PROTECTED FEDERAL REGIME FOR DISCAPACITY PERSONS Law 26.816 Trust the Federal Employment System Protected for Persons with Disabilities. Sanctioned: November 28, 2012 Enacted: January 7, 2013 The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc. sanction with force of Law:
PROTECTED FEDERAL REGIME FOR DISCAPACITY PERSONS
Chapter I
ARTICLE 1 — Creation and objectives. Trust the Federal Protected Employment Regime for Persons with Disabilities, with jurisdiction throughout the national territory of the Argentine Republic, which will have the following objectives:
1. Promote labour development for persons with disabilities by improving access to employment and enabling the achievement, conservation and progress of protected and/or regular employment in the public and/or private spheres. This should promote overcoming the skills, competencies and attitudes of persons with disabilities, in accordance with the requirements of local labour markets.
2. Promote the technical and economic strengthening of responsible agencies for the generation of protected conditions of employment and production that include persons with disabilities.
The present Regime shall be administered by the implementing authority, with the budgetary provisions provided for in the budgets of the National Civil Service and, where appropriate, by the provincial governments and the Autonomous City of Buenos Aires, under the principles of co-responsibility, co-participation, cooperation and coordination, to ensure their effective and homogeneous functioning throughout the national territory. The implementing authority shall coordinate the activities of the agencies involved in the development of this Regime and promote its strengthening.
The implementing authority will promote, especially through the Federal Labour Council, the active participation of the provincial governments, the Autonomous City of Buenos Aires and the municipality of the country for technical assistance, financing and control, as well as the incorporation of other national public bodies, in order to build a Federal Network for Protected Employment.
ARTICLE 2° — Modalities of Protected Employment and Responsible Agencies. The implementation of this Regime will be carried out through the following modalities of employment:
1. Special Protection Workshop for Employment (TPEE);
2. Protected Production Workshop (TPP) and
3. Protected Labor Groups (LPG).
They may be Responsible Agencies of the first two (2) modalities, public or private non-profit entities with their own legal status, whose qualification will be determined according to the characteristics to be detailed in the following articles.
Responsible Agencies shall register with the Register of Responsible Agencies for Protected Employment, which the implementing authority shall organize from the entry into force of this Act. To that end, they shall:
(a) To be legally constituted as legal persons;
(b) To be empowered by the enforcement authority, subject to compliance with the requirements of the regulation;
(c) To be responsible for the compliance of the standards for the management of the various forms of protected employment that are carried out.
ARTICLE 3° — It will be called Special Protection Workshop for Employment (TPEE) that aims to provide its members with a special work that allows them to acquire and maintain the competences for the exercise of employment according to the demands of local labour markets and their functional possibilities.
Special Protection Workshops for Employment (TPEE) should promote for the benefit of their workers the following actions:
1. Promotion of educational terminality in the formal educational system;
2. Training for employment in productive or service activities;
3. Ongoing training and training according to the needs of local markets;
4. Any activity that tends to improve their work, social and family adaptation;
5. Support for job search and employment assistance in:
(a) Protected production workshops;
(b) Protected labour groups;
(c) Public or private enterprises with regular formal employment;
(d) Independent employment;
(e) Micro-businesses.
6. Articulation with the Employment Services Network, composed of the Municipal Employment Offices created by the Ministry of Labour, Employment and Social Security Resolution No. 176 dated 14 March 2005, to facilitate employment insertions.
ARTICLE 4° — A Protected Production Workshop (TPP) will be considered to be one that develops productive, commercial or market service activities, having to provide its workers with paid employment and the provision of labour and social adaptation services required.
Its structure and organization will be similar to those that ordinary companies must adopt, without prejudice to their particular characteristics and the social function they perform.
Responsible Agencies may operate jointly or indistinctly under the modalities of Special Protected Workshop for Employment (TPEE) and/or Protected Production Workshop (TPP), and may transfer their workers with disabilities from one to another, when the same is done for their benefit.
ARTICLE 5° — Protected Labor Groups (LPGs) will be considered to sections or cells of public or private companies, which are made entirely up of workers with disabilities.
