Supreme Court of Justice, González, Martín Nicolás v. Polimat S.A. and other, 19 May 2010

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. (…)

Holidays with pay , Dismissal , Protection of wages
Role of International Law:
Reference to international law to strengthen a decision based on domestic law
Type of instruments used:

Ratified treaties;1 Non-ratified treaties;2 Work of international supervisory bodies3

Pay/ Calculation of compensation/ Remunerative nature of salary increases/ Reference to international law to strengthen a decision based on domestic law

In this case, on rejecting the argument claiming the unconstitutionality of various Emergency Decrees laid down by the National Executive Authority establishing salary increases classified as non-remunerative, the court whose decision was the subject of the appeal rejected the bases for wage and compensation differences which would have been accrued if it had considered those credits to be remunerative, and therefore additional to the bases used to calculate other wages and compensation types (this case dealt with the compensation linked to dismissal without just cause  and for holidays not taken).

A majority in the Court considered that these decrees generated a decrease in the total complementary annual wage and in the amount owing for holidays not taken and unfair dismissal, and that they were therefore unconstitutional, since “they violate the workers’ rights recognized in article 14a of the National Constitution and on the basis of principles set out in international treaties included in the constitutional hierarchy”.

In order to support this argument with respect to the calculation of compensation for dismissal without just cause, the Court considered:

“… the conclusions of the International Labour Organization (ILO) in the Report of the Committee in charge of examining the representation alleging Venezuela’s non-compliance of the ILO Convention No. 95 on Wage Protection4 and ILO Convention No. 158 on the Termination of Employment, 1982, presented in virtue of Article 24 of the ILO Constitution, since it concerns a standard (Convention No. 158) that, even though it has not yet been ratified, would not be any stricter than the aforementioned protection against arbitrary dismissal contained in article 14a [of the Constitution] as regulated by aforementioned article 245 of the Law on Employment Contracts.”

The Court cited the Committee, which 

“on considering what should be understood to be adequate compensation on the unjustified termination of the employment relation set out in Article 10 of the aforementioned Convention No. 158, [the Committee] maintained that, since the Venezuelan Labour Law established a proportional relation between the compensation to be paid for such termination and the wage amount, the laws and regulations used in creating or increasing bonuses or benefits that are not included in the definition of wages for the calculation of compensation … caused a reduction in the base wage used to calculate the amount of compensation to be paid, thereby altering the adequacy of the compensation as set out in the aforementioned Article 10… It also indicated that it must also be remembered that the Committee on Economic, Social and Cultural Rights, on examining the contents and scope of the right to work set out in article 6 of the International Covenant on Economic, Social and Cultural Rights, took into account the aforementioned Convention No. 158 in that the national legal framework must provide for the right to legal recourse and other types of recourses in the event of unfair dismissal, while also expressing that all victims of these violations have the right to an adequate reparation which could take the form of compensation (General Observation No. 18 The Right to Work, 2005, E/C.12/GC/18, paragraphs 11 and 48).”

Likewise, in relation to the calculation of compensation for holidays not taken, the Court referred to ILO Convention No. 52, according to which workers should receive “his usual remuneration” (Article 3.a).

On the above grounds, the Court declared the decrees in question to be unconstitutional, attributing a remunerative character to the benefits established by those decrees, upholding the complaint and the extraordinary petition and ordering a new ruling to be handed down in line with the relevant principles.

1 ILO Holidays with Pay Convention, 1936 (No. 52); ILO Protection of Wages Convention, 1949 (No. 95).

2 ILO Termination of Employment Convention, 1982 (No. 158).

3 Committee in charge of examining a representation in virtue of Article 24 of the ILO Constitution; Committee on Economic, Social and Cultural Rights.

4 In their appeal to the Federal Court, the appellant had argued that the decrees violated Article 1 of ILO Convention No. 95, which has “supra legal” status. This argument was taken up in the vote of one of the members of the Court.

Full text of the decision