Line Schjolden Suing For Justice (Tesis)

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Suing for Justice: Labor and the Courts in Argentina, 1900-1943
by
Line Schj olden
Grad. (University o f Oslo) 1995

M.A. (University o f California, Berkeley) 1998
A dissertation submitted in partial satisfaction o f the
requirements for the degree o f
Doctor o f Philosophy
in
History
in the
GRADUATE DIVISION
o f the
UNIVERSITY OF CALIFORNIA, BERKELEY
Committee in charge:
Professor Linda Lewin, Chair

Professor Tulio Halperin Donghi
Professor Michael Johns
Fall 2002
UMI Number 3082391
___
UMI
UMI Microform 3082391
Copyright 2003 by ProQuest Information and Learning Company.
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unauthorized copying under Title 17, United States Code.
ProQuest Information and Learning Company

300 North Zeeb Road
P.O. Box 1346
Ann Arbor, Ml 48106-1346
Copyright 2002
by
Line Schjolden
1
Abstract
by
Line Schjolden
Doctor o f Philosophy in History
University o f California, Berkeley
Professor Linda Lewin, Chair
The dissertation analyzes the relationship between the state and labor in Argentina
between 1900 and 1943, as this was defined through the courts. One o f its central claims
is that the judiciary, rather than the legislative and executive powers, constituted the most
important part o f the state in the definition o f labor law in this period. Despite their
increasing numbers and economic importance, workers were offered little protective
legislation during the first forty years o f the twentieth century, creating a legal vacuum
in the field o f labor law. In the absence o f any effective legal protection, workers turned
to the courts for a redress o f their grievances.
However, because o f this legal vacuum, judges were forced to rely on the existing
general principles o f the Civil and Commercial Codes when ruling in cases between
employers and workers. The dissertation examines in detail these court sentences,
concluding that, in fact, Argentine judges sometimes stretched these legal principles
considerably to adapt an increasingly outdated legal framework to the new social reality,
effectively shaping Argentine labor law in this period. Judges thereby attempted to
channel social conflict through institutional structures and carved out a niche for
themselves as professionals with claim to expertise in the resolution o f the times much
debated social question.
The second central claim o f the dissertation is that the judiciary also played an
essential role in the definition o f labor law by deciding the appropriate jurisdiction o f
labor legislation. At a time when labor law was still a new legislative field, the debates
raged over whether its appropriate jurisdiction should fall to the national or the provincial
governments. The dissertation shows that the courts interpreted the new field o f labor
legislation as a mere extension o f the Civil Code, which made it the jurisdictional
authority o f the national government. By choosing to interpret the field o f labor
legislation as an extension o f traditional civil law rather than a new legislative field, the
courts contributed to creating a situation in which Argentine labor law could not
adequately address the new situation o f labor-capital relations inherent to modem society.
To my mother Anne-Karin
ii
CONTENTS
AKNOWLEDGEMENTS iii
LIST OF ABBREVIATIONS v
INTRODUCTION 1
CHAPTER
1. FROM AGRICULTURAL TO INDUSTRIAL NATION:

ARGENTINA, 1900-1943 25
2. EXPANDING THE NOTION OF FAULT: OCCUPATIONAL

ACCIDENTS BEFORE 1915 62
3. A FRUSTRATED HOPE OF REDRESS: THE LIMITATIONS

OF THE 1915 OCCUPATIONAL ACCIDENT LAW 105
4. NATION OR PROVINCE: THE CONTESTED JURISDICTION

OF MINIMUM WAGES AND THE EIGHT-HOUR DAY 150
5. MAKING LABOR LAW OF THE COMMERCIAL CODE:

