Orientation Guide for Hiring Workers Argentina
1. Hiring Modes
a. Typical form of recruitment
The typical form of employment contract is for an indefinite period, ie that the employment relationship will last until prevents any particular case then, for example, the employee's resignation, dismissal on the will of the employer, with or without cause, access by the employee the benefit of retirement after fulfilling the legal requirements, the worker's death, and so on.
The first 90 (ninety) days of work are to test, this time is called probation.
Whenever there is work to provide conditions of dependency or subordination, there will be a contract of employment, being indifferent to the type of contract, and the length of the link.
During the probationary period the employer must register the employment relationship and both parties have the rights and obligations specific to the relationship, except that during this period, both the worker and the employer can terminate the employment relationship without obligation to explain the cause of that decision with no right to further compensation for the job, but whoever defines the termination notice shall be fifteen (15) days in advance.
The indefinite contract is developed, in general, during a full working day, ie eight (8) hours per day or forty-eight (48) hours per week, as established in the collective agreement or business activity. However, according to operational needs, the employer may require the services of a worker for a certain number of hours per day or week or month, less than two-thirds (2 / 3) of the day usual activity (art. 92 ter, LCT). In this case the remuneration shall not be less than the proportion that corresponds to a full-time worker, established by law or collective agreement, for the same category or workplace.
Workers hired to develop a part-time may not work overtime, except in cases of grave and imminent danger to persons or things incorporated into the company (art. 89, LCT).
In the typical form of employment contract, or indefinite, the employer may terminate the employment contract for their own decision, without stating the reason. If you have passed the probationary period, must pay the employee a sum of money as compensation equivalent to one month's salary for each year of service or fraction greater than 3 (three) months, based on his best monthly salary, normal and usual. This database may not exceed the equivalent of three times the average monthly amount of the remuneration provided in the collective agreement applicable to the employee by the legal or conventional day, excluding seniority (art. 245 LCT).
1.1. b. Special Arrangements
As we stated in the previous section, the employment contract usually held indefinitely, either full or partial. However, with the aim of providing an adequate legal framework to the specific needs of the productive activities or services productive to develop businesses and workers themselves, the law regulates other special arrangements, which are:
In this case, although the extent of the work day is part please note that the employment relationship is indefinite. | Guide Guidance for the Recruitment of Workers
A. Work contract with age limit. (Arts. 90, 93-95, LCT)
B. Seasonal employment contract. (Arts. 96 to 98, LCT)
C. Temporary work contract. (Articles 99 and 100, LCT)
D. Contract for a work group or team. (Art. 101, LCT)
The following discusses each of the modalities set, specifying what are the facts that justify its use, in order to facilitate the employer of its decision.
A. Work contract with age limit
This type of contract has a specific duration that, at most, can be 5 (five) years.
The parties to an employment relationship shall be entitled to frame their relationship in this mode whenever there are reasons justifying the conclusion of a fixed-term contract, for example, to cover a non-permanent seat in the business or employment of a worker is licensed.
The contract must be in writing, expressly establishing the time of its duration. In addition, the employer is obliged to notice the employee of a credible (via letter or telegram collated document) the termination of the contract in advance of not less than one month nor more than two, except in cases where the expected duration is less than a month. The omission of the obligation to render the contract described in an indeterminate term.
The employer must ensure that it complies with each and every one of the requirements set by law to hold a special contract mode and note that in case of failure to correctly framed the relationship in a special form, the rules governing the contract indefinitely.
But the law, to avoid cases of fraud to the detriment of the worker, determined that the fixed-term contract will become an indefinite contract (ie not within a predetermined period) if:
- The employer does not notice the employee on the termination of the contract, with an advance of 30 days from the date the contract ends, unless agreed in writing to renew the contract for another term.
- When the tasks to develop does not justify the conclusion of a fixed term contract.
For example, if the contract had a period of three (3) years and the pay was for $ 1,350 a month, the lapse of the contract deadline, the employer must pay $ 2,025 ($ 1,350 x 3/2) in respecting compensation.
In the event of unjustified dismissal (ie without fault of the worker) before the deadline expired, the worker is entitled to receive the compensation provided for in treatment of indefinite duration (Art. 245 LCT) plus damages incurred by the employee by the premature termination of the contract. The law does not provide an amount of compensation fee (as to the situations described) for compensation for damages for what should be considered case by case basis. However, judges have generally willing to pay a sum equivalent to the wages of the worker would have received the contract has been executed through the full stated period. This allowance replaces the one when notice is not given by the employer.
B. Seasonal employment contract
Article 96 of the LCT determines to be seasonal employment contract when the tasks corresponding to the ordinary course of business and which by their very nature, must be developed only during certain times of the year and subject to repeated in each cycle under the type of activity.
