Overall, the new CCT 589/10 has not substantially changed its predecessor 387/04.
structural elements of the agreement, ie, parties involved, qualifications, categories of buildings, staff duties and modules have withstood remunerative. Only appreciate some standards favorable to workers in specific themes and a particularly noticeable in certain strictly union rights.
analyze the changes point by point.
1. Workers removed debris only on Sundays and holidays.
This innovation was introduced into the art. 7, inc. p), describing the classification of journalized staff, to cover the situation of him who alone is hired to remove debris on Sundays and holidays. In this regard it is stated that "Workers who perform tasks of removal of waste on Sundays and holidays are included in this category, which means that the filing of this situation the consortium would ensure the payment of two hours plus in addition to the respective minimum is calculated with a fixed value per functional unit, which constitutes an expenditure is unreasonable rating.
2. Seniority bonus.
With regard to the salary supplement, the CCT 589/10 regulates two situations that were referred to an unclear how wage rounds held between the approval of the CCT 378/04 and the new treaty norm and that those opportunities not deserve the support of the Argentina Chamber of Horizontal Property and Real Estate Activities.
The new basis for calculating the bonus it ceases to be a fixed sum for compensation linked to lifelong assistant housing category 4 (2% of basic), as we know, was an increase of assets important to the staff of great antiquity.
The last paragraph of this article. 11 is a fundamental reform of the system of bonus. On one hand, expressly provides for the mandatory half-time scores, alternates and journalized, which in our opinion to the effect of CCT 598/2010 did not have this right, since the previous collective provision spoke only of "all categories" and not "all grades." On the other hand, the new paragraph operates as a palliative to the disproportionate increase in the bonus, since for these grades are not permanent operations decreased 1% of the salary of an assistant permanent homeless 4th class, scheduled from May 1 2009. The latter circumstance is to remedy a real distortion, since in many cases with respect to part-time staff, deputies and journalized of great antiquity, the bonus would end more than possessing a basic salary scale.
Finally, our view on the unlawfulness of the bonus for staff journalized or alternates have outlined in "System Legal Jobs in Buildings ", is justified by the introduction of the last paragraph in fine art. 11: "This new percentage shall apply to workers entering from the approval of this agreement", which means that by the express provision that lacked credits, recognition of the employer unless the individual employment contract.
3. The new licenses.
existing and planned to be added to all staff. We say "all people" by the methodological objection made upon glossed the reform of art. 27.
3.1. Sick child.
It enshrines the right to license for ten (10) days of sick child under twelve (12) years for active workers, once a year for their upkeep, the burden of presenting a medical certificate stating the condition. We assume, though the rule says nothing about it-that the certification must state the need for personal care.
addition, the employer will provide a daily permit for two (2) hours a mother whose newborn child must remain hospitalized until it is discharged for a maximum of three (3) months (art. 12, inc. a).
Como primera impresión, esta ampliación podría llegar a ser contraproducente, en la medida que desalentaría la contratación de mujeres trabajadoras embarazadas o con hijos menores. Precisamente para prevenir un trato discriminatorio, la norma debió contemplar la licencia para cualquiera de los padres. Con esa sencilla técnica de redacción se hubiera desactivado cualquier discriminación contra el personal femenino.
3.2. Permisos gremiales pagos.
El inciso h) del art. 12, introduce una nueva licencia gremial: hasta cinco (5) permisos especiales por año calendario y sin descuento de haberes a los trabajadores/as que fueren convocados por la FATERYH para participar training events, cultural or social. As the standard does not clarify anything about it (think of a defect in writing), the worker might be called building which does not have a union representative status.
Moreover, in our view, this provision might warrant an objection from the perspective of international law of freedom of association and is not strictly a management credit hours must be legally established by collective bargaining (art . 44, inc. c, Law 23,551), but simply the financing of trade union activity by employers, a situation at odds with the ethics of relations professionals and others in conflict with the principle of purity association.
3.3. Payment break refreshments.
Paragraph i) of Art. 12, incorporates a suspension of the work day without undermining wage that workers can enjoy a snack. This only for the case of job skills and calendar schedules. The interruption shall be twenty (20) minutes a day, at which time the employee is released from service. Naturally the employer is empowered to establish, based on the best operative work, the time at which you make use of that benefit.
3.4. Training hours work.
In the art. 28, introduces a new license in the event that the worker training carried out, actions that are inherent to their business and training centers of their unions FATERYH or attached, consisting of forty (40) hours per year without deduction in compensation for their development. Contrary to what we said on the call to leave for union training (cultural or social events), this funding is not job training of trade union activity, but simply pay.
