PROMOTION OF REGISTRED WORK AND PREVENTION LABORAL FRAUDE
Law 26,940
Public Registry of Employers with Occupational Sanctions. Creation.
Sanctioned: May 21, 2014
Promulgated: May 26, 2014 The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc. sanction with force
Law:
Law on the Promotion of Registered Work and Prevention of Labour Fraud
Part I
Public Registry of Employers with Occupational Sanctions (REPSAL)
Chapter I
General conditions
ARTICLE 1 — Refer to the Public Registry of Employers with Occupational Sanctions (REPSAL), within the Ministry of Labour, Employment and Social Security, which will include and publish the firm sanctions detailed in the following articles, applied by the Ministry of Labour, Employment and Social Security, by the Federal Public Income Administration, by the provincial authorities and the Autonomous City of Buenos Aires, by the National Register of Workers, ARENATE
ARTICLE 2° — The penalties listed in this article, once final, shall be included in the Public Registry of Employees with Occupational Sanctions (REPSAL):
(a) Those imposed by the Ministry of Labour, Employment and Social Security for lack of employer registration under article 12 of Act No. 24,241 and its amendments;
(b) Those imposed by the Ministry of Labour, Employment and Social Security for lack of registration of workers in the terms of article 7 of Act No. 24.013 and of the article added without a number following article 40 of Act No. 11.683 (t. 1998) and its amendments;
(c) Those imposed by the Ministry of Labour, Employment and Social Security for obstruction of the work of the Labour Inspectorate under article 8 of Annex II to the Federal Labour Covenant, ratified by law 25,212;
(d) Those imposed by the Federal Public Income Administration (AFIP) in the terms of article 15, paragraph 1 (a) and (b), of Law 17.250, and the article added without number following Article 40 of Law 11.683 (t. 1998) and its amendments;
(e) Those imposed by the provincial authorities and the Autonomous City of Buenos Aires for failure to comply with article 7 of Act 24.013;
(f) Those imposed by the provincial labour authorities and the Autonomous City of Buenos Aires and by the Superintendence of Labour Risks (SRT) for obstruction to the work of the inspection provided for in article 8 of Annex II to the Federal Labour Covenant, ratified by law 25,212;
(g) Those imposed by the National Register of Agrarian Workers and Employees (RENATEA) in the framework of laws 25,191 and 26,727 on the basis of the lack of registration of employers or workers;
(h) The final or enforceable judgements establishing that the actor is a dependent worker with an employment relationship unknown by the employer, or with an entry date that differs from the one alleged in his registration, that the secretaries of the courts of the National Labour Justice should refer to the Federal Public Income Administration, as set out in article 132 of Law 18.345 (t. by decree 106/98).
ARTICLE 3° — Sanctions imposed for violations of the Law on the Prohibition of Child Labour and Protection of Adolescent Labour 26,390 and Law 26,847, once established, must be informed by the court acting in the Ministry of Labour, Employment and Social Security, to be incorporated into the Public Registry of Employees with Occupational Sanctions (REPSAL).
ARTICLE 4° — Sentences for violation of Act No. 26,364 on the Prevention and Punishment of Trafficking in Persons and Assistance to Their Victims, once they are firm, must be informed to the Ministry of Labour, Employment and Social Security by the court acting for incorporation into the Public Registry of Employees with Occupational Sanctions (REPSAL).
ARTICLE 5° — The Public Registry of Employers with Occupational Sanctions (REPSAL) will be free and public access from a domain under the Ministry of Labour, Employment and Social Security and will be updated periodically.
ARTICLE 6° — The Under-Secretary for Labour and Social Security Control under the Ministry of Labour, Employment and Social Security Secretariat shall be responsible for the administration of the Public Registry of Employers with Occupational Sanctions (REPSAL), in the terms of Act No. 25,326 and its amendment, and before it the rights agreed by the Act may be exercised. In all cases it shall be the responsibility of the sanctioning agency to carry the corresponding data in the Public Registry of Employers with Occupational Sanctions (REPSAL), with the exceptions of the judicial decisions referred to in articles 3° and 4°, which shall be incorporated by the Ministry of Labour, Employment and Social Security, and those of Article 2(h) of the present which shall be incorporated by the Federal Public Income Administration.
