Extent of Protection
Section 14 bis of the Argentine National Constitution, provides for the principle of equal salary for equal work. Additionally, Argentina has ratified the Equal Remuneration Convention C. 100 of the International Labour Organisation. The foregoing, in addition to Labour Law No. 20,744 as well as Anti-discrimination Law No. 23,592 and international treaties entered into by Argentina, prohibit discrimination.
Notwithstanding the above, different conditions (including salary variations) may be instated by the employer when it is justified by objective parameters (i.e., seniority, job position, responsibilities, tasks and performance).
A claim challenging equal pay practices is based on discrimination. In this respect, employees who are discriminated against can assert unequal treatment, claiming payment of salary variances, under the caveat of considering themselves dismissed on a constructive basis, further claiming –
- payment of mandatory severance compensation for dismissal without just cause, severance compensation duplication (if applicable) and fines;
- or, by demanding that the employer cease all discriminatory practices, the employee may be given equal pay
– in addition to pursuing moral and material damages, which is possible in both scenarios.
Local case law has ruled in favour of employees who have claimed salary discrimination, when the employer could not produce conclusive evidence regarding the objective parameters for the different treatment (i.e., different salary compared to another employee performing the same tasks). In a recent case dated March 2020, a labour court ruled in favour of a female employee, who claimed to be underpaid in comparison to other employees in the same working category (approximately 50% of the salary of male employees in the same working category). The court found that the disparity between the parallel salaries was not justified.
Employers are not required to take any action under pay discrimination such as reporting to governmental authorities, public disclosure of data or conducting pay analyses. However, employers must comply with positive actions with the constitutional principle of equal pay for equal work, in line with anti-discrimination laws, labour laws and international treaties.