ARTICLE 6° — As determined by the regulations, the responsible agencies of the Special Protected Workshops for Employment (TPEE) and the Protected Production Workshops (TPPs) shall evaluate the functional competencies of persons with disabilities included in the Federal Employment Scheme Protected for their fit in one of these modalities. The application authority will audit the procedure and may revoke the evaluations.
ARTICLE 7° — Beneficiaries. They may be incorporated into the different modalities of this Regime, persons defined in article 2 of Law 22,431 and their amendments, who do not possess a job and who manifest their decision to join a working organization.
They shall be registered with the Municipal Employment Offices referred to in article 3, paragraph 6 of this Act, which corresponds to their home and shall have the certification issued by the competent authority, in accordance with article 3 of the Act 22,431, its supplementary rules and the specific provisions of the current provincial regulations.
ARTICLE 8° — Prior to the commencement of the relationship with the Agency responsible for a Special Protected Workshop for Employment or Production, a functional assessment of the persons concerned must be carried out in the terms provided for in article 6 of this Act to be incorporated under the different modalities of this regime, in order to determine the potential of their work skills.
ARTICLE 9° — Support staff. In order to give technical rationality to the development of the different forms of protected employment permitted, the present regime will finance the professional services of technicians, specialists or suitable staff, which will constitute the Multidisciplinary Support Team of the responsible agencies.
The members of the Multidisciplinary Support Team shall respond to directives emanating from the responsible agencies and necessary to carry out the management of the different modalities, evaluate the functionality of the members, promote social, labour and family integration and the administrative tasks resulting from their responsibility.
The regulation shall determine the number of personnel to be part of the team, its specialities, retributions and responsibilities, taking into account the dimension of the Responsible Agency, the complexity of the task undertaken and the number of persons with disabilities included in each of the modalities provided for in this Act.
Chapter II
Special Protection Workshops for Employment (TPEE).
ARTICLE 10. - Characterization and Requirements. The characteristics set forth in Article 3 of this Law for the Special Protected Workshops for Employment (TPEE), imply for the Responsible Agencies that are their holders, the following conditions:
1. Workers with disabilities working there should be persons with disabilities, unemployed, with low productivity, with difficulties in getting into a Protected Production Workshop (TPP), in a Protected Work Group (LPG) or in formal employment in accordance with the assessment of the implementing authority, as prescribed by the regulations;
2. Workers with disabilities will be able to perform tasks for the production of goods and/or services and for their marketing, in order to perform job training practices, so that they can incorporate the skills and competencies required in competitive work;
3. Income that generates the marketing of the activity of such persons shall be devoted exclusively to the strengthening of the achievements of the objectives assigned to the workshops by the present regime and/or to improve the quality of life of such persons.
ARTICLE 11. - Obligations of Special Protected Workshops for Employment (TPEE). The Responsible Agencies of the Special Protected Workshops for Employment (TPEE) shall:
1. Register as holder of the modality that they adopt and release from workers with disabilities, prior to the commencement of their personal benefit, in the register to that effect must be enabled;
2. Promote activities to provide their members with ongoing and up-to-date training in accordance with labour market requirements, keep them up-to-date through job training and implement actions and programmes that generate the enforcement authority;
3. To provide workers with disabilities with the labour and social adaptation services required to contribute to the fulfilment of the objectives of this regime;
4. Keeping track of the evolution of workers with disabilities, promoting their development in higher productivity tasks, enabling them to constantly improve their employability;
5. Provide support to workers with disabilities in their job search and develop work intermediation activities in conjunction with the Employment Services Network offices;
6. Coordinate the tasks of the multidisciplinary support team according to the guidelines that determine the regulation of this regime.
ARTICLE 12. - Obligations of Disabled Workers of Special Protected Workshops for Employment (TPEE). Workers with disabilities who are engaged in a Special Protection Workshop for Employment (TPEE) shall regularly attend the activities assigned to them, with a maximum day of eight (8) hours and a minimum of four (4) hours, as determined according to the functional possibilities of the operator and the availability of the workshop; to observe timeliness; to engage in the activities assigned and to comply with the regulations.
