safe Labor issues in the draft amendments to the Horizontal Property Regime (Expte. 6445-2-2010). By Alexander A. Segura. I. INTRO. Project of 13,512 law reform submitted by Mr Giudice, Milman, Alcuaz, Alonso Pérez and contains a number of provisions relating to the world of work in buildings. In our view, the introduction of labor standards in the basic law of horizontal property regime is an imperfection of legislative technique. Moreover, in order to the content itself, reveal that the drafters incur a sturdy disregard basic principles of labor law, its constitutional significance and position in the international law of human rights.
II. STATEMENT ON THE RECRUITMENT OF STAFF. Our system labor law relating to building work embodies the principle of concentrating on one person for the conduct of the employment relationship. In the primitive system was the owner of the rented house and from urban reform raised by the combination of urban renewal of leases and the approval of Law 13,512, the displacement of the field activity of the consortium of owners en masse, made significant figure of the manager of the consortium.
legal employment This tradition is further reinforced with the proposed provision that gives legal status to the consortium (art. 11), status that is good to remember, been recognized Education in the Charter for more than 40 years and from the dictates of the Whole CNAT "Seoane Noriega."
This combination of assumptions leads to affirm that the ownership of the employment relationship rests with the consortium of owners, the direction of the manager and the owners and occupants are mere parties who receive the benefit of working under similar conditions as the public service user or consumer of labor services business.
therefore assert that the assembly of owners not entitled to select the personnel involved in the preliminary contract, hire, discipline or dismissal. You can do as an option, but not foreseen by the art. 31 of the draft, as imperfect wording ("... shall be in compliance with a decision of the assembly called for that purpose ..."), a situation totally incompatible with the central direction of driving the relationship. In addition, the arts. 38 and 41 reiterates that workers in buildings shall be elected by the assembly of proprietors, which, as we said is a true legal nonsense.
Moreover, introducing such regulations confusing and cumbersome procedures for the designation, as we assume, will bring about new and complex conflicts. Art. 38, for example, indicates the general principle that all los propietarios podrán presentar postulantes. ¿Solamente pueden ser candidatos quienes fueren postulados por propietarios? ¿El administrador carece de esta aptitud? Además, dice la norma que “…a los fines de su nominación deberán presentar con el carácter de declaración jurada, los antecedentes de servicios y conducta al consejo de propietarios del consorcio”. ¿Quienes “deberán presentar” dicha documentación, los postulantes o los propietarios? En el primer supuesto, ¿cómo hacen los candidatos para comunicarse con el consejo? Todo el procedimiento de selección excluye sin motivo ni fundamento alguno al administrador quien, en definitiva, será el responsable conduction of employment and be accountable to the Assembly by that performance. Put the head of the assembly this decision, in times where the owner participation is practically nonexistent, subtract the dynamics of labor relations. Suppose
could not constitute such meeting ever. Or that there is a divergence between sectors of the owners. Should wait as long as necessary for its establishment, to cover a job?
The unreasonableness of the provision is confessed by the editor when you enter an exception: "... unless serious reasons to justify immediate dismissal." What are these "serious grounds"? Is it a dismissal for cause or you can by these "reasons" to fire the manager proceed arbitrarily? Let us now
certain effects that this thoughtless legislation introduces. As we know, art. 18, VCCI. provides that the acts prohibited by law brings with it the penalty of nullity. If the administrator does not convene the assembly to contract, does the contract is void? If dismissed in breach of the requirement or the worker concerned objects to the "serious reasons", can request the nullity of the dismissal? Some extreme interpretation will apply a similar mechanism to that of absolute stability ...
As we see, this rule of "demagoguery" as most of the provisions relating to the world of project work designed to restrict the power of managers, ends devoting unusual findings, multiplying the litigation and, ultimately, altering the peace consortium.
III. LABOR OBLIGATIONS OF BUILDING WORKERS. obligational plexus of building work, another question, that is, workers' rights and duties of buildings on one side and rights and duties of the consortium on the other hand, is embedded in a string of other legal rules. Namely:
• international law DD.HH. with decisions that interpret (see case "Giroldi") under the control of conventionality of the legal system.
• The Constitution, in each case, which is fully operational through judicial review.
• The LCT is applied under the system of compatibility matching system.
• Law 12,981 and its amendments. • The decree 11.296/1949
. • The CCT 589/2010
ultra-applicable clauses in their regulations.
