Report to the Institute of Horizontal Property Law of the Bar Association of the Federal Capital.
considerations.
workers have backed a constitutional right in the corpus juris of human rights is the right to conclude collective labor agreements. Traditionally it has been understood that "right", such as recruitment or "recognition" that the social state of law has made surrogate of freedom of association, that is, the freedom to "enter into collective bargaining agreements."
turn, is another knowledge acknowledged and accepted the understanding of collective bargaining as independently to solve a pre-existing dispute. Thus, before the vector driven by employers aimed at accelerating the logic of capital accumulation and reproduction of trying to extract from each factor of production as productive as possible with the obvious purpose of maximizing the rate of profit, the workers "defend" rehearsing other vector-logic opposed lifting the standards of labor protection, which is directed precisely to set salaries, living conditions and decent work, fair and satisfactory.
the wording of art. 14 bis is inferred that the first question we have to consider is that the constitutional provision (and international) applicable is addressed to "workers"-unions, in the broadest sense "and not" employers "in the same way as those and only those with mechanism "direct" to resolve labor disputes, strikes and other measures, "and they must always resort to" indirect "solution, ie heteronomous or state. This is not the place to start treatment right metajuridical differential but suffice to understand that they are "workers rights" above all.
Our legal system "recognizes" freedom of negotiation through a unique system. To understand this we must take into account that collective agreements have existed since the dawn of national legal life (the "ballot conchabo" subscribed to the Mayors of the Brotherhood first, then the Commissioners had that character), and that the "recognition" took place in the mid 40's, when the Ministry of Labour and "approved" agreements that facilitated, with an "award", precisely to State intervention to endow to the agreement of validity erga omnes, as it is purely and simply a legal rule or law in a material sense.
With the enactment of Law 14,250, that system of "extension" to others is transformed into organic state by the act called "approval." It is clear that since the start of the stage of "recognition" of collective bargaining, it was amassing a metajuridical concept that labor often called "the trade union model," this is a system of unity promoted or "union status" in the which the union reputed as "most representative" has exclusively representing the "collective interest" to the extent of its scope.
Our system promoted unity remains intact until the present and, as regards the constitutional right to conclude collective agreements, it is good to highlight that the recent ruling of the Supreme Court's Office in the case "ATE", has guard made the faculty in question, since not reputed to be contrary to international principles of freedom of association, the fact that the collective interest was played by a "most representative association" (see the failure www.cedesi.blogspot.com .)
But the whole system or model designed in the middle of last century, was substantially supported by an ideology called "organized community" synallagmatic required a mirror, that is, a unitary system of employer's representative, coined in the law of professional associations employers, repealed by the dictatorship of 1955.
turn, then the attempt to establish a union model "plural" and its correlation with a collective bargaining equipped with this condition, we recall that one of the conditions of the Covenant Frondizi Peron was the law back to the "model" and in this regard was issued in 1958, 14,455 Partnership Act Professional workers, but did not replicate a policy instrument which must address the way the "collective interest" of employers would be represented. To settle this question, from the 60 it gave the enforcement authority of power to determine in an administrative proceeding in the nature of "most representative institutions" of the party bosses, who peacefully system has been functioning without interruption . In the interval should be noted that the National Labour Court of Appeal issued a ruling that also keeps your whole life ("Chemical v. Risso Star"), which determines the applicability of the agreement governing the "core business" of the employer.
The world of work in buildings.
In our "Labor Legal System in Buildings" (Buenos Aires 2006, Lexis-Nexis Publishing), we thought finishing on the way in which the base was finally forged identity that the current unionization of workers in buildings. We can summarize this process in two fundamental time-instances.
First, when workers' income homes "are excised from the union of private houses, that is, when the" place "where the phenomenon evolves captured by the new labor organizing, is located literally "outside" the family or household level, outside the "private" of a building in their "common parts".
The second phase will analyze the call "urban renewal", also produced by the regime that emerged in 1943, to freeze prices for urban locations, a situation which soon led in 1947 to 13,512 law issue, because the effect of that state policy, rentiers had lost interest in maintaining this form of profit, the "house of income."
