Global HR
Law Guide
  • Argentina
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  • Venezuela
Argentina
Ignacio
Ignacio Funes de Rioja Funes de Rioja & Asociados, Argentina
Australia
John Tuck
John Tuck Corrs Chambers Westgarth, Australia
Austria
Birgit Vogt-Majarek Schima Mayer Starlinger, Austria
Bahrain
Zahir Qayum Al Tamimi & Co (Bahrain), Bahrain
Belarus
Darya Zhuk COBALT (Belarus), Belarus
Belgium
Chris Engels
Chris Engels Claeys & Engels, Belgium
Brazil
Jose Carlos Wahle
José Carlos Wahle Veirano Advogados, Brazil
Bulgaria
Borislav Boyanov BOYANOV & Co., Bulgaria
Chile
Enrique Munita Munita & Olavarría, Chile
China
Zheng Xie Fangda Partners, China
Colombia
Catalina Santos Brigard Urrutia, Colombia
Croatia
Emir Bahtijarević Divjak Topić
Bahtijarević & Krka, Croatia
Cyprus
George Z. Georgiou George Z. Georgiou
& Associates LLC, Cyprus
Czech Republic
Nataša Randlová Randl Partners, advokátní kancelář, s.r.o., Czech Republic
Denmark
Yvonne Frederiksen
Yvonne Frederiksen Norrbom Vinding, Denmark
Estonia
Karina Paatsi COBALT (Estonia), Estonia
Finland
Seppo Havia Dittmar & Indrenius, Finland
France
Pascal Lagoutte
Pascal Lagoutte Capstan Avocats, France
Germany
Markus Bohnau Kliemt.HR Lawyers, Germany
Greece
Konstantinos Kremalis KREMALIS LAW FIRM, Greece
Hong Kong
Kathryn Weaver
Kathryn Weaver Lewis Silkin (Hong Kong), Hong Kong
Hungary
Marianna Csabai CLV Partners, Hungary
India
Rohit Kochhar Kochhar & Co., India
Ireland
Ireland - Síobhra Rush
Siobhra Rush Lewis Silkin (Ireland), Ireland
Israel
Orly Gerbi Herzog Fox & Neeman, Israel
Italy
Franco Toffoletto Toffoletto De Luca Tamajo, Italy
Kazakhstan
Yuliya G. Chumachenko AEQUITAS Law Firm, Kazakhstan
Latvia
Toms Sulmanis COBALT (Latvia), Latvia
Lithuania
Žilvinas Kvietkus COBALT (Lithuania), Lithuania
Luxembourg
Guy Castegnaro CASTEGNARO, Luxembourg
Mexico
Jorge De Presno
Jorge De Presno Basham, Ringe y Correa S.C., Mexico
Netherlands
Philip Nabben
Philip Nabben Bronsgeest Deur Advocaten, Netherlands
New Zealand
Peter Kiely
Peter Kiely Kiely Thompson Caisley, New Zealand
Norway
Claude A. Lenth Advokatfirmaet Hjort DA, Norway
Peru
José Antonio Valdez Estudio Olaechea, Peru
Poland
Bartlomiej Raczkowski
Bartłomiej Raczkowski Raczkowski, Poland
Portugal
Inês Reis pbbr, Portugal
Romania
Gabriela Dinu Nestor Nestor Diculescu Kingston Petersen (NNDKP), Romania
Russia
Irina Anyukhina ALRUD, Russia
Saudi Arabia
Zahir Qayum Al Tamimi & Co (Saudi Arabia), Saudi Arabia
Serbia
Milena Jakšić Papac Karanovic & Partners, Serbia
Singapore
Desmond Wee
Desmond Wee Rajah & Tann Singapore, Singapore
Slovakia
Dušan Nitschneider NITSCHNEIDER & PARTNERS, Slovakia
Slovenia
Darja Miklavčič ŠELIH & PARTNERJI Law Firm, Slovenia
South Korea
Sang Wook Cho Yulchon LLC, South Korea
Spain
Iñigo Sagardoy Sagardoy Abogados, Spain
Sweden
Jenny Hellberg Elmzell Advokatbyrå, Sweden
Switzerland
Anne Troillet TROILLET MEIER RAETZO, Switzerland
Turkey
Erim Bener Bener Law Office, Turkey
Ukraine
Oksana Voynarovska Vasil Kisil & Partners, Ukraine
United Arab Emirates
Samir Kantaria
Samir Kantaria Al Tamimi & Co (UAE), United Arab Emirates
United Kingdom
United States
Jeffrey D. Mokotoff FordHarrison LLP, United States
Venezuela
Victorino Márquez D'Empaire, Venezuela
1. Recruitment
1.1 Do advertisements for jobs require any particular wording or details about the job?
Updated by Funes de Rioja & Asociados

There are no legal requirements for the wording of a job advertisement to contain particular details about the job. However, em...

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1.2 What checks can an employer carry out about the background (including social media checks) and health of job applicants and at what stage in the hiring process? Can employers ask for references?
Updated by Funes de Rioja & Asociados

There are no specific legal restrictions on checks an employer may carry out on job applicants. However, employers must be careful not to discriminate against certain candidates. The employer has the right to check personal, educational and...

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1.3 Can employment be made subject to a probationary period? If so, how long for?
Updated by Funes de Rioja & Asociados

Probationary periods are allowed only for permanent indefinite-term contracts and m...

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1.4 Are there special rules about dismissal during a probationary period?
Updated by Funes de Rioja & Asociados

An employer must not use a probation period more than once with the same employee. The employer must also not fill the same position with a succession of employees on probation, as this is considered abusive. D...