STRETCHING THE TERM COMMERCIAL EMPLOYEE,
1900-1943 187
6. POLITICS OVER LITIGATION: LABOR LAW AND

UNION ACTIVITIES 227
CONCLUSION 268
BIBLIOGRAPHY 277
iii
ACKNOWLEDGMENTS
The completion o f this dissertation had not been possible without the moral,
academic, and financial support o f a number o f people and institutions. I would first like
to thank the U.S-Norway Fulbright Foundation and the American-Scandinavian
Foundation for the grants that enabled me to start the graduate program in History at UC
Berkeley. UC Berkeleys Graduate Division and History Department provided continued
financial support for research and writing. The academic guidance o f my dissertation
committee has been invaluable. I would like to thank Linda Lewin for her dedicated
engagement with my work and for taking her responsibilities as a mentor so seriously.
Her incisive and thorough comments and exacting standards have always spurred me to
take my ideas and arguments one step further. I have certainly become a better historian
because o f her and can only hope one day to be able to live up to her example o f
historical scholarship. I am grateful to Tulio Halperin Donghi for his willingness to
participate on yet another dissertation committee in spite o f having formally retired from
his duties o f teaching and supervising. His unlimited knowledge o f Argentine history has
been invaluable for somebody trying to understand it from the outside. Finally, I would
like to thank Michael Johns for his constant encouragement, sense o f humor and down-
to-earth good advice.
In Argentina, I would especially like to thank Ricardo Puebla and Bias Gomez
who went to great pains to facilitate me with material I discovered I desperately needed
when I had already returned to the U.S. I would also like to thank the staff at the libraries
o f the University of Buenos Aires Law School, the University o f Buenos Aires Medical
School, and the Biblioteca Tomquist for their help in locating and photocopying the main
bulk of the material for this dissertation. In Amsterdam, I would like to thank the staff at
the International Institute for Social History for their professional and forthcoming
assistance. Dirk Moses deserves special thanks for his help with proofreading the final
product and for being a true friend and colleague from the day I started at Berkeley.
Thanks are also due to Jonathan Koomey for generous assistance with final proofreading.
I am eternally grateful to Tom Ostly, who transported me out to Stanford University on
the back of his motorcycle on countless Sundays so that I could do what I always referred
to as my last research at their Law Library.
To all my friends and family, I could never have done this without your love,
support and unfailing belief in me. From far away you have always made me feel that
you were right behind me. Although you have always been interested in my work and its
progress, more than anything else, you have never let me forget who I really am: a friend,
sister, daughter, and granddaughter. The deep satisfaction I take in having completed this
project is based on my constant sharing with you the good times and the bad times, the
defeats and the victories. Thanks to you all!
LIST OF ABBREVIATIONS
ALA Anales de Legislation Argentina
BDNT Boletin del Departamento National del Trabajo
BIDNT Boletin Informativo del Departamento N ational del Trabajo
CGT Confederacion General de Trabajadores
COA Confederacion Obrera Argentina
CORA Confederacion Obrera Region Argentina
CMDNT Cronica Mensual del Departamento National del Trabajo
DSCD Diario de Sesiones de la Camara de Diputados
DSCS Diario de Sesiones de la Camara de Senadores
FOA Federacion Obrera Argentina
FOM Federacion Obrera Maritima
FORA Federacion Obrera Regional Argentina
JA Jurispnulen cia A rgentina
PSOI Partido Socialista Obrero International
UF Union Ferroviaria
UGT Union Gremial de Trabajadores
USA Union Sindical Argentina
1
INTRODUCTION
Few fields in Argentine historiography have been better covered in recent years
than the history o f labor in the period between 1900 and 1943. The topic has, for obvious
reasons, commanded the interest o f both foreign and national scholars, either looking to
clarify the often confusing phenomenon o f Peronism, or driven by concerns related to the
more recent political history o f Argentina. The experience o f labor and the Argentine left
during the various periods o f military dictatorship, and the violent repression o f political
dissidence then taking place, has made labor history a particularly important, as well as
sensitive, field o f investigation.1
Within the general theme o f labor history in this period, different currents have
formed and predominated at different points in time, reflecting changing contemporary
concerns as well as misgivings about previous historical writing. One o f the initial
approaches was to write labor history as a political chronology o f organized labor. Often
written by what Leandro H. Gutierrez and Luis Alberto Romero refer to as the militant
historians, these were works by union and political activists, such as Diego Abad de
Santillan, Jacinto Oddone, Sebastian Marotta, and Rubens Iscaro.2 Driven more by
political than strictly historical concerns, their purpose was mainly to explain the failures
1The following outline of the literature is by no means meant to be exhaustive. For a more detailed
examination o f the historiography of Argentine labor, especially the Argentine tradition, see for example
Leandro H. Gutierrez and Luis Alberto Romero, Los sectores populares y el movimiento obrero en
Argentina: Un estado de la cuestion, Boletin del Instituto de Historia Argentina y Americana Dr. Emilio
Ravignani (Buenos Aires), 3a. serie, no. 3 (ler. semestre 1991): 109-122; Juan Carlos Torre, Acerca de los
estudios sobre la historia de los trabajadores en Argentina, Anuario del IEHS (Tandil) V (1990): 209-233;
Mirta Zaida Lobato and Juan Suriano, Trabajadores y movimiento obrero: Entre la crisis y la
profesionalizacion del historiador, Entrepasados, Ano III, nos. 4-5 (1993): 41-64.
2 Diego Abad de Santillan, La FOR A: Ideologiay trayectoria (Buenos Aires: Proyeccion, 1971); Jacinto
Oddone, Gremialismo proletario argentino: fSu origen. su desarrollo. sits errores, su ocaso conto
2
o f organized labor in Argentina.3 Other historians who have dedicated their works to
chronicling the emergence and development o f the union movement include Ricardo
Falcon, Iaacov Oved, Alberto Pla, Carlos Moret, and Ruben Zorrilla.4
From 1955 onward, new research questions were shaped with respect to the role
o f labor in relationship to the origins and workings o f Peronism. As Jeremy Adelman
points out, a common denominator o f this vein o f scholarship was the tendency to
describe the struggles o f working men and women as if everything that occurred prior to
1945 should predict the events o f that stormy year.5 He continues: In Argentina, this
propensity is reflected in the tendency to write pre-Peronist working class history as a
sequence o f tragic failures at the hands o f the oligarchy or cynical middle-class
governments and their military backers.6 Within this historiographical current, which
Adelman refers to as the uncaptured class thesis,7 fall the works o f Ronaldo Munck,
Gino Germani, Julio Godio, and Samuel Baily.8
movimiento democrdtico libre] (Buenos Aires: Ediciones Libera, 1975); Sebastian Marotta, El movimiento
sindical argentino: Su genesis y desarrollo (Buenos Aires: Lacio, 1960); Rubens Iscaro, Origen y
desarrollo del movimiento sindical argentino (Buenos Aires: Anteo, 1958).
Gutierrez and Romero, Los sectores populares y el movimiento obrero, 109-110.
4 Ricardo Falcon, Los origenes del movimiento obrero (1857-1899) (Buenos Aires: Centro Editor de
America Latina, 1984); Iaacov Oved, El anarquismoy el movimiento obrero en Argentina (Mexico: Siglo
Veintiuno. 1978); Alberto Pla, Socialismo y sindicalismo en los origenes del movimiento obrero
latinoamericano: Mexico. Argentina (Puebla: Universidad Autonoma de Puebla, 1985); Carlos Moret,
Historia general del desarrollo de las organizaciones de trabajadores (Buenos Aires: Tall. Graf. La
Vanguardia, 1933); Ruben Zorrilla, El liderazgo sindical argentino: Desde sus origenes hasta 1975
(Buenos Aires: Ediciones Siglo Veinte, 1983).
5 Jeremy Adelman, Essays in Argentine Labour History 1870-1930 (London: Macmillan Press, 1992), 2.
6 Ibid., 3.
7 Ibid., 2.
8 Ronaldo Munck, Argentina: From Anarchism to Peronism (London: Zed, 1987); Gino Germani,
Estructura social de la Argentina: Analisis estadistico (Buenos Aires: Editorial Raigal, 1955); Julio Godio,
3
Another primary focus o f interest has been the relationship between organized
labor and the state, where the concentration has particularly been on moments o f crisis,
such as strikes, and subsequent state repression. This is the case, for example, in the
works by Osvaldo Bayer, David Rock, and Juan Suriano.9 Eduardo Zimmermann has
drawn our attention to one o f the other ways in which state-labor relations were defined
by examining Argentine politicians first efforts to pass labor and social legislation.10
This dissertation also focuses on how state-labor relations were defined in Argentina in
the period between 1900 and 1943, but with important differences in approach and source
materials compared to those mentioned above. While state-labor relations in this period
have been studied almost exclusively by examining the executive and legislative
branches o f the state, as well as the police powers, this dissertation focuses on the
judiciary and seeks to analyze the relationship between state and labor as it was defined
through the courts.
A central hypothesis o f this study is that the judiciary, rather than the legislative
and executive powers, was the most important part o f the state in the definition o f what
constituted labor law in this period. As there were few specific labor laws in Argentina at
this time, labor issues were regulated by the general dispositions o f the Constitution and
El movimiento obrero argentino, 3 vols. (Buenos Aires: Editorial Legasa, 1987-1989); Samuel Baily,
Labor, Nationalism, and Politics in Argentina (New Brunswick, N.J: Rutgers University Press, 1967).
9 Osvaldo Bayer, La Patagonia Rebelde, Ed. definitiva (Buenos Aires: Planeta, 1992); David Rock,
Politics in Argentina 1890-1930: The Rise and Fall o f Radicalism, Cambridge Latin American Studies, no.
19 (Cambridge, England: Cambridge University Press, 1975); Juan Suriano, Trabajadores, anarquismoy
Estado represor: De la Ley de residencia a la Ley de defensa social (1902-1910) (Buenos Aires: Centro
Editor de America Latina, 1988) and El estado argentino frente a los trabajadores urbanos: Politica social
yrepresion, 1880-1916, Anuario Escuela de Historia. Rosario, no. 14(1989-90): 109-136.
10 Eduardo Zimmermann, Los liberales reformistas: La cuestion social en la Argentina 1890-1916 (Buenos
Aires: Editorial Sudamericana: Universidad de San Andres, 1996).
4
the Civil and Commercial Codes. These dispositions, however, had been outlined at a
time when the complexities o f urban, industrial society could not possibly have been
foreseen and were not intended to regulate labor issues in their modem form." The result
was that judges, when having to rule in cases involving labor, were left with considerable
interpretive freedom as they analogously applied the principles o f the Constitution and
the Civil and Commercial Codes to cases pertaining to labor.
In truth, that the courts should play such an essential role in the definition o f labor
law was something o f a paradox given the Argentine adoption o f a civil law system based
on the French Napoleonic Code. One o f the basic tenets o f the French civil law system
was the limitation o f judges power. Their role was intended to be confined to the mere
application o f the law made by the legislature, and the judiciarys freedom of
interpretation and possibilities for independent action should be kept to a minimum. Both
Montesquieu, in his Spirit o f the Laws, and Rousseau, in The Social Contract, had made
clear the importance o f preventing the intrusion o f the judiciary into the areas o f
lawmaking and the execution o f law.12 Their concern had its root in the historical reality
preceding the French Revolution, as John Henry Merryman points out:
In France, the judicial aristocracy were targets o f the Revolution not only because
o f their tendency to identify with the landed aristocracy, but also because o f their
failure to distinguish very clearly between applying law and making law. As a result o f
these failings, efforts by the Crown to unify the kingdom and to enforce relatively
enlightened and progressive legislative reforms had frequently been frustrated. The
courts refused to apply the new laws, interpreted them contrary to their intent, or
hindered the attempts o f officials to administer them. Montesquieu and others
developed the theory that the only sure way o f preventing abuses o f this kind was first
11 The Argentine Constitution dates from 1853, the Civil Code from 1869, and the Commercial Code from
1889.
12 John Henry Merryman, David S. Clark, and John O. Haley, The Civil Law Tradition: Europe, Latin
America, and East Asia (Charlottesville, Virginia: Michie Company Law Publishers, 1994), 442.
5
to separate the legislative and executive from the judicial power, and then to regulate
the judiciary carefully to ensure that it restricted itself to applying the law made by the
legislature and did not interfere with public officials performing their administrative
functions.13
In Argentina, however, two factors help explain the fact that the judges assumed a
much more important role than what was originally assigned to them. Both have to do
with the peculiar result o f combining a European-style civil law system with the adoption
o f the North American federal model o f government. In the Constitution o f 1853, the
Argentine ruling elites finally, after years o f fighting over the issue, opted for a
representative republican federal form o f government. 14 This meant a president as the
executive power and a two-chamber solution to the legislative branch o f government to
represent both provincial and national interests: The Chamber o f Deputies would consist
o f deputies o f the nation, and the Senate o f senators o f the provinces and the
capital. 13 The representatives to the Chamber o f Deputies were to be directly elected
nationally by simple majority vote, while the Senate would consist o f two senators from
each province, elected by the respective provincial legislatures by majority vote. In
addition, there would be two senators from the capital, elected according to the
procedures of presidential elections.
In terms o f legislative procedure, a bill could be initiated by either o f the two
congressional chambers, or by the executive. Granting the executive legislative functions
reflected the desire o f the constituent assembly to create a strong presidency, stronger
13 Ibid.
14 Constitution de la Nation Argentina (Buenos Aires: Abeledo-Perrot, n.d.), Art. 1.
15 Ibid., Art. 36. The original Constitution was amended various times after 1853; namely in 1860, 1866
and 1898. The latter reforms made special provisions for the capital after the federalization of Buenos Aires
in 1880.
than that provided for by the U.S. Constitution where the executive had the power to veto
legislation, but not to introduce a bill. If a bill was approved by the chamber that initiated
it, it would pass to the other chamber for discussion, and if the bill was approved by both
chambers, it would pass to the executive for final approval and subsequent promulgation
as law. As was the case in the United States, the Argentine executive was invested with
extensive veto powers, but if a bill had not been returned to Congress with a veto within
ten working days, it was considered approved and ready to be converted into law. Even in
the highly unlikely case that both chambers o f Congress, as well as the executive,
instantaneously agreed on all parts o f a legislative proposal, passing a law was a time-
consuming process. In the much more common occurrence o f a disagreement, however,
the situation became much more complicated.
When a bill was approved by one chamber but subsequently contested in the
other, it was returned to the originating chamber with the changes proposed by the
revising chamber. In the best o f cases, the originating chamber would automatically
accept the changes, and the bill could proceed directly to the executive for final approval.
If the originating chamber did not accept the changes made by the revising chamber, the
bill was returned to the revising chamber once more. If the revising chamber then voted
with a two-thirds majority to uphold the changes, the bill would again return to the
originating chamber, which in order to overrule the decision o f the revising chamber also
had to achieve a two-thirds majority. If a bill was vetoed in part or as a whole by the
executive, it returned to the originating chamber for renewed discussion. If the
originating chamber decided to uphold the bill the way it was initially intended, it had to
do so once again by a two-thirds majority. Then the bill would finally pass to the revising
7
chamber, where another two-thirds majority was required in order to override the
executive powers veto. In some cases, there were additional restrictions on the
legislative procedure. If a bill was completely rejected by one o f the chambers, it could
not be presented again during the course o f that same year. The same applied when the
executive veto of a bill was contested by both chambers but they could not agree on their
objections to it.16
It should be clear from this explanation o f the legislative process that successfully
converting a bill into law was by no means an easy and straightforward procedure.
Rather, it was an inefficient and time-consuming process which more often than not
dead-ended in the dusty archives o f the Congressional library. Three additional factors
peculiar to the Argentine system o f government added to the difficulty o f passing laws.
First, during the period under study, the Argentine legislature only convened for five
months out o f the year, from 1 May to 30 September in accordance with the Constitution.
Usually, Congress had to call an extended, extraordinary session because there never
seemed to be enough time to agree on the national budget for the upcoming year. The
time spent in extraordinary session was commonly exclusively dedicated to the pressing
issue o f the budget, or any other issue arising out o f an acute crisis and needing
immediate legislative solution. Regular legislative proposals were, for the most part, not
treated in extraordinary session. Consequently, a regular bill would only have the five
months o f an ordinary parliamentary session within the period o f a calendar year to be
debated in the legislative chambers.
16The legislative procedure is established in the Argentine Constitution, Articles 68-73.
8
Secondly, the Ley Olmedo, or the Olmedo Law, established that if a bill had not
been passed into law within two calendar years, it would automatically expire and be
archived.17 The legislative proposal would then have to be presented and discussed all
over again in a different session. Third, the representatives to the Argentine Congress
were not particularly concerned with dutifully attending the legislative sessions. After
hours and hours o f discussion o f a bill, when the time finally came to vote on it, the vote
often had to be postponed because o f lack o f a quorum. There are repeated complaints in
the congressional reports about this lax attitude on behalf o f the representatives, who,
more often than not, could not last it out a whole legislative debate but left in order to
attend to other matters surely, to them, of a higher priority. Again, this was especially
the case with legislative proposals that were not considered urgent or even particularly
important, includingalthough not limited to labor legislation.
As a result o f its weakness and inefficiency, the legislature was completely
incapable of keeping abreast o f the rapid social and economic changes taking place in
Argentine society as a whole during this period. It makes sense to talk about the existence
of a legal vacuum in several important areas where social change had clearly created a
need for new legal regulations. One legislative area obviously affected by this vacuum
was labor law. As if the general institutional obstacles to legislation were not enough, the
prospects o f successfully passing labor law were further diminished by other factors.
Even if Argentina experienced incipient industrialization already at the turn o f the
twentieth century, the basis for the economy remained the agricultural export sector until
17 Ley 2714, also called the Ley Olmedo, Anales de Legislation Argentina (hereafter ALA), 1889-1919.
208. The law was passed in 1890 and amended in 1898 by Law 3721. The latter established that if a bill
had received the sanction o f one of the chambers within the time limit o f two legislative sessions, the final
expiration deadline was extended by one additional session.
9
the 1930s. Not until this time did the industrial working class start to acquire a numerical
importance which made catering to its interests essential for politicians seeking electoral
success.
Furthermore, the predominance o f liberal laissez-faire ideology for much o f the
period did not encourage extensive state intervention in economic life. In many
legislators opinions, the laws which could best regulate the relationship between labor
and capital were those o f the market. With the influence o f corporatism in the 1930s, the
situation changed somewhat, but not enough to remedy the legal vacuum existing in the
field of labor law. To the general political indifference to labors needs must be added the