ARTICLE 13. - Special work system. The Special Work Regime is considered to be established between a disabled worker accredited by certification issued by a competent authority and the Agency responsible for a Special Protection Workshop for Employment (TPEE) where they develop the special work detailed in Article 3 of the present. Such special work does not constitute a contract of work in relation to dependency governed by the Labour Contract Act 20,744 (t. 1976) and its amendments, without prejudice to the stimuli provided for in article 26 (a) and (b) of this Act.
Chapter III
Protected Production Workshops (TPPs).
ARTICLE 14. - Characterization and Requirements. The characteristics set forth in Article 4 of this Law for the Protected Production Workshops (TPPs), imply to the Responsible Agencies that are their holders, the following conditions:
1. The staffing templates of the Protected Production Workshops (TPPs) should be composed at least eighty percent (80%) with persons with disabilities. This minimum will be seventy percent (70%) when it comes to Protected Production Workshops (TPP) with less than ten (10) workers;
2. Protected Production Workshops (TPPs) and their workers shall produce goods and/or services, participating regularly in market operations, in order to generate income for the self-sustainability of this social undertaking;
3. The employment contract established is assumed for undetermined time. Contracts may, however, be entered into for a specified time, when the nature of the task so requires, in accordance with the exceptions provided for in the Labour Contract Act 20,744 (t. 1976) and its amendments, as well as the applicable legal and treaty rules;
4. Keeping track of the evolution of workers with disabilities, promoting their development in higher productivity tasks that will enable them to constantly improve their ability to engage in regular employment.
ARTICLE 15. - Obligations of Protected Production Workshops (TPPs). As an employer, the responsible agencies of the Protected Production Workshops (TPPs) are obliged to:
1. Register as holder of the adopted modality and discharge its workers, prior to the commencement of their personal benefit, in the register to that effect must be enabled;
2. To promote the employment of their workers in regular jobs;
3. To comply with the existing labour and forecasting regulations, with the particularities provided for in this Act.
Chapter IV
From Protected Labor Groups (LPG)
ARTICLE 16. - Characterization and Requirements. The characteristics set forth in Article 5 of this Law for the modality of Protected Labor Groups (LPG), shall imply to employers the following conditions:
1. Sections or cells should be composed of not less than two (2) workers in companies with up to twenty (20) workers, three (3) workers in companies with up to fifty (50) workers, and six (6) workers at least in companies with more than fifty (50) workers;
2. Companies that constitute Protected Working Groups (LPG) should provide the necessary technical assistance and training actions for the effective integration of persons with disabilities into their jobs that will enable them to obtain and retain unprotected formal employment;
3. If it is appropriate, because of the type and degree of disability of workers, they should provide a support service for employment, which will contribute to the adaptation of workers with disabilities to their job. This service may be provided through a public or private organization or service or through the establishment of a system of internal labour tutoring.
Chapter V
Special Social Security Regime for Protected Employment
ARTICLE 17. - Creation. Establish, with national scope and subject to the provisions of this Act, the Special Social Security Regime for Protected Employment, which shall include workers included in this rule, to which it shall provide coverage for the following contingencies:
(a) Old age, disability and survival;
(b) Disease;
(c) Family charges;
(d) Risks of work.
Workers covered by this Act shall be considered to be affiliated with the Public Previsional Regime of the Argentine Integrated Provident System (SIPA), regulated by law 26,425 and its amendments. This system will cover the contingency of old age, invalidity and death, without prejudice to the provisions of laws 20,475 and 20,888.
ARTICLE 18. - Exclusion. The present regime shall not apply to workers in relation to dependency who, without being beneficiaries of the Federal Employment Scheme Protected for Persons with Disabilities, provide services in Special Protection Workshops for Employment (TPEE), Protected Production Workshops (TPP) or in Protected Labor Groups (LPG).
ARTICLE 19. - Benefits. Workers within the regime established by this Act shall have the right to:
(a) The benefits set out in article 17 of the Act 24,241 and its amendments, as long as they are compatible with the present regime;
(b) The medical-assistance coverage of the National Health Insurance System (law 23.661), with the limitations and scopes it establishes;
(c) Family allowances established by law 24,714 and their amendments;
(d) The dinerary and in-kind benefits provided for in Chapters IV and V respectively, of Law 24.557 and its amendments.