The establishment of "consortia Owners" completed it "urban renewal" plotted by the first Peronism, meaning a successful system of property distribution as the horizontal property law allowed hundreds of thousands, not millions, of access to decent housing, just the units of the former homes of income that went to constitute the consortium. We say "successful" because the reform, as well as allowing the old tenants are transformed into owners, remained intact the heritage of shareholders who held their assets idle and wasteful the effect of freezing. But what concerns us, the trocar as an employer the owner of a rental house (be it an individual or legal) in a "consortium of owners, there were two separate legal effects of interest to today in order to establish how it should comply with the employer's representative in the joint world of work in buildings.
They are two: a) the rental house has a for-profit, the consortium and b) the owners of rental homes when they are associated in an entity that interest employers move in a "live" in the same way any another camera bosses and consortia that "interest" is "mediated" by a legal representative or necessary consortia administrators.
Budgets, objections and answers.
This dichotomy targeted twice, two objections arise classic that motivate the interest aroused in the Institute of Horizontal Property Law on the topic at hand.
The first objection is the most rudimentary: the consortium is not a business for profit. Therefore, the way it sets the value of the work force can not be regarded as a "labor cost" or "plant load" that can be moved in the "price" on a possible consumer. The respusta to this objection has a legal nuance art. 5, LCT called company to others who are not necessarily "Profit" - and labor economics, all utilities do not sell products with direct or indirect costs can be weighed in the price.
From a marginal sector of the world of work in buildings has been argued that the solution to this reality, coupled with other no less evident that the vast majority of people live in associations of owners, has to be "social" and distinct that established for other workers. Therefore advocate that the amount of the wage rate should be set directly by the state as a public charge again, as happens in the case of workers in private homes, wrongly called "home." This response ostensibly violate the constitutional right of workers building a 'conclude collective labor agreements "and put them in a worse position than the existing constitution as a union, matching their employment status to the staff included in the discount. law 326/1956. In addition, trasgrediría their freedom of association and collective, in relation to other workers consume a pejorative unequal and intolerable. In every time and place our Institute should oppose support this type of "solution" to the problem, as plainly imply a violation of the solemn ceremony that all nurses have made an oath or promise defend the Constitution of the Republic.
An answer to the first objection which claims the consortium differential treatment for not being a "company profits" should give primacy of the right of workers to collective bargaining and equal treatment with the rest of all persons working in the territory of the Republic, they are employed in any sector of the economy (primary, manufacturing or service).
Regarding the second objection, it is more difficult. Start from a fictional: in labor Owners Consortium is a subject of law (Whole CNAT "Noriega Seoane ") and" legal representative or necessary "is the administrator appointed in accordance with art. 9, Law 13,512.
is therefore clear that at the individual level, in the employment contract itself, the relationship between the worker and the consortium is bound by the representation of the latter, and thus who "directs" the employment relationship is the administrator, but who "receives" the benefit is all consortium community residents (homeowners, renters, non-casual, etc..) This legal reality, recognized in the usual collective bargaining activity has not been consecrated 12,981 in law (obviously prior to 13 512) or in its reform (Law 14,095 that joined the scheme the buildings subject to horizontal property), or the decree 11296/1949. In those legal texts the figure of "administrator" is absent.
The law speaks generally of "employer" and as such should be referred to the art. 26, LCT that beyond the legal personality that defines it as "... that requires the services of a worker." It is therefore absolutely clear that the "employer" is the consortium-considered set of co-owners of the building under horizontal property regime " and "administrator" is a mere "representative of the employer."
is, therefore, in this digression that the second objection is more progress, drug and historically collective bargaining in the world of work in buildings are articulated by the employer, and organizations representing government, ie mere "representative" of employers, not by employers as happens in almost all Argentine labor spectrum.
The employer representative.
Recently
attend collective bargaining by the employer three entities:
• Union Real Estate Managers (UADI).
Buildings • Real Estate Association of Income and Horizontal (AIERH).