nature and strength or lack o f strength o f the Argentine labor movement, which
further contributed to the status quo. During the first fifteen years o f the twentieth
century, the labor movement was dominated by Anarchist tendencies, characterized by a
complete rejection o f the state in general, and especially o f state interference in labor
issues.
With the shift from Anarchism to Sindicalismo in the later 1910s and 1920s, the
labor movements emphasis was increasingly on bread-and-butter issues, but the
Sindicalistas generally focused on obtaining concessions directly from employers
through strikes rather than through state intervention and legislation. This approach was
in line with the predominant belief that only workers themselves had their own best
interest at heart. Any interference by other sectors, or by the state, was viewed with great
skepticism and as an attempt to undermine the efforts o f the union movement. Although
the champion o f labor legislation, the Socialist Party, was very active in Argentina, it did
not have a strong basis in the labor movement and never managed to exert any significant
10
influence outside o f the capital o f Buenos Aires. As the labor movement grew in strength
in the 1930s, it was increasingly willing to interact with the state, but mainly as a strategy
to pressure employers to concede to their terms in negotiations o f wages and working
conditions.
All these circumstances help explain the legal vacuum which existed in
Argentine labor law until 1943. It was in this vacuum that Argentine judges came to play
a role in the legal and institutional construction o f the modem nation o f Argentina that
was much more significant than the Argentine Constitution provided for. Responding to a
situation where capital-labor relations were becoming increasingly conflictive, judges
attempted to channel social conflict through institutional structures. By accommodating
some o f labors grievances in the courts, they hoped to prevent workers discontent from
taking on more radical expressions, such as an adherence to Anarchism or, later,
Communism. In so doing, judges carved out a niche o f expertise for themselves in the
resolution o f the much debated social question o f the time. The judges self-proclaimed
privilege to adapt the law to the social reality gave them power and authority as a
profession to significantly influence Argentinas social, political, and legal development.
Although the civil law system originally provided for strict limitations on the
judges interpretive capacities, the individual judge was bound by a legal obligation to
rule in all cases brought before him in court, even if there did not exist a specific law
1ft
pertaining to the issue in question. Consequently, a case could not be dismissed for lack
o f a law. In these cases, judges based their decisions on analogous interpretations of
general legal principles, such as those established in the Constitution and the Civil and
18This was established in the Civil Codes Article 16. Cddigo Civil de la Republica Argentina (con las
notas de Velez Sarsfield) (Buenos Aires: J. Lajouane & Cia., 1939).
11
Commercial Codes. This dissertation examines how judges analogously interpreted these
general dispositions in labor cases, and thus how they contributed to defining labor law in
Argentina between 1900 and 1943.
The Argentine Civil Code was to a large degree based on the model o f the French
Napoleonic Code, which was founded on the principles o f Roman Law. Elaborated by
Dalmacio Velez Sarsfield, it also took inspiration from other legal precedents and works
by international jurisconsults. According to Lisandro Segovia, the Argentine Civil Code
showed the influence ofZachariae (70 articles), Aubry and Rau (700 articles), Goyena
(300 articles), the Chilean Civil Code (170 articles), the French Civil Code (1100
articles), Troplong (50 articles), Demolombe (52 articles), the Luisiana Code (52
articles), the Uruguayan Civil Code (27 articles), Chabot (18 articles), Maynz (13
articles), Molitor (13 articles), and Savigny (4 articles).19 In addition, especially with
respect to the organization o f the Code, Velez Sarsfield followed the model o f the
Brazilian jurisconsult Freitas.20
In establishing the rights and obligations o f private individuals, and the
relationship between them, the Civil Code contained a detailed regulation o f contracts.
One form o f contract was the labor contract, or the location de servicios.21 Although not
intended to regulate the peculiarities o f capital-labor relations in modem, industrial
society, these were the only legal dispositions available to judges having to rule on issues
regarding the labor contract in this period. However, the regulation o f the location de
19Cited in J. O. Machado, Exposition razonada del Codigo Civil Argentino, Revista de Derecho,
Historia y Letras 1 (July-October 1898): 23-24.
20 Ibid., 21 and 23.
21 The locacion de servicios was regulated by the Civil Codes Articles 1623-1647.
12
servicios was not the only part o f the Civil Code invoked by judges in their rulings in
labor cases. In cases o f occupational accidents preceding the 1915 Occupational Accident
Law, the Codes general regulation o f damages was also frequently invoked.
Although it may not be immediately evident how the Commercial Code could
possibly be related to labor law, it contained dispositions regarding the labor contract for
specific groups o f workers engaged in mercantile activities, one o f which were the
commercial employees.22 Based on the Spanish Commercial Code o f 1829, these articles
established special rights for commercial employees to sick leave and compensation for
unjust dismissal and dismissals without previous notice. The articles had also been
incorporated into the 1859 Commercial Code o f the Province o f Buenos Aires. Most
likely a remnant o f old corporate legislation, these few articles would, ironically enough,
become the basis for one o f the most extensive labor law reforms in Argentina in 1934.
The courts played an important role in defining the nature o f labor law not only
by ruling in cases involving workers, but also by determining issues o f labor legislation
jurisdiction. In line with what was established by the U.S. federal system o f government,
the Argentine national government had local legislative jurisdiction over the capital and
national territories, as well as national legislative jurisdiction when it came to drafting or
reforming the Constitution and the Codes, or promulgating laws complimentary to the
latter. The general principle was that any area o f legislation not explicitly assigned to the
federal government should automatically be the jurisdiction o f the provincial
22 The relationship between commercial employers and employees was regulated in the Commercial Codes
Articles 154-160. Codigo de Comercio de la Republica Argentina y leyes complementarias (Buenos Aires:
J. Lajouane & Cia., 1942).
13
legislatures.23 However, determining whether a particular legislative field should be o f
national or provincial jurisdiction was not as straightforward as it appeared from this
general principle. Jurisdiction was particularly contested when the legislative field in
question was new, regulating forms o f social and economic relations which had
previously not existed.
In the case o f labor legislation, for example, there was much debate over whether
labor laws should be considered complimentary to the Civil and Commercial Codes, or
whether they should be considered completely new legislative terrain. If the former was
the case, labor legislation should be promulgated by the national government with
national jurisdiction. If the latter was the case, however, the promulgation o f labor
legislation would fall to the provincial governments, since it had not been explicitly
assigned to the national government in the Constitution. The national government should
then only pass labor laws that were local in character and whose enforcement was limited
to the capital and national territories.
Argentinas federal system o f government, like the North American system, made
provincial rights and autonomy a constant political issue influencing all kinds o f political
and legislative debates, including debates over labor legislation. In the legislature, the
stronghold o f provincial interests was, o f course, the Senate, being composed o f two
representatives from each province in addition to the two from the national capital. As
will become clear, several labor bills that were drafted with national jurisdiction stalled in
the Senate and were returned to the Chamber o f Deputies reduced to local jurisdiction.
yt
<*;
This was the case, for example, with the Ley de descanso dominical, or the Sunday Rest
23 Constitution de la Nation Argentina, Arts. 11,27, and 104.
Law, passed in 1905 with local jurisdiction after having initially been presented in bills
form with national application.24
The fact that the provincial senators were elected for the term o f nine years and
could be reelected indefinitely,25 also made the Senate a conservative institution. In the
words o f Natalio Botana, the senators were naturally suited to integrate a conservative
body,20 due to their background, the method o f indirect election to which they were
subjected, and the requirement that they had to be over thirty years o f age to qualify for
election. Without denying that there were conservatives within this group who had no
desire to grant labor any concessions, several factors force us to take the debates over
federalism and the appropriate jurisdiction o f labor legislation more seriously than just
brushing it off as pure rhetoric to hide a conservative agenda.
In the political historiography o f Argentina much has been made o f the centralist
character o f the 1853 Constitution in spite o f the formal adoption o f a federal system o f
government, and of the imposition o f the hegemony o f the capital o f Buenos Aires. The
Constitution granted extensive rights o f federal intervention in the provinces, a right that
was more than frequently used, both during the period o f the oligarchy between 1880 and
1916, as well as under the Radical governments between 1916 and 1930.27 Precisely
24 Ley 4661 de descanso dominical, ALA, 1889-1919. 651-652.
25 Constitution de la Nacion Argentina, Art. 48.
26 Natalio R. Botana, El orden conservador: La politica argentina entre 1880y 1916 (Buenos Aires:
Editorial Sudamericana, 1977), 103. All translations are mine unless otherwise noted.
27 For the period 1880-1916, see ibid.. For an account of the continuities in political practices between the
oligarchic period and the period following the Saenz Pena electoral reform in 1912, see Fernando Devoto
and Marcela P. Ferrari (eds.), La construccion de las democracias rioplatenses: Proyectos institucionales y
practicas politicos, 1900-1930 (Buenos Aires: Editorial Biblos: Universidad Nacional de Mar del Plata,
1994). For the role and consequences of federal intervention during the period o f the Radical government,
see David Rock, Politics in Argentina 1890-1930.
15
because the provinces saw their autonomy violated again and again by the intervention
and reassembling o f their legislatures and executives at the whims o f the national
government, it became even more important for the provincial representatives to the
national government to protect the vestiges o f federalism where possible. With political
autonomy a lost cause, legislative autonomy was still a battle that could be won. It is only
to be expected that the provincial representatives to the Senate were likely to be reluctant
to make any concessions to the attempts o f the national government to legislate nationally
issues which the Constitution did not unequivocally define to be o f national jurisdiction.
Also, if the senators defense o f province autonomy was simply a convenient
excuse to refuse concessions to workers, one would not expect to find the existence o f
provincial labor laws. However, with respect to the regulation o f minimum wages and
maximum hours, various provincial governments actually preceded the national
government in promulgating labor laws. Minimum wage laws were passed in the
province o f Mendoza in 1918, and in Salta, Tucuman, and San Juan in 1923. The eight-
hour workday was established by law in Mendoza in 1918, in Cordoba in 1919, in San
Juan, Salta, and Tucuman in 1923, and in Santa Fe in 1927, before it was made national
law by the federal government in 1929. Far more than a paper principle, federalism was
a real and effective part o f the Argentine state structure decisively influencing legislative
procedure and, therefore, the relationship between state and society. It also profoundly
affected the respective roles played by the judiciary and the legislature in this
relationship.
The institution that would finally determine the outcome o f the debates over
jurisdiction, and thus the constitutionality o f provincial labor legislation, was the courts.
16
While the emphasis on the separation o f powers in the French civil law system had
inhibited the adoption o f judicial review,28 the Argentine constituent assembly had
granted the judiciary the power to determine if laws could be considered contradictory to
the Constitution.29 In this respect, the Argentine Constitution followed more closely the
path o f institutional developments in the United States. The eclectic mixture o f elements
from the European civil law tradition and those taken from the legal system o f the United
States, was not, in truth, a feature peculiar to Argentina, but rather a common
characteristic o f the Latin American variant o f the European civil law system.30 Because
labor legislation at the beginning o f the twentieth century was an entirely new legislative
field where legal precedents had yet to be established, the courts function o f judicial
review became particularly important. It will be a central concern o f this dissertation to
examine closely the Supreme Courts rulings on the constitutionality o f labor legislation
and its decisions regarding the on-going debates over jurisdiction.
As will have become clear by now, the framework chosen for this dissertation is
one that considers institutional structures to be crucial factors o f explanation in historical
analysis. Central theoretical influences have been works by U.S. scholars representing a
historiographical current often referred to as the state-centered approach. The authors
adhering to this line o f scholarship include, but are not limited to, Dietrich
2S Merryman, Clark, and Haley, The Civil Law Tradition, 444.
29 Constitucion de la Nacion Argentina, Art. 100. The privilege o f judicial review was granted both to the
federal and provincial Supreme Court and to the lower courts. Contested issues of jurisdiction in labor law
usually reached the final level o f the Supreme Court.
j0 Merryman, Clark, and Haley, 462-463.
17
Rueschemeyer, Peter B. Evans, Theda Skocpol, and Stephen Skowronek.31 A central
claim made by all o f these authors has been that the relationship between state and
society is best understood as a dynamic tug-of-war where different interests are
constantly contested. They do not treat either the state or society as monolithic
entities, but rather as structures conditioned by the people who make them up, as well as
by specific historical circumstances. In order to understand why certain social groups are
more successful at promoting their interests within the state, it is necessary to take into
account both the specific structural characteristics o f the state, its bureaucracy, as well as
how much o f a fit there is between the organization o f the interest groups and the state
structure,32 in order to understand why specific legislative proposals are converted into
law whereas others never make it out o f the congressional chambers.
A focus on institutional structures does not imply, however, that the people who
shaped, participated in and outright constituted these structures will be forgotten or
underestimated. A central preoccupation in this dissertation will be to determine how
labor as a group or classrelated to the courts; how they used them to promote their
own interests, what they gained and lost through the court rulings, and how they were
affected, both directly and indirectly, by the juridical principles established in the court
rooms. Judges are another group o f people who will be o f primary interest as subjects of
31 Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol (eds.), Bringing the State Back In
(Cambridge; New York: Cambridge University Press, 1985); Theda Skocpol and Dietrich Rueschemeyer
(eds.), States, Social Knowledge, and the Origins o f Modem Social Policies (Princeton, New Jersey:
Princeton University Press, 1996); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins
o f Social Policy in the United States (Cambridge, Massachusetts and London, England: Belknap Press of
Harvard University, 1992); Stephen Skowronek, Building a New American State: The Expansion o f
National Administrative Capacities, 1877-1920 (Cambridge; New York: Cambridge University Press,
1982).
32 Skocpol. Protecting Soldiers and Mothers, 54-57.
18
analysis. As representative o f a new and growing professional middle class, and as
representatives o f the state, how did they define their role in relation to the working
classes? What did they see as their responsibility as professionals in the cases involving
labor that were brought before their jurisdiction? These are some o f the questions that
will be addressed in the course o f the following pages.
As such, this dissertation does not only constitute a contribution to the field o f
labor history in the period between 1900 and 1943, but also to the recently expanding
field o f legal history. Much in concurrence with a general trend in historical scholarship,
Latin Americanists have lately turned their attention to the workings o f the courts in order
to cast new light on the issues o f crime, law, justice, and punishment.j3 In a way quite
different from the traditional or old legal history,34 historians have used legal sources to
address issues concerning gender studies, subaltern or bottom-up history, discourse
analysis, ethnographies o f modernity, the history o f the disciplines, questions o f
hegemony and social order, studies o f democratization, etc 3:> Guided by the
influence o f Foucault, scholars have especially devoted their attention to the development
of a modem prison system and to the examination o f how notions o f race, gender, and
class served to define social deviance and the relationship between crime and social
For an overview of the recent literature on what has been labeled crime and justice history, see Ricardo
D. Salvatore, Criminal Justice History in Latin America: Promising Notes, Crime, History and Societies
2. no. 2 (199S): 5-14.
34 What was previously associated with the term legal history in Latin America was a concern with the
study of the Spanish colonial legal system and its transformations and continuities in the new, independent
Latin American nations. Ibid., 5.
35 Ibid.
19
control.j6 Although the focus has been mainly on criminal justice, the interest in legal
history has recently expanded to encompass the role o f the judiciary in aspects o f civil
and commercial law as a way to examine the relationship between the state and the lower
classes.37
That is also the approach taken in this dissertation, which uses civil and
commercial lawsuits to examine the role played by the judiciary in the development of
Argentine labor law through their decisions on such issues as occupational accidents,
compensation for dismissals, minimum wages, the eight-hour workday, collective
bargaining, and strikes. Ricardo Salvatore, in his above-mentioned outline o f the recent
literature on Latin American legal history, points to the lack o f research regarding the
accessibility and use o f judicial institutions by different subaltern groups.38 By
examining in detail the obstacles and possibilities workers faced in their encounter with
the court system, it is my hope that this dissertation will, at least partially, contribute to
See Ricardo Sah'atore and Carlos Aguirre (eds.), The Birth o f the Penitentiary in Latin America. 1830-
1940 (Austin: University of Texas Press, 1996); Robert Buffington and Carlos Aguirre (eds.).
Reconstructing Criminalityin Latin America (Wilmington: SR Books, 2000). For works focusing
specifically on Argentina, see Ricardo Salvatore, Criminology, Prison Reform, and the Buenos Aires
Working Class, Journal o f Interdisciplinary History 23, no. 2 (Autumn 1992): 279-299; Idem,
Reclutamiento militar, disciplinamiento y proletarizacion en la era de Rosas, Boletin del Instituto de
Historia Argentinay Americana Dr. Emilio Ravignani (Buenos Aires), 3a. serie, no. 5 (ler. semestre 1992):
25-47; Idem, El imperio de la ley: Delito, estado y sociedad en la era rosista, D elitoy Socieded (Buenos
Aires) 4-5 (1993-94): 93-118; Lila Caimari, Whose Criminals Are These? Church, State Patronatos, and
the Rehabilitation of Female Convicts (Buenos Aires, 1890-1940), The Americas 54, no. 2 (1997): 185-
208; Kristin Ruggiero, Honor, Maternity, and the Disciplining o f Women: Infanticide in Late Nineteenth-
Century Buenos Aires, Hispanic American Historical Review 72, no. 3 (1992): 353-373; Idem, Wives on
Deposit: Internment and the Preservation o f Husbands Honor in Late Nineteenth-Century Buenos Aires,
Journal o f Family History 17, no. 3 (1992): 253-270; Beatriz Ruibal, Ideologia y control social: Buenos
Aires, 1880-1920 (Buenos Aires: Centro Editor de America Latina, 1993); Osvaldo Barreneche, Crime
and the Administration o f Criminal Justice in Buenos Aires, Argentina, 1785-1853 (Ph.D. Dissertation,
University o f Arizona, 1997).
37 See Juan Manuel Palacio, The Peace o f Wheat: Judges, Lawyers, and Farmers in Pampean Agricultural
Development, 1887-1943 (Ph.D. Dissertation, Uni%'ersity o f California, Berkeley, 2000).

