The CCT 589/2010, in Art. 29, has created the "clearing-house for workers and employers optional income and horizontal, in order to deal with individual conflicts of interest under the scheme of work in buildings.
But the conventional rule has been disproved time under the pretext of its implementation, now seeks to extend competition within their individual conflicts with labor law and other legal issues that go beyond the specific discipline to understand even cases in which the parties are not necessarily employers and workers.
The situation prior to "relaunch" of the system.
What was it that created the 2010 collective bargaining? Service "for optional facilitation and negotiation."
As we know, the arts. 34 et seq. of dec. 1169/1996 allow the creation of an "optional Labor Conciliation Service enabled by collective bargaining." The example Most notable is the Labor Conciliation Service Optional for Trade in Services (Dry), created by the Federation of Employees in Trade and Services, Argentina Chamber of Commerce, the Commercial Activities Coordinator Entrepreneurs and the Union of Argentine business entities and approved by ministerial resolutions 201/1997 and 41/1999.
The new art. 29, CCT 589/2010 has created a "... providing an optional service 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. "
Mention regarding the competence of this "clearing", prevents other issues can be ventilated If they are not mere "conflict of interest." The rule also has been building "self-limiting" in performance, hugging the framework of the current agreement for workers in buildings. That is, which covers only workers and employers, within the consortium, with reason at the time of the employment relationship.
Moreover, we know that art. 1, Law 24,635, of that indicate the possibility of arranging an "optional service" as the dry, they referred only to "individual claims and pluri that deal with conflicts of law of the jurisdiction of the National Labour Court." The conflict of "interests" are not subject to compulsory conciliation work, and neither are the National Labour Court. In the "conflict of law", the court interpreted the scope of a standard pre-existing legal situation is not configured in the "conflict of interest" in labor importing the absence or inadequacy of a legal rule and questioning the social partners on formula for their creation or modification.
goes without saying and as you can see injunction, which the agency created by the CCT 589/2010 can not be legally equated with an "optional service" general system of Compulsory Labor Conciliation which must necessarily use the SECLO Registered Facilitators for understand the issues which are under the jurisdiction of the National Labour Court.
For this reason, any agreements which are concluded before the new "service" be about "conflict of interest" may not be approved under the terms of art. 22, 24635 law and will not count therefore, 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, is an employee or employer may refuse to use (art. 35, dec. 1169/1996), a circumstance not foreseen in the scheme analyzed here.
The body in its original configuration seems 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 labor negotiations with legal action individual level 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 lack of effectiveness of the new organization, under its original conception, it is almost tautological, as the associations themselves, workers and employers-signatories of the agreement have the same mission: to represent the interests of the people that collect and contain Speaking its universe of representation. With regard to the representation of individual interests of workers, art. 22, Decree 467/1988, regulating 23,551 of the Trade Unions Act, requires the written consent of the worker.
for the functioning of the fee structure of its board that "... members shall consist of six owners, 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, allocating 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 insurer Interaction to provide social security benefits to members and adherents. But as you can see the economic livelihood of the system lies solely with the employer contribution, in other words, will be in charge of the joint venturers.
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 any agreement.
The "new deal" for the implementation of the now named "Service Suitable for Conflict Resolution for Revenue and horizontal activity."
has transpired in recent weeks that the parties to the labor agreement have agreed to operate the institution created by agreement.
also aware of the darkness of the treaty text, have decided to change its structure and expand its operation. This, in openly violating the collective bargaining framework already approved and, moreover, the legal and constitutional legal plexus.
The information has been dumped are publicly worrying because as a union leader referred to "... the SERACARH be an instance not only to resolve disputes but between joint venturers, suppliers or managers and issues related solely to the Condo ...", really unusual situation. This would mean for the first time in legal history that we had a national body created by a collective bargaining agreement with the ability to understand in disputes outside this area unique. Expanding
grounds, the president of the Argentina Chamber of Horizontal Property and Real Estate Activities has said that the new service will work in four areas to be "... the labor, civil, arbitration and labor minor conflicts where facilitators will act represent the entities comprising the SERACARH ... "
Indeed, as we saw, the collective conventional rule has not created the pompous" Proper Service Conflict Resolution for Revenue and Horizontal activity "but merely a system of facilitation "optional", which is not referenced in the applicable legal standard, the law 24635 - but the mere intention of the parties to resolve "conflicts individual interests. " Have now decided to alter the effects of the agreement, expanding its jurisdiction, in open violation of the framework of its approval, that is, art. 7, Law 14250.
The new service, your name and competition has not been created by agreement. Its rationale lacks any normative anchor is the labor, civil, property or commercial landscape, as the extension of its "competition" at the joint venturers, suppliers, administrators, neighbors, etc.., In addition to violating the arts. 1, 24635 law, 20 dec. Law 18345/1970, transgresses the context of art. 4, 26589 mandatory mediation law, giving rise to serious violations to the justified concerns of the lawyers professional mediators registered with the Ministry of Justice and Human Rights. While
SUTERH representative reported that it would be "a pre-SECLO instance, is recognized as its" optional ", the announced" multiple competition "which is intended to confer, far exceeds the jurisdiction of the Justice Labour Office, and therefore the SECLO. It is good to remember that the latter implies a decrease of the labor court established by law and proactively address the effects of conflicts of rights. But in matters "between joint venturers, suppliers, administrators, neighbors, etc. "do not constitute" employment law disputes "the SECLO is inhibited from intervening, sliced \u200b\u200bthe SERACARH in one instance, which is an unusual theft of the subject matter of mandatory mediation.
