Supreme Court of Justice, Aquino, Isacio v. Cargo Servicios Industriales S.A., 21 September 2004, A. 2652. XXXVIII
Constitution of the Nation of Argentina
Article 31
This Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation; and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions, except for the province of Buenos Aires, the treaties ratified after the Pact of November 11, 1859.
Article 75, paragraph 22
(…) Treaties and concordats have a higher hierarchy than laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy, do no repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein. (…)
Argentina
Occupational safety and health
Direct resolution of a dispute on the basis of international law
Ratified treaties;1 Instruments not subject to ratification;2 Work of international supervisory bodies;3 International case law;4 Foreign case law5
Work accident/ Civil action/ Work accident insurance provider/ National constitution/ Constitutionality/ Damage and injury/ Indemnities/ Work hazards/ Full reparation /Civil responsibility/ Damage assessment/ Direct resolution of a dispute on the basis of international law
The worker suffered a serious accident at work when falling from a tin roof about ten meters high, where he had been working, following the instructions of his employer, without any safety equipment being provided nor any net or protection against falls being installed. At the time of the accident, the plaintiff was 29 years old.
As a consequence of the accident at work, it was determined that the plaintiff was 100 per cent incapacitated for work purposes.
In the Argentinian legal system, accidents and illness at work are regulated by the Risks in the Workplace Act (LRT), No. 24557, which creates a compensatory system for damages based on insurance: the employer contracts insurance cover for its employees with a Work Risk Insurer (ART) and the ART fulfils the duties of risk prevention and compensation of damages caused to workers due to accidents or illness at work.
The LRTonly indemnifies material damage, and then only loss of income, which, in turn, can only be measured to a limited extent.
In the LRT system, the contracting of the ART by the employers means they are exempt from all liability due to work-related damages suffered by the employees. The worker only received the benefit payments from the LRT through the ART. Therefore the worker had no chance of claiming compensation for damages in accordance with the provisions of the Argentinian Civil Code.
The Court found that the LRT compensation system applicable to the case was markedly insufficient and not conducive to the full and comprehensive reparation that should be guaranteed to workers in accordance with the constitutional principle that forbids people to infringe the rights of a third party (art. 19). It also found that the system was incompatible with the principles of the “labour protection” and of guarantee of “decent and equitable working conditions” provided by Art. 14bis of the national Constitution6 and other rules in various international instruments of constitutional status (in particular the International Covenant on Economic, Social and Cultural Rights) set out in article 75, section 22, of the former.
The Court also concluded that the LTR was not compatible with the principle of social justice:
“[...] The LRT system called into question was not in harmony with another principle landmark of our National Constitution and international law on human rights: social justice, which has important application in the field of labour law and was embodied at the beginning of the last century in the Preamble to the Constitution of the International Labour Organization as a means towards establishing universal peace, but also as an end in itself. Among many international instruments, the Preamble to the Charter of the Organization of American States and the American Convention on Human Rights, in their turn, have not ceased to proclaim and adhere to this principle, which also appears in art. 34 of the above Charter (as the Protocol of Buenos Aires). However, it is unnecessary even to turn to those, because social justice, as clarified by this Court in the exemplary “Berçaitz” case, was already present in our Constitution from the very beginning.”
Consequently, the Court declared unconstitutional the limitation imposed on the worker against claiming full compensation from his employer for the damages suffered due to an accident at work and through its exempting the employer from civil responsibility.
1 International Covenant on Economic, Social and Cultural Rights, 1966; Convention on the Elimination of All Forms of Discrimination against Women, 1979; Convention on the Rights of the Child, 1989; American Convention on Human Rights (“Pact of San José, Costa Rica”), 1969; Preamble to the Charter of the Organisation of American States, 1948; Mercosur Social-Labour Declaration, 1998.
2 Universal Declaration of Human Rights, 1948; Preamble to the ILO Constitution, 1919.
3 UN Committee on Economic, Social and Cultural Rights.
4 European Court of Human Rights; Inter-American Court of Human Rights.
6 Argentina Constitution, Art. 14 bis: “Work in its various forms shall enjoy the protection of the law, which ensures workers of: dignified and equitable conditions of work, limited working hours, paid rest and vacations, fair pay, a living wage, equal pay for equal work, a share of corporate earnings, control of production and collaboration in management, protection against arbitrary dismissal, stability of public employment, free and democratic trade union organization, recognized by mere registration in a special register.
Trade unions are hereby guaranteed the right: to make collective bargaining agreements, to conciliation and arbitration, to strike. Union representatives shall have the guarantees necessary to carry out their union tasks and those related to job stability.
The State shall grant social security benefits, which shall become integral and indispensable. In particular, the law shall establish: compulsory social insurance, which will be undertaken by national or provincial entities with financial and economic autonomy, administered by the persons concerned with public participation, without any overlapping of contributions, retirement and pensions, full family protection, defense of homestead, family allowances and access to decent housing.”
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