8 Salvatore, Criminal Justice History in Latin America, 8.
20
filling this lacuna in the historical literature and thus contribute to a better understanding
o f Argentinas legal culture in the national period.
To write a dissertation on labor law in a period when labor law did not yet truly
exist has not been without certain problems with respect to sources. Labor tribunals had
still not been established, and, consequently, labor cases were resolved in a wide range o f
different courts: Civil courts, commercial courts, local courts, federal courts, lower
courts, courts o f appeals, and the Supreme Court. Although a majority o f the cases were
brought before courts in the capital o f Buenos Aires, due to its undisputed position as
Argentinas industrial center, important labor cases were resolved in the provinces, too.
Provincial courts in the Provinces o f Buenos Aires, Santa Fe, Cordoba, Mendoza, and
Tucuman were also called on to rule on issues brought forth by Argentinas changing
economic and occupational structure in this period.
Because labor cases were resolved in all these different courts, and in all these
different places, it was essential to work with a comprehensive, national legal periodical.
Since labor law in this period was not yet a proper legal area, labor cases figure under a
range o f different headings. It was not immediately obvious when I started out, for
example, that I would have to look for severance pay under the heading o f commercial
employees. In addition to the crucial importance o f working with a legal periodical
which was comprehensive and national in scope, it also had to be indexed. The only legal
periodical meeting these requirements was the Jurisprudencia Argentina, which appeared
for the first time in 1918. For the period preceding 1918, it has been necessary to resort to
the publications o f the National Labor Department, established in 1907, and especially its
Boletin, which published judicial decisions regarding labor issues. I have also used
monographs and synthetic compilations o f sentences published by early labor law experts
to complete the picture o f the period before 1918.
Working with published sentences has certain limitations, however. First, not all
sentences are published. Those selected for publication are usually chosen because they
are important in one way or another in defining the interpretation o f laws and legal
principles. Rulings contradictory to the established jurisprudence are not necessarily
published, unless they represent an alternative interpretation o f the issues in question. The
nature o f the sources therefore makes it impossible to make any quantitative estimates o f
total number of cases tried or percentage o f favorable or unfavorable decisions from the
workers perspective. An analysis o f published sentences will only be able to testify to
the dominant tendencies of interpretation, and will not render a picture o f the entire
spectrum o f judicial decisions. A second limitation is that the published sentences are not
going to tell us about how the judgements were implemented, which makes it impossible
to assess the extent to which the rulings were actually complied with. A plausible
assumption is that some probably were while others were not, but a situation o f general
non-compliance seems unlikely with the evident continued reliance on the courts. Had it
been a general rule that the rulings were never implemented, there would be little reason
to even initiate litigation.
This dissertation contributes new knowledge to the study o f state-labor relations
in Argentina between 1900 and 1943 through a detailed analysis o f court sentences
involving workers and issues o f labor law. Chapter 1 provides a general outline o f the
social and economic changes taking place in Argentina during the first forty years o f the
twentieth century, with particular emphasis on the development o f industry and the
growth o f the working classes. Chapter 2 analyzes judicial decisions in cases o f
occupational accidents before the Occupational Accident Law was passed in 1915. In the
absence o f a law, workers invoked the Civil Codes dispositions regarding damages in
their claims to compensation from employers in the aftermath o f accidents. According to
the Civil Code, however, workers wanting to obtain compensation had to prove that the
accident had been produced by the employers carelessness or fault. While the notion o f
fault was given a strict interpretation in the jurisprudence before 1905, generally
dismissing workers claims to compensation, judges started to make increasing room for
workers grievances in the period after 1905. They did this primarily by expanding the
notion o f fault, although they on some occasions used more radical strategies by applying
the principles o f occupational risk, contractual fault, and the inverted burden o f proof.
Chapter 3 focuses on the judicial interpretations o f the 1915 Occupational
Accident Law and the laws consequences for workers. It shows that, although the law
potentially constituted a major improvement in the workers situation by abolishing the
notion o f fault and inverting the burden o f proof, the system adopted for payment o f the
compensation completely undermined the laws good intentions. By adopting a system
where workers were paid their compensation in monthly installments over a period o f ten
years rather than in a lump sum, the amounts accident victims or their families
received per month were completely insufficient to constitute any real mitigation o f the
difficult financial situation they confronted in the aftermath o f the accident. The courts
developed a dual jurisprudence in their interpretations o f how the compensation should
be paid. While the standard ruling was to adhere to the system o f monthly installments
adopted by the law, an alternative interpretation developed in the 1920s where judges
considered it their judicial privilege to order the payment o f the compensation in a lump
sum if the plaintiff could show that the monthly installments were insufficient for his
sustenance. In this fashion, judges continued to play a crucial role in shaping Argentine
labor law.
Chapter 4 examines a different way in which judges contributed to shaping labor
law in the period between 1900 and 1943 by analyzing the Supreme Courts rulings on
the appropriate jurisdiction o f labor legislation concerning the minimum wage and
limitations to the legal workday. It shows that the courts interpreted the new field o f labor
legislation as a mere extension o f the Civil Code, which made it the jurisdictional
authority o f the national government. One consequence o f this interpretation was to allow
for the possibility o f a unified, national labor legislation promulgated by the national
legislature. Ironically enough, however, by choosing to interpret the field o f labor
legislation as an extension of traditional civil law rather than a new legislative field, the
courts contributed to creating a situation in which Argentine labor law could not
adequately address the new situation o f labor-capital relations inherent to modem society.
Chapter 5 shifts the focus from the Civil Code to the Commercial Code and the
special dispositions contained in the latter concerning the relationship between
commercial employees and their employers. In accordance with the dominant
interpretation that labor law should be considered as an extension to the structures o f the
existing legal frameworks rather than a new legislative field, the Argentine legislature
used the Commercial Code as the basis for one o f the most extensive labor law reforms in
Argentina in 1934. By reforming seven o f its articles concerning commercial employees,
the Argentine Congress for the first time introduced such measures as severance pay and
paid vacations and extended benefits already existent in the 1889 Code, such as sick
leave and compensation for dismissal without previous notice. The chapter especially
focuses on the notion o f commercial employee and how the courts interpretation o f
this term changed over time. It shows that some courts even went as far as to extend the
benefits o f the Commercial Code to industrial workers, a trend that became particularly
pronounced after the 1934 reform.
Finally, Chapter 6 examines the importance o f the courts in regulating the
collective aspects o f labor law, such as unions status and activities. While the judiciary
played a crucial role in shaping labor law in its individual aspects, it had very limited
functions with respect to its collective expressions. With only a few unions having legal
standing and the very modest extension o f the practice o f collective bargaining until the
1930s, it is not to be expected that the courts to any significant degree would be called on
to rule in cases involving unions. Neither should it be expected that unions would be
interested in spending their scarce financial resources on litigation when they sorely
needed them to push for more immediate concessions from employers through strikes.
The chapter concludes that, when capital-labor relations became increasingly collective
rather than individual during the 1930s, a system where the courts rather than the
legislature and the executive defined the nature o f labor law was no longer sustainable.
25
CHAPTER 1
FROM AGRICULTURAL TO INDUSTRIAL NATION: ARGENTINA, 1900-1943
From an economy based solidly on the export o f primary products in 1900,
industry had become a pillar o f Argentine production by 1940. The shift constituted one
of the most important changes in the period between 1900 and 1943, and one that had
profound consequences for the social, political, and demographic makeup o f Argentine
society. This chapter will examine the different phases o f this economic shift and its
consequences and characteristics, with special emphasis on the changing relationship
between workers and the state. It will show that, although the period can usefully be
subdivided into three different phases; 1900-1920,1920-1930, and 1930-1943, the
fundamental characteristics o f the legal relationship between state and labor did not
change during the first forty years o f the twentieth century.
One o f the most noticeable demographic consequences o f industrialization was
the concomitant growth of the working classes. Based at the beginning o f the century
largely on the influx o f European immigrants, Argentinas demographic outlook did not .
just change in terms o f social class, but also in terms o f ethnic background. Socially
speaking, the new industrial reality brought forth profound changes in the relationship
between workers and employers. The new reality o f mechanized factory work created
completely new working conditions, subjecting workers to long hours, miserable salaries
and often dangerous work. Forced to confront these conditions, workers designed new
strategies to obtain improvements in their situation. One o f these strategies was to
organize collectively. The first labor unions in Argentina formed exactly at the time when
26
industry experienced its first development. Relying primarily on the weapon o f the strike,
workers put pressure on employers to reduce hours, raise wages and provide safer
working conditions.
During the period between 1900 and 1920, Argentina experienced incipient
industrialization closely tied to the dominant export sector o f the economy. Unions were
at this time primarily dominated by Anarchists, who launched several major strikes in
1902,1910, and 1916-17. Labors strike activities and the increasingly conflictive nature
o f the relationship between workers and their employers worried the government
considerably and forced it to put the social question on the political agenda.
Responding with a mixture o f repressive and concessive laws, the governing elites
alternated between suppressing social conflict and attempting to channel it through the
existing institutional structures.
The 1920s were primarily characterized by the first significant development o f
Argentine industry. Both industrial output and investment increased significantly, and as
a logical consequence, the working classes grew in numbers. Nevertheless, they were still
not numerous enough to make it necessary for the government to cater to their interests
for electoral purposes. In addition, industrial establishments maintained the small-scale
structure they had had during the preceding two decades. The real shift in the Argentine
economy, however, would come in the 1930s when its basis changed from agricultural to
industrial in response to the world economic depression, and the government for the first
time pursued industrial development by policy. Industrial establishments grew in size,
and the union movement and the practice o f collective bargaining grew with them.
27
In spite o f these distinctly different phases into which the period between 1900
and 1943 can be divided, the relationship between state and labor that was defined by law
changed little. The legal vacuum reigning in the field o f labor law remained unchanged
over the course o f these forty years, as Congress passed only a minority o f all the labor
legislation bills presented in its Chambers. The labor laws that were passed were often o f
a modest character, and the contested issue o f whether labor law should be local or
national in jurisdiction remained unresolved. In short, the first forty years o f the twentieth
century can accurately be described as a patchwork phase1 in Argentine state-labor
relations. The patchwork phase was one in which certain concessions were made to
labor to amend the worst abuses of capitalism and to prevent social conflict, but where
the concessions were generally o f a very limited nature. The present chapter is dedicated
to an analysis o f the evolution and characteristics o f state-labor relations between 1900
and 1943.
Incipient Industrialization in the Golden Age o f the Agricultural Economy. 1900-1920
At the turn o f the twentieth century, there was little doubt in the minds o f the
Argentine ruling elites as to what would be the bases o f the national economic order. In
accordance with the established principle o f comparative advantage, Argentina would
dedicate itself to what it did best: agricultural production for export. Other countries in
the world economic order would correspondingly dedicate themselves to what they did
best, which meant that European countries such as Great Britain, France and Germany
1The term is taken from Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age
(Cambridge, Massachusetts, and London, England: Belknap Press of Harvard University Press, 1998).
28
would provide the industrial production necessary to satisfy Argentinas import needs. By
exporting agricultural products such as beef, hides, wheat, maize, linseed, and wool, and
importing construction materials, rural and industrial machinery, transport and
communication machinery and equipment, fuel and lubricants, as well as both durable
and non-durable consumer goods, Argentina would achieve the economic growth
necessary to participate and successfully compete in the international race for progress
and civilization.2 By 1910 Argentina was the third largest exporter o f wheat in the
world after Russia and the United Statesand occupied an equally significant position
in the export of beef.3 The most spectacular economic growth in the agricultural export
model occurred between 1880 and 1914. During this period, the Gross National Product
(GNP) increased approximately 6 % per year, and the National Product per capita grew
by roughly 3 %.4 This was, in truth, the golden age o f the Argentine economy.
The fact that there was little doubt as to the desirability and appropriateness o f the
agricultural export model, did not exclude the presence o f a simultaneous industrial
development in Argentina. However, the industrialization that took place during the first
twenty years o f the twentieth century was o f a special kind. As Eduardo F. Jorge and
2 Argentinas export and import products are listed in on Carlos F. Diaz Alejandro, Essays on the Economic
History>o f the Argentine Republic (New Haven and London: Yale University Press, 1970), 5 and 15.
3 Fernando Rocchi, El pendulo de la riqueza: la economia argentina en el periodo 1880-1916, ed. Mirta
Zaida Lobato, Elprogreso, la modemizacion y sits limites (1880-1916), vol. 5 o f Nueva Historia Argentina
(Buenos Aires: Editorial Sudamericana, 2000), 30.
4 Ibid., 19.
Reproduced with permission of the copyright owner. Further reproduction prohibited w ithout permission.
29
others have pointed out, until World War I, Argentine industrialization was closely linked
to the exponential growth experienced by the agricultural export sector.5 The
manufacturing expansion taking place from the turn o f the century onward was
dominated by light industry and, in addition to being closely linked to the growth in
exports, was driven mainly by an increase in domestic demand. The core o f the industrial
activities taking place was centered around the production o f consumer goods, such as
food processing, textiles, wood and leather processing, ceramics and various handicraft
activities.6
Another characteristic o f this early industrial development was the relatively
small scale o f operation. As Diaz Alejandro points out, even [wjithin branches usually
expected to provide the more technically complex plants (like the metallurgical
industries), the bulk o f production was carried out in small labor-intensive establishments
(e.g. railroad repair shops).7 The owners o f the industrial establishments were in the
large majority immigrants, who probably found it easier to invest in industrial activities
than to acquire land, and who would often start off as merchants and then gradually
become manufacturing entrepreneurs using their commercial profits.8 As to the
geographic location o f industry, from its earliest stages manufacturing concentrated
5 Eduardo F. Jorge, Industriay concentration economica (desde principios desiglo hasta el peronismo)
(Buenos Aires: Siglo Veintiuno Argentina Editores, 1971), 43. See also Diaz Alejandro, Essays on the
Economic History o f the Argentine Republic, 212.
6 Ibid., 212-213.
7 Ibid., 213.
8 Ibid., 215-216. Michael Johns has also pointed out the connection between industrial activity and
merchant establishments and concludes that the merchant nature o f Argentine early industrialization
impeded the growth of a strong national industrial sector. See Michael Johns, Industrial Capital and
Economic Development in Turn of the Century Argentina, Economic Geography 68, no. 2 (April 1992):
1S8-204.
30
around the main domestic market in the area o f Greater Buenos Aires. According to the
1914 census, almost 61 % o f all manufacturing personnel was to be found in the Federal
District, with 15 % being located in the provinces o f Santa Fe and Cordoba.9
Nevertheless, other geographical regions played important, though smaller, roles
in the incipient industrial picture. Tucuman had since the arrival o f the railroad in 1876
experienced a rapid modernization o f its economy, one that centered around the
industrialization and expansion o f sugar cultivation. This new productive model was
consolidated in the 1880s and was also implemented in Jujuy, Salta, and Santiago del
Estero, although with important regional variations.10 Another regional economic center
with an industrial base was the wine regions o f Mendoza and San Juan. Both the sugar
industry in Tucuman and the wine industry in Mendoza and San Juan were primarily
geared toward domestic consumption.
The Emergence and Growth o f the Argentine Working Class
As the ruling elites attempted to resolve the equation o f how to create economic
growth, an important variable was the human base on which this economic growth would
depend. Founding father Juan Bautista Alberdi, coining the phrase gobemar es poblar,
saw the solution to Argentinas problem o f manpower to lie in European immigration.
Like Domingo F. Sarmiento, he considered European immigration as an injection o f
civilization from the old world, which would save Argentina from its backward and
9 Diaz Alejandro, 216.
10Daniel Campi, Economia y sociedad en las provincias del Norte, ed. Lobato, El progreso, la
mondemizacion y sus limites, 73-74.
31
barbaric cultural state.11 European immigration to Argentina began already in the
1850s, but it acquired massive proportions from 1880 onward. By 1910, approximately
2, 250,000 foreigners had settled in the country, the large majority o f whom were
Southern Europeans (Italians and Spaniards), but with significant contributions being
made by France, Eastern Europe (mostly Russian and Polish Jews), the Middle East, and
Central Europe (Germany and Austria-Hungary), in addition to smaller numbers coming
from Portugal, Switzerland, Belgium, and the Netherlands.12 These numbers do not take
into account the foreigners who stayed only temporarily. Seasonal migrations were a
common phenomenon o f the period, with large numbers coming for shorter periods o f
time to work in Argentina during the cycles o f sowing and harvesting and then returning
home, thus earning the name o f golondrinas, or swallows. Between 1881 and 1910
approximately 700,000 Italians and 200,000 Spaniards returned to their countries o f
origins instead of settling permanently in Argentina.13
Geographically, the immigrants concentrated in the littoral and the pampas, with
the Provinces o f Entre Rios, Santa Fe, La Pampa, Cordoba, Buenos Aires, and Mendoza
being the final destination for the vast majority, as well as the capital city o f Buenos
Aires. In spite o f the fact that the founding fathers main intention had been to populate
the vast Argentine countryside, immigrants concentrated in urban areas. Up to 50 % o f
the inhabitants of the city o f Buenos Aires were foreign-born in the period between 1895
11 Juan Bautista Alberdi, Bases ypuntos de partida para la organization politico de la Republica
Argentina, ed. Oscar Teran, Escritos de Juan Bautista Alberdi: El redactor de la Ley, (Buenos Aires:
Universidad Nacional de Quilmes, 1996), 101-181.
12 Ministerio de Agriculture. Resumen estadistico del movimiento migratorio en la Republica Argentina.