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1.5 Can job applicants bring claims against the prospective employer? What might they claim for?
Updated by Funes de Rioja & Asociados

Job applicants may bring claims for unlawful discrimination against a prospective employer based on pre-contractual liability. If the prospect...

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1.6 What processes should be followed in employing foreign workers?
Updated by Funes de Rioja & Asociados

Foreign nationals must not work in Argentina without a visa or work permit. In order to evaluate which type of residence applies, at the beginning of any immigration process, the following must be taken into account: the employee’s natio...

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1.7 What records should an employer keep about the employment of foreign workers?
Updated by Funes de Rioja & Asociados

The following documentation is required from employees: a copy of the employee’s passport; a copy of the Argentinean ID (’Documento Nacional de Identidad’) issued by the Interior Ministry in temporary and permanent residence visas...

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1.8 Can employers keep their records about candidates they did not hire?
Updated by Funes de Rioja & Asociados

Yes, employers can keep records of candidates they...

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1.9 What questions can’t employers ask in interviews?
Updated by Funes de Rioja & Asociados

Employers must not ask for any personal or private information that is not relevant to t...

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2. Employment Contracts
2.1 What determines whether an individual is an employee or an independent contractor and what is the practical difference?
Updated on 01 April 2020 by Funes de Rioja & Asociados

Under Argentinean law, the circumstances of the employment relationship determine whether a person is an employee or a self-employed worker. The legal, technical and economic circumstances are key factors in determining the existence of an ...

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2.2 Are there any other key distinctions between types of employees (e.g. blue collar, white collar, or sales representatives) and what practical difference does this make?
Updated on 01 April 2020 by Funes de Rioja & Asociados

There are no legal distinctions between types of employees. However, economic dependence is a key factor used to determine employment status and it is t...

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2.3 Are there any special rules that apply to the employment of company directors?
Updated on 01 April 2020 by Funes de Rioja & Asociados

Contract law governs directors. However, directors may opt out of the social security system. If directors have executive responsibilities, they must be considered as employees. Therefore, many directors...

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2.4 Are there any rules about part-time employment and do employees have a right to request part-time or flexible arrangements?
Updated on 01 April 2020 by Funes de Rioja & Asociados

There is specific law in Argentina relating to part-time contracts. Employers must not treat part-time workers less favourably than full-time, indefinite-term employees. Part-time workers must not work more than two-thirds of the...

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2.5 Are there any rules or restrictions on fixed-term employment?
Updated on 01 April 2020 by Funes de Rioja & Asociados

Under labour law, the employment contract may be for a fixed term. Fixed-term contracts terminate on the expiry of the specific term for which they were agreed, but require between one and two months’ notice. The contract must be formalis...

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2.6 When is a fixed-term employment contract converted into an indefinite-term contract?
Updated on 01 April 2020 by Funes de Rioja & Asociados

If the employer does not give notice or formalise the con...

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2.7 What are the legal and practical implications of engaging temporary workers through an employment agency?
Updated on 01 April 2020 by Funes de Rioja & Asociados

Local law does not prohibit the employment of temporary workers through an employment agency. However, if the employer cannot justify the arrangement or if the contract with the third party agency is illegal, temporary work...

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2.8 Can the employer put its employees at the disposal of another company? If so, what restrictions apply?
Updated on 01 April 2020 by Funes de Rioja & Asociados

There are no specific legal restrictions on whether an employer may put its employees at the disposal of another...

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3. Terms and Conditions
3.1 Is it necessary to provide a written employment contract? If so, what terms must be in the contract and when must the contract be provided?
Updated on 01 April 2020 by Funes de Rioja & Asociados

There are no formal requirements for indefinite-term contracts, therefore, is not necessary for these contracts to be in writing. However, employees must: be registered with the Social Security Administration; have a social security number...

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3.2 Is it common in your country to issue an offer letter in addition to the employment contract?
Updated on 01 April 2020 by Funes de Rioja & Asociados

It is not common practice in Argentina for the employer to issue an offer letter in addition to the contract, but it is...

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3.3 What language should the employment contract be in?
Updated on 01 April 2020 by Funes de Rioja & Asociados

There are no legal restrictions about the language of the employment contract. However it would be appropriate for the contract to be drafted in the local language, so it can be used more effectively as evidence in the case of a dispute. If...

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3.4 Are there any terms that are always implied into an employment contract, even if they are not set out in writing? What are they?
Updated on 01 April 2020 by Funes de Rioja & Asociados

For indefinite-term employment relationships, there is no obligation to execute an employment contract in writing. However, the employment contract must not revoke any other employee rights granted by law or collective bargaining agreements...

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3.5 Does the written contract of employment have to contain all the terms and conditions of employment or is it possible to incorporate terms from other agreements or documents?
Updated on 01 April 2020 by Funes de Rioja & Asociados

It is possible to incorporate, at any time, terms from other agreements or documents, including a collective b...

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3.6 What are the legal considerations when an employer wants to make changes to employees’ terms and conditions?
Updated on 01 April 2020 by Funes de Rioja & Asociados

The employer is only permitted to unilaterally introduce changes to the employee’s terms and conditions if such changes are reasonable, only affect non-essential labour conditions and do not cause moral or financial harm to the employee. ...

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3.7 What documentation is normally made available to the employee in addition to contractual documents? How are non-contractual documents distinguished from contractual ones?
Updated on 01 April 2020 by Funes de Rioja & Asociados

Employers usually provide employees with various policies and rules.  These typically include: a code of conduct; a confidentiality policy; an IT policy; email and communications policies; a disciplinary policy; an harassment po...