ARTICLE 7° — The basis for the Public Registry of Employers with Occupational Sanctions (REPSAL) shall contain the following data: C.U.I.T., social reason, locality of the tax or legal residence according to the procedural norm that has ruled the proceedings, province of detection, activity, type of infringement, sanctioning agency, date of the finding of the infringement, date of the summary resolution, date of the notification sanctioned, date of regularization. For its part, the search parameters will be the following: C.U.I.T., social reason, branch of activity and locality of the fiscal or legal domicile, according to the procedural norm that has governed the proceedings and province of detection.
ARTICLE 8° — The penalty shall be published in the Public Registry of Employers with Occupational Sanctions (REPSAL), in accordance with the assumptions provided for in Chapter II of this title, in equal conditions and time limits, regardless of the competent authority that applied it according to the procedural rules governing their respective sanctioning regimes. The duration of the stay is three (3) years. In cases of judicial sanctions for offences established by law 26,364 and 26,847, the time limits set by the Criminal Code of the Nation shall apply.
In cases where the employer credits the factual or legal impossibility of complying with the regularization of the conduct that generated the penalty, the offender shall remain in the Register for the period of ninety (90) days from the date of payment of the fine.
Chapter II
Scope of inclusion in the Public Registry of Employers with Labour Sanctions (REPSAL)
ARTICLE 9° — For the alleged penalties imposed by violation of article 15, paragraph 1 (a) or (b), of Law 17.250, for lack of registration as an employer or for the occupation of workers through an unregistered or deficiently registered employment relationship or contract, respectively, and the aggregate article without number following Article 40 of Law 11.683 (T. 1998) and its amendments; and the sanctions of Article 15 of Law 25.1
1. When the employer regulates its registration or working relationship in a pre-trial or default hearing prior to the expiration of the time limit to formulate objections, as provided for in the procedures applied by the Ministry of Labour, Employment and Social Security or the National Register of Agrarian Workers and Employees (RENATEA) as appropriate, or before the notification of the act of infringement by the Federal Public Income Administration (AFIP)
2. When the employer regulates its registration or working relationship prior to the court hearing or in default prior to the expiration of the time limit to formulate objections, as provided for in the procedures applied by the Ministry of Labour, Employment and Social Security or the National Register of Agrarian Workers and Employers (RENATEA) as appropriate, or before the notification of the act of infringement by the Federal Public Income Administration pays a fine
3. When the employer does not regulate their registration or the working relationship and pays the fines and their accessories, if applicable, it will be included in the Public Registry of Employees with Occupational Sanctions (REPSAL) until the date it has regularized their registration or the working relationship and for a hundred and twenty (120) more days.
4. When the employer does not regulate their registration or the working relationship and does not pay the fines it will be included in the Public Registry of Employees with Labor Sanctions (REPSAL) until the date on which to regulate their registration or the working relationship, pay the fine and for a hundred and twenty (120) more days.
5. When the employer regulates its registration as an employer or the working relationship in part and pays the fine and its accessories, if applicable, it will be included in the Public Registry of Employers with Occupational Sanctions (REPSAL) until the date it proceeds to its registration and until the total regularization of the workers and for ninety (90) more days.
ARTICLE 10. - In the event of obstruction to the work of the Labour Inspectorate provided for in article 8 of Annex II of the Federal Labour Covenant, ratified by law 25,212, the employer shall be included in the Public Registry of Employers with Occupational Sanctions (REPSAL) until the date of payment of the penalty and for one hundred and eighty (180) days more.
ARTICLE 11. - In the case of convictions for violations of laws 26,390, 26,847 and 26,364, the offenders shall remain in the Public Registry of Employers with Labour Sanctions (REPSAL) for the period of one hundred and eighty (180) days counted since the execution of the criminal conviction.
In the case of the judgements provided for in article 2 (h) of the present article, employers shall remain in the Public Registry of Employers with Labour Sanctions (REPSAL) for the period of one hundred and eighty (180) days, counted from their inclusion in the aforementioned Register.
ARTICLE 12. - The deadlines set out in this chapter shall be counted on days in a row.