This type of contract framing the benefits of workers engaged in activities such as tourism-related, harvest and rural activities related to the production of fruit (citrus, berries, etc.). It should be noted that this latter activity is excluded from the Rural Labour Scheme.
Once this clarification, we recall that an employment relationship under the fashion framed ability of seasonal employment, the contract is fully implemented during the period of activity, while in recess periods cease the duties of compliance and with next the worker does not provide services and the employer does not pay compensation.
Another feature to highlight the seasonal employment contract is that, although one with treatment indefinitely, is excluded from the trial period.
The law considers the seasonal employment contract as an undetermined period contract, understanding that there exists a period or season and then a period of recess.
It is important to note that with the exception of the tasks of harvesting and / or packing of fruits, labor relations, agriculture activities are governed by Law No. 22 248. The scheme provides for different contractual arrangements and benefits for cyclical or seasonal staff recruitment will be set by a non-permanent employment contract, where patterns can be verified in Article 77 and following of the Law No. 22.248.
To give effect to this right, the employer is obliged to call the worker to his work. The call should be put in writing at least 30 days prior to the beginning of the new season, and the employee must agree in writing or presented to the address of the employer, within 5 days of notification or warning. If the employer does not make the call, the worker may be considered dismissed without fault and is entitled to payment of compensation for the time actually worked plus damages should be pending deadlines or foreseeable current season.
For the purposes of calculating severance pay applies to art. TBI 245, without taking into account periods of recess. The liquidated damages shall apply the same standards when dealing with explicit termination by dismissal without cause with the fixed-term contract.
C. Temporary work contract
When the work performed as required by the employer to meet unusual tasks to the ongoing business activities (eg refurbishment of an industrial establishment, presenting their products at a business event) or tasks without being outside the regular work of the company, exceeding in quality or quantity (eg, replace a worker who is absent or meet the increased demand for labor) may use the form of temporary work contract.
The employer may also choose to contract directly the employee under this procedure or require the services of a potential service provider (ESE), which are those legal persons duly authorized by the Ministry of Labour, Employment and Social Security, companies engaged in providing user services provision of temporary staff in order to cover the requirements written above.
If the employer chooses to contract directly the workers for the provision of any task, it must keep in mind that the employment contract should be concluded in writing and provide copies to the employee and the trade union that represents him/her within 30 days.
If this contract is intended to replace a worker must indicate the name of the employee being replaced, and if it is to meet extraordinary demands of work, must be entered accurately and clearly the cause that justifies it.
As the term of these contracts can not be determined beforehand, but that its duration will be determined by the task or activity carried out, the employment relationship begins and ends with the execution of the work or service delivery.
However, according to the provisions of the National Employment Act, if the contract was entered to meet extraordinary needs of the market, the duration of the main cause may not exceed six (6) months per year and a maximum of one (1) year for a period of three (3) (art. 72, Law No. 24 013).
If these limits are exceeded, the contract is deemed to be permanent but discontinuous performance (seasonal employment contract) or indefinitely with continuous supplies (contract of indefinite duration), as appropriate, that the legal consequences of this conversion brings with it, including that set a termination without cause, the employer must pay statutory compensation.
The employer is not obligated to pay any compensation to the employee if the contract ends at the conclusion of the task, work or service originated.
However, if before the end of the contract there is a dismissal without cause, the worker shall be entitled to compensation under Article 245 of the LCT. Similarly, it is noted that although current regulations do not state it, the doctrine means which also corresponds to the affected employee compensation for damages due to consider the employment contract as a contract any time. As such, those who postulate this solution, understand that it can be applicable the provisions of art. 95 of the LCT, which refers to fixed-term contract and seasonal.
The employer should be aware that this type of contract can not validly be held to replace a worker who has refrained from supplying services have been folded into a measure of legitimate force. Not even if the employer would have suspended or fired workers because of lack or declination of tasks in the business over the past six months.
D. Contract for a work group or team
Another method is the so-called contract of work group or team. This is a contract between an employer and a group of workers, represented by one of them, serving as director or team leader to develop a common activity or task to the team or group. The principal or team leader must:
- Choose the people that will serve on the team, unless the characteristics of the research needs to be designated in advance by the employer.
- Appoint a replacement when one of the workers leaves the team, proposing the new
- Agree with the employer on the amount of remuneration. If collective fixed amount, determine their distribution among the members of the group.
- An employee who has been withdrawn shall be entitled to the liquidation of his share of the work already done.
The employment relationship is established between the employer and each member of the team, which is why, once appointed, each one of them has the rights and obligations of any labor contract. It should be noted that the LCT says that:
I. 2. Procurement for training purposes
In order to encourage young people entering the job market our legal system provides for certain contractual arrangements, employment and labor, by which provides a legal framework aimed at vocational training in the field of inexperienced people undertaking work. Among them, the contract of apprenticeship and internship are variations of this.
