The employment contract has two defined parties, the employer and the worker, to whom typical differentiated benefits correspond.
By Dr. Enrique Caviglia Dept. Labor Legal Technician, Arizmendi
11/25/2022 – 10:25 a.m.
The work contractor it has two defined parties, the employer and the worker, to whom typical differentiated benefits correspond, that of carrying out works or providing services in a dependency relationship by the worker, and that of paying the remuneration by the employer.
The effective provision of work generates the employment relationship between both parties. The work must be provided personally by the worker without it being possible to substitute him for another, an aspect that the law highlights when determining that “Ethe employment contract will have the purpose of providing an activity personal and infungible…” (Employment contract law, article 37). On the other hand, the law admits modifications related to the employer subject, which can change in the development of the employment relationship. One of these possible modifications is linked to the change in the ownership of the establishment, which is the technical or execution unit to which the worker is linked.
The change can occur by virtue of a legal transaction that links the original owner and the successor, by which the modification of the ownership of the establishment. In this case, the execution of the employment contract with the original employer continues with the successor (new employer) without requiring the consent of the worker, who may only consider and declare the termination of the contract when that change generates sufficient damage. to motivate the declaration of indirect dismissal (LCT, articles 225 and 226).
But there is another possible change in the employment relationship, coming from the modification of the employer subject, without being generated by the change of ownership of the establishment, for which it has been called “pure transfer of the contract”. The law admits the assignment of the employment contract through a legal transaction between the original employer (assignor) and the person who becomes the employer by virtue of that assignment, but in order for it to produce effects with respect to the worker, it is required that this modification be accepted by him, which which configures a complex business since it requires the competition of three parties: assignor, assignee and worker.
The law establishes that “The transfer of personnel without understanding the establishment requires the express written acceptance of the workr” (LCT, article 229, first paragraph). The worker’s acceptance must be express and formulated in writing. The formality of express written acceptance is imposed for evidentiary purposes, so if in the absence of documentary evidence, the worker legally confesses his acceptance, it would be enough to have it accredited.
The Labor law establishes that even if the worker consents, “…assignor and assignee are jointly and severally liable for all obligations resulting from the assigned employment relationship” (LCT, article 229, second paragraph). The rule protects the interests of the worker, strengthening his right. By virtue of the legally imposed solidarity, the worker can demand compliance with the obligations of any of the debtors (Civil and Commercial Code, article 827).
Requirements and effects of the assignment of the employment contract
The question of the amplitude of this effect has raised various interpretations and, consequently, divergences in judicial rulings. It has been pointed out that a literal interpretation of the legal text leads to sustaining that the assignor and the assignee are jointly and severally liable not only with respect to the obligations accrued (born) until the transfer of the relationship, but also for subsequent ones, for which the assignor would be obliged to pay compensation for arbitrary dismissal ordered by the assignee (new employer) after the transfer of the relationship, without any time limitation. In view of the lack of logical support for this consequence, since those who have ceased their relationship with the personnel with their acceptance would be forced to answer for a job from which they do not obtain benefits, a restrictive interpretation of the norm has been postulated, which concludes that the established solidarity is limited to debts already accrued at the time of the transfer and does not reach those generated later, except in the case of fraud against the labor law.
But another position maintains that legal interpretation should not alter the legal text, that the article 229 of the LCT establishes that the assignor and assignee are jointly and severally liable for all obligations arising from the assigned employment relationship, without setting a time limit for that solidarity, for which reason it governs with respect to obligations prior to and subsequent to the assignment, since the law does not distinguish between one and the other. It adds that this consequence established by the norm is different from that established by article 228 of the LCT, applicable to the transfer of the establishment, whose text expressly imposes solidarity on the transferor and the acquirer of an establishment with respect to the obligations arising from the contract of work existing at the time of transmission and that affect it.
In addition, it has been argued that when the establishment is transferred together with the staff, the latter remains linked to the main good that constitutes the seat of the privilege enjoyed by the workers’ credits, as determined by article 268 of the LCT. On the other hand, in the event of the transfer of personnel without involving the establishment, the former is exposed to the eventual insolvency of the transferee (new employer) (National Chamber of Labor Appeals, room III, 10/22/2012, “Iglesias, AJ v/ Simón Cachan SA and others s/ dismissal”).
This important divergence, concludes Dr. Enrique Caviglia, Arizmendi’s labor specialist, has been upheld in national jurisprudence rulings, so the assigning employer should consider the possible consequences of the assignment, since a subsequent breach by the assignee with respect to obligations arising from the employment contract would compromise its responsibility if a non-restrictive interpretation of the text of article 229 of the LCT.