• The individual employment contract as enshrined better standards, under the principle of more favorable conditions.
call this "regulatory plexus" and ascribe their working patterns, to the extent that can only be set and articulated by the legislature and work performed by the Labor Courts. The independence of the labor law is constitutionally provided since 1957 (the current art. 75, inc. 12). The fact that there is still a Labour and Social Security that does not detract autonomy from the civil law, a fact which excludes the hypothesis that in a condo rule intended to regulate industrial relations.
labor obligations system is based also on the basis of content and synallagmatic bilateral contract work, a participant in a reciprocal exchange of labor services, which can not be unbalanced graciously adding the one (duties / rights) without addressing the other (rights / duties).
addition, the legislature modern work tends to leave in terms of collective bargaining the detailed regulation of the complex world of labor rights and duties, especially those pertaining to the so-called duties of conduct, so that no one understands that civil eminently stamp legislation as a standard horizontal property intends to build on fields that intentionally leaves the iuslaboralismo. Test
rudimentary implementation of these elements into desuetude is the structure of art. 39 of the draft indicates a dogmatic way, "The processor must comply strictly with the cleaning and maintenance of all kinds, the common parts of the building, unable to delegate these functions", a fact which obviously is already covered by rules labor collective and conventional legal content and that, moreover, may not occur in certain contracts of work, which is not forbidden to entrust the task manager other than the "clean", certainly not the major meets this qualification of the various existing in the world of work in buildings.
But also legislative technique incurs serious mistakes when it goes on Prohibitions that are wound between the obvious, safety or logically inconsistent.
is overflowing "prohibit" the manager made "... any kind of work outside of their own role in the schedule of specific tasks ...", a situation that reaches all building workers and not just the score. Insufficient since, and safe is this provision (art. 39, inc. A)
Unlike the case of vedarle "... manage the rental or sale of units of the building that served and any other activity which would undermine its role specific "(inc. b). To the extent that such activity does not impede or concur with your employer and be lawful, this prohibition does not bear a control far conventionality of constitutionality.
As for the ban inc. c), ie, "... require any payment to utilities, vendors, employees, workers, and any other person with his performance in the consortium that has as its purpose to exercise its functions in the consortium, will of his abusive nature referred to in art. 242, LCT. The same, incidentally, not seen in modern legislative drafting work as "doing the forbidden," but for reneging on a job duty, in the case, in good faith (art. 63, LCT).
Finally, in the last paragraph of art. 39 of the draft a provision that is appreciated and is covered by labor law plexus ("... As for his relationship with the owners shall respect and mutual correction ..."), so it is overflowing with regard to the conduct required the worker and insufficient as we say in Section VIII with respect to owners and occupants.
The rest of the standard is unreasonable and dangerous. Provides that any breach of any of the rules laid down in this Article shall be communicated by the owners the council of owners and / or administrator. The council is a body with no work because the powers of management, organization and discipline that are vested in the person of the consortium (not the owners or part thereof) and is expressed exclusively by their representative necessary, administrator. Consequently, owners and occupiers which find breaches duties by the employee of buildings contained in the employment policy plexus (not the nonsense words of the project), should tell the manager solely, as director and head of the relationship work.
Then, this article contains a mechanical violates Art. 25, 12,981 and CST Act 589/2010: the order book does not serve to "establish deficiencies found." First, the mere mention of a landowner who claims that the workers building a breach of any provision contained in the system of rights and obligations of the parties is not a "proven failure" but a simple affidavit or complaint. To be "proven" as the nomen iuris suggests, it is necessary to submit the complaint handed to a system of verification or accreditation necessarily valid international treaty and the constitution requires removal and disposal of the right of successful defense.
Secondly, the order book is to "pick up complaints" but, as established by legal and conventional rules collectively communicate a statement given by the building administrator to the employee.
Third, as stated at the time criticized the peculiar treatment antecontrato exempt the project, contract and labor distractors, the assembly has no disciplinary authority or legitimacy to order the suspension of the employment contract for any cause. Make the exercise of disciplinary powers to the functioning of a body composed of a number of people who happen to be third to the employment relationship, has the same entity illogical The claim of a passenger motor carrier that attempts to punish a driver who attributed bad job performance. Under this pattern which touches the border unreasonableness of logic, the expression "Once verified the fault, to be convened a meeting who will apply the sanction with at least a majority of two thirds present, is the crowning absurdity size . What does "verified missing? Does the assembly is "judge and jury?
intent to deprive the manager of the powers of direction under his statutory meaning leads to absurd less arbitrary normal system making employment decisions unipersonale channeled by the representative of the consortium needed, which is impractical and bureaucratic rigged construction. The result is that the worker who actually commits a fault can not be sanctioned and, if so, have a wealth of formal defenses eventually turning off the power to correct the offensive behavior dependent.
Finally, the legal formula "Where appropriate the suspension without pay, it will be paid to his replacement, deserves to be inscribed in the annals of legislative stupidity. Any disciplinary suspension stops the execution of both effects employment contract-service delivery and pay-surrogate and therefore should not mention the obvious. But also is not mandatory for the employer to appoint a "substitute" while suspended meets its approval. Would jokingly ask if this "replacement" should be selected by the assembly in terms of art. 31 of the draft ...
