Unions in Argentina bear a strong presence and a significant political influence. They enjoy constitutional protection through Section 14 bis of the Federal Constitution guaranteeing their entering into collective labor agreements, resourcing to conciliation and arbitration, and calling strikes. Argentine has ratified the International Labor Organization´s Convention No. 87 on Freedom of Association and Protection of the Right to Organize.
Unions in Argentina are governed by Law No. 23,551, setting forth in detail the powers and rights of unions and union representatives.
Section 14 bis of the Federal Constitution grants workers the right to free and democratic trade union organization, recognized by the simple registration in a special register.
Despite the trade-union freedom principle, just one union organization per business activity will get from the labor authorities the representative capacity (personería gremial), that is to say, the power to collectively negotiate with the employers on behalf of the employees, enter into collective bargaining agreements, and manage their own healthcare organizations. All the other unions will be simply recorded by the labor authorities (simply registered unions). Although simply registered unions may not negotiate collective bargaining agreements, they can represent employees in other collective claims and file petitions to the labor authorities alleging employer´s breaches to labor laws.
The affiliation to a union is voluntary. In case an employee decides to affiliate and pay the union fees, the employer shall withhold the union fees from his/her salary.
To have personería gremial, a union must be deemed the most representative: it must be registered with the labor authority, have been operative for at least six months, and have an affiliate number of more than 20 percent of the employees of the activity. The personería gremial will be granted to the association with the highest average number of contributing members over the average number of workers it intends to represent, calculated over the previous six months.
The number of union delegates per company depends on the payroll: from 10 to 50 employees: 1 union delegate; from 51 to 100 employees: 2 union delegates; more than 101 employees: an additional representative every 100 employees. Applicable collective bargain agreements may provide a higher number.
Some of the powers of the union delegates are to represent and make petitions on behalf of the workers, to check compliance of labor laws and collective bargain agreements, to organize and conduct meetings, and to give counsel to individual workers.
c) Special protection
The union delegates enjoy special protection (estabilidad sindical): they may not be suspended or dismissed, and their working conditions may not be changed, in all cases without a just cause and a previous judicial order lifting the special protection.
Violation of the special protection entitles the union delegate to judicially request his / her reinstatement (plus, the payment of unpaid salary if applicable), or to place himself or herself in a situation of constructive dismissal, terminating the labor relationship and pursuing the collection of his/her seniority compensation, plus an additional sum equivalent to the amount of remuneration which would have been due to him for the remainder of his/her term of office and one more additional year.
The special protection stands while they act as delegates and until one year after their term expires. Same protection benefits to employees that run as candidates for union delegates but are not elected, in this case until six months after the election.
Mario E. Castro Sammartino
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