Argentina: Supreme Court ruling impacts overtime calculation

The Argentine Supreme Court ruled that both the weekly limit and the daily limit of the working day must be complied, and that if either of the two limits is exceeded, the excess hours must be paid with the corresponding overtime surcharge.

At the end of 2022, in the case “Cardone, Lorena de los Ángeles v. Be Enterprises S.A. about dismissal”, the Supreme Court stated that overtime should be paid for having exceeded the daily limit of the working day, despite the fact that the weekly limit had not been surpassed.

Section 1 of Law 11,544 provides that “The duration of work may not exceed eight hours per day or forty-eight hours per week…”. In addition, Section 1, paragraph b, of Decree 16,115/1933, which regulates that law, provides for the unequal distribution of hours when the duration of work is less than eight hours per day on one or more days. In this last case, the regulation stipulates that the excess time may not exceed one hour per day.

The Supreme Court held that it is clear and precise from the applicable national regulations that there are two limits to the working day, one daily and the other weekly, independent and autonomous of each other. In addition, the regulation provides that in the case of unequal distribution of hours, in which the appellant used to work, the daily limit is 9 hours and is not conditioned by the weekly limit.

The Supreme Court overturn the lower court’s decision, insofar as it concluded that the plaintiff’s workday was within the legal limits for not exceeding 48 hours per week, even though the employee worked 12 hours on Saturdays, clearly exceeding the daily workday limit. The Court further said that Law 11,544 had the worker’s physical and psychological health in consideration when setting a maximum limit to the working day.

This report cannot be considered as legal advice or advice of any other kind from Allende & Brea.