IV. ALLOCATION OF SPECIAL WORK. constitutes a new and unacceptable interference with the normal development of the employment relationship that the council of owners, that is, a body composed of third parties to the contract of employment, whoever set the "need" to provide extra hours for staff (art. 40).
Similarly, the legislature seems to be unaware that collective bargaining in the world of work is rich in buildings suspension systems contract to afford personal training, with prominent mention vagueness called "completion of courses in working hours. " Assume that the right contained in the plexus labor law is subject to "... vote of two thirds of those present ..." a meeting of owners, is to ignore the system of collective labor relations in buildings.
V. THE FATE OF THE HOUSE OF ENTRANCE IS UNAVAILABLE FOR THE CONSORTIUM. This issue we have analyzed in our work, "What if we rented the goal?" And in the interest of brevity, we refer here (http://encargadosonline.blogspot.com/2009/06/y-si-alquilamos- the-porter-por.html).
The provision in the last paragraph of art. 40: "The housing is a shared responsibility. The disposition thereof shall be decided by unanimity, the change of fate can be decided by two-thirds of the consortium, "forget that as established in the art. 13, Law 12,981, that allocation can not be altered because it is fixed by a provision public policy.
VI. DISMISSAL OF RETIREMENT. The projected art. 42, inc. a) is clearly unconstitutional.
It is unusual for the manager and the assistant have to communicate something that the employer is fully aware, this is his age. The editor of this rule ignores the system of art. 252, LCT not only active with the worker's age, but if it satisfies the requirements for obtaining a performance of Act 24,241. They are, at least three: age, years of service and contributions entered into the system. It is the consortium, through its representation required (on the advice of owners has nothing to do), who intimate in terms of the aforementioned labor standard, making the employment contract for an indefinite period in a fixed-term alternative to extinction being the year of maximum or the granting of benefits if it occurred before.
More troubling is the inc. b, of this art. 42 which determines the trespass of the council or any owner authorizing him to urge the assembly to take "simple majority for action." What are these measures? "Intimate workers to retire? As we have argued only the administrator, on behalf of the corporate employer is entitled to make any alteration in individual relationships work.
VII. UNUSUAL INTERFERENCE IN THE MANAGEMENT OF THE COLLECTIVE WORK RELATIONS. Art. 37 of the project is to introduce a rigid system of representation confusing consortium founded in civil law with particular social law that governs collective labor relations.
prohibition administrators to represent consortia, joint owners or joint venturers in collective labor agreements and has no legal basis for regulation is specific in the law of associations of employers (where given in the context of the future Labour Code and Social Security), the laws 14,250 and 23,546 of procedure for collective bargaining.
The restrictive provision "Consortia can not be represented by chambers, associations or unions of administrators," unbecoming of a horizontal property law contradicts sixty (60) years of practice in collective bargaining.
As we have made in our work, "The representation of the pools in the joint work in buildings" (http://encargadosonline.blogspot.com/2009/04/la-representacion-de-los-consorcios-en. html), are in favor of joining the collective bargaining process. We held there that "There is no doubt therefore that the homeowners associations and joint venturers sufficiently representative are entitled to demand equal participation in management and, to deny it," ... shall file a quick and under, provided that there is another legal remedy against any act or omission by public authorities or individuals which currently or imminently may damage, limit, modify or threaten, with open arbitrariness or illegality, the rights and guarantees recognized by this Constitution, a treaty or a law ', as provided in Art. 43 of the CN. With the inclusion of disabled people into the process wage 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 the people. "
VIII. INDEMNITY AGAINST BUILDING WORKERS TO WORK FOR PSYCHOLOGICAL HARASSMENT AND OCCUPANTS venturers. Curiously only rule we favor the inclusion in the project that could rub labor issues is not covered. This is a situation we have postulated in the IX International Congress of Tort Law, organized by the Faculty of Law at the University of Buenos Aires and the Association of Lawyers of Buenos Aires, 10/12/2007. There
make the following Report: "If bullying work by a building worker venturers, it may dissolve the employment contract for work injury and committing to the consortium for their constructive dismissal. In turn, the consortium in a subsequent trial would have standing to sue for damages caused venturers in the generation of that labor debit, in which case the citation would be from a third party in the trial initiated by the clerk. The building worker, regardless of the complaint or maintenance of the relationship, it could act against the joint venturers mobbed him on the occasion and during sessions for damages and objectively accountable to the consortium, who can not rely on third-party fault for not to respond, on the basis of security duty following a declaration of unconstitutionality of art. 39 of the LRT. "
The issue that motivates our concern is the following: a joint venturers harassment (mobbing) to a worker buildings.
