Self-employed workers in the Ley Bases of Argentina: who is included, who is not, and which presumptions apply
Self-employed workers in the Ley Bases of Argentina
The regulation of self-employed workers in the Ley Bases of Argentina seeks to provide a solution to those cases in which companies, mainly small and medium-sized ones, need to contract certain services without incorporating labor under their payroll.
In addition to the traditional exclusions contemplated in the Labor Contract Law No. 20.744 (hereinafter, the LCT)[1], the Labor Reform in Argentina by the Ley Bases excludes now from the regulation of the LCT to:
a) Contracts for work, services, agency, and all those regulated in the National Civil and Commercial Code of the Nation (Código Civil y Comercial de la Nación, hereinafter, the CCCN) (article 88, paragraph d) of the Ley Bases, which replaces article 2 of the LCT).
This exclusion extended the one that already existed in the CCCN itself stating that the employees of the franchisee did not have an employment relationship with the franchisor, except for fraud (article 1520, subsection b); and
b) The so-called “independent workers in the Ley Bases“: the Ley Bases creates the figure of the independent worker, who, in turn, may have up to three independent workers to develop a productive undertaking.
The relationship between these independent workers and who hires their services or works will be autonomous, without any labor relationship.
It is forbidden to fragment or divide the establishments to obtain benefits in fraud of the law (Article 97).
For this rule to be applicable, they must be true independent workers, without the existence of technical, legal, or economic dependence (features that characterize an employment relationship), as expressly required by the Ley Bases, and all of this according to the type of activity, trade or profession that corresponds. In other words, to be truly independent workers, they must not be part of the business organization of a third party.
Non-existence of presumptions of an employment relationship
Complementing the above, the Labor Reform in Argentina by the Ley Bases provides that the issuance of invoices or receipts when contracting works, professional services, or trades, or the making of payments under the banking systems determined by the regulations, shall not be a presumption of the existence of an employment relationship for labor and social security purposes (Article 89, which replaces Article 23 of the LCT).
Introduction to labor reform in Argentina. Regularization of labor relations and repeal of fines
If you are interested in an overview of the labor reform in Argentina introduced by the so-called Ley Bases, you can read the following article in our Legal Blog: Important labor reform in Argentina: what can companies not ignore about the Ley Bases?
If you want to know about the opportunity and benefits provided by the Ley Bases to regularize labor relations and the repeal of the astronomical fines that weighed on companies, visit the following post of our Legal Blog: Regularization of labor relations in Argentina by the Ley Bases. Repeal of labor fines
If you would like a complimentary full report on the labor reform in Argentina by the Ley Bases in PDF format specially prepared by our firm, please contact us.
Introduction to the new investment promotion regime in Argentina: the so-called “RIGI”
For an introduction to the new investment promotion regime created by the Ley Bases, we invite you to read our article New investment promotion regime in Argentina: the so-called “RIGI”.
Mario E. Castro Sammartino
[1] Now with some modifications in its wording to make it more precise, the LCT provides that its validity will be conditional on the application of its provisions being compatible with the nature and modalities of the activity in question and with the specific legal regime to which it is subject. The provisions of this law shall not apply:
“a) To the employees of the national, provincial, Autonomous City of Buenos Aires or municipal public administration, unless by express act they are included therein or in the regime of collective bargaining agreements;
b) To the staff of private households, without prejudice that the provisions of the present law shall be applicable in all that is compatible and does not oppose the nature and modalities of the specific regime or when so expressly provided;
c) Agricultural workers, without prejudice to the provisions of the present law, which shall be applicable in all that is compatible and does not oppose the nature and modalities of the Agricultural Work Regime;
…”
(Article 2, replaced by art. 88 of Law No. 27.742 B.O. 8/7/2024. In force: as of the day following its publication in the Official Gazette of the Argentine Republic).
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