Chapter III
Effects of the publication of the sanction in the Public Registry of Employers with Labor Sanctions (REPSAL)
ARTICLE 13. - Employers punished for the violations specified in this Act, while incorporated in the Public Registry of Employees with Occupational Sanctions (REPSAL), may not:
(a) Access to programmes, assistance or promotion, benefits or subsidies administered, implemented or funded by the national State;
(b) Access credit lines granted by public banking institutions;
(c) To enter into contracts for sale, supplies, services, locations, consultancy, rentals with option to purchase, permits, concessions for the use of public and private property of the national State, which are held by the jurisdictions and entities within its scope. Nor may they participate in public works, public works concessions, public service concessions and licenses;
(d) Access to the benefits provided for in articles 19 and 24 and 24 of this Act.
For reasons of duly justified public interest, the competent bodies may make exceptions in the application of the provisions of subparagraph (c) of this article.
The provincial states, the Autonomous City of Buenos Aires and the municipalities may apply sanctions equivalent to subparagraphs (a), (b) and (c) of this article within their jurisdictions.
ARTICLE 14. - In the cases provided for in the previous article, if the offender re-offending the same offence as that resulting in its inclusion in the Register established by this law, in a period of three (3) years since the first final sanction resolution, the following shall be:
(a) To exclude from full law the Simplified System for Small Contributors to employers attached to it, since the termination of its penalty as a repeat offender;
(b) Prevent those responsible inscribed in the taxes covered by the General Regime, as long as they are incorporated in the Public Registry of Employers with Labour Sanctions (REPSAL) for having incurred recidivism, deduce in the tax on profits the expenses inherent to the staff — employed, dependent or workers — according to the provisions of article 87, subparagraphs (a) and (g) of the law.
In cases of regional emergency declarations, the Executive Power may, in each case, exempt the application of the provisions of articles 13 and 14 of this Act.
ARTICLE 15. - In order to comply with article 13, public bodies or entities involved must verify the absence of sanctions published in the Public Registry of Employees with Occupational Sanctions (REPSAL), as a pre-exclusive requirement to proceed with the request.
ARTICLE 16. - The Public Register of Employers with Occupational Sanctions (REPSAL) shall include and publish the firm sanctions that have been imposed on account of legal violations committed since the 1990s (90) days after the entry into force of this law.
ARTICLE 17. - At the request of a party, the Ministry of Labour, Employment and Social Security shall issue a certificate in which the absence, at the date of issue, of sanctions in the Public Registry of Employers with Occupational Sanctions (REPSAL) regarding a particular employer shall be recorded.
Part II
Special Regimes for the Promotion of Registered Work
Chapter I
Permanent Social Security Contributions for Microemployers
ARTICLE 18. - Persons of visible existence, de facto societies and limited liability companies employing up to five (5) workers are covered in the special regime of this chapter, provided that their annual billing does not exceed the amounts established by the regulation.
Such a maximum payroll will be raised to seven (7) workers, when the employer in the previous paragraph produces an increase in the existing plantel to the date of its inclusion in the present regime. From the worker number six (6), even the employer shall enter, only by such employees, the employer ' s employer ' s employer ' s employer ' s employer ' s contributions under the general social security scheme.
ARTICLE 19. - The employer covered by this regime shall enter by each of its workers recruited for undetermined time, except for the contractual modality regulated by article 18 of the Law 26,727, fifty per cent (50%) of the employer ' s contributions established in the general regime for the following social security subsystems:
(a) Argentine Integrated Previsional System, laws 24,241 and 26,425;
(b) National Institute of Social Services for Retired and Pensioned, Act No. 19,032 and its amendments;
(c) National Employment Fund, Act No. 24,013 and its amendments;
(d) The National Family Assignment Scheme, Act No. 24,714 and its amendments;
(e) National Register of Agricultural Workers and Employers, Acts 25,191 and 26,727.
In the case of part-time workers under article 92 ter of the Labour Contract Scheme adopted by law 20,744 (t. 1976) the employer shall enter seventy-five per cent (75%) of the above-mentioned contributions.
Such reductions may not affect the financing of social security, nor the rights conferred on workers by social security regimes. The national executive branch shall take the necessary budgetary measures to offset the implementation of the above reduction.
The contributions provided for in Act No. 23,660 and its amendments are not covered by the provisions of this article for social work, nor are the quotas for occupational hazard insurance, provided for in Act No. 24,557 and its amendments.
