Argentina’s labour laws are remarkably comprehensive and regulate virtually all the terms and conditions of the employment relationship. Labour laws are public policy and are therefore mandatory. The employer is obligated to grant employees at least what is afforded to them under labour legislation. Hence, an employer can extend benefits on top of the standard provisions, but cannot agree to terms that are less favourable or otherwise detrimental to an employee, nor can an employee waive any known right or privilege established for his/her protection or benefit under the law.
A prohibition on dismissals is currently in force, pursuant to Decree 624/2020, by which an employer cannot proceed with a dismissal without just cause, for lack of work or a decrease in work, or due to force majeure until 30 September 2020. In case the employer proceeds with a termination of an employee in violation of the above, such termination will be considered null and will have no legal effect. As such, the employment relationship will continue under the same terms and conditions. Decree 624/2020 also prohibits furloughs due to force majeure, for lack of work or a decrease in work until 30 September 2020.
Additionally, severance compensation duplication pursuant to Decree 528/2020 due to an occupational emergency is currently in force until 7 December 2020.
Both the prohibition on dismissals and the severance compensation duplication may be extended in time, according to the emergency context.
On 30 July 2020, the National Senate approved the Legal Regime of Teleworking Contract (“Teleworking Law”). This law guarantees minimum legal requirements for a teleworking contract and provides that specific regulations for each activity will be established through collective bargaining, complying with the principles of labour’s public order.
Pursuant to the Teleworking Law, the working day must be agreed in advance and in writing, complying with legal and conventional limits in force. The law provides that the platforms and/or software used must not authorise the worker’s connection outside of working hours. The teleworker will have the right to not be contacted and to disconnect from digital devices and/or ICTs during off-hours and leave periods.
The transfer from the on-site modality to the teleworking modality must be done with the employee’s voluntary acceptance in writing, except in duly accredited cases of force majeure.
In the case where the worker performed tasks under an on-site modality and voluntarily agreed to provide tasks under the teleworking modality, he/she may revoke the consent given at any time during the employment relationship and without prior notice, and the employer is obliged to reinstate the worker in the establishment in which he/she had previously performed their work or at the closest establishment to the worker’s home in which he/she could perform tasks, unless it would be impossible to comply with this obligation, for reasons which are legitimate and justified.
Regarding a worker who, from the beginning of the relationship, agreed to provide tasks under the teleworking modality, the eventual change to an on-site modality, will operate according to the guidelines established by collective bargaining for each activity.
The employer must provide the employee with the necessary equipment, including hardware and software, work tools and the support necessary to perform the tasks, as well as assume the costs of installation, maintenance and repair of such devices. The Teleworking Law contemplates the possibility that the teleworker will satisfy the essential working elements, and that the employer will compensate for the use of such tools which are owned by the worker, in which case, such compensation will operate according to the guidelines to be established by collective bargaining.
The control systems implemented to protect the employer’s assets and information shall have union participation, in order to safeguard the teleworker’s privacy and the privacy of his/her home.
In cases of transnational telework, the law governing the place of performance of the tasks, or the law of the employer’s domicile, whichever is more favourable to the teleworker, shall apply.
The Teleworking Law will enter into force ninety days after the end of the mandatory social distancing and self-isolation measures currently in force.