Anos 1857-1924. (Buenos Aires: Talleres Graficos del Ministerio de Agriculture de la Nacion, 1925), 4-5.
13 Ema Cibotti, Del habitante al ciudadano: La condition del inmigrante. ed. Lobato. El progreso, 368.
32
and 1914,14 but also other cities, such as Rosario, Cordoba, and Mendoza experienced a
significant influx o f immigrants.15 Thus, in the words o f Gino Germani, the result o f
foreign immigration was not so much the settlement o f the extensive, semi-uninhabited
rural areas, although this was achieved to a certain extent, but rather that o f providing an
abundant urban labor supply.. , 16
Incipient Labor Organization: The Predominance o f Anarchism
Immigrants brought with them more than their labor force, however. They
brought with them an experience from European industrial society, where the working
classes had developed strong practices o f labor organization. As the countrys governing
elites were preoccupied with the results o f the modernization processmeasured in
export surpluses, new avenues, and extravagant public buildingsworkers were the ones
who suffered its inherent insecurities and abuses. Long working hours, low salaries,
dangerous and unhealthy working conditions, and the recurrent threats o f unemployment
were just some of the darker aspects o f Argentinas booming economy during these
years. The first labor unions, or resistance societies as they were often called at the time,
were formed in .Argentine already in the 1880s.
The initial attempts at organizing a Socialist movement in Argentina came from
the German Club Aleman Vorwarts (German Workers Club), founded in Buenos Aires
14 Ibid., 368-369.
15 See, for example, Zulma Recchini de Lattes, El proceso de urbanization en la Argentina: Distribution,
crecimiento y algunas caracteristicas de la poblacion urbana, Desarrollo Economico 12, no. 48 (January-
March 1973): 867-886.
16Gino Germani, Politica y sociedad en una epoca de transicion: De la sociedad tradicional a la sociedad
de masas (Buenos Aires: Editorial Paidos, 1962), 194.
33
in 1882, as well as French and Italian Socialist groups that formed in the early 1890s. The
first Spanish-speaking and Argentine Socialist element appeared in December 1892 under
the name o f Agrupacion Socialista, and in 1894 this group joined with the French and
Italian groups to form the Partido Socialista Obrero Internaional (PSOI), or the
International Socialist Workers Party. With the additional contribution o f the Club
Vorwarts and the Centro Socialista Universiatorio, or the Socialist University Center,
fifteen representatives met in 1895 to draw up a charter and to issue a minimum program,
which were approved by the first party Congress in 1896.17
The first Anarchist organizations were also founded during the 1880s. At this
time, they were limited to small groups o f foreign activists who mostly dedicated
themselves to the study and discussion o f doctrine. The groups were o f a decidedly
libertarian and anti-organizational nature, and little attention was paid to the issue of
working class organization. This attitude would change by the middle o f the 1890s,
however, probably partly as a response to the emergence o f the Socialist Party. Under the
leadership o f Antonio Pellicer Paraire and Pedro Gori, the Anarchists promoted and
exhorted workers organization through their newspaper La Protesta Humana)* This
shift in ideology from a libertarian focus on the individual, and a rejection o f unions, to
an acceptance o f unions as a legitimate entity in the workers struggle also went under the
name o f Anarcho-Syndicalism.19 For the purposes o f this discussion, the word Anarchism
will be used to distinguish it from the more moderate ideological current o f Sindicalismo.
17 Richard J. Walter, The Socialist Party o f Argentina, 1890-1930 (Austin: The Institute o f Latin American
Studies at the University ofTexas at Austin. 1977), 15-21.
18 Juan Suriano, El anarquismo, ed. Lobato, El progreso, 307-309.
19 This is what Suriano refers to as mature Anarchism. Ibid., 310.
34
Based on the doctrine o f the French philosopher George Sorel, the Sindicalistas
considered the trade union, not the political party, to be the principal weapon in the
working-class struggle.20 This principle, shared by the Anarchists, clearly distinguished
the Anarchists and the Sindicalistas from the Socialists, who were determined to promote
social change by working within the existing political system, rather than by challenging
it from the outside. Nevertheless, there were also significant differences between the
Anarchists and the Sindicalistas with respect to their ideas o f how social change would be
brought about most efficiently. Where the Anarchists saw the working-class plight and
struggle as part o f a larger project to abolish the state altogether and create a new society
based on the completely autonomous individual, the Sindicalistas objected to imposing a
specific ideological and philosophical goal on all working-class organization. For them,
the most important aspects o f the labor struggle was to obtain concessions directly from
employers on such bread-and-butter issues as higher wages and shorter working hours,
and their goals would be achieved through strikes.
The ideological differences among the early labor movement were to have
profound consequences on the efforts to unify the various elements o f the working
classes in a strong and concerted struggle. The first attempt to bring together the
individual trade unions came in 1901, with the formation o f the Federacion Obrera
Argentina (FOA), or Argentine Workers Federation, where about thirty workers
organizations were represented from different regions in the country and o f different
ideological convictions. The initial unity proved to be short-lived, as the Socialist
minority abandoned the Federation already in 1902 to form its own organization, the
-0 Julio Godio, El movimiento obrero argentino (1870-1910): Socialismo, anarquismo y sindicalismo

(Buenos Aires: Editorial Legasa, 1987), 196.
35
Union Gremial de Trabjadores (UGT). From this point on, the Anarchists were the
dominant influence in the FOA, a position they would maintain until 1915. The Anarchist
dominance was reflected in the organizations name change in 1905 to Federation
Obrera Regional Argentina (FORA), or the Regional Argentine Workers Federation, in
line with the Anarchist opposition to the division o f the world into nation-states. At the
same time, the FORA congress formally approved anarcho-communism as the
ideological foundation for working-class organization, further preventing any
possibilities o f cooperation with other labor organizations, such as the Socialist UGT.21
The Anarchists were not only the dominant influence in working-class
organizations during this period, they were also a major driving force behind many o f the
strikes that took place. Although strikes had been a recurrent phenomenon during the last
two decades o f the nineteenth century, they acquired new dimensions and significance
from the turn o f the century. In November o f 1902, the FOA declared the first general
strike, with the support o f a range o f different unions representing such varied
occupations as bakers, cobblers, milliners, port workers, mechanics, brick layers and
textile workers, giving the strike unprecedented momentum.22 Throughout the 1900s and
1910s, strikes became a familiar presence and an inherent part o f Argentinas new,
modem social reality. Small-scale or large-scale, they were repeatedly called in the urban
centers especially Rosario and Buenos Aires over issues o f working hours and
conditions, salaries and union recognition. Most were defeated, but some ended in
:i Suriano, El anarquismo, 312; 315-316.
22 Ibid., 313.
36
favorable decisions for the workers, as was the case with the carriage drivers strike in
Rosario in 1907.23
In accordance with the dominant ideologies o f both Anarchism and Sindicalismo,
the labor movement rejected state intervention in its affairs. Only workers themselves
x
could be trusted to have workers best interests at heart, and any state or elite
involvement was viewed with great suspicion. Improvements in the conditions o f the
working class would be obtained directly from the employers through strikes, and not by
protective legislation from the government. Apart from the Socialists, who did not have a
strong influence in the organized labor movement during the first twenty years o f the
1900s, unions did not lobby the national legislature for the passage o f labor laws to any
great degree. The Argentine Socialist Party from the very beginning concentrated its
activity in the capital city o f Buenos Aires, although in later years it also had some
support in other urban centers. The Socialist Partys electoral success was also limited to
the capital. In 1904, the party had its first representative, Alfredo Palacios, elected to the
Chamber o f Deputies o f the National Congress, representing the district o f La Boca, one
o f the most traditional working-class areas o f the city o f Buenos Aires.24
That Palacios represented La Boca should not be taken as proof that the working
classes constituted the core of the party, however. Much has been made o f the reformist
and moderate character o f the Argentine Socialist Party, and with good reason. The pillar
o f the partys leadership was made up o f well-educated, middle-class intellectuals, as was
the case with the partys long-term leader and dominant figure, Juan B. Justo. Justo was a
23 Ibid., 316.
24 Jeremy Adelman, El Partido Socialista Argentino, ed. Lobato, El progreso, 284.
37
medical doctor o f great prestige and success, who in 1892 was appointed professor of
surgery in the Medical School o f the University o f Buenos Aires. Indeed, his interest in
politics had first found expression in the Union Civica de la Juventud, where he had
become a member o f the directive committee in 1890. His strong opposition to military
action o f any kind, however, alienated him from what was to become the Radical Party,
after the revolution o f 1890. According to Richard Walter, Justos commitment to
socialism was motivated primarily by sentiment, rather than by ideological convictions,
and was a result o f the problems o f misery, alcohol and general exploitation he was
exposed to in his encounters with his patients.23
His opposition to any kind o f revolutionary or military action held firm, and the
Argentine Socialist Party adopted a decidedly reformist and legalistic political program,
which was intended to bring about change through parliamentary action, not through
violence. Strongly influenced by positivism and the ideas o f Herbert Spencer, Justo
considered social change to be inherently evolutionary, but that it could and shouldbe
induced and guided towards the right goal through political interventions based on
science. Change should be promoted through economic policies that would limit the most
serious effects o f capitalism, but without challenging the capitalist system as a whole, as
socialism would only happen once capitalism had exhausted its productive potential.26
At the heart o f Justos idea o f Argentine socialism was the particular composition
o f the party itself. Based on a broad alliance o f industrial workers, rural chacareros, and
the urban middle class, the Socialist Party would generate enough momentum to bring
25 Walter, The Socialist Party o f Argentina, 18-19.
26 Adelman, El Partido Socialista, 268-270.
38
about social change through democratic reform.27 Justos dream was not to be, however.
The Socialist Party was never entirely at ease in its relationship with the urban working
classes, and the latter tended to opt for different forms o f political expression than the one
offered by the Socialists. This was especially the case at the beginning o f the century
when the dominant mood in working-class organization was Anarchism, whose ideology
rested on the very rejection o f the notion that social change could be brought about
through parliamentary reform. The workers who did decide to voice their political
opinions through traditional party organization just as often joined the Radicals as the
Socialists.28 Consequently, the Argentine Socialist Party was never able to rid itself o f its
predominantly middle-class composition and character.
The Introduction o f the Social Question
While the labor movement could afford to ignore the state, the state could not
afford to ignore labor. The national government had been particularly alarmed by the
1902 general strike, which had completely paralyzed all activity in the countrys two
major ports. In response, Congress declared a state o f siege and rapidly pushed through
the repressive Residence Law (Ley de residencia) the same year. According to the law,
any foreigner suspected o f instigating strikes or engaging in other kinds o f subversive
activities would be deported. The measure revealed the extent to which the ruling elites
considered working-class unrest to be primarily the work o f foreign agitators with
27 See Jose Arico, La hipotesis deJusto: Una propuesta latinoamericana de recreacion del socialismo
(Buenos Aires: Editorial Sudamericana, 1999).
28 Adelman, El Partido Socialista, 289.
39
extremist ideological convictions rather than an expression o f a real feeling o f social
injustice by the working classes o f Argentina.
Regardless o f how the elites wanted to interpret its causes, the strike had
definitively introduced the social question to the Argentine political agenda. The social
question was a label put on a range o f different issues including, but not limited to,
housing and working conditions, poverty, education, public health, and infrastructure and
was, as such, a much wider notion than the more modem concept o f social welfare.29
Debates raged in Congress and newspapers, as well as in the enlightened ambits o f
middle-class professionals, such as the universities, over the social problems inherent to
the condition o f modem society. As Juan Suriano has emphasized, the social question
was therefore a much wider notion than the workers question, or cuestion obrera. Yet
the workers question seemed to penetrate and intersect with almost all the other
aspects o f the social question.30
Concerned with the increasingly conflictive nature o f labor-capital relations and
the strong influence o f revolutionary ideologies in the labor movement, the governing
elites considered it pressing to propose reforms that could placate workers discontent
and incorporate them into the existing political structure. Alongside its repressive
response to labor unrest, the government therefore developed a strategy o f social
reform.31 A large-scale bill for a Labor Code was presented by Minister o f the Interior
For a discussion of the social question in Argentina, see Juan Suriano (ed.), La cuestion social en
Argentina, 1870-1943 (Buenos Aires: Editorial La Colmena, 2000). For a detailed account o f the many
different aspects o f the social question in its transatlantic context, see Rodgers, Atlantic Crossings.
30 Juan Suriano, Introduction: Una aproximacion a la definition de la 'cuestion social' en Argentina, ed.
Suriano, La cuestion social en Argentina, 2.
31 For an account of these first attempts at social reform and the reformers' rationale, see Zimmermann, Los
liberales refonnistas.
40
Joaquin V. Gonzalez in 1904, establishing the eight-hour workday, compensation in cases
of occupational accidents, and improved regulations o f working conditions in industry. It
also contained regulations regarding strikes and union organization. The bill met with
severe resistance from legislators, industrialists and workers alike and was never treated
in Congress. Instead, labor legislation was introduced in a piecemeal fashion, with the
passing o f the Sunday Rest Law in 1905, the Women and Child Labor Law and the
creation o f the National Labor Department in 1907, the Occupational Accident Law and
the Railroad Workers Pensions Law in 1915, and the Homeworker Law in 1918.
Although the organized labor movement rejected state interference in their affairs,
individual workers resorted to state institutions in an attempt to obtain a redress o f their
grievances already at the turn o f the century. Rather than the legislature, however, they
called on the judiciary to address their problems. In cases o f occupational accidents,
workers attempted to obtain compensation by suing their employers in court for damages,
regulated by the Civil Code. Commercial employees claimed compensation for
dismissals without previous notice in accordance with the dispositions o f the Commercial
Code. When ruling in cases pertaining to labor, judges stretched and bent the existing
legal frameworks in an attempt to accommodate workers concerns. In so doing, they,
too, attempted to channel social conflict through institutional structures and to carve out a
space for themselves as experts in the resolution o f the social question.
Social reform was not the only attempt to address the social question and to
incorporate the lower classes into the established institutional structure. Political reform
was also central to this goal. The conservative or oligarchic political order which had
existed from the 1880s, rested on a system o f institutionalized electoral fraud and
41
excluded increasingly numerous sectors o f Argentine society. The exclusion from the
political spoils system o f the increasingly powerful urban middle sectors o f society had
lead to widespread discontent, which had resulted in the foundation o f the Radical Party
in 1891. The Radicals staged several revolutions to topple to the oligarchic regime, one in
1890, a second in 1893 and a third 1905, but they all failed. Nevertheless, the Radicals
revolutionary attempts, as well as the influence exerted by the Anarchists among the
working classes, had convinced the government there was an urgent need to reform the
electoral system. Thus, in 1912, the government passed the Saenz Pena Law, introducing
the secret ballot, making voting obligatory, and for the first time making space for an
opposition minority in the legislative assembly through the system o f the lista
incompleta, or incomplete list. In the words o f David Rock, [t]he hope was to
institutionalise political participation, and to establish the ballot box as the main arbiter of
political change.32 In addition to targeting the Radicals, the reform also struck a blow to
the Anarchists, who had rejected participation in electoral politics in accordance with
their ideology that the state was hostile to their interests. After the 1912 Saenz Pena Law,
this strategy was no longer possible.
The passage o f the law in 1912 can also be explained by the second great general
strike, launched by the Anarchists in 1910. During the celebration o f the 100th
anniversary o f Argentine independence, a bomb had exploded in the majestic Teatro
Colon in Buenos Aires. The attack was rapidly attributed to the Anarchists, who
subsequently became the prime target o f another piece o f repressive legislation, the
Social Defense Law (Ley de defensa social). The law made Anarchism illegal and
provided for the deportation o f any foreigner suspected o f being involved in Anarchist
12 David Rock, Politics in Argentina, 36.
42
activities. With the Social Defense Law and the electoral reform taken together, the
Anarchist movement was considerably weakened, and, although it survived, its activities
would never return to the level o f the first decade o f the twentieth century. The reform
and the subsequent Radical electoral victory in 1916 inaugurated a new phase in
Argentine political life. The Radicals stayed in power through the 1920s, a decade that
also proved to be a new phase in Argentinas social and economic development.
The Origins o f Argentinas Modem Industry: The 1920s
The New Industry
A contested issue in the historiography of Argentine industrialization has been to
determine the dimensions and timing of its growth. One interpretation, which Javier
Villanueva has referred to as the 'Olympic version, has claimed that, although there
existed an industrial development in Argentina previous to 1930, industrial growth, in the
modem sense o f the term, came about only as a response to the economic depression of
the 1930s.33 According to Villanueva, however, Argentina experienced significant
industrial growth before the 1930s: One can see that the industrial capacity growth
rate.. . during the period 1911-1929 is at least equal to, or higher, than the period 1929-
1939.34 The author concludes that it was rather the decade o f the 1920s, which was the
starting point for the modem phase o f Argentine industrial growth.35 During the course o f
33 Javier Villanueva, El origen de la industrialization argentina, Desarrollo Economico 12, no. 47

