Supreme Court of Justice, Paulo Vicente Díaz v. Cervecería y Maltería Quilmes S.A., 4 June 2013, Case No. D. 485. XLIV
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
Protection of wages
Direct resolution of a dispute on the basis of international law
Ratified treaty1
Wages/ Dismissal/ Food coupons/ Compensation/ Direct resolution of a dispute on the basis of international law
In a first instance legal proceeding, the claimant called on the court to declare article 103 bis of the Law on Employment Contracts unconstitutional, and to declare invalid the non-remunerative nature of the food coupons whose allocation was agreed on in the collective bargaining agreement applicable to the activity of the defendant. The court was to take into consideration that at the time of payment of compensation for unfair dismissal, this allowance was not considered to form part of the wages received, a fact that affected the sum received in compensation by the employee. The claimant’s case had been dismissed in the ruling of the first instance and a subsequent appeal before the National Labour Appeal Court. Given this situation, the State Prosecutor intervened, requesting via extraordinary appeal for the sentence to be overturned and a new decision handed down. The prosecutor in the case argued that food coupons constituted a part of the wages received, and that any interpretation to the contrary went against the provisions of ILO Convention No. 95.
The National Supreme Court of Justice found in favour of the prosecutor’s arguments and indicated that, since Argentina had ratified ILO Convention No. 95, the country was obliged to implement changes to domestic legislation in order to ensure compliance with that international standard:
“10) [...] In this sense, since the Republic of Argentina has ratified ILO Convention No. 95, it is clear that the concept in question concerns wages in light of the provisions of Article 1 of that Convention, which establishes that: ‘the term wages means remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by mutual agreement or by national laws or regulations, which are payable in virtue of a written or unwritten contract of employment by an employer to an employed person for work done or to be done or for services rendered or to be rendered.’
11) Given that when Argentina ratified a treaty the country then ‘had the international obligation to ensure that its administrative and judicial bodies apply the provisions of the Convention providing that the descriptions contained in the Convention are sufficiently specific to allow for an immediate application’, the lower court judge could only overlook their application to this case by underlining the need for domestic measures to be adopted – where these existed – to make the Convention effective in relation to the specific circumstances of the case.”
Based on ILO Convention No. 95 and the obligatory nature of its application at the domestic level once ratified by Argentina, the Court declared art. 103 bis of the Law on Employment Contracts to be invalid, as well as the clause in the collective agreement that did not recognize the remunerative nature of the benefits it stipulated.
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