Bs. As., 7/2/92
VISTO the Law on State Reform No. 23,696 and its Rule Decree No. 1105/89; and
That the reform of the State and its administrative reorganization require structural and operational changes in order to carry out the functions of the State under appropriate conditions.
It is the National Government ' s purpose to implement a programme for the restructuring and hierarchization of staff of the Administration, for which the relevant mechanisms of internal reorganization should be adopted.
That the privatization processes set forth in Act No. 23.696 also require the adjustment of the structures of the personnel of the entities, agencies and companies declared subject to privatization, in order to adapt them to the new operating modalities under which they will carry out their activities.
That the fair protection of the worker in the privatization processes envisaged in chapter IV of Act No. 23,696 requires the implementation of policies and regimes to achieve these objectives.
While it is the authority of the interveners of the entities, agencies and companies to have the measures for the internal reorganization of the same, it is incumbent upon the NATIONAL EXECUTIVE PODER to impart the instructions that allow for a fair, equitable and uniform implementation of the voluntary retirement regimes to which the respective staff can receive.
It has well affirmed the doctrine that circumstances can be determined or situations in which strict observation of the functional competencies attributed by the constitution could lead to serious difficulties with eventual commitment to the existence of the State, so in such cases it is appropriate for a particular function to be exercised instead of an organ to which it is institutionally attributed by a different body.
That it is the principle of universal jurisprudential recognition that in the daily life of a state it does not always provide for ordinary demands that a constitution has been able to foresee; there is always an unforeseen that escapes every law, even to the more general one that must govern a whole state, there are needs that, not conjured today, threaten the morning. There are invincible de facto needs that become supreme reason of law and such emergencies must be met without delay.
That these circumstances . which define the so-called reasons for necessity and urgency han have originated the recognized attribution of the NATIONAL EXECUTIVE PODER to dictate decrees with strict legislative content, when it is essential to conjure difficulties that threaten some of the elements that shape the personality of the state and these difficulties cannot find their solution in the formulation times of the legislative will of the collegiate bodies.
That the Supreme Court of Justice OF NATION has repeatedly recognized in its judgments the exercise of such powers by the NATIONAL EXECUTIVE POWER in so-called cases of necessity and urgency.
That, without prejudice to the above-mentioned extraordinary powers, the present is determined in the exercise of the emerging powers of articles 86 (inc. 1) of the National Constitution and 3rd of Act No. 23,696.
THE PRESIDENT OF THE ARGENTINA NATION
RIGHT:Article 1 . The bodies and entities specified in article 1 of Act No. 23,696 implementing voluntary retirement systems for their dependents on a mandatory basis shall follow the basic procedures and criteria set out in this Decree. Art. 2° de Prior to the establishment of the voluntary retirement regime, the intervenors or senior authorities of the entities, agencies and companies shall define the following issues:
1. Staff considered optimal for the purposes of fulfilling the functions and activities they are responsible for and/or the implementation of the privatization programme.
2. Distribution of such personnel by sectors, areas or units of operation and/or production according to the organization that ultimately adopts or the system under which privatization will be carried out in its case.
3. Financial resources with which the voluntary withdrawal programme will be carried out in its different aspects, indicating in each case the origin of the same.
4. If such a voluntary retirement programme will be implemented by private management through the procurement that is carried out or directly by the entity, agency or company, and in such case if it will be assisted by external advice.
The interveners or senior authorities of the entities, agencies and enterprises shall communicate the above-mentioned issues to the respective State Secretaries of which they depend, for the purpose of the adoption of the report by the Implementation Authority.Art. 3rd . Once the aspects indicated in the previous article have been approved, the interveners or senior authorities of the entities, agencies and companies in which a voluntary retirement system is planned should propose for approval to the State Secretariats on which they depend, the conditions under which it will be offered to the dependent staff. In all cases, the following criteria shall be mandatory at least:
1. Fix the total maximum amount to be allocated for the implementation of the voluntary withdrawal.
2. Define the criteria under which the staff to whom the benefits of voluntary withdrawal will be determined. In all cases, it should be envisaged that it will be the intervening or higher authority of the entity, agency or company to resolve the requests for staff placement. Derogations for duly substantiated reasons of service shall constitute grounds that validly justify the rejection of applications.