ARTICLE 20. - The maximum amount of the assessment for the Labour Risk Scheme applicable to the entire payroll of employers covered in this chapter shall be less than the average value of the total contributions to the said regime in the different sectors of activity, in accordance with the procedure established by the regulation.
The maximum amounts referred to in this article shall not apply to contracts entered into prior to the date of entry into force of this article.
ARTICLE 21. - Employers who fall under article 18 for the production of casualties in the staff table shall be excluded from this regime for the term of twelve (12) months from the last dismissal.
They shall also be excluded for as long as they remain in the Public Registry of Employers with Labour Sanctions (REPSAL) instituted by Title I of this Law.
Employers covered by article 18 may remain in the regime of this chapter, provided that they do not register high sinisterness in establishments or workplaces, in accordance with the conditions established by the regulation.
ARTICLE 22. - In the case of services carried out in differential or special forecasting regimes, the amount of the additional fee established in each case shall be added to the corresponding contribution in accordance with article 19 of this Act.
ARTICLE 23. - Workers in the Special Labour Contract Regime for Private House Personnel, Law 26,844, are excluded from this regime.
Chapter II
Regime for the Promotion of Registered Employment
ARTICLE 24. - Employers who have up to eighty (80) workers, for the term of twenty-four (24) months after the start of a new employment relationship for undetermined time, except for the contractual modality regulated by article 18 of Law 26,727, shall enjoy the relationship of a reduction in the employer ' s contributions established in the general regime for the following social security subsystems:
(a) Argentine Integrated Previsional System, laws 24,241 and 26,425;
(b) National Institute of Social Services for Retired and Pensioned, Act No. 19,032 and its amendments;
(c) National Employment Fund, Act No. 24,013 and its amendments;
(d) The National Family Assignment Scheme, Act No. 24,714 and its amendments;
(e) National Register of Agricultural Workers and Employers, Acts 25,191 and 26,727.
The benefit shall be for employers with a staff of up to fifteen (15) workers, in which, during the first twelve (12) months of the employment relationship, the aforementioned contributions shall not be entered and, for the second twelve (12) months, twenty-five per cent (25%) of them shall be paid.
For employers who have between sixteen (16) and eighty (80) workers, the benefit will be that during the first twenty-four (24) months of the employment relationship will be fifty percent (50%) of the aforementioned contributions.
Such reductions may not affect the financing of social security, nor the rights conferred on workers by social security regimes. The national executive branch shall take the necessary budgetary measures to compensate for the implementation of the reduction in question.
The contributions provided for in Act No. 23,660 and its amendments are not covered by the provisions of this article for social work, nor are the quotas for occupational hazard insurance, provided for in Act No. 24,557 and its amendments.
ARTICLE 25. - The regime of this chapter is applicable to private sector employers registered with the Federal Public Income Administration (AFIP), the National Register of Agricultural Workers and Employers (RENATEA) or the Institute of Statistics and Registration of the Construction Industry (IERIC) as appropriate, including those covered in Title II, Chapter I, of this Law. In the latter case, the reduction of contributions will be applied to the liquors provided by the general social security regime.
ARTICLE 26. - The employer shall enjoy this benefit for each new dependant, provided that the employee produces an increase in the payroll for the period to be determined in the regulation.
ARTICLE 27. - The employer may not make use of the benefit provided for in article 24, with respect to the following workers:
(a) Those who have been declared in the general social security regime prior to the entry into force of this law and to the date on which the provisions have effect and continue to work for the same employer;
(b) Those who have been declared in the general regime of social security and after having produced the labor diversion, whatever their cause, shall be reinstated by the same employer within the twelve (12) months, counted from the date of the dissociation;
(c) The new dependant who is hired within the twelve (12) months of the confiscated extinction of the working relationship of a worker who has been covered by the general social security regime.
ARTICLE 28. - Employers are excluded from the benefit provided for in article 24 when:
(a) Figure in the Public Registry of Employers with Occupational Sanctions (REPSAL) instituted by Title I of this Law, for the time remaining in it.
(b) To engage in practices of abusive use of the benefit established in this Act, in accordance with the conditions established by the regulation.
Exclusion will occur automatically from the same time as any of the grounds indicated in the preceding paragraphs.