(October-December 1972): 451.
34 Ibid., 455.
35 Ibid., 476.
43
these ten years, industrys share in the GNP increased significantly, as did investments in
the industrial sector. In fact, the highest investments in Argentine industry before World
War II took place during the years between 1924 and 1930.36
The origin o f these investments was, for the most part, North American, though
Germany also made significant contributions. One prime area o f foreign investment was
the Argentine oil industry, where 38 % o f the total capital came from outside the
countrys borders, and where the Standard Oil Company played a central role. Foreign
investors also dominated the construction industry, another sector that experienced
spectacular growth during this period. Closely tied to the general trend o f economic
growth, as well as rapid urbanization, there was an increasing demand for buildings,
roads, and port facilities, and the installation in 1916 o f the Compania Argentina de
Cemento Portland, was symptomatic in this respect.37 The period between 1914 and 1930
also saw the establishment o f Argentine branches o f well-known North American
companies such as Otis Elevator, Remington Rand, International Harvester, General
Motors, Standard Electric, DBM, Parke Davis, and Colgate Palmolive, among others.38
Despite the significant growth in the industrial sector during the 1920s, however,
it was not enough to change the structure o f the Argentine economy. Nor did it actually
change the structure o f industry itself. The main impulse for growth continued to be the
light industries, especially food processing, which in 1935 still constituted 37 % o f the
industrial sector, as compared to 48 % in 1914. A prevailing characteristic o f Argentine
36 Ibid., 458.
37 Juan Manuel Palacio, La antesala de lo peor: La economia argentina entre 1914 y 1930, ed. Ricardo
Falcon, Democracia, conflicto socialy renovation de ideas (1916-1930), vol. 6 o f Nueva Historia
Argentina (Buenos Aires: Editorial Sudamericana, 2000), 136-137.
38 Ibid., 137-138.
44
industry thus continued to be a dependence on the importation o f foreign technology and
raw materials.39 There also seems to be a general consensus among economic historians
that the period up to 1930 did not see a coherent industrialization policy on behalf o f the
government. Instead, the kind o f import substitution industrialization that took place
occurred more or less spontaneously as a response to specific conjunctures in the
economy, especially in connection with the special situation produced by World War I
in
and the economic crises in its aftermath.
With the increasing importance o f industry during the 1920s, there was a
concomitant growth in the industrial working class. Because o f the extremely poor census
materials for Argentina, it is very difficult, if not impossible, to know exactly how the
numerical composition of the Argentine working classes changed in the course o f this
decade. With the first census conducted in 1869, the second in 1895, and the third in
1914, the fourth did not appear until 1947. In the 1914 census, however, 64% o f the
population o f the city o f Buenos Aires belonged to the working class.41 Although
numbers from other parts o f the country were surely more modest, the estimate is enough
to imagine the size o f a significant working class in Argentina during the 1920s.
Nevertheless, industrial production in the 1920s continued to be dominated by small-
scale establishments and with primarily semi-skilled labor, thereby maintaining the
predominant characteristics of the preceding twenty years.
39 Ibid., 138.
40 Ibid., 141-142. See also Diaz Alejandro, 217 and Adolfo Dorfman, Historia de la industria argentina,
Buenos Aires: Ediciones Solar, 1970), 323-363.
41 The census estimate is taken from Rock, Politics in Argentina, 276.
45
The 1920s were not just an important decade with respect to growth and changes
in industry and the industrial working classes, however. Commercial life changed
significantly during these years, too. While the typical commercial establishment at the
beginning o f the century was the small comer shop run by its owner and maybe one or
two commercial employees, the 1920s saw the arrival o f the big department stores in the
urban areas. These large-scale commercial establishments profoundly changed the nature
of the relationship between commercial employees and employers, as well as the
formers working conditions. In the small comer shop, employees were closely controlled
by the employers, who as owners were ever-present in the establishment. Employees
often resembled servants more than personnel, as they frequently lived in the shop itself,
in a small back room, constantly on call. Because o f their dependent relationship with
employers, commercial employees often endured miserable working conditions with
excruciatingly long hours and minimal salaries.
In the new large department stores, the relationship between employers and
employees was profoundly different. First, it was much less personal. The managers with
whom the employees were in a daily contact were other employees instead o f owners o f
the establishment. It is doubtful that a majority o f department store commercial
employees saw their employers more than a few times during their careers. In the large
commercial establishments, employees were numerous and in great proximity to each
other, unlike what they were in the small stores, where one or two employees worked in
isolation. These factors contributed to making organization o f commercial employees
easier in the 1920s, at least in urban areas, than what it had been before. Finally, the
functions performed by commercial employees were significantly diversified and
46
specialized in the large establishments. While in the small comer shop the employee was
responsible for everything from attending customers to keeping books and cleaning, the
department stores had separate personnel for all these different functions. Different
employees were responsible for attending customers, wrapping the merchandise, putting
it on display or bringing it to customers homes. Thus, the nature o f commercial work
was significantly different in 1925 than what it had been in 1905, which was reflected in
a need for legislation regulating the new working conditions and commercial labor
relations in general. As Chapter 5 will show, by the early 1930s commercial employees
were in a particularly good position to obtain legislative reform.
Labor and the State in the 1920s
If the first decade o f the twentieth century was characterized by labor and the
government viewing each other with extreme suspicion, each feeling that the other was
challenging the very foundations o f its own existence, there were definitive signs in the
late 1910s and 1920s that this attitude was being modified by both parties. One o f the
most significant developments conducive to this change was the decline o f Anarchism
within the labor movement, as the Social Defense Law and the 1912 electoral law dealt a
severe blow to its foundations. Illustrative in this respect was the FORA's ninth congress,
held in 1915, where the Sindicalistas participated for the first time. The Sindicalistas had
formed their own organization, the CORA (Confederation Obrera Region Argentina), in
1909 and had functioned independently o f the FORA as a response to the latters
adoption o f anarcho-communism as the organizations exclusive ideology.
47
At the 1915 congress, however, the Sindicalistashaving dissolved their own
organization with the goal o f achieving unity in the labor movementmanaged to obtain
a majority in the FORA, displacing the Anarchists. They then proceeded to declare the
apolitical nature o f the FORA, whose only defining principle was to be that it was an
organization by and for the workers, but with no explicit ideological foundation.42 With
the Anarchists marginalized, the way was opened for a closer cooperation between the
state and the organized labor movement, as the Radical government found it much easier
to accept, and even recognize as legitimate, the Sindicalistas emphasis on bread-and-
butter issues than the ideological nature o f the Anarchists claims.
The Sindicalistas focus on concrete victories, such as increased salaries, better
working conditions, and reduced hours, in turn made it easier for the labor movement to
accept the intervention and mediation o f the state in conflicts with employers. To the
extent that the governments intervention had the potential to contribute to victories for
labor, the trade unions and workers federations were willing to let the state
play an active role in the negotiations. On several occasions, the workers organizations
accepted the arbitration o f state representatives, such as the chief o f police, or officials
from the National Labor Department. According to David Rock, the Radical governments
also played a role in labor-employer conflicts by selectively using its police powers to
favor one side or the other. In support o f the workers, the government would withhold
police forces, giving the strikers the opportunity to picket and to use their bargaining
power effectively. Another important element in the Radical governments policy toward
42 Ricardo Falcon and Alejandra Monserrat, Estado, empresas, trabajadores y sindicatos, in ed. Falcon,
Democracia, conflicto socialy renovation de ideas (1916-1930), 154-155.
48
labor, was to selectively grant unions access to Yrigoyen or other government officials to
voice their grievances.43
The selective nature o f the Radical governments attitude towards the labor
movement had various motivations. First, the Radicals were as concerned as the
conservatives had been with preserving the smooth functioning o f the agricultural export
economy. This made them potentially benevolent towards the trade unions representing
certain key economic sectors, and the government developed a particularly close
relationship with the Federation Obrera Maritima (FOM), who represented the dock
workers, as well as with La Fraternidad, who represented the skilled sectors of the
railroad workers. In the strikes launched by both o f these unions during 1916,1917, and
1918, the government withheld the deployment o f police forces, thereby forcing
employers to concede to the workers demands.44
David Rock also points to another factor that influenced the governments
decision on whether or not to take the workers side in labor conflicts; namely the
Radicals concern with electoral competition from the Socialists. In the frigorifico strikes
in Berisso and Avellaneda during 1917-1918, the marines were sent in to guard the
installations o f the, mostly American-owned, companies. In addition to the desire on
behalf of the government to keep the Americans on their good side and insure continued
investments in the Argentine economy, the competition from the Socialists in the
province o f Buenos Aires was miniscule compared to what it was in the capital, where
the railroad and dock workers strikes had taken place. Thus, outside the capital, the
4j Rock, Politics, 127.
44 Ibid., 129-131, and 134-156.
49
Radicals could dispense with catering to the workers demands, especially when the
interests o f powerful foreign investors were at stake.45
Despite the selective concessions made to labor by the government in this period,
however, severe repression was still the standard response when a conflictive situation
assumed threatening proportions or involved violence. This was the case with the Semana
Tragica, or Tragic Week, of January 1919, as well as the Patagonia rebellions in 1921.
The Semana Tragica was the outcome o f the escalation o f a labor conflict at the Vasena
metallurgical plant in the city o f Buenos Aires. The striking workers, demanding
increased salaries and a reduction o f the workday, attacked the wagons transporting strike
breakers. The police responded by opening fire, leaving four dead and over thirty people
hurt. This provoked the Anarchist unions to call a general strike for January 9, during
which there occurred severe clashes between police and striking workers, with even
higher numbers of casualties. The riots also involved conservative paramilitary groups,
organized by the Liga Patriotica, or the Patriotic League, who launched a literal
persecution o f Jews and Anarchists. In the end, troops were sent in to quell the rebellion,
but the state only managed to reinstate order after a whole week o f extreme social
upheaval46
The Patagonia rebellion illustrates that the social question reached far outside the
cities and involved rural as well as industrial workers. In 1920, the Sociedad Obrera de
Oficios Varios organized a strike, bringing together the aroaJsfrigonfico workers and
45 Ibid., 152-153. Ricardo Falcon has suggested that the Radicals may not have been motivated primarily by
electoral concerns in its interaction with unions, but that the influence o f krausismo and Yrigoyens rhetoric
o f the state as personifying the people played an important role in defining the states relationship with
labor in the 1920s. See Ricardo Falcon, Politicas laborales y relation Estado-sindicatos en el gobiemo de
Hipolito Yrigoyen (1916-1922), ed. Juan Suriano, La cuestion social, 111-125.
46 Falcon and Monserrat, Estado, empresas. 166-167.
50
rural laborers employed in the wool industry to protest the precarious working conditions
o f estancia workers. Sheepshearers worked up to sixteen hours a day, and frigorifico
workers up to twelve, in rooms without heat where temperatures could reach the extreme
o f -18 Celsius. In addition, there was extensive use o f promissory notes as payment
method; checks were often written in Chilean currency, and could only be cashed with
significant loss when converted to Argentine pesos. After various attempts to solve the
conflict, it flared up again in the spring o f 1921, and the government proceeded to declare
it an armed subversion (subversion armada). As such, it came under the dispositions o f
the military code, providing for the declaration o f martial law and the deployment o f the
army to repress the workers movement. When the military operation ended at the
beginning of 1922, the Socialist newspaper La Vangaardia estimated that about 1,500
workers had been killed.47
The Radicals continued the conservatives policy o f mixing repression with
attempting to make concessions to the workers in the legislative field. The most
ambitious initiative in the latter camp was the renewed attempt to pass a comprehensive
labor code, presented by President Yrigoyen in 1921. Its fate, however, was identical to
that o f the 1904 bill; it was never even debated in Congress. Some historians have
attributed its failure to the fact that the Radicals lacked a legislative majority in
Congress, but the claim is difficult to assess since the bill was never voted. Labor laws
that were passed by the national government during the 1920s included a national law
47 Marta Bonaudo and Susana Bandieri, La cuestion social agraria en los espacios regionales, ed. Falcon,
Democracia, 262-269.
48 See Falcon and Monserrat, Estado, empresas, and Falcon, Politicas laborales y relacion Estado-
sindicatos.
51
prohibiting the payment o f salaries in kind or in promissory notes (1925), a national law
prohibiting night work in bakeries (1926), andfinallythe national Eight-Hour Day
Law (1929).
In terms o f the organized workers movement, the 1920s were years o f relative
calm, and mobilization was increasingly difficult. While the new Sindicalista-dominated
FORA had around 70,000 members in 1920, its successor USA ( Union Sindical
Argentina), established in March o f 1922, only counted about 20,000. In
addition to recruitment problems, the workers movement experienced continued
difficulties with internal cohesion, and there were constant conflicts between the
Sindicalistas, the Socialists, the Communists, and the Anarchists. The presidency of
Marcelo T. de Alvear (1922-1928) saw a reduction in strikes o f about 50 % compared to
the presidency o f Yrigoyen. Among the factors that can explain the low incidence o f
social conflict in this period was the economic growth Argentina experienced between
1922 and 1928, a period in which workers obtained significant improvements in real
wages. The relatively prosperous economic conditions can also explain why strikes
concerning union recognition, and/or the reincorporation o f dismissed workers, became
more common than strikes over wage improvements. This period o f relative calm in the
social arena proved to be short-lived, however, and there was an intensification o f
conflict as Yrigoyen returned to the presidency in 1928.49
Similar to what had been the case during the 1900s and 1910s, unions preferred
strategy during the 1920s was to obtain concessions directly from employers through
strikes rather than to lobby the government for a comprehensive labor legislation. Even if
49 Falcon and Monserrat, 177-180 and 190-192.
52
they had chosen the latter strategy, it is doubtful whether they would have had the
sufficient strength during the 1920s to make the government act according to their
wishes. Although a much more significant numerical presence in the 1920s than during
the 1900s and 1910s, the working classes were not yet demographically important
enough to make it a necessity for politicians to cater to their needs for electoral support.
Individual workers continued to resort to the courts, however. In spite o f the passage o f
the 1915 Occupational Accident Law, litigation over accidents occurred in the workplace
did not decrease. Because there was often disagreement between the worker and his
employer about whether or not an incident constituted an occupational accident according
to the law, and because o f weaknesses inherent in the law itself, judges continued to play
an important role in adapting the law to the accident victims necessities. In addition,
judges in the commercial courts started to respond to the increasing diversification o f
Argentine commerce. Stretching the term commercial employee, they attempted to
include larger numbers o f employeesand sometimes even workers in the social
benefits provided by the Commercial Code.
The Mature Phase o f Argentine Industrialization: The 1930s
Although historians have concurred in the need to add complexity to the general
picture of the Argentine economy in the period between 1900 and 1930 by giving
increased attention to the 1920s, they still point to the year 1930 as the real turning point
in the countrys development from an agricultural to an industrial nation. In fact, the
agricultural export model was never seriously challenged until the stock market crash in
1929. In the words o f Juan Carlos Korol, it was only after 1930 that Argentina was
53
transformed into a country where industry effectively constituted the main driving force
o f the economy.50 One consequence o f the stock market crash and the subsequent world
economic depression was that countries that had previously invested capital beyond their
own borders were no longer in the position to do so. In general terms, economic efforts
and initiatives were now concentrated within the borders o f the nation-states, and
protectionist measures in the form o f tariffs were imposed in order to protect each
countrys national production.51
The concrete consequences for Argentina were an enormous fall in the traditional
exports o f meat and grains, and a subsequent difficulty to obtain the necessary capital to
pay for imports. This led to serious difficulties in the financing o f the Argentine state,
since the greater part o f state income was generated by taxes on foreign trade, particularly
imports.52 Another problem created by the crisis was the increasing disparity between
prices on imports and prices on exports. It is true that there were less imports available on
the market in the first place, and that the ones there were also experienced a severe price
reduction, but prices on the products customarily imported to Argentina did not fall as
much as prices on the countrys traditional export products. The situation created
increasingly unfavorable terms o f trade, which, together with the difficulty in obtaining
new investments and the obligation to keep up payments on the foreign debt, led to
constant deficits in the national budget.53 As in the United States, and large parts o f the
50 Juan Carlos Korol, La economia, ed. Alejandro Cattaruzza, Crisis economica, avance del estado e
incertidumbre politico (1930-1943), vol. 7 o f Nueva Historia Argentina (Buenos Aires: Editorial
Sudamericana, 2001), 20.
51 Ibid., 20-21.
52 Ibid., 21.
53 Ibid., 23.
54
world in general, one o f the most visible results o f the crisis was a serious increase in
unemployment. Reliable numbers as to exactly what percentage o f the Argentine working
population was affected by the crisis have been hard to come by, but estimates range
from 10 % to a soaring 28 % for the year 1932 when the crisis was considered to be at its
most acute.54
For the first time, the national government made the protection and promotion o f
national industry a central goal o f their economic policy. The industrial development in
the 1930s therefore differed from that o f the 1920s, which had largely occurred
spontaneously and without a policy initiative. The industrialization policy o f the 30s
consisted in an increase in import duties, as well as the creation o f a system o f multiple
exchange rates and exchange controls, which is what is commonly referred to as the
policy o f import substitution industrialization (ISI). These policies were mainly the
creation o f Federico Pinedo, who held the position o f Minister o f Finance from 1933.53
Another important government attempt to control and direct the economy, was the
establishment o f the Banco Central, or the Central Bank, in 1935, which was intended to
centralize economic operations, regulate credit and currency, and act as financial advisor
to the government, among other things.56
The industrial sector o f the national economy experienced significant growth after
1930 as a result o f these government policies. Estimates made by Roberto Cortes Conde
54 Ibid., 23-24.
55 For an outline o f the debate over the origins and authors o f the ISI policies, as well as a more detailed
description o f their specific contents, see Peter Alhadeff, The Economic Formulae of the 1930s: a
Reassessment, eds. Guido di Telia and D.C.M. Platt, The Political Economy o f Argentina, 1880-1946
(Houndsmills, Basingstoke, Hampshire, and London: Macmillan Press, 1988), 95-119. See also Diaz
Alejandro.
56 Korol, La economia, 31.
55
indicate a yearly growth rate o f 8 % in the period between 1930 and 1934,57 and during
the six-year period 1933-1939, manufacturing output rose by 43 %.58 The industrial
growth that occurred, however, was not evenly distributed throughout the industrial
sector. The larger part o f the growth took place in the textile industry, the metallurgical
industry, and in petroleum, and from this time onward the textile industry became one o f
the flagships o f Argentine industrial production.59 In addition to the changes in the
structure and relative importance o f different industries brought about after 1930, there
was another important change in terms o f the size o f industrial establishments. While one
o f the characteristics o f industrial production in the period leading up to 1930 was the
small scale o f operations and the predominance o f a skilled or semi-skilled workforce,
industrial production units now became bigger and more reliant on a workforce o f largely
unskilled laborers.
If living conditions for the working classes had been precarious during the first
three decades of the twentieth century, the world economic crisis that sparked off the
Great Depression seemed to set a whole new standard for hardship. The problem o f
unemployment assumed unprecedented dimensions, and with the imposition o f martial
law after the military coup in 1930, unions faced considerable obstacles to their activities
as well as their hopes o f victory. The Anarchists and the Communists were now forced to
operate clandestinely, and their leaders put in jail, tortured, or forced into exile. Also
other workers organizations found themselves the target o f repression. In addition, a
57 Roberto Cortes Conde, La economia argentina en el largo plazo: Ensayos de historia economica de los
siglos X IX y X X (Buenos Aires: Editorial Sudamericana: Universidad de San Andres, 1994), 207.
58 Diaz Alejandro, 103.
59 Korol, 38-39.
56
great number of employers took advantage o f the general climate o f repression and the
high levels o f unemployment to reduce salaries and lay off workers.60
After 1932, when General Agustin P. Justo took over the presidency from General
Jose Felix Uriburu and the political situation supposedly returned to normal, the
repression was less severe. In general, the unions not considered directly dangerous to the
social and political order were allowed to function, and the CGT (Confederation General
de Trabajadores) was founded only shortly after the military coup. The CGT was the
result of the merger o f the two workers federations, the Union Sindical Argentina (USA)
and the Confederacion Obrera Argentina (COA). The COA had been founded in 1926 as
a Socialist stronghold in opposition to the dominant Sindicalista tendencies o f the USA,
and the two coming together in the CGT was yet another attempt by the labor movement
to achieve strength in unity.61 The adverse economic conditions o f the 1930s served as a
strong incentive for workers to join unions, and the union movement gained
unprecedented strength during this decade. The 1930s was also when the practice of
collective bargaining took hold among labor unions.
In addition to allowing selective unions to operate within the parameters o f what
the military government defined as acceptable activities, the governments attitude
towards workers in the 1930s was strongly influenced by corporatist ideas. Along the
lines o f corporatist ideology, labor would be accorded a voice and a place in the political
structure, but always under the complete control and subordination to the state. The
government saw itself as playing a central role in the relationship between labor and
60 Joel Horowitz, El movimiento obrero, ed. Cattaruzza, Crisis economica, 246-247.
61 Ibid., 247.
57
employers, a role it intended to fulfill primarily through the National Labor Department.
Labor unions had started to resort to the government in times o f trouble already during
the late 1910s and 1920s. Especially the Union Ferroviaria (UF), which was the merger
o f the two major railroad workers unions La Fraternidad and the Federacion Obrera
Ferroviaria, had had privileged access to the government chambers. As the UF now
dominated the CGT, the tradition could be continued without major interruptions, and the
military regime accepted the CGT as a representative o f labor interests and concerns in its
interaction with the working classes.62
Thus, the military governments continued a Janus-faced policy o f alternating
between repression and concession in its interaction with the labor movement. If it had
become clear to many union leaders during the 1920s that a privileged relationship with
the government could result in concrete concessions from employers, this relationship
would become even more important in the 1930s. Not only were the unions still on many
occasions dependent on the governments support in labor conflicts when employers
refused to deal with the unions directly, but political connections became essential for the
unions to insure their own survival and functioning.
The peculiar political circumstances o f the 1930s especially benefited the part o f
the labor movement that had connections to the Socialist Party. The unstable government
coalition, the Concordancia, consisted o f a variety o f conservative forces brought
together in the Partido Democrata Nacional, the dissident sector o f the Radical Party,
bearing the label anti-personalists because o f their opposition to Yrigoyen, and the
Partido Socialista Independiente. The Independent Socialists were constituted as a
separate political party in 1927, after having functioned as a separate block o f the
62 Ibid.. 247-248.
58
Socialist Party since 1921. The Argentine Socialist Party, although weakened from a
series o f ruptures and internal controversies during the 1920s, constituted the main
opposition to the military government in Congress with forty-three representatives in the
Chamber o f Deputies.63
Desperately trying to maintain the facade o f democracy and legitimacy o f a
political regime that everybody knew rested on institutionalized electoral fraud, the
Concordancia was prepared to cater to socialist interests on certain issues, and most o f
the labor unions that operated fairly freely in the period had connections to the Socialist
Party. This was the case, for example, with the Federation de Empleados de Comercio.
The national federation was founded in 1932 and brought together unions representing
shopkeepers, sales clerks, and other commercial employees. Its leader Angel Borlenghi
initiated a series o f campaigns that turned out to be extraordinarily successful. Two labor
laws pertaining specifically to commercial employees were passed with local jurisdiction
in the capital and the national territories. One was the English Saturday Law, or the Ley
