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March 31, 2011. Labor Rights – South America. Rodrigo Carvalho and Veirano Advogados. Countries. Argentina Brazil* Chile Colombia Paraguay Peru. *Veirano Advogados. General Aspects. “Principle of protection” Legislation: Complex and detailed
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March 31, 2011 Labor Rights – South America Rodrigo Carvalho and Veirano Advogados
Countries Argentina Brazil* Chile Colombia Paraguay Peru *Veirano Advogados
General Aspects • “Principle of protection” • Legislation: Complex and detailed • Intervention of the Government in the labor and employment issues (“Matter of Public Policy”) • “Remuneration nature” of fringe benefits – Economic value of the benefit - risks / liability
General Aspects – Brazil • “Principle of reality” • High Brazilian cost • Salaries must be stated on a monthly basis, rather than annual
Labor Rights – SOUTH AMERICA Note: None of the referred countries have ratified the ILO Convention Nº 158 regarding Termination of Employment. Article 4 “The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service”. Article 5 The following, inter alia, shall not constitute valid reasons for termination: (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of, a workers' representative; (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; (d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (e) absence from work during maternity leave.”
Labor Rights – BRAZIL Note: Brazil ratified the ILO Convention Nº 158 regarding Termination of Employment in April 1996 but denounced it in November of the same year.
Labor Rights – SOUTH AMERICA Note: All of the referred countries have ratified the ILO Convention Nº 98 regarding “Right to Organise and Collective Bargaining”. Article 1 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. (...) Article 2 1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration. (...)
Labor Rights – BRAZIL Note: Brazil also ratified the ILO Convention Nº 98 regarding “Right to Organise and Collective Bargaining”, but not the ILO Convention Nº 87 regarding “Freedom of Association and Protection of the Right to Organise Convention”. ILO Convention Nº 98 “Article 1 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. (...) Article 2 1. Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration.” (...)
Labor Rights – BRAZIL ILO Convention Nº 87 “Article 2 Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. Article 3 1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.” Even though Brazil did not ratify Convention No. 87, Article 8 of the Brazilian Federal Constitution guarantees the right to free association and that the State cannot demand a government authorization for the organization of an Union, but forbids the existence of more than one Union to represent the interests of a same category in a same territorial base.
Trends • Increase of protective tendency. • Review of labor law / effectiveness of “the non-waiver principle”. • Judiciary: employees "representing" others, even without being affiliated to a recognized union deserve protection against dismissal without cause. Labor Rights – South America March 31, 2011
Trends • Generalization re. Violation of worker's fundamental rights / Fines imposed to employers. • Collective right: legal reform to improve the workers' representation through unions / mandatory collective bargaining.
