Ramón worked in Juan Manuel Bernardi’s field from 7 a.m. to 5 p.m. That’s what the boss had said the hours were. It didn’t matter if they were working over the legal workday. Ramón earned $6,400 at the time, never mind that the legal minimum wage (SMVM), already miserable in itself, was $8,064 at the time. Ramón had no paid vacations, no Christmas bonus, no social security if he got hurt in the field. His family didn’t either. He didn’t know when he could lose his job either. What if Bernardi woke up upset tomorrow? For Ramón, the Laborer’s Statute, the Agricultural Labor Law, and the Labor Contract Law were of no use.
Five years like that. Every day. From 7 to 17. Chainsaw and tractor driver, I also did fencing, carpentry, machete work… did you see what it’s like?
The day came when Bernardi actually fired him. Without any cause. He did what any small ranch boss, or foreman, does. That’s how they’ve treated the peons and the mensú (herbalist) for 250 years.
But Ramón found a lawyer and sued him. He claimed “compensation and fines for failure to provide a work certificate and unregistered employment.” The process began 8 years ago, in 2016. “Justice” is slow, as they say. Especially for those at the bottom.
After a thorough analysis, the judge ruled the inevitable: “there was a direct dismissal without stating the cause.” Furthermore, “given the absence of employment registration and documentation by the employer, he held that the testimonial and documentary evidence provided by the worker was sufficient to prove the employment relationship and the wage differences claimed in a discriminatory manner” (www.errepar.com).
Good. One for the poor, thought Ramón and his lawyer. The magistrate ordered the payment of severance pay and “compensation for the passage of time during which the worker was deprived of access to that credit.” Applying the CER, the amount reached $35,999,626.31.
But, continuing with the popular sayings, where the law is made, so is the trap.
The Rural Society welcomes the Bases Law
Not even because he had calculated the dates of the ruling with a certain bias, did the judge from Misiones take advantage of the opportunity to earn a questionable honour: being the first to apply Milei’s labour reform that takes away rights from workers. Rural labourers more than anyone else.
What did he do? He decided to apply the law that was regulated a few weeks ago. In Chapter I of the “Labor Modernization” section, he repeals the aggravated compensations for unregistered workers. Fines, sanctions and compensations are lost in the open. It is a real call to work “on the black market.”
In an interpretation that will go down in the annals of (employer) jurisprudence, it decided that although the facts, the investigation and the trial were much earlier than the Ley Bases, it would apply the law most favorable to the employer because he signed the judgment after its approval. Thus, it ignored the arguments of the worker, for non-compliance with Law 25.323 (Labor compensation), 24.013 (Employment) and 25.345 (Tax evasion).
In the words of the judge, who took 8 years (and a few more weeks until the Law is approved), “a sanction cannot be applied under a regulation that is not in force at the time of the ruling” and “is repealed with its entry into force and consequently its application must also be rejected” (www.errepar.com).
“It is perverse: the judge, by manipulating the time, harmed the worker”
The ruling was published on the specialized website, with all the technical words you can imagine. That is why we asked a labor lawyer to help us understand the ruling. Matías Cremonte is president of the Latin American Association of Labor Lawyers, advisor to the Oil Federation (currently on strike), ATE and other unions.
“What is the issue? Somehow it took the name of fines, but they are not fines. It is an aggravated compensation because the compensation, when a worker who was not registered is fired, is greater than that of someone who was registered. Simply or simply because the damage is greater. So it is not a fine. The fine does have a criminal root and so that is why the judge said that it has a criminal root and so the most lenient criminal law is applied, which is the only case where a law can be applied retroactively. In the rest of the cases, such as in labor, obviously, the law is applied forward, so it is absurd to try to apply a law that has just come into force to an already terminated labor relationship and also in the framework of a process that discusses an employment relationship that also existed when the norm that existed was not only not this one, the current one, but it was the aggravated compensation.”
It is clear: there is no point in applying a law that has just been sanctioned, unless it is intended to harm the person who was the victim of the crime.
Cremonte chooses a word that helps to understand the ruling against A. more easily. “The most perverse thing about the case is that after the process was over and the file was left for the ruling to be issued, the judge took more than a year to issue a ruling. This means that this delay and of course the judge’s failure to comply, because he cannot take a year to issue a ruling, ends up harming the worker. Because it is not that the case ended and he had to issue a ruling after the sanction or promulgation of the labor reform: he should have issued a ruling a year ago. So, in addition… it is the judge himself who, by manipulating the times, ends up harming the worker and, what is clearer, benefiting the company.”
The employers celebrate these first steps of the reform. They are not the only ones: in the strikes of Ceramistas and SanCor, the managers threaten to make dismissals for “serious insults”, another anti-worker chapter of the Law.
This perverse and manipulative ruling must be repudiated. But so that the achievement of rights does not end up in the hands of employer judges, the entire Ley Bases, the DNU and Milei’s plan must be overturned.
Source: www.laizquierdadiario.com
