine peso. This means that, even to this day, up to 20% of a worker’s remuneration can still be paid in kind. In that same vein, the law also expressly prohibits payment in foreign currencies.

5) Remuneration is unalterable and intangible (“inalterable e intangible”): What that means is that employers cannot unilaterally decrease their workers’ remuneration. In addition, remuneration can never fall below minimum wage (mínimo vital y móvil) or below the convened amount in a collective bargaining agreement (convenio colectivo). In addition, Argentine law also restricts salary advances (adelantos salariales) and salary deductions (deducciones salariales).

6) Remuneration must be paid in full (“integral”): Advances cannot exceed 50% of a worker’s total remuneration and discounts can never exceed 20%.

7) Remuneration must be proportional to the work at hand (“conmutativa”): Of course, a more literal way of explaining this concept in English would involve using the adjective “commutative” or its noun form “commutation,” but the concept of “conmutativa” in Spanish is slightly different from its English counterpart. While the English word “commutation” means exchanging money for an extracted service (Merriam-Webster), the Spanish term, as used in Argentina’s Labor Contract Act, also implies that the amount paid must be somehow proportional to the work involved. What the law does not tell us is how exactly one should go about calculating that proportionality. But that is a legal oversight that only Congress can fix.

8) Remuneration must be continuous (“continua” or “de tracto sucesivo”): What this basically means is that if workers are to be paid monthly, then you have to pay them every month, if weekly, then every week. Though this might seem like the overstatement of the century, throughout Argentina’s multiple financial crises, payment was often withheld from workers for months at a time, forcing lawmakers to explicitly clarify that remuneration must be paid regularly or uninterruptedly.

9) Remuneration is the means by which workers support themselves (“tiene carácter alimentario”): This is just one of those terms that are impossible to translate literally into English. What the law means by “la remuneración tiene carácter alimentario” is that remuneration is the means by which workers support themselves and, therefore, it cannot be messed with. It’s the driving principle behind the constitutional right to a living wage and the reason why wages or salaries cannot be seized beyond the necessary amount for workers to support themselves and their families under Argentine law (i.e. workers are still paid a minimum amount no matter how much they owe or to whom).

10) Remuneration is unseizable (“inembargable”): The amount mentioned in item 9 above is minimum wage. As of January 1, 2017, minimum wage in Argentina is $40.30 Argentine pesos per hour, with a standard 9-hour workday, that amounts to $7254.00 Argentine pesos a month. If a worker earns $10,000.00 Argentine pesos a month only $2746.00 can be seized.

11) Remuneration is non-renounceable (“irrenunciable”): What this means is simply that workers cannot renounce to or waive their right to remuneration, which is not the same as saying people can’t do volunteer work. The point here is to protect workers from a late 18th century and early 19th century custom of forcing them to renounce to all or part of their salary and accept payment in the form of food and housing instead, hence the payment in kind issue explained above in item 4.

If you’ve made it all the way to the end of this post, you’ve learned 20 words that are commonly used by Spanish-speaking lawyers in Argentina when talking about labor law. If you liked this post, join us next week for Part 2.

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You may have noticed that understanding these words takes a bit more than just looking them up in a Spanish-English dictionary. Language is not always as straightforward as one might think. Comprehending legal terminology means looking at the legal system in which words will be used, along with their ideological, social, economic, and even historical background. Lawyers are particularly aware of the power of language, and lawyer-linguists are especially trained to help lawyers cross borders and overcome language barriers. For more on lawyer-linguists and what we can do for you, visit Translating Lawyers: Translations by lawyers for lawyers.

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