4. Modification of home value calculation.
Since the reform of Section 1, Art. 15 of the Convention, the so-called "home value" ceases to be a lump sum and becomes subject to the modifications of the various existing wage scales.
5. Expansion of post-contractual obligation to deliver the housing goal.
is the most important change. His writing faulty lead to multiple interpretations and, as we unfortunately can increase litigation.
5.1. The legal framework prior to the conventional reform.
Before considering the new inc. 11) Art. 25, CCT 589/2010, let's see what the treatment of different scenarios in connection with the delivery of housing goal, in case of dismissal, as provided by law 12,981 and its Regulatory Decree 11296/1949.
First found groundless dismissal with notice of the award. As we know, the notice of dismissal without mention of cause carried with it the order to reinstate the property. The worker housing was to deliver the same day of dismissal. Already discussed when we design our "Legal Regime ..." the system of compatibility between the LCT and the particular statute, that is the basis differential of three months' notice in the scheme of work in buildings, whatever Regardless of the age of the worker.
The second common form is groundless or unreasonable dismissal without issuance of notice. We recall that our legal system does not provide absolute stability, excluding the so-called "redundancy irreparably null", so what is called "unfair dismissal" is our residual "dismissal without just cause." Stability "relative" (or instability, we could call it), equate in the same situation of lack of cause and its unjustifiedness. In short, one as in another case, as there was no notice of dismissal, art. 7 of the decree of the Statute provides for a grace period for the delivery of housing for 30 days. As we have argued, the term applies in two basic situations of direct redundancy, dismissal as "indirect", ie when the worker who dissolved the link to an offending employer's failure to prevent the continuation of the link (arts. 242 and 246, LCT).
In any case, the obligation to supply is disconnected from the obligation of the employer to pay the compensation due on the fourth day of decreed the dismissal (Articles 128 and 255 bis, LCT) where dismissal is "groundless" or, logically at the time the judge decreed as "unjustified" to unemployment or from self-discharge.
Several decisions have established the independence of the two obligations, to the extent that the worker can never rely on a "lien" or the exceptio non adimpleti contractus to resist the obligation to provide housing legal expired.
5.2. The grace period.
With these premises, let's see how it changes throughout the system the new inc. 11, Art. 25. Standard says: "In cases of dismissal without just cause invocation, the employer shall not require the worker to deliver the property unit that dwell, until you pay all the items and severance pay that correspond to perceive. The right to remain in the premises shall not extend beyond 90 days from the date of dismissal. "
First, are outside the norm under the unfair dismissal and constructive dismissal. In both cases continues to apply the art. 7, dto. 11296/1949, that is, the worker is entitled to remain in the house thirty (30) days after the date of distractors. To be excluded from unfair dismissal, employers will be tempted to deliberately cause a false claim, rather than firing "without cause." So we anticipate that this provision will trigger the litigation. That said
not least, the norm are both groundless dismissal situations. Dismissal without cause by invoking provision of notice and ad nutum dismissal without notice.
As mentioned, the text of the law and decree, in the first case the date of delivery of the property was that of the distractors and the other was a grace period of thirty (30) days established by dec. 11296/1949. The new CCT adjust and alter the scheme in both cases.
So, assuming served with notice of dismissal and dismissal without prior warning notice, the worker is entitled to receive the awards for the fourth day (art. 255 bis, LCT), but now there are new "Conditions" that expand the right to remain in the home.
The fired without cause or notice, may extend from the date thirty (30) agreed in the decree, sixty (60) days and discharged without cause and notice has now ninety (90) day right to remain in the housing that did not have before.
5.3. "Repeal of art. 7, dto. 11296/1949 for payments in a timely manner?
The problem arises when the employer pays compensation.
says the rule-badly written, that the employer may not seek reinstatement of the house "... until he pay all wages and severance items that correspond to perceive. " Does this mean that a worker fired without cause or notice must return home once you pay your entire credit but have not spent the 30 days granted by the decree?
a question is presented here hermeneutics originated, as stated in the bad wording of the treaty text. On the one hand, the approval of the agreement would not have been valid if it has meaning subtracting the fired without cause or notice within thirty (30) days guaranteed by Decree 11296/1949. An agreement can not be approved if it contains a provision to repeal rule of public policy work Protectoria (Art. 7, Law 14250). In this case, the worker receiving compensation and all their claims within four (4) days, would lose their right to continue in the house until thirty (30) days after the distractors.
turn, on the other hand, in case of doubt in the interpretation and application of a rule of law prevail most favorable to the worker, considering the rule or set of rules governing each of the institutions of labor law ( art. 9, LCT). This means, know that the rules do not accumulate but apply under the system of "conglobate by institutions. " One could analyze which of the two rules governing the "institution-delivery of housing" does so in a manner most favorable to the worker.