de sdbado ingles, which established the five-and-a-half day work week. The other was a
law prohibiting shops to stay open after eight o clock at night.64 In 1934, the government
promulgated a reformed Commercial Code, with important changes with regards to
layoffs and severance pay.65
63 Ibid., 252-253 and Dario Macor, Partidos, coaliciones y sistema de poder, ed. Cattaruzza, Crisis
economica, 57.
64 Ley de cierre de comercios.
65 Horowitz, El movixnento obrero, 253-254.
Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission.
59
Conclusion
This chapter has examined the changing relationship between workers and
employers and between workers and the state during the years between 1900 and 1943.
The period between 1900 and 1920 was characterized by small-scale, incipient
industrialization and a rejection o f state involvement in union affairs. With the 1920s
came Argentinas first major industrial development, but industry was still based on
small-scale establishments and semi-skilled workers. The industrialization that occurred
was spontaneous and not a result o f a conscious government industrialization policy.
After the demise of Anarchism in the latter half o f the 1910s, the organized labor
movement was dominated by the ideological current o f Sindicalismo. Although the
Sindicalistas emphasized that labors concessions should be obtained directly from
employers, they were not averse to state mediation when they considered it to be to their
benefit.
The 1930s marked the real watershed mark in Argentinas evolution from an
agricultural to an industrial nation. The 1929 stock market crash and the subsequent
world economic depression resulted in the government developing an import substitution
industrialization policy. Unions grew in strength and numbers, both because the larger
size o f industrial establishments and workers closer proximity facilitated organization,
and because the adverse economic conditions made unionization a more attractive
alternative to workers than ever before. The practice o f collective bargaining increased
significantly, and unions commonly relied on the state to put pressure on employers to
accept labors proposed conditions.
60
Despite these distinctly different phases, the period between 1900 and 1943 with
respect to the legal relationship between labor and the state is most accurately understood
as a whole. The changes that occurred were smaller changes within the established
foundations o f the relationship; they did not constitute a challenge to or a shift in the
foundations themselves. The governments patchwork approach to labor, one in which
certain legal concessions were made to amend the worst abuses o f the capitalist system
and to prevent social unrest, but where the concessions were generally modest and o f a
partial character, changed little. Only a fraction o f the labor bills presented to the
Argentine Congress were converted into law, which makes it appropriate to speak o f a
legal vacuum in the field o f labor law for the whole forty-year period between 1900 and
1943. A second characteristic o f the period was the relatively modest character o f the
laws that were actually passed. The Eight-Hour Day Law, for example, to a large degree
confirmed a practice already established as a result o f labors strike activitiesor by
provincial lawsand did not constitute a radical new protection. The continuing
unresolved nature o f labor legislation jurisdiction; i.e., whether laws should be national or
local in jurisdiction, constituted another characteristic o f the patchwork phase o f
institutional state-labor relations in Argentina in this period.
Nevertheless, it is important to keep in mind that the legal relationship between
state and labor consisted o f more than the pieces o f legislation that actually made it out o f
the congressional chambers. In the absence o f labor legislation, the courts applied the
general dispositions o f the Civil and Commercial Codes in cases involving labor. Thus,
state-labor relations did not only involve the legislative and executive branches o f the
state, nor just the organized labor movement. They also included individual workers
61
interaction with the judiciary. The prominent role played by the courts in state-labor
relations and the definition o f labor law in Argentina between 1900 and 1943 constituted
an inherent and logical component o f the so-called patchwork phase o f state-labor
relations. By stretching the existing dispositions o f the Civil and Commercial Codes to
accommodate workers grievances on a case-to-case basis, the courts formed part of, and
even reinforced, the general ad-hoc nature o f state-labor relations in this period. How
they did this is what will be discussed in the following pages.
62
CHAPTER 2
EXPANDING THE NOTION OF FAULT: OCCUPATIONAL ACCIDENTS
BEFORE 1915
At the turn o f the twentieth century, Argentina had already been experiencing the
rapid social and economic changes, often referred to as the process o f modernization, for
a couple o f decades. Despite the abstraction, modernization was probably something
very concrete and immediately identifiable for most people experiencing it. For one, life
moved faster. With the new developments in transportation and communications, people,
goods, and information traversed space in much shorter time-spans than before. Life
became more complex. Social relations were more intricate in the rapidly growing cities
than what they had been in the countryside. Immigrants poured into the country from
different European countries o f origin to stay for a while, or maybe for good. The
capital o f Buenos Aires was a chaotic scene o f different languages, pasts, and dreams for
the future.
Modem, urban, industrial life although alluring in its possibilities also
involved new risks. There was the chance o f becoming the victim o f crime, or o f diseases
that originated and spread under crowded housing conditions and poor hygienic
standards. The workplace presented its own set o f dangers. With the growth o f the new
industries and the mechanization o f old trades, people were increasingly working with
machines that it took skill and concentration to operate properly. A moments inattention
could produce accidents resulting in anything from the loss o f fingers, hands, or whole
limbs, to the loss o f life itself. Even occupations that were not industrial or mechanized
63
were potentially dangerous. A bricklayer working on the construction o f a building could
slip on his scaffold and fall to the ground; even a commercial employee ran the risk o f
being hit by a falling object or otherwise suffer an injury from simply performing his job.
For the worker and his family, a temporary or complete incapacitation as a result o f an
accident was a serious threat to their survival. The death o f the main breadwinner could
produce an untenable situation in working-class families, which commonly consisted o f
several children and often various other dependents, such as old parents or younger
siblings.
The occupational accident1 was a very visible expression o f the darker sides o f the
much coveted state of modernity and one that received a lot o f attention in the debates
about the social question. The injustice in the situation where a worker could lose his
life or livelihood from the sheer fact that he was performing his job was not lost on either
the political elites or on public opinion in general. Consequently, it is not surprising that a
bill on occupational accidents was among the first protective labor bills to be presented to
Congress, in 1902. The bill, however, did not prosper and ended in the oblivion o f the
congressional archives. Other bills were presented in Congress during the course o f the
following ten years, but with the same result. In 1913, the Argentine legislature passed its
first occupational accident law but with a limited application to state employees. Only in
1The term occupational accident seems to be the most accurate translation of the
Spanish term accidente del trabajo." It is also the term that most accurately represents the phenomenon.
Whereas a more common expression in English is industrial accident, this would not cover the range of
accidents that occurred in the workplace in Argentina in the early twentieth century. In fact, according to
the investigations o f the National Labor Department, the occupational groups that suffered the highest
number of occupational accidents were carriage drivers (carreros) and bricklayers (albaniles). Accidents
produced by the kick o f a horse or from falling off a platform or ladder while laying bricks can hardly be
characterized as industrial. The legal notion of accidente del trabajo included any accident that occurred
in the workplace during the performance of regular work functions.
64
1915 was a national law o f occupational accidents finally passed that applied, with
certain limitations, to industrial workers in general.
In the absence o f a law to protect them, Argentine workers in certain cases turned
to the courts for a redress o f their grievances. However, it was impossible for workers to
file lawsuits over occupational accidents per se, sinceuntil 1915 no law existed that
could serve as a basis to their claim. Instead, they sued their employers for damages by
invoking the general dispositions o f the Civil Code, whose regulation o f the right to
damages was embodied primarily in Article 1109.2 This chapter examines how judges
ruled in cases o f occupational accidents between 1900 and 1915 and will show how their
interpretations o f the Civil Code changed over time. The changes and developments in
interpretations can roughly be divided into two periods: The first lasted until 1905 and
will be called the period o f restrictive or classical interpretation. The second period,
from 1905 and until the passing o f the Occupational Accident Law in 1915, will be
referred to as the period o f sociological interpretation.3
While during the first period judges interpreted the Civil Code rigidly to its letter
and uniformly dismissed workers claims to compensation, they started to develop new
ways o f thinking about occupational accidents within the general principles o f the Civil
Code after 1905. Through these new interpretations, judges attempted to carve out a
space for the legitimacy o f workers claims and increasingly saw it as their duty to apply
2 Article 1109 o f the Argentine Civil Code states: 'Any one who performs an act, and whose fault (culpa)
or negligence (negligencia) causes a damage to someone else, is under the obligation to compensate the
damage.. . .
* The terms are taken from Federico Figueroa, La jurisprudencia nacional sobre accidentes del trabajo.
Boletin del Departamento Nacional del Trabajo (hereafter BDNT), no. 20 (31 July 1912): 35.
65
the principles o f the Civil Code in such a way that they could accommodate the
necessities o f the new social and economic reality.
The Restrictive or Classical Interpretation. 1900-1905
The right to damages embodied in the Argentine Civil Codes Article 1109
centered on the notion o f fault. In short, it was necessary for anyone suing a person for
damages to prove that the defendant had been either directly at fault in producing the
damage, or that the damage was due to the defendants negligence. This principle had
first been established in ancient Roman law and was referred to by the Romans as the
Aquilian Law, named after its initiator, the plebeian Aquilio Galo.4 The main problem
in applying the principle o f fault to cases o f occupational accidents was that most such
accidents did not occur because the employer caused them directly through fault or
negligence. Rather, they were accidents inherent to the nature o f industrial work.
Working with machinery was potentially dangerous in itself and became even more so
when one considers the long hours and the often deplorable working conditions the
Argentine workers were subject to at the turn o f the twentieth century.
Only about 25 % o f all occupational accidents could be attributed to the direct
negligence or fault o f the employer. Another 25 % were estimated to have been caused by
the workers own imprudence, and the remaining incidents occurred without anyone
being directly responsible. Thus, approximately 75 % o f all occupational accidents fell
4 Gonzalo Figueroa Gacitua, La culpa en materia de accidentes del trabajo. Su estudio en el derecho
argentino. (Tesis para optar al titulo de doctor en jurisprudencia, Universidad Nacional de Buenos Aires -
Facultad de Derecho y Ciencias Sociales, 1918), 31-34.
66
outside the dispositions for damages in the Civil Code.5 With a literal interpretation o f the
notions o f fault and negligence, workers had little hope o f obtaining compensation, and
the first cases of occupational accidents tried in the courts confirm this statement. It is no
coincidence that these occurred in the jurisdiction o f the capital o f Buenos Aires, since
this was countrys undisputed industrial center at the time. The Capitals Civil Court o f
Appeals ruled uniformly during these years, establishing the doctrine that, to be eligible
for compensation for damages, it was necessary to prove that the occupational accident
had been caused by the direct fault or negligence o f the defendant.6
In 1903, however, this restrictive interpretation was challenged for the first time
in a ruling by Judge Ernesto Quesada in the Capitals Civil Court in the first instance. On
27 June Quesada ruled that the worker Bautista Lenardon was entitled to a compensation
of 5,000 pesos from his employers Del Piano and Lucas, the owners o f the mill Solis.
Lenardon had broken his leg when the scaffold on which he was standing collapsed. He
initially sued Del Piano and Lucas for 15,000 pesos for the damages produced by the
accident, but Judge Quesada reduced this to 5,000 pesos.7 Quesadas rationale for his
decision illustrates a new way o f interpreting the notion o f fault in cases o f occupational
accidents:
The carelessness attributed to the plaintiff thus dismissed, and confirming the common
use o f the scaffold and that this collapsed because it was not sufficiently sturdy, the
5 Ibid., 40.
6 Figueroa, La jurisprudencia nacional," 38.
7 It should be noted that, even if the amount was reduced from the plaintiffs initial claim, 5,000 pesos was
still a significant amount o f money in 1903. According to statistics from the National Labor Department,
the average monthly salary for an experienced bricklayer ranged between 70 and 120 pesos at this time.
Even if we operate with the maximum range of this scale; i.e., a salary o f 120 pesos per month, Lenardon's
compensation still amounted to three and a half times the yearly salary o f a skilled bricklayer. For a list of
average salaries for various occupations in 1903, see BDNT, no. 5 (30 June 1908): 245-251.
67
carelessness is attributable to the defendants as owners o f the establishment. Not only
were they negligent in ordering the plaintiff to perform a job that was not within [the
range of] his sk ill..., but they were careless in failing to assure the good conditions o f
their equipment. Their fault is evident.. . . [I]t is current doctrine that, however modest
the fault, it is enough to establish the responsibility o f he who causes a damage through
an act or who, by negligence, fails to adopt the measures called for by the simplest
notion o f caution in order to prevent an accident.. . .8
According to Quesada, fault was not only attributable to someone who through a
direct action caused a damage, but also to someone who failed to take the necessary
precautions in order to insure the prevention o f an accident. In his interpretation, the
notion o f fault not only embodied action, but also an omission to act, which considerably
extended the meaning o f the term fault in comparison to the previous sentences. Emesto
Quesada was therefore the first judge to uphold the doctrine that Rafael Bielsa later
eloquently summarized in the following way: [WJhere there is fault, whether this
consists o f carelessness or negligence, action or omission, the legal principle [of fault] is
applicable.. . .9 Quesadas sentence was not upheld in the court o f appeals, however,
where the traditional and restrictive interpretation o f the Civil Code was reiterated. The
court ruled that if the accident is caused by the workers own lack o f foresight,
compensation for damages is not admissible, and that the owners or employers o f the
factory are not obliged to personally supervise the state o f the equipment commonly used
by the worker. 10 Although the classical or restrictive interpretation o f the Civil Code was
upheld by the court o f appeals in this case, it turned out to be challenged more decisively
8 Sentence cited in ibid., 39.
9 Rafael Bielsa, La culpa en los accidentes del trabajo. Su estudio y critica en la ley argentina (aspecto
juridico de la cuestion) (Buenos Aires: J. Lajouane & Cia., 1919), 43.
10 Sentence cited in Figueroa. La jurisprudencia nacional, 39-40.
68
only shortly afterward.
The Sociological Interpretation. 1905-1915
Another sentence pronounced by Emesto Quesada on 10 May 1905 initiated a
whole new phase in Argentine jurisprudence in the field o f occupational accidents. In the
case Olivera v. Mareyra y Othacche, Carmelo E. Olivera sued the employers o f his son,
Jose Moreyra and Jose Othacche, for the damages the son had suffered in an occupational
accident in their textile factory. Olivera Junior, who was a minor, had lost his hand when
it got caught in a machine in the factory on 10 December 1902, and Judge Quesada
sentenced Mareyra and Othacche to pay the minors father 3,000 pesos. In his rationale
this time, Quesada went even further than in his 1903 sentence in reinterpreting the
principles o f the Civil Code and their application to cases o f occupational accidents.11
In an analysis o f the sentence, Federico Figueroa synthesized the three important
principles it established:
1. That the action for damages in these cases (of occupational accidents) is not only
appropriate when one can prove the fault or negligence on behalf o f the employer.
What constitutes the ground for action is the damage suffered without reason, whatever
may be the cause, however good the machinery used, and however thorough the
supervision o f employers and foremen may be.
2. That our Civil Code, without awaiting special labor laws, has legislated the matter
with such ample criterion that nothing escapes its regulations; this has also been
established by the jurisprudence o f the Supreme C o u rt.. . .
3. That it does not fall to the worker to prove fault; instead, that proof, on inverted
terms, falls to the employer. With this established,. . . there is no reason to consider
the responsibility or intention o f the immediate agent in the act. One only considers the
act that has produced the damage, because the employer answers for the acts o f
industry whether or not these are produced by the workers, by the objects forming part
o f or intervening in the industry, whether they are due to proper fault or the objects
risk, whether they are acts o f nature or they result from the industry itself. [The
employer is responsible] in all cases where the damage suffered by the worker or
11 The sentence and its rationale is reproduced in its entirety in ibid., 44-49.
69
employee cannot be attributed to his [the workers] own fault or intention.12
Each one o f these points established important juridical principles and precedents
that are worthy o f a more detailed analysis.
From the Doctrine o f Fault to the Doctrine o f Occupational Risk
Maybe the most significant and innovative interpretation by Quesada in this 1905
sentence was his dismissal altogether o f the relevance o f the traditional notion o f fault, on
which all previous sentences had been based. Instead o f needing to prove fault or
negligence on behalf o f the employer, Quesada stated that the employer is responsible
for whatever damage the worker or employee may su ffer.. .due to the nature o f his work
or on the occasion o f work, and for whatever damage he would not have suffered, had he
not accepted the job, even if it is accidental or produced by acts o f God. 13 This new
notion that the employer was inherently responsible for any and all kinds o f accidents
suffered by a worker while performing his job, is usually referred to as the principle o f
occupational risk.
The doctrine o f occupational risk was not an original innovation attributable to
Judge Quesada, however. Julio Favre in France had initiated it at the end o f the
nineteenth century, and most European countries had adopted it as the appropriate
juridical principle on which to base legislation pertaining to occupational accidents. The
doctrine of occupational risk had three fundamental principles: First, that there is an
12 Ibid.. 44.
13 Ibid., 46.
70
inherent risk to all industry, especially large industry. Second, that the employer, as the
representative o f industry, has to assume the responsibility for this risk. This applies in all
cases, regardless o f whether the employer is at fault, whether precautions have been
taken, in short, regardless o f all circumstances. Third, that the compensation received
should be equivalent to the damage occurred.14
The Principle o f Analogous Interpretation
It is interesting to note that Quesada did not invoke foreign legislative precedents
as the foundation for his use o f the principle o f occupational risk. Rather, he invoked
articles from the Argentine Civil Code as well as from the Commercial Code. Quesada
argued that the foundations for the doctrine o f occupational risk could be found in
Articles 1731,1953,1954, and 2224 o f the Civil Code, as well as in Articles 156,414,
and 1010-1015 o f the Commercial Code. However, most o f these articles regulated
matters that did not even remotely resemble occupational accidents. The articles o f the
Civil Code were dispositions regulating the responsibility between associates, partners,
mandatories, and depositories o f companies, and their right to compensation for damages
suffered in the capacity o f their involvement in the company. Slightly more relevant to
the case in question were the articles Quesada invoked from the Commercial Code,
especially Article 156 and Articles 1010-1015.
The Commercial Codes Article 156 established that principals o f commercial
establishments were responsible for all damages suffered by their employees
(dependientes) while at their service. Article 414 stated the right o f business associates
14Alejandro Ruzo, Fundamentos juridicos del riesgo profesional, BDNT, no. 20 (31 July 1912): 17.
71
(socios) to compensation for all damages suffered due to their involvement in the
company. Again, the situation regulated by the latter article does not seem to bear much
resemblance to an occupational accident. Articles 1010 to 1015 deal in detail with
crewmembers and their rights in the case o f illness and accidents, and contain a detailed
definition o f the responsibility o f the employer with respect to his employees. The main
principle was established in Article 1010: Any one o f the crew members who falls ill
during the course o f the trip, either in the ships service or fighting enemies or pirates, if
he is hurt or mutilated, will continue to receive his stipulated salary. He will receive
medical attention at the expense o f the ship, and, in the case o f mutilation, he will be
compensated according to arbiters decision (arbitrio judicial) in the case o f a plea
(contestacion) . . . ,15 Not only was the ship owner responsible for the compensation o f
any sort o f damage or accident suffered by the crew members, but he was also obliged to
pay their medical expenses in cases o f illness.
It seems a plausible assessment to say that Articles 156 and 1010-1015 o f the
Argentine Commercial Code employ a much wider notion o f the employers financial
responsibility in the case o f accidents or illnesses in the case o f crew membersthan
what was embodied in the Civil Codes Article 1109 about fault. Nevertheless, these
articles of the Commercial Code were vestiges o f older legal principles from the time
when the basic legal unit was the corporation rather than the individual and o f older
maritime law, and one can hardly legitimately claim they embodied the modem doctrine
o f occupational risk. In any case, it seems dubious to apply these articles regarding
commercial employees, associates, and crewmembers to the case o f an occupational
accident having occurred in a textile factory.
15 Ibid.
72
In order to bridge this gap in his rationale, Emesto Quesada invoked the principle
o f analogous interpretation. The principle o f analogous interpretation was the notion
that judges were under the strict obligation to pronounce a sentence, regardless of
whether or not a law existed which covered the case in question. In the absence o f a law,
they would have to base their decision on other legal dispositions with analogous
relevance to the case in question. The judges obligation to rule in all cases presented to
the courts had been established by the Supreme Court and was also established in Articles
15 and 16 o f the Civil Code.16 Thus, Emesto Quesada introduced for the first time in
Argentine jurisprudence the doctrine o f occupational risk by claiming that it followed
from the analogous interpretation o f articles o f the Civil and Commercial Codes.
To claim that the employers responsibility in cases o f occupational accidents was
a given, regardless o f whether or not he was at fault, was doubtless a bold and
innovativenot to mention controversial interpretation o f the Civil and Commercial
Codes. To understand Quesadas radical decision, it is important to pay careful attention
to the historical moment in which he pronounced his ruling. The first time he made room
for the plaintiffs claim to damages was in 1903, the year after the first big general strike
had taken place in Argentina. The strike had caused considerable concern among the
governing elites, who had responded by declaring a state o f siege and promulgating the
repressive Residence Law. In addition to repressive measures, however, the government
realized the need to propose long-term institutional solutions to the social question which
16 Fallos de la Suprema Corte, LIII:295. Article 15 o f the Argentine Civil Codes reads: The judges cannot
refrain from sentencing under the pretext o f the absence, obscurity or insufficiency o f the laws. Article 16
states: If a question in civil law cannot be resolved either by the words or the spirit o f the law, one will
look to the principles o f analogous laws; and if there is still doubt, one will resolve according the general
principle o f justice {derecho), considering the circumstances o f the case.
73
had so forcefully made its entrance on to the Argentine political stage. The legislative
response was to present a Labor Code bill in 1904.
The need to channel social conflict through institutional structures to prevent it
from assuming more radical expressions was not just perceived by the legislators, but
also by judges. Quesada himself expressed this concern in a talk he gave in 1907 at the
University o f Buenos Aires, where he was also a professor o f Political Economy. He
worried that, if the indifference among intellectuals to the antagonism between labor and
capital continued, the class struggle and its Marxist Gospel was threatening to make
into a terrifying problem something which appropriately directed could be just a more
or less normal accident in the Argentine development.17 Quesada took it upon himself to
provide this appropriate direction when ruling in labor cases in his courtroom.
Inverting the Burden o f Proof
In the extension o f his radical introduction o f the principle o f occupational risk,
Quesada established another juridical principle, which would prove even more important
in terms o f the influence it would have on future jurisprudence. This was the principle of
the inverted burden o f proof, or inversion de la prueba. According to the classical
interpretation o f the Civil Code, it was the worker who had to provide proof o f the
employers fault or negligence. However, the core o f the doctrine o f occupational risk
was the automatic presumption o f the employers responsibility. If the employers
responsibility was automatically presumed, it would no longer fall to the worker to prove
the employers fault; rather, it would fall to the employer to prove the existence o f special
1 Ernesto Quesada. "La cuestion obrera y su estudio universitario," BDNT. no. 1 (30 June 1907): 112.
74
circumstances absolving him o f his responsibility to compensate. What fell to the worker,
then, was to provide evidence o f the accident and his position as the defendants
employee, as well as to prove that the accident occurred while performing his job. In
short, an automatic presumption o f the employers responsibility shifted the burden o f
proof from the worker to the employer.
The Importance o f Quesadas Sentence
There can be no doubt about the transcendental importance o f Quesadas
sentence. As Miguel Angel Garmendia stated: Dr. Quesada boldly established, as seen
[in this sentence] the doctrine o f occupational risk embodied in Law 9688, ten years
before this was passed. He is the first judge in Argentina to have studied scientifically the
question of the employers responsibility and to have resolved it according to the