Learning Contract
A type of employment contract, aimed at theoretical and practical training is governed by article 1 of Law N 25.013, as amended by Law No. 26.390.
It takes place between an employer and an unemployed youth between 16 and 28 years of age, unless it previously existed another type of employment relationship between them. Has a minimum of three (3) months and a maximum of one (1) year and the workday may not exceed 40 hours.
Subject to the terms specified in the age required to enter into such a contract, and according to the provisions of Law No. 26.390, the minimum age for employment shall be considered as 15 years until May 25, 2010 . Consequently, until that date a 15 year old may enter into such a contract.
At the conclusion of the employment relationship on compliance with the agreed time, the employer shall not pay any compensation to the employee, but is obliged to notice the apprentice contract termination 30 days before the due date agreed or, failing that, pay compensation replacement (to replace the notice) a half month's salary.
The contract by which a society, association, community or group of people requiring services, construction or development tasks of a working relationship for a third party, permanent and exclusive employment contract will be considered by the team and each of its members, working under the third party to whom he has actually provided the service.
However, if the employment relationship ends before the agreed deadline and without explanation by the employer for the employee to collect compensation under the law applicable to workers who perform under the contract mode indefinitely.
In all cases, the worker or apprentice is entitled to require the employer a certificate attesting to the experience or expertise gained.
Failure by the employer of the obligations provided under this contract (order formative maximum workweek of 40 hours.), turns this into an employment relationship for an indefinite period, which will generate the employee all the rights that the law determined.
In addition to the explicit rules, the employer must bear in mind that if the apprenticeship contract is concluded with a child between 16 and 18, applies the system of regulated child labor in Articles 187 to 195 and in LCT1 no circumstances may enter into a contract of learning if it is a labor union or any service business.
Educational Internship
A private sector firm with legal contract internship may be held with students of Higher Education, Adult Continuing Education and Training over 18 years old when he had previously signed an agreement with educational institutions and agencies in terms of Act ? 26.427 which regulates the “System of Education Internships".
The relationship of the internship, as provided in the above Act, it is not working and its purpose is to promote educational activities in public or private companies linked to the content of their studies in educational units.
1. In connection with the system of child labor, include the following prohibitions: not be used for children between 16 and 18 at night work, hazardous, arduous or unhealthy (sections 190 and 191 LCT), the maximum time planned for minors between 16 and 18 is 6 pm. day or 36 hours. week, but prior authorization from the competent labor, may extend the day when the worker has more than 16 years (art. 190 LCT).
The central features of the internship contract are as follows:
- Must be in writing and specify the content of educational internship plan, and its duration, hours, home completion and list of tasks assigned to the intern.
- Will have a duration commensurate with the nature and complexity of activities to be developed as defined in the agreement signed between the company and the educational institution for a minimum of two (2) months and a maximum of twelve (12) months. May be renewed for six (6) months beyond individual signing a new agreement.
- The clerk shall be entitled to the development of the company operating in a non-cash compensation remunerative. The value of the incentive allocation is calculated on the basic wage of the collective agreement applicable to the company and is proportional to the number of hours for the internship. In activities that do not have a collective agreement shall apply for calculating the living wage allocation, mobile, proportional to the number of hours for the internship.
- The weekly working hours will be up to twenty (20) hours.
- The intern will be entitled to leave for exams, sickness, accident and other regular benefits and agree to licenses that company staff in the terms specified by the regulations.
In addition to the guidelines expressed in the items described, the company must provide the trainee health coverage which minimum benefits shall be as provided in Act No. 23.660 Social Work and must also take out insurance for accidents or disease under the Law of Risk Labour No. 24.557, to cover such events occur as a consequence of the development of internship and/or the establishment where the trainee is performing.
The rules determine the maximum number of interns each company may contract, which is proportional to the size of it and the amount of tutors assigned.
PAYMENT
The remuneration, as made explicit at the beginning of this guide is an essential element of the employment contract and is defined as the consideration to be paid to the employee as a result of the employment contract (art. 103, LCT).
Can be measured by unit of time (hours, days, weeks, months) or per unit of outcome (for part or measure), may consist of individual or collective commission, rating, awards, profit sharing, tip.
The remuneration may include:
- A sum of money, or
- A part of money and up to 20% of total species, housing or food.
The amounts due in respect of remuneration will be equal to the value determine for the category or for the worker since the pay scale of the collective agreement applicable to the job or business activity in which the worker performs.