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4. Compensation and Benefits
4.1 Is there a minimum wage? Does it have to be paid through basic salary only, or can other payments made to the employee (e.g. tips, bonuses, housing allowance etc) be included?
Updated by Funes de Rioja & Asociados

The Committee for the Minimum Wage, composed of representatives from the government, employers and employees, sets national minimum wage rates. Since October 2019, ...

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4.2 Are wages automatically adjusted in line with inflation? If so, how does this work?
Updated by Funes de Rioja & Asociados

There is no requirement or system for wages to be adjusted for inflati...

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4.3 In outline, what tax and social security obligations are on the employer and employee and what arrangements must be put in place to ensure these are met?
Updated by Funes de Rioja & Asociados

Tax Income tax and social security must be withheld by the employer from the employee’s salary, together with the employer’s contribution. Payments of the taxes and other contributions to the tax authorities are made by the employer at ...

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4.4 What is the rate of income tax and social security for an employee with an income of EUR 100,000, married with two children?
Updated by Funes de Rioja & Asociados

In Argentina, for an employee with an income of EUR 100,000, the rate of income tax is 31% of the employee’s tota...

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4.5 Are there rules governing the payment of bonuses? What type and size of bonuses are common in practice? If someone leaves, is it possible to claw back bonus already paid out?
Updated by Funes de Rioja & Asociados

Senior executives are usually rewarded with bonuses according to the organisation’s performance and the executives’ individual achievements. There are no rules restricting how much emplo...

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4.6 Are employers required to provide any particular benefits to employees (other than pension contributions)? If so, what are they?
Updated by Funes de Rioja & Asociados

All employees have the right to a 13th month payment, which is paid in two instalments in June and December. During ...

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4.7 In practice, what benefits are usually offered to employees?
Updated by Funes de Rioja & Asociados

Under employment law, certain social benefits are made available to employees. These are social security services that the employer grants the worker directly or through third parties. These benefits are not considered as salary, not paid i...

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5. Working Hours
5.1 Is there a limit on daily and/or weekly working hours?
Updated on 01 April 2020 by Funes de Rioja & Asociados

According to employment law, the working day must not exceed eight hours per day and the working week must not exceed 48 hours, except in the following cases: Directors and managers. Team work, provided that during a three-week period t...

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5.2 If so, is it possible to exceed this limit through agreement?
Updated on 01 April 2020 by Funes de Rioja & Asociados

The Ministry of Labour may provide for exceptions to the regulations and can authorise working time over the limits prescribed by law. The law establishes a ...

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5.3 Are any employees exempt from the rules about working time?
Updated on 01 April 2020 by Funes de Rioja & Asociados

Argentinean working time regulations are applicable to all employees except for directors and managers of...

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5.4 What time recording obligations are there on employers?
Updated on 01 April 2020 by Funes de Rioja & Asociados

The employer must keep a record of overtime worked....

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5.5 Does the law allow for or encourage agile working (having self-managing interdisciplinary teams with employees switching between them based on company requirements; flexible working time; open-plan offices; increased remote working)? If so, what are the rules?
Updated on 01 April 2020 by Funes de Rioja & Asociados

Argentinean labour law does not prohibit agile working as long as the ...

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5.6 Are there any limits on overtime work?
Updated on 01 April 2020 by Funes de Rioja & Asociados

The maximum number of overtime hours is restricted to 30 per month a...

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5.7 Do we need to get consent from employees for overtime?
Updated on 01 April 2020 by Funes de Rioja & Asociados

A worker must not be com...

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5.8 Is there a specific rate of pay that applies to overtime? If so, please specify.
Updated on 01 April 2020 by Funes de Rioja & Asociados

A worker paid on a monthly basis and performing duties during the week is not entitled to any additional payment if he or she does not exceed the maximum legal limit of 48 hours week or the wo...

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5.9 What rules (if any) are there regarding breaks and rest periods?
Updated on 01 April 2020 by Funes de Rioja & Asociados

An employee must not be made to work between 13:00 on Saturdays and midnight on Sundays except where authorised by the Labour Ministry or by any regulation, in which case the worker must be compensated with a rest period of equal...

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5.10 What are the consequences for an employer of: (a) exceeding the limits on daily/weekly working hours; and (b) breaking the rules on breaks and rest periods?
Updated on 01 April 2020 by Funes de Rioja & Asociados

Infringements for exceeding daily or weekly limits on working hours or the rules on rest periods are governed by specific laws. Infringements could result in a fine to be paid by the employer. Control ...

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6. Time Off Work
6.1 What is the minimum entitlement to annual leave?
Updated on 01 July 2020 by Funes de Rioja & Asociados

The statutory minimum annual leave entitlement ranges from 14 days to 35 days. Note that this includes days falling on the weekend. ...

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6.2 How much are employees entitled to be paid for annual leave?
Updated on 01 July 2020 by Funes de Rioja & Asociados

During annual leave, each employee has the right to a ‘vacation bonus’. This is calculated by dividing the employee’s...

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6.3 Do employees have a right to paid time off work for public holidays?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Employees are not required to work on national holidays. Those who do work are entitled to a 100% increase on their normal rate of pay. There are normally fifteen public holidays each year in Argentina. They are: 1 January, New Year’s Da...

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6.4 What rules apply to employees who are absent from work on account of sickness?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Employees with less than five years’ seniority are entitled to up to three months’ paid leave per year in the case of illness. If the employee has more than five...

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6.5 What are the arrangements for family-related leave and pay? In practice, do employers provide the minimum only, or might they make more generous arrangements?
Updated on 01 July 2020 by Funes de Rioja & Asociados

As well as the right to double the usual period of paid sick leave, employees who are parents receive a family allowance from the social security administration. The main rights to family-related leave and pay are summarised below.   M...