ARTICLE 20. - Requirements. In order to access the Universal Basic Benefits (PBU), established in article 19 of Law 24,241 and its modifications, twenty (20) years of services and forty-five (45) years of age will be required, provided that during the ten (10) years prior to the cessation or the request for the benefit they served in Special Protected Workshops for Employment (TPEE), Protected Workshops of Production (TPPs).
Persons with disabilities who during their performance in Special Protection Workshops for Employment (TPEE), Protected Production Workshops (TPPs) or Protected Working Groups (LPGs) will be entitled to disability retirement. They are completely disabled to carry out those activities that their initial capacity allows them to perform.
In the event of not having the twenty (20) years of services or not accrediting the ten (10) years of contributions prior to the cessation or the request for the benefit, the beneficiaries of this regime shall be recognized the services and requirements provided for in the present subject to a fee for omitted contributions, which shall be discounted in monthly contributions from having obtained under this provisional regime.
ARTICLE 21. - Contributions and Contributions. Contributions and contributions made by national laws by the worker and the employer in respect of workers covered by this regime serving in the Protected Production Workshops (TPPs) or in the Protected Labor Groups (LPGs) shall be replaced by the incentives provided for in article 26 (c) and (d) of this Act.
In such cases, the remuneration or computed income is exempt from the minimum limit referred to in article 9 of the Act 24,241.
The regulation shall determine the basis of calculation according to which the benefits detailed in article 19 of this Act shall be financed, which correspond to workers with disabilities performing in the Special Protection Workshops for Employment (TPEE).
ARTICLE 22. - Financing. The benefits described in article 19 (a) and (c) of the present report shall be financed exclusively from the resources listed in article 18, subparagraphs (d), (e), (f), (g) and (h), of law 24,241 and its amendments.
The coverage described in article 19 (b) of this Act shall be financed by the national State in accordance with the modalities established by the regulation.
Erogations demanding compliance with Law 24.557 and its amendments and Article 19(d) of this Law shall be charged annually to the budget for Jurisdiction 75 - Ministry of Labour, Employment and Social Security.
ARTICLE 23. - Compatibility. The perception of any amount that is deriving in favour of persons with disabilities for the activities carried out in the context of this law shall be compatible with the perception of any kind of pension or benefit based on the work disability of its holder, whether of a non-contributory character; agreed by the Argentine Integrated Previsional System (SIPA) or by any other public system of prior, national, provincial, municipal, or Armed Forces security or the Armed Forces.
This compatibility will apply in cases where the total retribution of the tasks performed does not exceed the equivalent of three (3) minimum retirement assets.
Otherwise, they must make the corresponding option before the respective authority, either by itself or through its representative, the possessor or curator, as appropriate.
The option exercised in no case will matter the extinction of the law, but only the suspension of its enjoyment during the period of benefit with absolute incompatibility.
ARTICLE 24. - Reciprocity system. The services provided by workers with disabilities in the Special Protection Workshops for Employment (TPEE), Protected Production Workshops (TPPs) or in Protected Working Groups (LPGs) shall be computed in the other retirement regimes covered by the reciprocity system, with the age requirements and services provided for in Article 20 of this Law.
ARTICLE 25. - Application of the General Regime. The provisions of laws 23.661, 24.241, 24.557, 24,714 and their respective amendments shall be of supplementary application, as soon as they are not opposed to this regime.
Chapter VI
Stimuli and their funding
ARTICLE 26. - Stimulus. The Special Protection Workshops for Employment (TPEE) and the Protected Production Workshops (TPPs), for the fulfilment of the objectives set out in this regime, will enjoy the economic stimuli detailed in the present.
The expenditure required for its implementation shall be borne by the national State for a period of twenty-four (24) months, which shall incorporate the necessary budgetary provisions to the General Budget of the National Administration in Jurisdiction 75 - Ministry of Labour, Employment and Social Security.