In no event shall the total compensation received by a worker monthly serving a full-time legal day may be less than the minimum wage and mobile set by the National Council for Employment, Productivity and the Minimum Wage and Mobile, which, since 1 December 2008, amounted to ONE THOUSAND TWO HUNDRED AND FORTY PESOS ($ 1,240).
Regarding the employer's duties related to the payment of remuneration include the following: Payment of wages in cash should be made by deposit in a bank account in the name of the worker. This account must be opened at banks that have enabled ATMs within a radius not exceeding two (2) kilometers from the workplace in urban areas and ten (10) miles in non-urban areas or rural areas, and operational service rendered by the bank should be free to workers in all cases.
Whatever the way in which the payment is made, provided the employer must issue a pay stub, which is constructed in duplicate.
Finally, we recall the timing of payment of wages, according to the provisions of the LCT, namely:
a. personnel charged monthly at the end of the month worked;
b. staff who are paid by the day or hour, the end of each week or fortnight.;
c. staff who are paid at piece or, at the end of the week or fortnight, for the total work performed during this period.
On termination of the periods in question, the date that the employer has to pay the salaries is four working days for workers who are paid by month or quarter, and three days for those who are paid weekly.
REGISTRATION OF LABOR RELATIONS
Whatever the type of contract that the employer select and agree with the employee to frame the provision of in dependent tasks, is generated for the employer's obligation to register the employment relationship, including during the trial period in the case of contract indefinitely.
Before entering the employment relationship, the employer must have their Unique Taxpayer Identification Key (CUIT) and also be registered as an employer. Both procedures are performed in units of the Federal Administration of Public Revenue (AFIP).
If the worker does not have its Labor Identification Number (CUIL) shall apply to the National Administration of Social Security (ANSES).
In order to harmonize the various existing databases and help regulate the employment relationship, through a single procedure to replace those with similar goals will require employers to labor regulations and social security, employer record and report all matters relating to the employee giving the high and low, as appropriate, in the Registry of High and Low in the Field of Social Security - "MY SIMPLIFICATION" -.
Thus, by the registration system " MY SIMPLIFICATION " the employer, through a single procedure, report the highest position in the relevant social work and the work injury insurer with which hired the coverage of occupational risk communicate the collective agreement applicable, data on the worker's family relationships and other significant data on the employment relationship.
The employer should communicate the top of the new worker until the day immediately preceding the date of actual commencement of work, whatever the type of contract, including the case of subjects with type of contract is the internship.
The period extends to the actual start of work when the employment relationship, whatever the type of contract, refers to any of the following activities: agriculture, hunting and forestry, fisheries and related services, preparation of bakery products; construction, wholesale or on consignment of cattle, hides, wool and other related products for third parties; beef brokerage operations, accommodation services in hotels, hostels and residential, services, food and beverage outlets; handling services loading, storage and warehousing, cleaning, staffing and security, education, elderly care services, children and women, emergency services and medical transportation, collection, disposal and waste reduction.
The procedure can be done by accessing the internet institutional site of the Federal Public Revenue-AFIP-(www.afip.gov.ar) or in person to the delegation of the AFIP in which the employer is enrolled through the submission of Form 885-New Model-duplicate, the text of which is available on the website cited that agency.
You must also register the worker, along with relevant data from the employment relationship, in the Special Book of Salaries and Wages, laid down in Article 52 of the Labor Contract Law No. 20.744, which must be pre-signed by the agency local labor and should be brought under the same conditions as trade books. It should also include details of the new worker in the form of schedules, together with all staff, this form must be visible in the workplace.
During the term of employment the employer shall, by submitting to the AFIP for a monthly affidavit (Form 931 AFIP), the data of employees under his dependence and salaries paid, calculating and entering the system social security contributions and contributions that apply.
Employers with a workforce of up to 5 workers must meet their obligations including reporting monthly computer application through its statement (www.afip.gov.ar), which facilitates the preparation of the form, taking the data and informed by the employer in the system MY SIMPLIFICATION and Argentine Integrated Retirement System (SIPA, former SIJP). Today is optional to use this system for employers who have a budget of between 6 and 10 employees inclusive.
You can access additional information about this item at the institutional page of the AFIP. If terminated the employment relationship, whatever the cause, the employer must notify the low before the Registry of High and Low in the Field of Social Security within five (5) days from the date on which even produced the extinction of the contract.
It is important to remember that the registration of the employment relationship, according to the legal guidelines outlined above, will allow the worker to enjoy the benefits of social security laws granted, including:
- Have he and his family with health insurance (social work).
- To be covered with insurance for work accidents and occupational diseases (ART).
- Receive family allowances.
- Receive a pension as appropriate or collect a disability pension in case of having a disease that incapacitates him for further development tasks.
- Upon termination of employment for reasons beyond their control, collect unemployment benefits.
Source : http://www.depthai.go.th