3. The voluntary retirement system may not be accommodated in any of the following situations:
a. Staff hired.
b. Retirement, retirement and other equivalent benefits, regardless of their origin.
c. Staff who are in use of license without having or for long-treatment conditions.
d. Staff who are subject to criminal proceedings or administrative summary that may give rise to the penalty of cesanty or unreasonable.
4. The amount received by the staff who in the CINCO (5) years after the date on which the benefits of the voluntary retirement regime are granted is in a position to obtain the maximum benefit of their retirement, having fulfilled the budgets for that purpose required by the social security standards, will be subject to a reverse reduction proportionate to the time remaining to meet those conditions.
5. The staff who are granted the benefits of the voluntary withdrawal and who have filed an administrative appeal or a judicial complaint against the entity, agency or company in which the journal, must previously desist from such action and the right that assists him, by subscribing the relevant documents until the final approval puts an end to the claim or judicial action initiated.
6. The amount received by the beneficiaries of the voluntary withdrawal shall be in each case in accordance with the status of each entity, agency or company in which it is applied. In all cases, the application authority should be informed of the reasons underlying the characteristics and scope of this amount and of the other benefits to be granted by the voluntary withdrawal system. This amount shall consist of a percentage of the last monthly, normal and usual remuneration. In no case shall the non-current and permanent or accrued amounts in extraordinary concepts be considered for the determination of the calculation base. The proposed regime should duly justify the proposed scales and the criteria adopted which should be in conformity with existing legislation.
7. Once the work dissociation has been produced, the beneficiary of the voluntary retirement and the family group in his office must be guaranteed assistance coverage during the THREE (3) months following the dissociation.
8. Staff who are granted benefits from voluntary retirement may not re-enter any of the organs or entities covered by this decree in remunerated functions up to CINCO (5) years of dissociation. The NATIONAL EXECUTIVE POWER may authorize exceptions in cases where it is indispensable, in which case the reinstatement will occur after the refund of the proportional portion of the sum received, taking into account the time required to meet the time indicated.
9. The stages and deadlines in which the voluntary retirement system will be implemented.
Interventors or senior authorities of the respective entities, agencies or companies shall raise the draft regime of voluntary withdrawal to the Secretary of State on which they depend for the purpose of their subsequent approval by the Minister or Secretary of the Presidency of the Nation.
Until such authorization is granted the proceedings, procedures, reports and opinions shall be reserved, and the preparation and implementation of the voluntary retirement regime does not generate operational difficulties in the respective entities, agencies or companies.Art. 4° Los The amounts received by the recipients of voluntary retirement regimes will not be subject to both forecast and assimilative contributions and should not be computed for the purpose of calculating the tax on profits. Art. 5° . When duly justified reasons made it necessary to establish voluntary retirement regimes under conditions other than those set out above, the agents or higher authorities of the entities, agencies or companies shall require the relevant authorization of the Ministry. Art. 6° . Voluntary withdrawal procedures in all cases should be initiated individually on the basis of the request made by workers or agents on the basis of their status. Such notification shall be made in TREINTA (30) days prior to the expected payment date. The de-linking agreements shall be approved by the Administrative Labour Authority in the corresponding jurisdiction in accordance with the procedure provided for in article 15 of Act No. 20,744. Art. 7° La The request for acceptance of the voluntary retirement regime will not give the petitioner the right to the granting of such benefit, being its grant an exclusive faculty of the interveners or higher authorities of the entities, agencies or companies. The decision will be irrecurrible. The request of the worker or agent shall entail the unconditional acceptance of the provisions of this decree and those in force in the entity, agency or company in which the applicants are engaged. Art. 8° . Note the HONORABLE CONGRESS OF NATION. Art. 9° . Communicate, publish, give to the National Directorate of the Official Register and archvese. . MENEM. . León C. Arslanian. Guido Di Tela. Rodolfo A. Diaz. . Julio C. Aráoz. . Domingo F. Cavallo. . Antonio E. González.