The multiplicity of issues to be ventilated in such a system leads to the unionist to announce that "... for the first time integrate SERACARH who will be able to reply to the joint venturers, employees and managers with the real reality" . No doubt that this criterion unfounded "SERACARH" means in matters outside the employment relationship, implying a decrease unconstitutional the jurisdiction and competence of the bodies authorized by law to hear each field the resolution of individual conflicts of law.
In turn, the president of the CAPHAI seems a little more informed about the division of jurisdiction in various fields of competence and that his speech splits two levels: "... In the workplace the service will be very similar to provides the SECLO (Mandatory Labor Conciliation Service of the Ministry of Labour) but the professionals involved were specially trained in condominiums. What is the service will also provide mediation and arbitration for disputes between consortia with the manager and vice versa disputes with suppliers and among neighbors ... "
In short, for the social partners SERACARH or Seclito" is a multiple competition authority to hear individual conflicts of law, created by a rule of nature and funded work the contribution of the joint venturers. Nothing could be further from the current regulations and common sense.
System Unconstitutional.
The "approval" of the intended SECLO given to agreements carried out in the SERACARH be an administrative act null and void.
administrative acts must be based on existing law (art. 7, dec. Law 19549/1972). The legal basis of the act is rendered eventually be the norm that creates the body, this is the art. 29, CCT 589/2010.
As we know, this provision has been approved by the Ministry of Labour, Employment and Social Security in terms of art. 7, Law 14250. The competence of the administrative body and the joint agreement is arriving to work exclusively. None of the signatories of the CST 589/2010 or administrative body or job skills can set up agencies in fault understand labor law, such as civil rights, property or commercial landscape. This is absolutely clear and can not be ignored by association or by the managers who inexplicably cameras enable the service.
art itself. 29 self-limits the jurisdiction of the clearing. The competition material adheres solely to "conflicts of interest" that may arise in the context of collective bargaining for workers in buildings. If it had been fixed in the ability to understand conflict and labor law have created an optional system under the Compulsory Education Reconciliation Act as did the social partners in the field of trade and services. But they did not. Clauses in collective bargaining agreements, as art. 29, by having an effect erga omnes-binding on the signatory parties and the areas of representation and non-affiliated members, determines that it can be interpreted so extensive. The call to work and the creation of SERACARH force the interpretation of art. 29, CCT 589/2010 and this is legally unacceptable.
other hand, would have been unlikely that collective bargaining has created a body able to deal with disputes over rights regarding joint venturers, suppliers or managers. Never the Ministry of Labour, Employment and Social Security had approved a treaty clause of that nature. By way
the absurd, if the enforcement authority homologare an agreement reached at the end SERACARH which is down to a "conflict of law" the act is void, lacking the ability to understand body in such contests. Freestanding in 24635 the administrative law ostensibly violates Art. 109, CN and would constitute the unlawful exercise of judicial functions.
With the same ground as "certificates" issued by the SERACARH not fit to terminate the mandatory conciliation requirement is not demand, in terms of inc. 7, art. 65, dec. Law 18345/1970 and 21, Law 24635.
Similarly, if a "conflict" between joint venturers, suppliers, managers or neighbors, was resolved with an agreement, the approval thereof by the administrative body constitutes authority for the application of CCT 589/2010 is null and void for lack of efficient cause based on existing law.
The SERACARH not empowered to deal with conflicts of law, labor and much less than other jurisdictions. Its implementation governed by CCT 589/2010 must adhere exclusively to the authority granted to that standard.
to get running, you are committing a serious transgression of the law 14250, dec. Law 18345/1970, 24635 and 26589. The agreements signed within its framework would not enjoy legal certainty. Being zero, could be attacked each other by the parties and also by third parties. Otherwise peaceful jurisprudence of the National Labour Court of Appeal has made a doctrinal line aimed at the revision of agreements concluded with zero labeled as the SECLO. A fortiori objected agreements which were found invalid in light of the new system. The operation of the agency would endanger the professional incumbencies labor lawyers, labor conciliators and mediators lawyers. Furthermore, it would jeopardize the practice of law in general, since both workers employers, managers, joint venturers, neighbors, etc.. to function in the SERACARH not need to be sponsored by attorneys. Urge
require the Labor Conciliation Service to refrain from implementing the organization's operation illegal on pain of incurring the officers involved in the figure provided by art. 248, CP
should also urged the Bar Association of the Federal Capital, in order to articulate the media tend to make the defense of the competencies of practitioners affected by the standard-labor, labor conciliators and mediators, and Enrollment in general.
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