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6.6 What types of leave (other than family or care-related leave) are available?
Updated on 01 July 2020 by Funes de Rioja & Asociados

The law establishes paid leave for: marriage: 10 days; death of spouse, child or parent: 3 days; death of brother or sister: 1 ...

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7. Health and Safety
7.1 Broadly, what are the minimum legal standards that an employer must meet to ensure the safety of employees?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Employers are responsible for protecting employees and their possessions and for guaranteeing a safe and healthy workplace. This includes a safe workplace, safe equipment and work that is safe for physical and mental wellbeing. Therefore, a...

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7.2 How are health and safety rules regulated and enforced in practice?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Health and safety duties are regulated by extensive legislation. The Labour Ministry can take action to penalise any act or omission in breach of the formal requirements or the recording obligations set out in the health and safety at work ...

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7.3 What are the consequences for employers of breaches of health and safety rules?
Updated on 01 July 2020 by Funes de Rioja & Asociados

If an employer breaches health and safety rules, inspectors from the Labour Ministry can issue an ‘improvement notice’ requiring the breach to be remedied, and the company may be penalised with a fine. The employer’s insurance premium...

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7.4 Can an employer be liable for the activities of third-party contractors?
Updated on 01 July 2020 by Funes de Rioja & Asociados

An employer can be liable for harm caused to employees or other visitors by unsafe premises, where this...

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7.5 If there is a serious work accident, is there a requirement to notify the authorities and what does this involve?
Updated on 01 July 2020 by Funes de Rioja & Asociados

The employer must notify the insurance company covering risks relating to work accidents, who has the legal obligati...

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8. Discrimination
8.1 What kinds of characteristics are protected by discrimination law?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Employment law prohibits discrimination based on any of the following grounds: sex; race; national origin; religion; political or union opinion or affiliation; and age. In addition, anti-discrimination law prohibits discrim...

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8.2 Are there circumstances where it is not discriminatory to treat someone differently when they have (or do not have) one of these characteristics?
Updated on 01 July 2020 by Funes de Rioja & Asociados

It is possible to treat people differently without discriminating against them, depending on the circumstances of each case. The law prohibits arbitrary or unfair discriminatory treatment, but not all differences in treatment. Therefore, un...

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8.3 Is there a duty on employers to avoid 'indirect' discrimination (i.e. where a rule applied to all employees disadvantages a protected group)?
Updated on 01 July 2020 by Funes de Rioja & Asociados

The legal system prohibits indirect discrimination. This kind of discrimination may be less easy to spot than direct discrimination, but it is unlawful nevertheless. Sometimes, a policy, r...

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8.4 Is there an obligation to make reasonable adjustments, e.g. for disabled employees or those with religious beliefs?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Under Argentine labour law an employer must provide all reasonable adjustments to allow a disabled employee to perform his or her duties, but this does not include an obligation to create a special position for such a purpose. A...

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8.5 Is there protection against harassment based on a protected characteristic?
Updated on 01 July 2020 by Funes de Rioja & Asociados

In the private sector there is no specific legislation against harassment. However, general rules against discrimination based on sex can be applied to protect employees against sexual harassment. In addition, ‘mobbing’ is considered fa...

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8.6 Is there protection against victimisation or retaliation (i.e. where an employee is badly treated for having complained about discrimination, or helped someone else complain)?
Updated on 01 July 2020 by Funes de Rioja & Asociados

There are no specific provisions to protect people ag...

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8.7 What are the potential consequences for the employer if a claim for discrimination, harassment or victimisation/retaliation is successful?
Updated on 01 July 2020 by Funes de Rioja & Asociados

The potential consequences of successful claims for the employer depend on the specific situation. If discrimination, harassment, victimisation or retaliation is deemed to amount to indirect dismissal, the employee is entitled to claim a se...

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8.8 If there is a claim for discrimination, how is the burden of proof shared and what are the most commons defences?
Updated on 01 July 2020 by Funes de Rioja & Asociados

According to case law, in discrimination claims the burden of the proof...

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8.9 Can an employer be liable for the discriminatory actions of its employees or third parties (e.g. customers or suppliers)?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Employers are liable for the acts of employees that occur in the course of perfor...

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8.10 Are there statutory gender pay gap reporting obligations in your country?
Updated on 01 July 2020 by Funes de Rioja & Asociados

There are no statutory obligations regarding gender pay gap reporting in Argentina. There is a consti...

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8.11 What legal obligations do employers have to protect the mental health of their employees? Are mental health conditions a protected characteristic, in terms of protection against dismissal or from discrimination? What are the legal obligations of employers where a mental health condition is protected by law?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Argentinean law requires employers to take all necessary measures to ensure the mental and physical integrity of their employees, and they are responsible in the event of a breach of this duty. Along with the employer´s duty to guarantee t...

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8.12 In practice, how common are discrimination claims by employees?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Discrimination claims are very common in Argentina, especially cases of discrimination based on union activity, fo...

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8.13 What are the typical amounts of awards made in cases of unlawful discrimination?
Updated on 01 July 2020 by Funes de Rioja & Asociados

No statutory provisions exist regarding the amount of compensation for unlawful discrimination, and the amounts ...

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9. Employee Data Privacy
9.1 Are there rules on the protection of employee information?
Updated on 01 July 2020 by Funes de Rioja & Asociados

There are no rules that are specific to the protection of employee information, but general data protection law protects employees’ personal information. The law defines personal data as any information about a living individual or a lega...

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9.2 What are the consequences if an employer breaches these rules?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Under data protection law, if an employer fails to comply with the rules, the National Direction of Personal Data Protection, a statutory regulator, can apply sanctions and impose fines from ARS 1,000 to ARS 10...