(a) A monthly stimulus, non-remunerative, equal to forty per cent (40%) of the current Minimum Vital and Mobile Salary, for each worker with disabilities under the Special Protected Workshop for Employment (TPEE);
(b) Along with the stimulus allocation of June and December of each year, the disabled worker who performs under the Special Protected Workshop for Employment (TPEE) will receive a benefit of fifty percent (50%) of the amount that is appropriate for him to receive that month;
(c) The payment of 100 per cent (10 per cent) of the personal contributions provided for in article 21 of this Act;
(d) The payment of 100 per cent (10 per cent) of the employer ' s contributions to beneficiaries serving under the Protected Production Workshop (TPP) and Protected Working Group (LPG);
(e) One hundred per cent (10 per cent) of the fees paid to members of the Multidisciplinary Support Team provided for in Article 9 of the present;
(f) One hundred per cent (100%) of the contribution resulting from the contracting of the Occupational Risk Insurance provided for in Act No. 24.557 and its amendments, and/or the one that replaces it with the beneficiaries of this Act;
(g) A stimulus equal to fifty per cent (50%) of the monthly base salary of the staff of Teachers and Service, category 5ta., of the Collective Labour Convention No. 462/06 for civil and sports institutions, or the one that replaces it, attributable to the salary that corresponds to each beneficiary of a responsible agency with the modality of Protected Workshop of Production (TPP), which must satisfy the remaining amount to complete the remuneration;
(h) Responsible Agencies that meet the objective of effectively improving the employment status of their beneficiaries shall be eligible for a requalification award. The application authority shall clearly determine the objective guidelines for this purpose and the amount of such economic allocation to which the responsible agency shall be creditor.
ARTICLE 27. - The implementing authority shall expedite the incorporation of the provinces, the Autonomous City of Buenos Aires and the municipalities to the present Federal Regime and agree on agreements of correspondents for the financing of the same, within a period not exceeding twenty-four (24) months. To this end, the following distribution of responsibilities is promoted:
(a) The stimuli provided for in article 26 (a), (b) and (g), by the provinces, the Autonomous City of Buenos Aires and/or the municipalities;
(b) The stimuli provided for in article 26, subparagraphs (c), (d), (e), (f) and (h), by the national State.
Chapter VII
Penalties
ARTICLE 28. - Violations and Penalties. Offences to this Regime shall be considered:
1. Failure to document the beneficiaries of the Federal Employment Protection System for Persons with Disabilities provided for in article 7 of the present;
2. Fail to release the beneficiary when necessary;
3. To perceive the economic stimuli set forth in this law, without having the right to them.
The national executive branch shall establish the penalties applicable to the responsible agencies and/or workers with disabilities who incur the above-mentioned offences, which may consist of a fine, suspension of the stimuli or final cancellation thereof, according to the entity of the fault and the background of the case and the institution.
Chapter VIII
Implementation authority
ARTICLE 29. - The Ministry of Labour, Employment and Social Security shall be the authority for the implementation of this Act and in this capacity shall issue the necessary complementary and clarification standards for its implementation. They shall be obligations of the implementing authority:
(a) The administration of the present Regime, the coordination with the provinces, the Autonomous City of Buenos Aires and the municipalities of the efforts and the technical assistance to provide to public and private agencies that manage Special Protected Employment Workshops (TPEE), Protected Production Workshops (TPP) and/or Protected Labor Groups (LPG);
(b) Promote measures and actions for the strengthening of the Special Protected Employment Workshops (TPEE), the Protected Production Workshops (TPPs) and the Protected Working Groups (LPGs);
(c) Promoting the articulation of the Protected Production Workshops (TPPs) with agencies and actors that interact with the various local development programmes;
(d) Provide specific technical assistance and training to managers of the responsible agencies and to professionals, technicians and professionals of multidisciplinary teams;
(e) Promote commercial articulation between the national State, regular market enterprises with the Special Protection Workshops for Employment (TPEE) and the Protected Production Workshops (TPPs);
(f) To promote measures to ensure that the Special Protection Workshops for Employment (TPEE) and the Protected Production Workshops (TPPs) are preferential suppliers in the purchases of the national State, the provinces, the Autonomous City of Buenos Aires and the municipalities;
(g) To strengthen the different modalities of this Regime through specific programmes and to promote greater benefits for persons with disabilities in the Employment and Vocational Training Programs it executes;
(h) To promote that the Special Protection Workshops for Employment (TPEE) and the Protected Production Workshops (TPPs) can be direct suppliers of the national State, the provinces, the Autonomous City of Buenos Aires and the municipalities;
(i) Protected Production Workshops (TPPs) may participate in national, provincial and municipal subsidy competitions and should be considered in a preferential manner.