As a direct result of this unlawful activity, the worker has a menu of actions:
A) is considered injured and fired;
B) In addition, an action for damages (which accredits)
C) only started this action and maintain employment.
Facing the situation created legal and procedural paths statements, questions arise regarding the attribution of responsibility in each case, the nature of the complaint, the person with standing to be sued in the action and the role of the tortfeasor procedural ( defendant or third call to participate in the process).
hypothesis A is the traditional and has no problem whatsoever, while the employer is the consortium and to an outrageous breach of their duties, but regardless of conduct, "that motivates the constructive dismissal, you must pay the appropriate compensation rate. This, without prejudice to the allocation within the consortium of responsibility for damage to the joint venturers that caused the injury and against whom the consortium could be repeated in a subsequent trial. We think the possibility of a right of recourse against the damage, your citation would be appropriate as a third volunteer (art. 90, CPCCN) without regard to operating the purposes of art. 96, last paragraph.
In the other two scenarios what matters is the independence of action for damages for workplace harassment complaint regarding the continuity of the employment contract.
Should this action for damages based on risk law following a declaration of unconstitutionality of art. 39? We understand that, yes, but it requires some clarification.
First we should emphasize the "work" of the harm (bullying should be working) and it is for this reason that projects to the "employment contract" based on art. 75, LCT, derived from general operating principle of "good employer consortium" (art. 63, LCT). Labor experts agree that security duty before an obligation of "result" sets an obligation to "medium." If the breach of such obligation is an injury, this may justify a conviction for damages to specific grounds therein and in harmony with the provisions of common law, given the traditional tendency of the labor law to weaken the border between contractual liability and tort drawn by the art. 1107, VCCI. As this is an obligation of means, is imposed upon the employer to take all positive behaviors by type of work, experience and technique are necessary to safeguard the worker's physical and psychological integrity. This matter also the consortium must act with special prudence and foresight, given that the nature of the service is done in a "community of persons" (and, therefore, an area often conflicting) but this does not mean the assumption of a positive duty of the measures taken.
Such an approach does not contradict the fact that bullying involves "fraud" of the agent causing the damage, which would determine their connection, the application of art. 1109, VCCI., And exclude the existence of a "thing" in causing the injury, paradigmatic industrial accidents.
turn, as the worker is building promoting action is based on work injury law, strict liability-based consortium of art. 1113 of VCCI. could be questioned, as joint venturers is not "under the jurisdiction" of the consortium (1 º para., art. cit.).
Nevertheless, the joint venturers is not a third party for whom the consortium should not respond. Its unlawful act on the worker can not be unnoticed by the consortium, given that this is bound to indemnify given its position in the framework of the existing employment relationship. In this scheme inaction, would the behavior of a "bad employer" or a security defaulting duty.
First, as the causative agent of harm is a joint venturers, and not a "dependent" direct action seems inevitable as fully address the consequences of their willful misconduct. What is then the responsibility of the consortium as an employer?
In the ancient system of law 13,512 "power steering" of the consortium in the acts of the joint venturers is briefly covered by the arts. 6, inc. b, and 15. First it imposes a ban on "disturbing ... otherwise, the tranquility of the neighbors ..." This provision is reproduced in the new art. 9, inc. b) the project. The violation of this guideline legitimizes the administrator to promote the petition to the judge responsible for the cessation of the breach and even sanctions, extending legitimacy-as-Alterini, any owner or "owner" while " neighbor. "
is clear that the building worker to the extent that it fulfills its functions in the common areas of the consortium should be considered as such beyond that "dwell" or not in it, should be considered the "psychological harassment at work" is unlawful conduct of entity than a mere "disturbance."
The omission of "consortium owners ", as building workers' employer, to cease the unlawful conduct of joint venturers, imports the violation of his duty security in the context of a unique situation because the offender-venturers even if" third party "to employment relationship is the direct recipient of the workforce dependent. Therefore
and in our opinion, in cases B and C described earlier in this section the worker may also direct its action against the consortium for violation of the duty of security and who would attribute a strict liability for the intentional act of venturers.
This statement we postulate at the appropriate forcing the hermeneutics of 13,512 law standards, may well be remedied by introducing the new art. 9, a paragraph like the one we propose, would not offer any doubt as to the liability of the consortium for the acts of their owners or occupants as long as the damage occurring in connection with or during the work.
In short, art. 9 of the bill relates to certain prohibitions for owners and occupiers of the units.
On the basis of our reviewed papers before the text suggest that adding a fourth hypothesis:
Section 9. It is prohibited to each owner and occupier of the units:
...
d) engaging in psychological harassment at work or damage the person or property of building workers.
...
In the event of violation of paragraph d) of this rule, the obligation of which has caused damage extends to any damage caused by the owners and occupants, in the same area at the ready in the first paragraph of art. 1113, VCCI.