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9.3 In practice, how can an employer collect and process confidential employee information?
Updated on 01 July 2020 by Funes de Rioja & Asociados

The employer must comply with labour, health and safety and social security laws. In order to do so, the following information must be collected at the beginning of any labour relationship: employee personal details; the employee’s famil...

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9.4 What are the restrictions (if any) on the monitoring of employees?
Updated on 01 July 2020 by Funes de Rioja & Asociados

There are no significant restrictions on monitoring as long as the surveillance is not carried out in a discriminatory way, is reasonable and does not constitute an invasion of privacy. The local labour administration (‘Ministerio de Trab...

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9.5 What is the legal position with regard to the use of social media in the workplace and when employees are off duty?
Updated on 01 July 2020 by Funes de Rioja & Asociados

The use of social media either at work or when off duty is not regulated by law. It is therefore advisable for employers to implement policies regarding the use of Facebook, Twitter, MySpace, Bebo and other social media.  The employer ...

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9.6 Is there any protection for employees who 'blow the whistle' on what they think are unlawful or immoral activities?
Updated on 01 July 2020 by Funes de Rioja & Asociados

There is no special protection for whistle-blowing in ...

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10. Employee Competition and Confidentiality
10.1 How can an employer ensure employees keep work-related information confidential?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Argentinian employment law establishes a general duty of fidelity in all contracts of employment. As a result, an employee must keep work-related information confidential. This duty of confidentiality exists in relation to the following typ...

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10.2 How can an employer ensure employees do not act in competition with it?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Under Argentinian law, the employee is bound by a duty of fidelity during the employment relationship and is expected to act in good faith during the relationship. The law states that the employee must observe all the duties of fidelity tha...

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10.3 Once employment has ended, can an employer restrict the use of confidential information by employees?
Updated on 01 July 2020 by Funes de Rioja & Asociados

After the employment contract has ended, employers can protect confidential information by including post-termination restrictions on an employee’s activities in the employment contract. These clauses are called ‘restrictive covenants...

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10.4 Once employment has ended, can an employer prevent employees from acting in competition with it?
Updated on 01 July 2020 by Funes de Rioja & Asociados

Non-compete clauses are becoming common in Argentinian employment practice, especially for directors and senior employees. In order to be enforceable, these clauses must be reasonable and not excessive an...

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11. Worker Representation
11.1 What is the role of trade unions in your jurisdiction?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Trade unions represent most types of workers in Argentina, sometimes including executives and professionals. The right to represent workers is awarded by the Ministry of Labour by means of a resolution of recognition called a ‘Personeria ...

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11.2 Do workforces tend to be unionised?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Around 4 million employees in Argentina were trade u...

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11.3 Does an employer have to work with an established trade union? If there is no union, must an employer establish or recognise one?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Only officially recognised trade unions can represent the collective interests of employees. As a...

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11.4 What role do employee representative bodies have in the workplace? Is there an obligation to inform and/or consult? Do they have any decision-making powers? When is an employer required to recognise or set up an employee representative body?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Employees who are represented by a trade union can elect representatives to further their interests. The number of representatives is determined as follows: If an organisation has between 10 and 50 employees, one representative may be elect...

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11.5 What legal restrictions are placed on trade unions in terms of organising strikes and other industrial action?
Updated on 01 November 2019 by Funes de Rioja & Asociados

The right to strike is protected, but only recognised trade unions may call a strike. This legal principle was confirmed in June 2016 by the Supreme Court. Before deciding to go on strike or lockout, the parties must follow a certain proced...

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12. Termination of Employment
12.1 On what grounds can an employer lawfully terminate employment?
Updated by Funes de Rioja & Asociados

In Argentina, based on the Constitution, the employer may terminate an employment contract without cause but must pay mandatory severance pay. If the termination is discriminatory and therefore unlawful, the employee will be entitled to req...

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12.2 What employee protection exists where an employer terminates without lawful grounds?
Updated by Funes de Rioja & Asociados

Employment is presumed to be for an indefinite term and can be terminated by the employer without penalty only for cause. Employees hired for an indefinite term who have mo...

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12.3 What is the legal or best practice process for terminating and what happens if an employer fails to follow it?
Updated by Funes de Rioja & Asociados

The employer may terminate an employment relationship with or without cause. If the employer is ending the relationship without cause, the law provides that the employer must give appropriate prior notice of termination. If the employer is ...

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12.4 Are there any special protections against dismissal?
Updated by Funes de Rioja & Asociados

Certain reasons for dismissal are automatically considered unfair. If one of these reasons applies, the legal rules about fair procedure are not relevant.  There are particular rules prohibiting the termination of union representative ...

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12.5 What is the minimum notice period? Are there circumstances where an employee may be entitled to longer?
Updated by Funes de Rioja & Asociados

There are different notice periods according to the employee’s length of service: one month for service of up to five years; and two months for service over five years. During the trial period for indefinite-term cont...

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12.6 Can an employer summarily dismiss by making a payment in lieu of notice? Is summary dismissal ever possible without payment in lieu?
Updated by Funes de Rioja & Asociados

Employers can make a payment instead of the required notice. Typically, employers do not provide prior notice and often make payments in lieu of notice. The payment is subject to inc...

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12.7 What happens if an employee resigns? Could this be regarded as constructive dismissal?
Updated by Funes de Rioja & Asociados

No. The resignation is regarded as a voluntary termination of the employment, ...

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12.8 Is it possible to retire an employee compulsorily?
Updated by Funes de Rioja & Asociados

It is possible to retire an employee compulsorily in the following circumstances: the employee has at least 30 years of pension contributions and is therefore entitled to receive retirement ben...

