Payment of remunerations – Resolution MTEySS n° 887/2023

Resolution MTEySS n° 887/2023

The Argentian Ministry of Labour, Employment and Social Security established that workers affected in their mobility for the purpose of attending their jobs, as a consequence of the measures adopted by the Unión Tranviarios Automotor and by the Asociación del Personal de Dirección de los Ferrocarriles Argentinos, on 7 July, will retain the right to the full enjoyment of their usual income.
On 10 July, Resolution No. 887, issued by the Ministry of Labour, Employment and Social Security, was published in the Official Gazette, establishing that workers affected in their mobility for the purpose of attending their jobs, as a result of the measures adopted by the Unión Tranviarios Automotor (UTA) and the Asociación del Personal de Dirección de los Ferrocarriles Argentinos (APDFA), will retain the right to the full enjoyment of their usual income.

It is a decision which, due to its content and scope, implies the incursion by the administrative labour authority into the regulation of matters inherent to the substantive Codes, the competence of which is attributed to the National Congress (art. 75, para. 12, of the National Constitution), in addition to the interpretation and application of legal norms, which are reserved to the Judiciary – and forbidden to the Executive – by the express distribution of competences established in the National Constitution (arts. 109 and 116, of the National Constitution).
On this basis, the administrative decision offers flanks for challenging its validity in the courts, on the grounds of excess of competence and deviation from the legal order (arg. arts. 7, incs. a), b) and e) and 14 inc. b) of Law no. 14.786), and even by means of an amparo action, with the filing of a precautionary measure aimed at obtaining the suspension of the effects of the act.
Without prejudice to the above, the resolution makes its application conditional upon the workers affected by it proving to the employer the impediment affecting them. If this is the case, and to the extent that there is no judicial decision ordering the suspension of the effects of the rule, it should be observed by the addressees.