The situation we are analyzing is not a "laboratory case" or a mere speculation of legal hermeneutics. The Whole Contarino, still in force, states that "commits the crime of theft by abuse of confidence charge remaining in the house exceeded the term of art. 7, dto. 11296 "and this means that if we state repealed that provision, an employer may pay the compensation and pay all claims within 30 days and charge that successful criminal offense to the employee.
In short and in our view, this provision surely inspired benefit the worker and their families vulnerable to eviction without compensation and perception of credit, will have consequences diametrically opposed to those contained in Primal Telesis. Promote the enactment of dismissal "for cause" and in the event of layoffs uncaused, delay payment of compensation to be negotiated with the delivery of housing.
5.4. Beneficiaries of the worker.
The last part of art. 25, inc. 11, introduces a provision that can also be read as inconvenience to the rights of the working part. It provides that when a worker dies, the beneficiaries listed in Article 248, TBI may remain in the house until a maximum of thirty (30) days.
Before this provision, the duty to vacate the house by the beneficiaries was governed by rules does not work, equated the situation to the borrower. Many decisions of the National Labour Court declared itself incompetent in eviction claims against title. The CST 589/2010 introduction of this new law, the obligation becomes one governed by a provision of labor law (art. 20, dec. Law 18,345 of work procedure). This determines that, rather than to rely on civil defense headquarters more permissive, the beneficiaries will be exposed to launch in limine referred to in art. 146 of the rite.
Again this provision can be seen in a precarious expertise by those who, excited to favor the least advantaged, place them in a worse situation.
6. Agency retention.
Art. 26 adds expressly requires the head of the consortium to retain "the amounts of union dues / workers within the scope of the present collective bargaining agreement under as established by law 23,551 (inc. 2 º). Should clarify that contributions should be retained only for union members, a fact which appears curiously ignored in the text and can lead to some confusion in this regard.
7. Modifications to the system of protection of motherhood, life, unemployment and disability (art. 27).
As we know this unique system by which a fund is that it be administered by an insurance company (Interaction SA) has a double funding:
• The contributions of employees: Members of a compulsory and non-members choosing system by contributing 1% of their earnings.
• The contributions of employers on the payroll of all workers, whether affiliated or not affiliated.
The new collective agreement this contribution increases by 50% as the original 2% now becomes 3%. It increased by 0.5% for the "solidarity fund" and another 0.5% to fund a new joint body that is in open violation of the provisions of the law and the DEC 24635. 1169/1996, as we shall see when we look at the new art. 29, CCT 589/2010.
What is disturbing about the situation is that six years of existence the system are unknown in terms of the insurance contract for the administration of this vast sum and it constitutes a "solidarity fund", has no control. The increase in employer contribution, taken over all the payroll, an increase is more significant that, except proof to the contrary, the profit goes to accretion of the insurer. This is without prejudice to the other can be justified by the changes that are then analyzed, deserve such an important increase in the rate.
The law discriminates between members and supporters on the one hand, and non-compliant on the other. This means that functions as a "clause union", although not strictly as will be seen below. In this regard, it should be noted that Art. 9, 14250 law states that "Collective agreements may contain clauses agreed special benefits based on membership in the association of workers who signed it. The provisions of the convention by which contributions are established for the association of strikers, will be valid not only for members but also for non-members within the scope of the convention. "
From this perspective and strictness of interpretation, in our view the art. 27, CST encuadraría not in the two instances of legal text. But this view deserves further development that exceeds the scope of this analysis.
7.1 Compensation for death of worker.
must be granted by the insurer assigned the worker's death benefit provided for in art. 248, LCT (art. 27, para. VI).
This provision is very questionable in light of the general principles of labor law and social security as compensation for death of worker does not have to be funded by the universe of employers and union members and supporters but by the specific employer of the deceased worker who, you know, had provisioned such events.