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12.9 What payments must be made to an employee on termination of employment?
Updated by Funes de Rioja & Asociados

The employer must pay one month’s remuneration for each year of service or any period longer than three months, based on the ‘highest normal, habitual salary’ accrued during the last year of service. For example, if the employee has w...

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12.10 How can an employer settle claims against it by an employee?
Updated by Funes de Rioja & Asociados

An employer can settle purely contractual claims by agreement with the employee, but this can be challenged as invalid by the employee, unless it meets certain conditions. ‘Separation agreements’ by mutual consent must be made before a ...

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13. Collective Dismissals
13.1 Must employers consult with employees about multiple dismissals and how many dismissals trigger this requirement?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Employers can generally decide to close plants and terminate employees without consultation, provided they make full severance payments to the affected employees. If the employer can show that there is a downturn in work volumes or for...

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13.2 What information must be provided about the dismissals? When must it be given and to whom?
Updated on 01 November 2019 by Funes de Rioja & Asociados

When collective dismissals are expected, the employer should initiate a crisis prevention procedure by informing ...

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13.3 Is there a legal process for consultations? How long do consultations take in practice?
Updated on 01 November 2019 by Funes de Rioja & Asociados

In a crisis prevention procedure, the employer must submit a plan to the Ministry of Labour. Within two days, the Ministry will invite the  employer and the union to a hearing at the Ministry of Labour, and there will be a first attemp...

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13.4 What happens if the employer fails to comply with the information and consultation requirements?
Updated on 01 November 2019 by Funes de Rioja & Asociados

If the employer does not invoke the special ‘crisis prevention procedure’ that applies to mass redundancies for economic reasons or reasons of force majeure, it w...

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13.5 Are there any additional payments to make to employees in cases of collective redundancy?
Updated on 01 November 2019 by Funes de Rioja & Asociados

The severance payment for collective redundancy amounts to half of the severance payment...

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13.6 Is there a statutory selection order that must be applied when a number of dismissals take place?
Updated on 01 November 2019 by Funes de Rioja & Asociados

The employer must start with dismissals of employees with ...

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14. Business Transfers
14.1 Are employees protected if the identity of their employer changes following a share takeover?
Updated on 01 November 2019 by Funes de Rioja & Asociados

By law, if a share takeover does not reduce the liability of the existing ...

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14.2 Are employees protected if the business in which they work is sold to a new employer? Are they protected if a service is outsourced or the business is partially transferred?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Sale of a business If a business is sold, the existing labour relationships will continue with the new employer on their existing contractual terms and conditions. The buyer ...

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14.3 If employees are protected upon transfer of the business to a new employer, what are the duties of the old and new employer?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Where a business is transferred, all the obligations arising from the employment contract between the transferor and employee at the time of the transfer pass to the transferee. The employment contract continues with the transferee and the ...

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14.4 Can employees object to transferring to a new employer?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Employees can challenge a transfer if their employment conditions change substantially. If that is the case, they may make a claim for...

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14.5 What happens to the terms of the employment contracts? What happens to employee benefits that are not part of the employment contract (e.g. bonuses)?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Terms The terms of employment and all rights and obligations under it transfer to the transferee. A transfer does not constitute grounds to change the terms of employment contracts. Employment terms can only be changed in accordance with th...

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14.6 What liabilities transfer to the new employer? Is there joint liability with the old employer?
Updated on 01 November 2019 by Funes de Rioja & Asociados

The transferor and transferee are jointly and severally liable for employment obligations existing at the time of the transfer. This appl...

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14.7 What happens to any collective agreements? Do they transfer to the new employer?
Updated on 01 November 2019 by Funes de Rioja & Asociados

In both transfers of businesses and transfers of em...

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14.8 Can employers make changes to people's employment contracts?
Updated on 01 November 2019 by Funes de Rioja & Asociados

In general terms, the employer has the power to introduce any changes it likes to the form and content of the employment contracts, provided they do not involve an ...

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14.9 When can employees be safely dismissed during or after a transfer?
Updated on 01 November 2019 by Funes de Rioja & Asociados

There is no statutory term (apart from the notice period for dismissal) that employ...

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14.10 Is there a requirement to consult with employees (or their representatives) upon a business transfer? Who must employers consult?
Updated on 01 November 2019 by Funes de Rioja & Asociados

The name of the new employer, the date on which the transfer will become effective and details of the employees’ working condition...

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14.11 What information must employers provide before transfer?
Updated on 01 November 2019 by Funes de Rioja & Asociados

The name of the new employer, the date ...

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14.12 What does a consultation involve and how long does it last in practice?
Updated on 01 November 2019 by Funes de Rioja & Asociados

There is no obligation to consult, but in practice it may be wise to do so if the business activities are going to change, people’s jobs will alter, or if the business is goi...

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14.13 What happens if an employer fails to inform and consult properly?
Updated on 01 November 2019 by Funes de Rioja & Asociados

In the case of a ‘transfer of establishment’, if an employer fails to inform employees about the transfer, the emp...

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14.14 What happens to the works council and other employee representatives upon the transfer of a business?
Updated on 01 November 2019 by Funes de Rioja & Asociados

This is not applicable ...

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15. Pensions
15.1 Are employees entitled to receive state pension benefits? If so, what are their basic rights under the state pension?
Updated by Funes de Rioja & Asociados

In 2008, Argentina returned to using a pay-as-you-go system (‘PAYG’) for retirement, based on the ‘redistribution principle’. In general terms, the following conditions apply to mandatory retirement: workers must have made ...