ARTICLE 30. - Standing Advisory Committee. See the Standing Advisory Commission for the Technical and Financial Administration of this Regime. The Commission shall be coordinated by a representative of the Ministry of Labour, Employment and Social Security.
The national executive branch shall establish its integration and operating regulations, and it should be envisaged that it should be part of at least one (1) representative of the Federal Labour Council, one (1) representative of the National Advisory Commission for the Integration of Persons with Disabilities and three (3) representatives of public and private institutions whose activities aim to promote the employment integration of persons with disabilities.
Chapter IX
Tax benefits
ARTICLE 31. - Special deduction. Employers who employ persons with disabilities from Special Protection Workshops for Employment (TPEE) or Protected Production Workshops (TPPs) shall be entitled to the calculation of a special deduction in the determination of the income tax, equivalent to one hundred per cent (100%) of the gross remuneration actually paid for the disabled in each fiscal period.
Article 23 of Law 22,431 shall not apply in these cases.
ARTICLE 32. - Tax exemption. In the business activities carried out by the Responsible Agencies of the Special Protected Workshops for Employment (TPEE) and the Protected Production Workshops (TPPs) for the fulfilment of the objectives set forth in this law, the operations, goods, revenues and other assets shall be exempt from the Attached Value Tax, internal taxes and any other national tax. The second paragraph of article 2 of the Act 25,413 shall not be applicable to this assumption.
In the case of imports, domestic tax exemption and added value tax will be limited to capital assets.
ARTICLE 33. - Purchases from the Responsible Agency. The responsible agencies may request the return of the Attached Value Tax that had been invoiced to them for the purchases, locations or services that effectively target the activities covered by the previous article, in the terms provided by the regulations. In addition, suppliers, locators or service providers of these agencies are obliged to record the amount of such tax in the respective invoice or equivalent document issued by these operations by reference to this law.
ARTICLE 34. - Commercial operation. Responsible agencies. Situation against the Added Value Tax. The responsible agencies that implement the forms of employment protected under Article 2(1) and 2 of the present, registered and authorized by the Ministry of Labour, Employment and Social Security may choose to register with the Value Added Tax and determine the tax in accordance with the general rules of the tax law, where this is necessary for matters of trade and/or competitiveness.
In such cases, the exemption from the added value tax under article 32 and the return under article 33.
ARTICLE 35. - Debt forgiveness. Please condone the projected debts generated from the date of entry into force of law 24,147 and consolidated to the date of entry into force of this law that the Protected Production Workshops (TPPs) governed by law 24,147 have with the national State's collection agencies, supported by the obligations derived from laws 18.037, 24,241 and their amendments.
ARTICLE 36. - Please provide the Ministry of Economy and Public Finance and the Federal Public Income Administration with the necessary complementary and clarification to implement the provisions contained in this Chapter in the field of their respective competences.
Chapter X
Supplementary standards
ARTICLE 37. - Transitional provisions. The Protected Production Workshops (TPPs) which are currently governed by Act No. 24.147 will be reviewed, starting with the validity of the present, as Special Protected Employment Workshops (TPEE) until, as determined by regulation, they can be requalified as Protected Production Workshops (TPPs).
ARTICLE 38. - Accessions. Invite the provinces, the Autonomous City of Buenos Aires and the municipalities to expressly adhere to this law.
ARTICLE 39. - Vigilance and Derogation. This law shall enter into force from the first working day of the month following the date of its publication in the Official Gazette of the Argentine Republic, and from that date Law 24.147 is repealed.
ARTICLE 40. - For the purpose of the immediate implementation of the regime set out in this Act, please enable the Chief of Cabinet of Ministers to re-execute budgetary provisions.
ARTICLE 41. - Contact the national executive branch.
IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, THE DIA VEINTIOCHOSE OF THE YEAR OF TWO MIL DOCE.
— REGISTRATION BAJO #26,816 —
LOVE BOUDOU. - JULIAN A. DOMINGUEZ. - Gervasio Bozzano. — Juan H. Estrada.