7.2. Licenses discrimination.
elliptically
The legislation introduces a new menu of special licenses that only allow union members or who opt for the system. This is a differential treatment of questionable relevance, judged it to merit the principle of nondiscrimination. We say this conscious act of affiliation or membership in as lawful and voluntary act of the employee that includes special benefits are financed by the fund. But one thing is a special benefit and quite another is the right of access to a license by reason of the employment contract. There, we know, the system does not support discrimination of any kind (art. 17, LCT).
introduced the following new special license, paid by the system:
7.2.1. Maternity leave for adoptive mothers.
must be granted by the assigned insurer to pay maternity leave for the adoptive mother of a child for a period of sixty (60) calendar days from the granting of custody for adoption (inc. VII .) This rule has inaccuracies in the wording, which will lead to multiple interpretations, especially as regards notification to the employer (as recommended was to determine the burden of the home take notice of court proceedings to obtain custody of the child for adoption) and the date on which it is entitled to have the term started. We support the solution which in turn led to the draft Jenefes senators and others: "... In order to enjoy the license, the date of the decision given by the competent authority has lower delivery in custody for adoption will be equivalent to the date of delivery. "
7.2.1. Paternity leave for multiple births.
granted by the insurer must pay the assigned paternity leave in cases of multiple births than ten (10) calendar days (inc. VIII). It is known that a multiple pregnancy is a pregnancy in which a woman has two or more babies.
7.2.2. Paternity leave adoptive parent.
should be paid by the insurer assigned the payment of parental leave for adoptive father of three (3) calendar days (inc. IX).
7.2.3. Leave the mother dies in childbirth.
should be accorded by the insurer assigned the license fee of thirty (30) calendar days to the child's father when the mother dies in childbirth or immediately after it (inc. X).
7.3. Use of funds (last para., Art. 27):
last paragraph was introduced which gives the virtual ownership of the funds of the system in favor of FATERYH. Under the new provision, the association of grade 2 may allocate any surplus resulting from the amount collected and the total prize to be paid for policies taken out under the concept of the system to provide benefits of cultural, educational, training and professional social services in general or any of their own associational order for the benefit of its partners.
latter is "to the benefit of his associate" is, workers affiliated to the FATERYH and its member associations of the first degree, excludes workers without members have joined the system and, therefore, are deducted from their wages by 1% of contributions, constituting the unexplained exclusion violation of their rights.
8. Comprehensive employee pay rise buildings.
The bonus for completing the training as "comprehensive building worker" becomes 5% to 7% of base pay
9. Reform and expansion of art. 80, LCT.
Under the new 4 th paragraph of art. 28, CCT 589/2010, workers buildings have the additional right to legal text content (art. 80, LCT), which should be added "... professional qualification obtained in the or positions held, has not done the employee or regular training activities" .
10. Service "for optional facilitation and negotiation." His safety, in accordance with the law and dec 24635. 1169/1996.
As we know, the arts. 34 et seq. of dec. 1169/1996 establishing an "optional Labor Conciliation Service enabled by collective bargaining." The new art. 29, CCT 589/2010, in turn, creates a "... Service facilitation optional for workers and employers of income and horizontal. It is a facilitation service and elective labor negotiations, which operate within the framework of this agreement and the current agreement for workers at rental buildings. Its mission is to provide workers and employers an impartial space, making it possible to negotiate their respective interests. "
As shown, the agency created by the CST can not legally framed 589/2010 with optional service which Compulsory Labor Conciliation, must necessarily use the SECLO Registered Facilitators. For this reason, any agreements which are concluded before the new "service" not be approved under the terms of art. 22, 24635 law and will not, therefore, with the authority of res judicata that emanates from the art. 15, LCT and Whole CNAT "Lafalce." Also, an optional service required by collective bargaining authorized under law, may refuse to use (art. 35, dec. 1169/1996), a circumstance not foreseen in the scheme analyzed here.
This organism appears to be a bureaucratic structure that is inhibited by the terms of its creation to deal with conflicts of law, so its useless for the purpose of "facilitating" the negotiations with legal work in the field individual is obvious. Appreciate that an improper legal technique is advocated that its sole function is to facilitate and enable (sic) the negotiation of their "interests", but circumstances at individual case.
The safety of the new body is almost tautological, as the associations themselves, workers and employers-signatories of the agreement have this mission: to represent the individual interests of the people to obtain their assistance and representation containing their universe.
for the functioning of the fee structure of its board that "... shall consist of six members hold three by the association, of which one is the City of Buenos Aires SUTERH and GBA, the other two of the FATERyH, three by the employer to be one of the AIERH, another by UADI and one in the CAPHyAI. Also there will be two alternate members, one by the union and one by the employer ", is increased by another 0.5% the employer contribution provided for in art. 27 and to this end, the FATERyH aside a special account for those revenues, appropriating the funds necessary for the operation of the Service. The salaries of officials and employees, the physical place of operation, facilities and other expenses are funded by contributions from a fund that is supposedly run by the insurance Interaction to provide social security benefits to members and adherents.
Finally, the rule, stating that the "... Board approved the design and development of the Service for operation and recognition", intended to constitute a legal structure to produce legal acts void, because the Service has no legal authority to approve agreement.
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