• Argentina Chamber of Horizontal Property and Real Estate Activities (CAPHAI).
Regarding the first of the three entities, their own company and making it art. 2 of its statute ("Making the union of natural persons and legal entities engaged in the administration of condominium buildings, land and buildings in gneral, for purposes of common good, see http://www.uadiinforma.com.ar / magazine / revista.pdf), clearly represents "managers" rather than "consortia".
Meanwhile, AIERH "... arose from the concern shared by a group of independent, motivated by the common interest of creating a new space for reflection among colleagues and at the same time an entity capable of responding to the increasingly problematic complex professional activity. Under this slogan, there were several teams, who joined other administrators and other professionals, including lawyers and accountants ... Although early in this as in any other activity, are always difficult, if of AIERH worth noting that the accession of the community consortium to the proposal was swift Association too. In a few years, the camera already had a consistent and representative number of partners, and with the growing recognition of public and private consortia linked with the horizontal property "(http://www.aierh.com/quienes.php ), so it is up to the same conclusion. The joint venturers are not directly represented by this entity.
Finally, "... The Argentina Chamber of Horizontal Property and Real Estate Activities is an organization created to defend the constitutional right to private property and the legitimate interests of all sectors involved in the development, financing, construction, sale and / or administration property directly or indirectly included within the condominium property, as well as the consortium of owners that are formed according to the same "(http://www.caphai.com.ar/somos.html). This somewhat cryptic statement about understanding "directly or indirectly" is clarified in the category of members who have said the House itself (http://www.caphai.com.ar/Socios.html):
• Assets: All individuals and businesses who join and to work on a regular basis to the development, financing, construction, marketing and property management directly or indirectly included in the scheme horizontal property and real estate activities in general.
• Adherents: A consortium of co-owners, the joint venturers and all persons or companies having business or professional relationship with the industry.
• Partners: A consortium of owners and natural or legal persons who want only to receive the publications of the Chamber and participate in conferences and events for her to do.
• Managed Partners: Those consortia co-owners who are managed by partners to the House.
• Benefactor: Those partners who contribute voluntarily with special contributions.
• Fees: Those who are appointed by the Assembly on the proposal of the Board, the appointment only involves an honorable mention.
• Institutional: Those legal entities wishing to join the Chamber to receive the benefits of his work to expand the latter in other areas.
This clear definition of the meaning of "active", merely a "supporter" or "member managed" is that the true nature of this Chamber is, as in the other two employers' associations, representing building managers, being deceitful and actual contents empty condition alleged "direct" or "indirect" in representing the collective interests of the sector, and merely "sticky" the consortia themselves.
In sum, when the Ministry of Labour and Social Security, when in exercise of the powers of art. 2, 14,250 law follows the rule of pre-existence of the employer's representative refers to an entity that is not employer-sector directly understood in terms of art. 26, LCT and the whole scheme of 12,981 law and regulation, but three entities sufficiently representative of the "property management activities and associations."
direct and indirect interests. The sense of collective interest representation.
is clear that historically has held that the representative bodies, as it were redundant, representatives of consortia are the children who represent the collective interests of employers. However, the consortium of owners or, rather, the owners, this dual experience as a representative body away from their own interests.
How to combine the historical conditioning to the new reality marked by the emergence of associations of "owners" or "joint venturers" born in the shelter of media development of modern consumer self governance mechanisms and users of public services?
is clear that the collective interests of the owners or joint venturers as such, may conflict with the collective interests of managers of consortia. This is visible when, for example, must determine the value of the service rate of administration. However, when the trustee acts on behalf of the consortium (and not in their interest) it is assumed that the interest of the represented and the representative is a "common interest", as in the case where the manager agreed to the price of a service provided by a third course that brings us to the example of the wage of buildings.
allegedly if the administrator (or group of administrators) granted a superior right to reasonable and thus forces that the consortium (or consortia set) to a debit card that would entail a "hardship", would be developing their management in an inappropriate way, incur management misconduct or cheating.