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15.2 Is there a requirement for employers to provide employees with access to a pension scheme? If so, are there any minimum legal requirements for that pension scheme?
Updated on 01 November 2019 by Funes de Rioja & Asociados

The only requirement for an employer, with regards to providing access to a pension scheme, is to pay the mandatory contributions to the Social Security Administration. When an employee has reached the retirement age of 70 ...

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15.3 Can an employer fund and operate its own pension scheme for its employees? If so, how might the scheme operate?
Updated on 01 November 2019 by Funes de Rioja & Asociados

An employer may not fund and operate its own pension scheme instead of the state pension scheme, as the state l...

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15.4 Is there a requirement to consult with employees (or their representatives) about proposed changes to an employer's pension arrangements? If so, what are the consultation requirements?
Updated on 01 November 2019 by Funes de Rioja & Asociados

An employer has statutory duty to consult affected employees in connection with any change to a private pension scheme, except where ...

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15.5 In general terms, what is the tax treatment of pensions in your country?
Updated on 01 November 2019 by Funes de Rioja & Asociados

In Argentina, pensions are given the same tax treatment as salary and so the income an individual earns from pens...

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15.6 What, if anything, needs to be put in the contract of employment about pensions' entitlement?
Updated on 01 November 2019 by Funes de Rioja & Asociados

Nothing needs to be put in the...

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1. Recruitment
1.1 Do advertisements for jobs require any particular wording or details about the job?
Updated on 15 August 2020 by Corrs Chambers Westgarth

There are no formal requirements in relation to the form or content of job advertisements in Australia. Nevertheless, it is important to ensure that advertisements and statements made in the course of pre-employment negotiations are not mi...

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1.2 What checks can an employer carry out about the background (including social media checks) and health of job applicants and at what stage in the hiring process? Can employers ask for references?
Updated on 15 August 2020 by Corrs Chambers Westgarth

In broad terms it is permissible for an employer to conduct reference and qualification checks in the context of a recruitment process. This can include seeking information about a job applicant’s previous work history and confirmation...

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1.3 Can employment be made subject to a probationary period? If so, how long for?
Updated on 15 August 2020 by Corrs Chambers Westgarth

In principle, it is permissible in Australia to make employment subject to a period of probation, and there are no formal rules as to the duration of any such period. At the end of the probationary period the employer may terminate t...

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1.4 Are there special rules about dismissal during a probationary period?
Updated on 15 August 2020 by Corrs Chambers Westgarth

See section 1.3 above. ...

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1.5 Can job applicants bring claims against the prospective employer? What might they claim for?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Anti-discrimination legislation in all Australian jurisdictions makes it unlawful to discriminate against potential employees, as well as against actual employees. For example, it is unlawful for an employer to take ‘adverse action’...

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1.6 What processes should be followed in employing foreign workers?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Individuals who are not Australian citizens can work in Australia only when they possess a valid visa which enables them to undertake the work in question. It is important, therefore, for prospective employers to ensure that job applicant...

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1.7 What records should an employer keep about the employment of foreign workers?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Employers should keep records of any relevant information relating to the sponsorship of a foreign worker. This includes any correspondence with the Departme...

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1.8 Can employers keep their records about candidates they did not hire?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Potential privacy law issues can arise in circumstances where an applicant provides personal information to a prospective employer and that applicant is not hired, and the business intends to store or otherwise use that information. As note...

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1.9 What questions can’t employers ask in interviews?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Employers cannot ask questions in job interviews which evince, or might be taken to evince, an intention unlawfully to discriminate against a prospective employee. This would, for example, preclude questions about an applicant’s trade uni...

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2. Employment Contracts
2.1 What determines whether an individual is an employee or an independent contractor and what is the practical difference?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Characterising work relationships Australian courts have adopted a number of ‘tests’ in order to determine whether a particular work relationship is one of employer and employee or of principal and contractor. The traditional approach w...

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2.2 Are there any other key distinctions between types of employees (e.g. blue collar, white collar, or sales representatives) and what practical difference does this make?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Almost all employees in Australia have their terms and conditions of employment regulated to a greater or lesser extent by federal or state industrial legislation. In particular, the great majority of employees fall within the scope of the ...

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2.3 Are there any special rules that apply to the employment of company directors?
Updated on 15 August 2020 by Corrs Chambers Westgarth

It is common practice for a company director to be classified as either an executive director (who is also an employee of the company) or a non-executive director (who is not an employee of the company). Whether or not a director is also an...

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2.4 Are there any rules about part-time employment and do employees have a right to request part-time or flexible arrangements?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Part-time employment Under Australian law, employees who ordinarily work 38 hours or less per week are commonly described as ‘part-time’ employees, including in awards and agreements made under the Fair Work Act. Around 30% of all emplo...

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2.5 Are there any rules or restrictions on fixed-term employment?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Fixed-term contracts Employers and employees are generally at liberty to enter into contracts that are expressed to remain in force until the occurrence of some pre-determined event such as a specified date or the completion of a specified ...

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2.6 When is a fixed-term employment contract converted into an indefinite-term contract?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Fixed-term employment may convert into open-ended employment in a range of circumstances. The most straightforward is where the employer and employee formally negotiate such a conversion. Conversion may also occur where an employee has been...

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2.7 What are the legal and practical implications of engaging temporary workers through an employment agency?
Updated on 15 August 2020 by Corrs Chambers Westgarth

The engagement of temporary workers through an employment agency or supplier is commonly referred to in Australia as ‘labour hire’. It typically involves the supplier providing a service to another organisation (‘host’) by supplying...

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2.8 Can the employer put its employees at the disposal of another company? If so, what restrictions apply?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Employers (‘first employer’) may also enter into arrangements whereby some of their employees are ‘loaned’ or ‘seconded’ to another employer (‘second employer’), such as a fellow member of a corporate group. Such arrangement...