ARTICLE 29. - Failure to comply with the provisions contained in articles 26, 27 and 28 will result in the decay of the benefits granted, and employers must enter the proportion of contributions to social security that were exempted, plus interest and fines.
The present regime is optional for the employer, so that the lack of exercise of such an option from the beginning of the new employment relationship for undetermined time will challenge the employer to make retroactive use of it for the period or periods in which it did not enjoy the benefit.
ARTICLE 30. - This benefit shall be governed by twelve (12) months from the date on which the provisions of this law have effect, and may be extended by the national executive branch.
ARTICLE 31. - The additional liquors provided for in the special and differential social security schemes are excluded from the exemptions set out in this Act.
ARTICLE 32. - Workers in the Special Labour Contract Regime for Private House Personnel, Law 26,844, are excluded from this regime.
Chapter III
Gremial Social Security Correspondability Conventions
ARTICLE 33. - Incorporate as second paragraph of Article 2 of Decree 1.370/08, the following:
In other activities which, due to their special characteristics similar to those provided for in the preceding paragraph, justify the inclusion within this regime, the Ministry of Labour, Employment and Social Security and the Ministry of Economics and Public Finance, after intervention in the field of their competences of the Social Security Secretariat, of the Ministry of Economic Policy and Development Planning and the Federal Public Income Administration (AFIP) respectively, may, by joint resolution, authorize the holding of Conventions.
ARTICLE 34. - Employers covered by the substitution regime of contributions and contributions emerging from the Gremial Correspondence Agreements signed under Act No. 26,377, shall enjoy a reduction in their existing contributions to the following social security subsystems:
(a) Argentine Integrated Previsional System, laws 24,241 and 26,425;
(b) National Institute of Social Services for Retired and Pensioned, Act No. 19,032 and its amendments;
(c) National Employment Fund, Act No. 24,013 and its amendments;
(d) The National Family Assignment Scheme, Act No. 24,714 and its amendments;
(e) National Register of Agricultural Workers and Employers, Acts 25,191 and 26,727.
During the first period of validity of a Gremial Correspondence Agreement, for the calculation of the replacement rate to be paid by employers, it will be considered a reduction of fifty percent (50%) of the aforementioned contributions and for the second period of validity that reduction will be twenty-five percent (25%). In duly substantiated critical cases, the national executive branch may extend the application of the latter to other subsequent periods.
Such reductions may not affect the financing of social security, nor the rights conferred on workers by social security regimes. The national executive branch shall take the necessary budgetary measures to compensate for the implementation of the reduction in question.
The contributions provided for in Act No. 23,660 and its amendments are not covered by the provisions of this article, for social work, as well as for the quotas for Labour Risk Assurers, provided for in Act No. 24,557 and their amendments.
Chapter IV
Advice and dissemination of benefits
ARTICLE 35. - The national executive branch, through the Ministry of Labour, Employment and Social Security, shall provide information, advice and training on registration, labour registration and social security, and other labour rights to employers and workers covered by the regimes established in this title.
Part III
Labour Administration
Chapter I
Labour Inspectorate
ARTICLE 36. - Replace article 29 of Act No. 25.877, which shall read as follows:
Article 29: The Ministry of Labour, Employment and Social Security shall be the Authority for the Application of the Comprehensive System for the Inspection of Labour and Social Security and, throughout the national territory, shall exercise the functions of labour control and labour regulations, articulating with the provincial labour administrations and the Autonomous City of Buenos Aires. Likewise, in this character, it corresponds to him:
(a) Ensure that the various services of the system comply with the rules governing them and, in particular, with the requirements of International Labour Organization (ILO) Conventions 81 and 129;
(b) Coordinate the performance of all services, making recommendations and developing improvement plans;
(c) To exercise the other functions assigned to the central authority by International Labour Organization (ILO) Conventions 81 and 129, their complementary recommendations and those that contribute to the best performance of services;
(d) To detect unregistered working nuclei, through complementary inspecting actions, articulating with the local service;
(e) To seek and promote, especially with a view to detecting unregistered work, coordinated participation and collaboration of representative workers and employers;
(f) Apply the penalties set out in Annex II to the Federal Labour Covenant, ratified by Act No. 25.212, or those to be replaced in the future, when it verifies breaches or breaches.
