Rights of non-strikers and non-rights of strikers in Article 242 of the Labor Contract Law as amended by Law 27.742. Notes on blockade, boycott, picketing, seizure and occupation of establishments

Abstract

Law No. 27,742 (known as the “Bases Act”) has amended Article 242 of the Argentine Labor Contract Law (LCT), which constitutes a cornerstone of the legal framework governing dismissal with just cause. The legal reform has expressly incorporated the possibility of terminating the employment contract due to an objective cause of serious misconduct, or as a result of the presumption of the existence of such serious misconduct. Both the establishment of an objective cause for dismissal and the activation of the legal presumption require that the injurious conduct of the worker, or the impairment of the rights or property of the company, non-striking workers, or third parties, occur during the implementation of collective labor conflict measures. The interpretation of the new Article 242 LCT delves into the meaning of concepts explicitly or implicitly arising from the text introduced by Law No. 27,742, which the author deems necessary to distinguish. The analysis of the norm is based on Argentine and comparative legal scholarship — particularly from Italy, Spain, and Uruguay— as well as on the criteria established by international supervisory mechanisms on the observance of freedom of association (ILO Committee on Freedom of Association and ILO Committee of Experts on the Application of Conventions and Recommendations). This is done following the guiding thread of the confrontation between individual and collective rights and interests arising within the union-labor side, as a consequence of the broader collective labor conflict between said parties and the employer.