But these conclusions or assertions that they would find easy solution in the framework of civilian rule, are compounded when the representation in question exceeds that systematic and becomes a "representation of social law", as that law is divided into 14,250 .
That is so because if the employer's representative -Call it "indirect" - collective bargaining is contrary to the collective interests of the employer sector, this conflict can only be found in removing institutional remedy this representation, but the validity of commitments remains intact and the alleged injury to the universe representation, consolidated.
Nothing moves because, in this line of argument, analysis of the status quo.
conceptual Impact of "deliberative democracy" on the peculiar situation in question.
While the collective interest of the employer's consortium of owners is an intermediate and subordinate the due performance by the group of administrators to the mandate of truly representing the interests of their constituents, the whole system will decay about its legitimacy, since a unobjectionable operation shall be subject to providential fact that someone does not act ineptly, negligence or bad faith.
A deliberative democracy is built incorporating all areas of otherness as many partners involved at the time of facing the resolution of social conflicts. Thus, directing the multilateral deliberative gifted public servant of heteronomy by democracy itself (in our example, the Ministry of Labour) will be better able to issue a resolution providing for a just and equitable.
As will be consolidated in the social consciousness that "sense of illegitimacy" attributed to the employer's representative "mediated" or "indirect", it will be projected on all fronts, degrading, in turn, institutional quality their own rights of workers. What could be understood as a "conquest", based on the technical imperfection of the administrative action taken without approval occur after sufficient deliberation, may turn against the workers themselves, as it installs in society an idea of \u200b\u200bthe scope of equality in treatment does not pay for this class of dependents. This state of affairs, in order to support legitimate declined the employer's representative has come to the point that recent wage increases were not validated by an entity "representative", however, which approved the type of ministerial authority by altering the scope of implementation of existing agreements (CAT 378/2004), and what is worse, many members of the Chamber are paying! Picking up the thread
argumentative if the meaning is "include" and not "exclude" the collective bargaining system in the world work in buildings, this should result in the participation of as many entities and joint venturers in as owners demonstrate a sufficient legal and representative character. Thus the "indirect interest" channeled by the group of administrators will add a "direct interest" of the owners and joint venturers.
Who could oppose the extension of representative spectrum, objecting to the participation of these new entities in the classical equal representation? The workers, through the entity with legal recognition, as they would have to deal with in the bargaining dispute with a greater number of partners. Administrators also entities, as incorporation would mean that this detracts incumbencies historically recognized in the joint table.
Therefore, before a possible inconsistency and rejection of the inclusion, thus ruling out a resolution independent, requires the solution to provide a favorable response to the thesis is to be found heteronomously inclusive.
In this regard, beyond the extensive considerations we have designed around the real employers participating in an "indirect" in the collective bargaining process, we believe that the basis for effective participation is given in the art. 42, CN, to which must be regarded as owners and joint venturers as "service users" and as such, holders of the "right to protect their economic interests" and "adequate and truthful information." To do so, according to the rule, "... the authorities ..." (in this case the Ministry of Labour) "... provide for the protection of these rights ...", among which is the right to "... the establishment of associations consumers and users. " Finally, as collective bargaining is a "procedure for the prevention and conflict resolution" enforcement authority pursuant to the constitutional provision should ensure "... the necessary participation of consumer groups and users ... in control agencies."
Clearly then, that homeowners associations and joint venturers sufficiently representative are entitled to demand equal participation in management and, to deny it, "... shall file and fast relief, provided there is no other way legal remedy, against any act or omission by public authorities or individuals which currently or imminently may damage, limit, modify or threaten, arbitrary or illegal states, rights and guarantees recognized by this Constitution, a treaty or a law ", as provided in Art. 43 of the CN.
With the inclusion of this group in the process of setting wages and working conditions will be extended the scope of discussion and deliberation include all the areas that develop in the world of work in buildings. No one can question the legitimacy of the agreement and regulatory product there with such extensive participation of the factors and variables at play enrich the quality of institutions and, incidentally, serve to broaden the content of democracy and reflection spaces closest to the daily happenings of people.
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