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3. Terms and Conditions
3.1 Is it necessary to provide a written employment contract? If so, what terms must be in the contract and when must the contract be provided?
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3.2 Is it common in your country to issue an offer letter in addition to the employment contract?
Updated on 15 August 2020 by Corrs Chambers Westgarth

It is common practice for an offer letter to set out core terms and conditions of employment and upon acceptance, to become the employment contract. Sometimes the offer letter is accompanied by a separate document which the employ...

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3.3 What language should the employment contract be in?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Employment contracts can be in any language. For obvious practical reasons, it is preferable that they be in English.  Furthermore, Australian law requires employers to make and keep ‘employee records’ in relation to a rang...

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3.4 Are there any terms that are always implied into an employment contract, even if they are not set out in writing? What are they?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Contracts of employment in Australia may contain terms implied by law and terms implied by conduct. Both forms of implied terms will yield to express provisions to the contrary. They will also yield to any inconsistent provision of a statut...

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3.5 Does the written contract of employment have to contain all the terms and conditions of employment or is it possible to incorporate terms from other agreements or documents?
Updated on 15 August 2020 by Corrs Chambers Westgarth

It is possible to incorporate terms from other agreements and documents, including industrial instruments, into a contract of employment. This is most effectively done by expressly referring to the relevant agreements and documents in the...

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3.6 What are the legal considerations when an employer wants to make changes to employees’ terms and conditions?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Variation of an employment contract requires the agreement of both the employer and the employee. An employment contract cannot unilaterally be varied. Any attempt to do so is likely to constitute a breach that would enable the emplo...

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3.7 What documentation is normally made available to the employee in addition to contractual documents? How are non-contractual documents distinguished from contractual ones?
Updated on 15 August 2020 by Corrs Chambers Westgarth

Employer policies and procedures are commonly made available to employees at the beginning of employment, and may be supplemented or varied during the currency of the employment relationship. Typically, employment contracts will...

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4. Compensation and Benefits
4.1 Is there a minimum wage? Does it have to be paid through basic salary only, or can other payments made to the employee (e.g. tips, bonuses, housing allowance etc) be included?
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4.2 Are wages automatically adjusted in line with inflation? If so, how does this work?
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4.3 In outline, what tax and social security obligations are on the employer and employee and what arrangements must be put in place to ensure these are met?
Updated by Corrs Chambers Westgarth
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4.4 What is the rate of income tax and social security for an employee with an income of EUR 100,000, married with two children?
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4.5 Are there rules governing the payment of bonuses? What type and size of bonuses are common in practice? If someone leaves, is it possible to claw back bonus already paid out?
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4.6 Are employers required to provide any particular benefits to employees (other than pension contributions)? If so, what are they?
Updated on 15 August 2020 by Corrs Chambers Westgarth

The National Employment Standards (‘NES’) set out in the Fair Work Act comprise minimum terms and conditions that apply to all employees. They include provision for annual leave, carer’s/personal leave, compassionate leave, par...

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4.7 In practice, what benefits are usually offered to employees?
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5. Working Hours
5.1 Is there a limit on daily and/or weekly working hours?
Updated on 11 November 2020 by Corrs Chambers Westgarth

There is no comprehensive legal limit on daily hours of work, although industrial instruments (modern awards and enterprise agreements) may impose restrictions on daily hours of work, and requiring employees to work excessive hours ma...

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5.2 If so, is it possible to exceed this limit through agreement?
Updated on 11 November 2020 by Corrs Chambers Westgarth

It is not permissible for an industrial instrument to exclude any provision of the NES, and any contractual provision that purported to derogate from the NES would be unlawful. It follows that it would not be possible to exceed the wee...

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5.3 Are any employees exempt from the rules about working time?
Updated on 11 November 2020 by Corrs Chambers Westgarth

The minimum terms and conditions in relation to working time as set out in sections 5.1 and 5.2 above apply to all employees who fall within the Fair Work Act. This means that they apply to the overwhelming majority of employees...

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5.4 What time recording obligations are there on employers?
Updated on 11 November 2020 by Corrs Chambers Westgarth

The Fair Work Act and the accompanying Regulations set out detailed requirements in relation to the keeping of employee records and the provision of pay slips to employees.    The required records must include basic inform...

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5.5 Does the law allow for or encourage agile working (having self-managing interdisciplinary teams with employees switching between them based on company requirements; flexible working time; open-plan offices; increased remote working)? If so, what are the rules?
Updated on 11 November 2020 by Corrs Chambers Westgarth

Self-management, open-plan offices and remote working  Generally, the capacity of employers to provide open-plan offices or self-managing interdisciplinary teams is a matter of managerial discretion, providing that the arrangement is ot...

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5.6 Are there any limits on overtime work?
Updated on 11 November 2020 by Corrs Chambers Westgarth

As indicated in section 5.2 above, any request by an employer that an employee work additional hours must be ‘reasonable’ under the criteria set out in the law. The law does not, however, set a specific limit on the...

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5.7 Do we need to get consent from employees for overtime?
Updated on 11 November 2020 by Corrs Chambers Westgarth

The law does not contain any express requirement that the employer obtain consent from employees to work additional hours or overtime. However, as set out in section 5.2 above, an employee may refuse to work additional hours if they...

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5.8 Is there a specific rate of pay that applies to overtime? If so, please specify.
Updated on 11 November 2020 by Corrs Chambers Westgarth

There is no legislative provision which dictates how overtime is to be paid. Industrial instruments or employment contracts will typically set out the relevant rates of pay, including overtime rates.  Such rates are generally cal...

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