ARTICLE 37. - Replace article 30 of Law 25,877, which shall read as follows:
Article 30: When a local labour inspectorate service fails to comply with the requirements of International Labour Organization (ILO) Conventions 81 and 129 or with those arising from this chapter, the Ministry of Labour, Employment and Social Security shall co-operate with the Federal Labour Council in competition with the provincial courts and, where appropriate, with the Autonomous City of Buenos Aires, the corresponding powers.
ARTICLE 38. - Replace article 35 of Act No. 25.877, which shall read as follows:
Article 35: Without prejudice to its own powers in the field of labour inspection of the provincial governments, the Autonomous City of Buenos Aires and the Ministry of Labour, Employment and Social Security, the latter will carry out actions aimed at the eradication of child labour throughout the national territory. The proceedings carried out by the Ministry in which violations of the prohibition of child labour are verified shall be carried out within the respective local administrations.
Chapter II
Special Irregular Labour Control Unit
ARTICLE 39. - Under the Ministry of Labour, Employment and Social Security, the Special Irregular Labour Control Unit (UEFTI) is established to analyse, investigate and evaluate unregistered working situations in complex sectors of the taxation, as well as all forms of illegal outsourcing and labour fraud and social security.
Commend the national executive branch to carry out the actions necessary for the implementation and operation of the Unit created in this article within 90 days of the promulgation of the present article.
Chapter III
Follow-up Committee for the Permanent System of Contributions to Social Security and the Regime for the Promotion of Registered Employment
ARTICLE 40. - Reference is made to the Follow-up Committee on the Permanent Contributions to Social Security and the Regime for the Promotion of Registered Employment. The Committee shall consist of one (1) incumbent representative and one (1) alternate representative of:
(a) The Ministry of Labour, Employment and Social Security;
(b) The Ministry of Economy and Public Finance;
(c) The Federal Public Income Administration;
(d) The National Social Security Administration.
Each representative shall be appointed by the owner of the respective agency.
ARTICLE 41. - The Monitoring Committee shall have the functions and powers established by the regulation of this Act, which shall include monitoring of the implementation of the Permanent System of Contributions to Social Security and the Regime for the Promotion of Registered Employment, analysis of its functioning and possible abusive uses of the benefits provided for in these regimes.
ARTICLE 42. - The Follow-up Committee, within thirty (30) days of forming, shall issue its own Internal Operating Regulations.
Part IV
Supplementary and transitional arrangements
ARTICLE 43. - The Ministry of Labour, Employment and Social Security, the Ministry of Economy and Public Finance, the Federal Public Income Administration (AFIP), the National Social Security Administration (ANSES) and the National Register of Agrarian Workers and Employers (RENATEA) shall, within their respective competences, dictate the complementary rules necessary to implement the provisions contained in this Act.
ARTICLE 44. - Incorporate as article 20 (1) of the Annex to Law 24.977, replaced by law 26.565, the following:
(1) It is included in the Public Registry of Employers with Occupational Sanctions (REPSAL) since it acquires firmness the sanction applied in its reoffending condition.
ARTICLE 45. - Incorporate as article 28 (h) of Decree 1.023 of 13 August 2001, the following:
(h) Employers included in the Public Registry of Employers with Occupational Sanctions (REPSAL) for the time they remain in that registry.
ARTICLE 46. - Commend the National Executive Branch to implement the actions necessary for the implementation and operation of the Register created by Article 1 within 90 days of the promulgation of this Act.
ARTICLE 47. - The provisions of Title II will begin to govern from the first day of the second month after the publication in the Official Gazette. From that date, the provisions of Chapter II, Title II of Law 26,476, shall be considered repealed.
ARTICLE 48. - Employers who have produced unjustified dismissals in the course of the six (6) months prior to the entry into force of this law shall be excluded from the rule of title II, chapter I, for the term of one (1) year from the date of that validity.
ARTICLE 49. - Contact the national executive branch.
DADA IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, TO THE VEINTH DAYS OF THE MONTH YEAR DOS MIL CATORCE.
# 26,940 #
JULIAN A. DOMINGUEZ. - LOVE BOUDOU. - Lucas Chedrese. — Juan H. Estrada.