t o
criterion that prevails today in all the civilized world . . . Quesadas decision was far
from uncontroversial, however. When the court o f appeals ruled upheld the sentence, the
judges conveniently confirmed its outcome, but refrained from commenting on its
rationale. That is, they upheld the decision that Olivera was entitled to damages from his
sons employers, but justified their decision by claiming that the Mareyra and Othacche
had shown carelessness in employing a child to perform a dangerous factory task. They
had therefore been at fault.19
18 Miguel Angel Garmendia, Jurisprudencia del trabajo. Exposicion y critica. (Buenos Aires: Libreria 'La
Facultad de Juan Roldan, 1918), 29.
19 Figueroa, Jurisprudencia nacional, 40.
75
Thus, the court o f appeals based their decision on an expanded definition o f the
traditional concept o f fault and not the principle o f occupational risk invoked by Quesada.
In fact, few judges were willing to go as far as Quesada in claiming that the doctrine o f
occupational risk was actually embodied in the Civil Code by analogous interpretation.
Rather than automatically presuming the employers responsibility, judges after 1905
stretched and bent the dispositions o f the Civil Code in an attempt to prove it. Just like
the court o f appeals, they based their rulings on the traditional, albeit expanded, notion o f
fault.
The Expanded Notion o f Fault
The expanded notion o f fault was invoked in different ways and under different
circumstances in the cases presented in the courtrooms between 1905 and 1915. If the
worker and his counsel were able to show that the accident was due to the omission o f
even the most minimal precaution to ensure worker safety, there was a good chance the
judges would rule in their favor. The same was the case when the accident was produced
by the failure o f any o f the equipment used. As such, these were analogous cases to
Quesadas 1903 sentence, which had established that it was the employers responsibility
to take all possible measures to prevent the occurrence o f accidents. This included
insuring the good condition o f his establishments equipment.
In Antonio Messina v. Medici y Lacaze, a federal judge of the capital, Agustin
Urdinarrain, on 14 September 1909, sentenced the company o f Medici and Lacaze to pay
Antonio Messina 12,000 pesos in damages for an accident his son had suffered on board
their ship Beatriz Amanda P. The accident occurred when the chain o f a loading crane
76
broke and the load came down on the minors left leg, shattering it completely below the
knee. The court o f appeals confirmed the sentence on 30 September 1909, upholding
Urdinarrains ruling that the employer is responsible for the damages caused in an
accident produced by the faulty equipment that is his property.20
Another example o f this principle can be seen in the case Jose Orlando v. Enrique
Fynn, sentenced by Judge Jorge de la Torre o f the Capitals Civil Court in the first
instance on 31 December 1909.21 In this case, the blacksmith Jose Orlando had been
injured when he fell down the stairs to the basement o f Enrique Fynns workshop.
According to Orlando, the accident had occurred because o f the dangerous conditions of
the basement entrance. The only access to the basement was through an opening in the
floor, an opening that was partially obstructed by an iron beam. In order to descend into
the basement, it was necessary for the blacksmith to bend under the iron beam to reach
the movable staircase leading from the opening in the floor and down to the workshop.
The staircase was without handrails. As Orlando approached the opening, he did not bend
down far enough, hit himself on the iron beam and fell into the basement.
Jorge de la Torre, basing his sentence on the responsibility o f the employer to
compensate an accident provoked by the omission o f safety precautions, ruled that
Enrique Fynn should pay the accident victim 15,000 pesos in compensation. An
interesting aspect o f this sentence is that the judge dismissed the defendants argument
that the accident had been caused by the plaintiffs own carelessness, and that this should
absolve him o f any responsibility for the incident. De la Torre declared that even in the
20 Ibid., 41-42.
21 The sentence is published in its entirety in BDNT, no. 16(31 March 1911): 56-61. See also Figueroa, 42-
43.
77
case that the plaintiff should have proceeded thoughtlessly or carelessly, which has not
been proved, this would not exempt the defendant from responsibility.. . His ruling
was upheld in the court o f appeals on 3 December 1910, though the compensation was
reduced to 6,000 pesos.23
The equivalent was established in Jo sef a Arce v. Nicolas Mihanovich24 Josefa
Arces son, Emilio, had been employed by the shipping company Mihanovich and had
died when a steam boiler on board Mihanovichs ship Tesoro exploded in October
1906. On 10 August 1910, Jose del Barco, federal judge o f Rosario, Santa Fe, sentenced
the company to pay 10,000 pesos in compensation to the plaintiff, which was reduced to
4,000 pesos in the court of appeals where his ruling was upheld on 20 May 1911. The
judge invoked Article 1113, in addition to Article 1109, o f the Civil Code in order to
justify the companys responsibility,25 establishing Mihanovichs fault because the
damage had been caused by a thing o f his possession, in this case the steam boiler on
board his ship.
Where the victims of occupational accidents were minors, their age could
constitute an advantage for the plaintiff in proving the employers fault. As seen in
Quesadas 1905 sentence, the court o f appeals that upheld his ruling founded their
decision on the claim that the employer had been at fault when employing a minor to
perform a potentially dangerous factory task. This was true also in the case Aquiles
22 BDNT, no. 16 (31 March 1911): 59.
33 Ibid., 61.
24 Sentence cited in Figueroa, 43.
25 Article 1113 o f the Argentine Civil Code states: The obligation o f someone who has produced a damage
extends to the damages caused by those under him, or by the things in his use, or in his care.
78
Panella v. Juan Ferrari,26 where Panella sued Ferrari for damages due to the death of his
son Romulo, who had been employed in the defendants store (almacen). The tragic
incident occurred when Romulo, at the order o f his employer, had gone to the basement
to fetch a container o f alcohol. He had taken with him a candle, which apparently
constituted the only lighting available in the establishment. When reaching for the
container on the shelf, which was situated almost two meters above ground, the minor
lost his balance, spilling alcohol on his clothes. His clothes then caught on fire from
contact with the candle flame, and the 15-year old boy died some days later as the result
o f the bums.
Judge E. Gimenez Zapiola, o f the Capitals Civil Court o f the first instance, ruled
on 14 March 1910 that, when hiring the services o f the minor, [the defendant] contracted
the obligation to look after him, preventing him from performing any act that would
involve a danger to his life.27 In addition to establishing the employers obligation to pay
the plaintiff 2,500 pesos in damages due to the special responsibility o f Ferrari to
ensure the safety o f his young employee, Judge Zapiola could in this case also invoke one
o f the few labor laws existing in Argentina at the time. In 1907, Congress had passed the
Women and Child Labor Law28 whose Article 2 stated that children under the age of
sixteen could not be employed during hours normally destined to sleep. The laws
Article 9 expressly prohibited the employment o f children between 9 P.M. and 6 A.M.,
and since in this case the accident had happened around 10 p.m., the judge had plenty o f
26 Published in its entirety in BDNT, no. 19 (31 December 1911): 817-823.
27 Ibid., 819.
28 Ley 5291 de Trabajo de mujeres y nifios, ALA, 1889-1919.735.
79
reasons for ruling in favor o f the plaintiff. The ruling was upheld with a four-fifths
majority in the court o f appeals.29
Even in cases where it was impossible to invoke the disposition o f the Women
and Child Labor Law, however, the employer was assumed to have a special
responsibility for the safety o f employees who were minors. The case o f Eloisa Moreno
v. F.C.C.A. made this clear. In revoking the sentence o f B. Palacios, federal judge o f
Santiago del Estero, the court o f appeals in Cordoba resolved that Eloisa Moreno was
entitled to 4,000 pesos in damages for the accident suffered by her seventeen-year-old
son, Fortunato Moreno, which resulted in the loss o f his left hand.30 The court ruled that
the admission made by the com pany.. . to have set the minor M oreno... to perform
such delicate and dangerous tasks as those o f switch operator is sufficient to attribute to it
the harmful consequences o f its carelessness.31
The Application o f the Inverted Burden o f Proof
Despite the fact that most judges were not willing to follow Quesadas example in
adopting the doctrine o f occupational risk, the principle o f the inverted burden o f proof
was applied in various sentences in the period between 1905 and 1915. This was of
utmost importance for workers as plaintiffs since, even if judges were willing to accept
an expanded notion o f fault, workers were still stuck with the obligation to prove that the
fault existed. In fact, meeting the burden of proof constituted one o f the major obstacles
29BDNT, no. 19 (31 December 1911): 823.
',0 The sentence is reproduced in its entirety in Garmendia, Jurisprudencia del trabajo, 102-106.
31 Ibid., 105.
80
for workers in the courtrooms. Often, the only proof the worker could present, was the
testimony o f other workers. Most workers, however, would not want to challenge their
boss by testifying against him in court, for fear o f losing their job or suffering other forms
o f reprisals. The uneven situation o f power made it especially difficult for the plaintiff to
meet the burden o f proof. If the judge was willing to accept an inversion o f the burden o f
proof, it significantly increased the workers chances o f winning the lawsuit.
One kind o f accidents where judges found it possible to invoke the principle o f
inverted proof was when the damage occurred had been directly produced by a machine
in the workplace. In these cases, some judges found room for applying the Article 1133
o f the Civil Code, which states: When damage is inflicted by any kind o f inanimate
object, its owner is responsible for the compensation, unless he can prove that there exists
no fault {culpa) on his behalf.. . . This was the case, for example, in Maria Bravi De
Mazzoni v. Ruizli y Ortiz?2 where Judge R. Naveira o f the Capitals Civil Court in the
first instance on 11 December 1913 ruled the following: As the damages were caused by
a machine moved by electrical force..., it should be considered an inanimate object,
which makes the Civil Codes Article 1133 applicable. If the owner o f the factory or
workshop pretends to free himself from paying the compensation, he is the one who most
prove his lack o f fault. As this lack o f fault has not been proved, he is legally responsible
for the compensation corresponding to the victim.33 The sentence was also upheld in the
court o f appeals.34
j2 The sentence is partially reproduced in Garmendia, 33.
33 Ibid.
'4Article 1133 was also invoked as the basis for the inverted burden o f proof in Pedro Cervio v. Manuel
Campos, sentenced by Judge A. Seeber in the capitals civil court o f the first instance on 14 April 1914.
The sentence was upheld in the court of appeals on 23 July the same year. Garmendia, 34.
81
In some cases, the principle o f the inverted burden o f proof was invoked with a
different rationale than Article 1133 o f the Civil Code. Rather, it was based on what was
referred to as the doctrine o f contractual fault (falta contractual). This doctrine, espoused
by several of the European jurists concerned with the new field of labor legislation, such
as Saintclette, Sauzet, Lable, Demangeat, and Saleilles, was based on the tenet that there
are certain rights and obligations inherent to a contractual agreement where the worker
agrees to sell his labor to the employer.35 A cornerstone o f this arrangement was the
employers obligation to pay the worker for his labor. In addition, however, these
theorists considered the employers responsibility to provide for his employees safety
while performing tasks at his order to be inherent to the labor contract.36 If it is an
automatic and inherent part o f the labor contract that the employer should ensure the
safety o f his employee, then it is the employer who must be assumed responsible in the
case o f an occupational accident. In effect, this was the same principle, albeit with a
different justification, established in the doctrine o f occupational risk. In both cases, the
burden o f proof lay with the employer rather than with the worker.37
jS When using the term contractual agreement, I am not here referring to a specific written labor contract
between the worker and the employer. Rather, these were rights and obligations considered inherent to a
labor contract sui generis, without the necessity o f a written contract.
J For an explanation o f the doctrine o f contractual fault, see Ruzo, Fundamentos juridicos del riesgo
profesional, 14-15.
31 The doctrine of contractual fault was invoked in the sentence Aurelio Guevara v. Ferrocarril de Buenos
Aires al Pacifico, not in the first instance, but in the federal court of appeals in the capital o f Buenos Aires.
The sentence was pronounced on 30 May 1916 and was thus posterior to the passing o f the 1915
Occupational Accident Law. Since the accident itself had occurred before the law was passed, however, the
lawsuit was filed for damages according to the principles o f the Civil Code, due to the impossibility of
invoking the new law retroactively. Even if the new law could not be applied in this case, it is interesting to
note that the doctrine o f contractual fault was invoked after the employers responsibility had already been
established by law according to the principle o f occupational risk. In two different lawsuits against the
same company, the first filed by Victoria Graint de Coch and the second by Jose Castineiras, the same
court of appeals ratified the doctrine o f contractual fault. The court o f appeals pronounced their final
decisions on 12 August 1916 and 29 March 1917 respectively. The doctrine was also invoked in Catalina
Monreal de Lara de Hurtado v. Gobiemo Nacional, sentenced in the federal court in the first instance in the
82
The Special Case o f Railroad Workers
Railroad workers found themselves in a special position when it came to
occupational accidents, for various reasons. First, they were employed in one o f the most
dangerous industries that existed at the time and where accidents happened frequently.
Second, they belonged to an industry that had developed in the nineteenth century, one
that had occupied a central position in the nation-building project o f the time. Because o f
its centrality to the economic life o f the new republic, separate laws had regulated the
operation o f the railroad from the very beginning o f its existence. The first national
railroad law, for example, had been passed in 1872 and had been replaced in 1891 by
Law 2S73.38
The National Railroad Law contained a detailed regulation o f the railroad
companies operations and established schedules and prices. It also defined the railroad
companies obligations to their passengers as well as to the companies and individuals for
whom the railroad was essential in the transportation o f merchandise (cargadores). An
important aspect of the law was to establish appropriate security measures to insure the
smooth functioning o f trade and transportation. The laws Article 5 outlined a range o f
measure the railroad company was obliged to adopt to avoid accidents, and Article 91
established that any breach o f the laws regulations automatically made the railroad
company responsible. Although these articles were intended to regulate the relationship
between the railroad companies and their customers, railroad workers who had been
capital of Buenos Aires on 5 November 1915 and in the court o f appeals on 15 May 1916. The Supreme
Court upheld the sentence on 30 November 1916. As is evident, all the sentences were posterior to the
passing of the Occupational Accident Law. Garmendia, 71-86.
Ley de Ferrocarriles Nacionales, ALA. 1889-1919.239-248.
83
victims o f occupational accidents invoked these dispositions in the courtrooms in an
attempt to establish the employers responsibility.
This was the case, for example, in Miguel Gonzalez v. F.C.C. Argentino .39 The
complaint was first heard in 1912 in the Federal Court o f the first instance in Rosario,
Santa Fe, and subsequently in the Federal Court o f Appeals on 11 March 1915. The judge
of the first instance, Eugenio Pucci y Benza, applied the traditional interpretation that the
plaintiff had to prove fault on behalf o f the defendant in order to be eligible for damages
and consequently rejected Gonzalezs claim. The court o f appeals, however, revoked the
sentence on the basis that the company had failed to adopt the security measures outlined
in Article S7 in the Reglamento de Ferrocarriles and sentenced the company to pay
Gonzalez 6,000 pesos in compensation.40 While the appeals court decision was an
application o f the expanded notion o f fault, there were other cases in which the judges
went further in presuming the responsibility o f the employer. Interesting in this respect is
the invocation o f the National Railroad Laws Article 65, which stated: In the case of
accidents, it falls to the companies to prove that the damage is due to unforeseen
circumstances (caso fortuito) or an act o f God {fuerza mayor j.41 It logically followed
that the companys responsibility in the case o f an accident should be automatically
presumed, inverting the burden o f proof. If one reads Article 65 in its entirety, however,
it becomes clear that its dispositions were intended to regulate the relationship between
39 The sentence is cited and analyzed in Garmendia, 87-90.
40 The Reglamento de Ferrocarriles was the detailed specification of the Railroad Laws practical
implementation.
41 ALA, 1889-1919.244.
84
the company and its passengers rather than the relationship between the company and its
employees.42
Two rulings by Federal Judge Juan Alvarez in Rosario, Santa Fe, are particularly
noteworthy with regards to the application o f the National Railroad Laws Article 65 to
cases o f occupational accidents. In the first case, Luis Caballero sued the Compania
General de Ferrocarriles en la Provincia de Buenos Aires for damages after his son Luis
lost his left hand while at work for the company. Alvarez ruled in favor o f the plaintiff,
applying the latter part o f Article 65 o f the National Railroad Law and on 3 1 March 1913
sentenced the company to pay the plaintiff a compensation o f 2,000 pesos within three
days 4:3 When the sentence was appealed, the court upheld the decision to compensate the
plaintiff, but was hesitant to accept Alvarezs rationale to apply the Railroad Laws
Article 65. In fact, the Supreme Court had previously ruled that the last part o f Article 65
only referred to the relationship between the companies and their passengers and
cargadores, which made it difficult to claim it could be applied to cases o f occupational
accidents. The court o f appeals instead decided to uphold the sentence on the basis that
the company had been at fault by not complying with security regulations. The court, by
choosing to rely on an expanded notion o f fault rather than the National Railroad Laws
Article 65 to establish the employers responsibility, reiterated the interpretation that fault
had to be proved rather than presumed.44
42 Preceding the part cited above, Article 65 states: It is the duty o f the companies to assure that all their
employees are diligent and competent. Their responsibility toward their passengers and cargadores for
damages caused by faults o f their employees, extends to all acts executed by the latter in the performance
of their duties. Ibid.
4j Garmendia, 91-94.
44 Ibid., 94-96.
85
In spite o f the appeals courts rationale, Federal Judge Juan Alvarez repeated his
interpretation o f the National Railroad Law in Agapito Miranda v. Ferrocarril Central
Argentine>. In his decision, he again claimed that the companys fault was automatically
presumed in all cases o f accidents including occupational accidentsunless the
company could prove that the accident was due to unforeseen circumstances or acts o f
God.46 On 7 October 1915, the Federal Court o f Appeals again confirmed the plaintiffs
right to compensation, but with the same rationale as in the above-mentioned Luis
Caballero v. Compania General de Ferrocarriles en la Provincia de Buenos Aires. The
courts pronunciation is confusing and shows its hesitation and vacillation in employing
the National Railroad Law in matters o f occupational accidents at all: It has been proved
that the accident happened due to the inobservance o f the regulations and the negligence
o f the defendant companys em ployees.. . .This establishes the companys responsibility
for the damages incurred, in accordance with Articles 65 and 83 o f the National Railroad
L aw ..., although it is true that according to what has been resolved repeatedly by this
court and by the jurisprudence o f the Supreme Court, the latter part o f Article 65.. .only
refers to the relationship between the companies and their passengers and cargadores.4/
Jose Alieva v. Compania Francesa de los Ferrocarriles de la Provincia** was
another case involving railroad workers that illustrates the eclectic application o f
different legal principles to cases o f occupational accidents before 1915. In their ruling in
the Court o f Appeals in the city o f Santa Fe on 31 October 1910, the judges chose to
45 Sentence reproduced in ibid., 97-99.
46 Ibid., 97.
47 Ibid., 98.
48 Sentence published in BDNT. no. 17 (31 June 1911): 2S1-292.
86
invoke the Commercial Code rather than the National Railroad Law. Claiming that a
railroad company was primarily a commercial establishment, they considered the articles
of the Commercial Code to be applicable. Basing its decision on the Codes Article 156,
the court o f appeals determined that the victim was eligible for compensation in
accordance with the principle o f occupational risk.49 Together with Quesadas and
Alvarezs sentences, this ruling belonged among the more radical reinterpretations o f the
existing legal framework in cases o f occupational accidents.
The Limitations o f the Sociological Interpretation
By 1915, the courtrooms had been a reflection o f Argentinas new social and
economic conditions for over a decade. Workers employed in the countrys incipient
industry or the frenetic construction activities so characteristic o f the tum-of-the-
centurys nation-building project lived a precarious existence o f frequent exposure to
accidents. The only way accident victims had any hope o f confronting the terrible
financial perspectives facing them was by trying to obtain compensation from their
employers through the judicial system. Even if courtrooms were a reflection o f the new
reality, however, the current legislation was not. Judges were therefore forced to rely on a
legal framework, which had never been designed to accommodate occupational accidents
nor any other o f the peculiar characteristics o f the rapidly changing relationship between
labor and capital.
The previous pages have shown that, after 1905, Argentine judges attempted to
49 This was the same article o f the Commercial Code that Quesada invoked as the basis for his analogous
interpretation in 1905.
87
make room for this new social reality within the old legal structures as they stretched and
bent the general dispositions o f the Civil Code, the Commercial Code, and in some cases
the National Railroad Law when ruling in cases o f occupational accidents. Sometimes,
their interpretations were truly radical and innovative, such as Emesto Quesadas claim
that the principle o f occupational risk was embodied in the Civil Code by analogous
interpretation. Juan Alvarezs interpretation o f the National Railroad Laws Article 65
was equally novel in presuming the railroad companies automatic responsibility for all
kinds o f accidents, regardless o f whether the victims were passengers or employees. In
these cases, judges went far in addressing workers grievances and in filling the legal
vacuum that existed in the field o f labor legislation.
Generally, however, few judges were willing to go as far as Quesada and Alvarez
in abandoning entirely the notion o f fault when determining workers right to
compensation. In conclusion, the main characteristic o f the judicial decisions pronounced
between 1905 and 1915 was the tendency to make room for workers demands by
interpreting the notion o f fault more liberally than what had been the case in the period o f
the classical or restrictive interpretation. Nevertheless, even the more modest applications
o f an expanded notion o f fault demonstrated the judges attempts to channel social
conflict through institutional structures and respond to the increasingly conflictive nature
o f labor-capital relations. As such, judges carved out for themselves a niche as
professionals and proposed their own solution to the social question. By stretching the
notion o f fault, judges walked a fine line between two different professional obligations.
As scientific and enlightened legal professionals, they considered it their
responsibility to ensure that the law was keeping up with the social and economic
88
development. On the other hand, they could not stretch and bend the laws and codes too
far in their efforts to achieve this goal if they wanted to prevent undermining their own
professional authority. After all, a judges claim to authority was first and foremost based
on his knowledge o f the law as it was, and deviating too far from its letter could quickly
produce accusations o f legal incompetence.
Private Accident Insurance
On the whole, jurisprudential innovations in this period must be characterized as
modest from a workers perspective. With the continued reliance on the notion o f fault
and the plaintiffs obligation to prove it, the employer still had significant advantages vis-
a-vis his employee if taken to court. Nevertheless, as the sentences analyzed above have
shown, there was always the distinct possibility that the worker could result victorious
from litigation, and that the employer be forced to pay a large sum o f money. The judges
expanded interpretation o f the notion o f fault made room for a range o f new situations in
which it was at least potentially feasible to establish the employers financial
responsibility.
The only way the employer could protect himself from this potential financial
responsibility was by taking out private accident insurance for his employees. In the case
o f an occupational accident, the insurance policy would cover the damage according to a
fixed scale; i.e., the kind o f injury suffered by the worker would determine the amount he
was entitled to as compensation. The arrangement had several advantages for both
workers and employers. An obvious benefit for the employer was to be freed from a
possible lawsuit, as well as the potential outcome o f having to face a significant expense
89
if sentenced to compensate his employee. For the worker, the benefits were even more
important. For one, he would automatically have the right to compensation in the case o f
an accident, completely regardless o f any notion o f fault. Thus, he was spared a lengthy,
costly and complicated lawsuit with a highly uncertain outcome.
In 1907, the recently created National Labor Department sent a letter to the
Argentine Industrial Union requesting information about private accident insurance in the
city o f Buenos Aires. According to the Argentine Industrial Union, there were 942 valid
accident insurance policies, covering 51, 869 workers in the capital in that year,1,0 leading
the representatives o f the Labor Department to state: The customs o f industry in our
country have preceded legislation on occupational accidents. The number o f employers
who spontaneously recognize their obligation to compensate workers incapacitated in
these accidents is increasing constantly and significantly. At the present time, there are
various insurance companies in the city o f Buenos Aires that insure against this type o f
risks in the form of collective insurance. The insurance is paid by the employer to the
benefit o f his workers, and, in addition, protects him against the civil responsibility that
these accidents produce.51
Nation-wide, in 1910, the numbers reached 3,045 policies, covering a total of
102,964 workers.52 In 1912, the numbers were 5,900 and 162,775, respectively.53
Between 1907 and 1912, then, there was a steady increase in the number o f private
accident insurance policies, although the nation-wide numbers fluctuated and in 1914
50 BDNT, no. 2 (30 September 1907): 160.
51 Ibid., 161.
52 BDNT.; no. 17 (30 June 1911): 296.
53 BDNT; no. 33 (30 January 1916): 236-237.
90
returned to 1910 levels.54 According to the National Labor Department, as is to be
expected, the majority o f the insurance policies 75.7 % covered workers in the city of
Buenos Aires.55 For 1913, the Department claimed that over half the citys industrial
workforce was insured.56 This might have been an exaggeration, or perhaps the numbers
dropped significantly in 1914, when out o f 509,975 workers only 73,688 were covered by
accident insurance; that is, approximately 14.4 % o f the citys workforce.57
In 1907, there were four main insurance companies providing occupational
accident insurance to employers in the capital: La Industrial, La Inmobiliaria, La
Rosario, and La Asegnradora del Plata?* Their policies seem to have been more or less
equivalent with respect to terms and conditions. The accident had to have occurred as a
direct consequence o f the workers performance o f his assigned work tasks, during
regular work hours, and within the work establishment. However, there were several
explicit exceptions as to whom would be covered by the insurance policy: No one over
the age o f sixty or under the age o f ten, nor anyone suffering from serious chronic
diseases, anyone crippled or disabled, nor anyone working out o f their own home as part
o f a putting-out system. The policy went on to exclude victims o f accidents caused by
unnecessary corporal exertions [not required by the performance o f regular work
54 Ibid.
55 BDNT, no. 29 (31 December 1914): 92.
56 Ibid.
57 BDNT, no. 33 (30 January 1916): 240 bis (1)
58 In the communication from the Argentine Industrial Union, its President, Alfredo Demarchi, mentions
two additional companies, La Republica and La Alianza, but these do not figure in the table published in
BDNT, no. 2 (30 September 1907): 158-160.
91
tasks], as well as occupational diseases such as phosphorous, lead, and antimony
poisoning.59
Another advantage for workers covered by an insurance policy was that they did
not have to worry about the employers solvency. Even in cases where workers won in
court, and the employer was sentenced to paying the compensation, there was always the
possibility that the employer would simply not possess the funds to pay the award. With
an insurance policy, there was a greater chance the victim would actually see the
compensation to which he was entitled. In 1912, there were apparently 17,686 cases of
occupational accident compensation paid by insurance companies in the whole o f the
Argentine Republic. In 1913, the number was 15,502, and in 1914,11,838.
In its Boletin, the National Labor Department debated the causes o f the
widespread arrangement o f private accident insurance. The author o f the article
concluded that it could not be due to the role played by the courts, since they were still
basing their rulings on the notion o f fault and fell far short o f establishing the employers
unequivocal responsibility in cases o f occupational accidents. Nor could it be due to the
collective pressures o f labor organizations. The author therefore concluded that the
widespread practice could only be due to the employers conviction o f their moral duty to
compensate the accidents suffered by their employees.61 Although a paternalistic sense o f
duty probably influenced employers in their decision to take out private insurance, it also
seems likely that the author somehow underestimated the importance o f the court rulings.
59 BDNT.; no. 18 (30 September 1911): 683-684.
60 BDNT, no. 33 (30 January 1916): 240 bis (2). It is not clear why the trend declined, or if the numbers
reflect inaccuracies in the statistics of the National Labor Department.
61 BDNT, no. 29 (31 December 1914): 94.
92
Even if the courts were modest in their interpretive innovations, they had on different
occasions showed that it was possible for workers to win out with their demands.
Although employers faced a slim chance o f losing in court, the mere existence o f the
possibility o f having to pay a sizeable compensation, in addition to the trouble and cost
involved in a lengthy judicial procedure, probably served as a powerful incentive for
employers to invest in accident insurance.
Obstacles for Labor in the Courts
Meeting the Burden o f Proof
The fact that after 1905 judges started interpreting the classical notion o f fault
more liberally by no means meant that the courts provided a satisfactory alternative to an
occupational accident law. The courts were important primarily by default because there
was nowhere else for the workers and their families to turn when they struggled to make
ends meet in the aftermath o f an accident. Besides, workers faced substantial obstacles
when resorting to the court system. One o f the main problems, as seen above, was
meeting the burden o f proof. If the worker failed to show the employers negligence or
carelessness, or a lack o f proper security measures, the chance that the ruling would result
in his favor was significantly diminished.
The following cases serve as poignant illustration to this point. In Genaro Freire
v. La Compaiiia Cerveceria Palermo?2 Freire had been the victim o f an occupational
accident when one o f the beer bottles he was stowing suddenly exploded and hurt his
62 The sentence is published in BDNT., no. 19 (31 December 1911): 812-816.
93
right hand. As a result o f the accident, he lost a good part o f the feeling in his hand and
could only with great difficulty move his fingers, which made him unable to continue
performing his job. The plaintiff alleged the responsibility o f the employer by claiming
the accident had occurred because o f the faulty way the company stored the beer, which
caused the bottles to explode as a result o f the fermentation o f the alcohol. Consequently,
the company was at fault according to Article 1109 o f the Civil Code.63
In order to prove the companys responsibility, Freire had three o f his co-workers
testify that the bottle exploded due to the fermentation o f the beer, and that the situation
was caused by the bottles change in temperature after leaving the pasteurizing machine
and before stowing. The judge, however, swiftly dismissed the testimony o f the
plaintiffs co-workers with the following reasoning: . . .[T]he declarations o f the named
witnesses are without merit, as they are mere eye witnesses and can only validly testify to
the concrete events, and not to a question o f technical character, whose assessment
undoubtedly requires special knowledge and should be clarified by experts.64 He
continued to rule that the companys responsibility had not been proved and rejected the
plaintiffs claim. The sentence was pronounced in the Capitals Civil Court o f the first
instance on 11 June 1910 and was upheld in the court o f appeals on 10 December the
same year.
The case aptly illustrates several o f the major obstacles workers encountered in
lawsuits over damages for occupational accidents. First, even if one applied an expanded
notion o f fault, many accidents were simply the result o f the inherent risk o f work itself
63 Ibid., 812.
64 Ibid., 814.
94
and could not be attributed to even the slightest lack o f precaution on behalf o f the
employer, or to the failure o f specific equipment, as was Freires case. This shows how
anything short o f the adoption o f the notion o f occupational risk, embodied in law,
constituted a highly insufficient solution to the problem o f occupational accidents.
Second, the case is a poignant illustration o f the difficulties involved in having to prove
the employers fault. Not only was it difficult in itself to document the existence o f fault,
but workers were also at a disadvantage compared to their employers with respect to
witnesses. In Freires case, he at least managed to have three co-workers testify for him.
A more common scenario probably was that it was extremely difficult for workers to find
colleagues who were willing to testify against their employers. As the case further
illustrates, even when the worker did find witnesses to testify on his behalf, their
testimonies could easily be dismissed, since the testimonies o f simple workers could
not be compared to that o f more educated experts. Last, but not least, it was easier for
employers than for workers to present witnesses with a high social status and therefore
increased credibility.
Time and Money
One o f the most obvious obstacles workers faced when forced to rely on the court
system to remedy their grievances was the costly and time-consuming nature o f a regular
civil law suit. Most workers did not have the money to hire a lawyer to take their case
and were even less able to support the risk o f accumulating additional expenses if they
should lose. Workers generally poor financial condition was additionally worsened in
the aftermath o f an accident, making the financial obstacles to litigation insurmountable
95
to most. A civil law suit for damages could also take a long time to bring to conclusion.
From what can be discerned from the cases studied in this chapter, it could take years
between a case was initiated and the final ruling was pronounced.
Freire, for example, had suffered the accident on 29 May 1909. The court in the
first instance pronounced its ruling on 11 June 1910, and the court o f appeals on 16
December the same year. With a year and a half between the occurrence o f the accident
and the court o f appeals final ruling, his case was actually fairly swift in comparison to
many others. In the case Aquiles Panella v. Juan Ferrari, the accident had taken place on
23 April 1908, and the final sentence was pronounced by the court o f appeals on 23
March 1911, almost three years later.65 The situation was even worse in the case Jose
Orlando v. Enrique Fynn, where the court o f appeals pronounced the final sentence five
and a half years after the incident.66 It goes without saying that this drawn-out process
probably prevented a majority o f occupational accident victims from ever considering
initiating litigation. Even those who did and won would have to be prepared to subsist for
years before seeing the slightest sign o f a compensation.
Jurisdiction
A final obstacle workers faced when resorting to the courts in matters
o f occupational accidents was the highly confusing jurisdictional situation. Argentina,
due to the countrys federal system o f government, had two parallel court systems, one
federal and one provincial, which meant that every province operated with two different
65 Ibid., 817 and 823.
66 BDNT, no. 16 (31 March 1911): 56-60.
96
jurisdictions. The capital and the national territories were their own jurisdiction, but just
like the provinces, they operated with the division between federal and common courts.
In general, cases o f occupational accidents belonged in the common civil courts, since the
legal norms that applied were the dispositions o f the Civil Code. This seemingly
straightforward situation was significantly changed when, for example, the employer was
either an agency o f the state, a railroad company, or if the accident had occurred on board
a ship.
As established by the Constitutions Article 100, cases where the state was party,
or where the litigating parties belonged to different provinces, as well as cases o f
maritime jurisdiction, were all o f federal jurisdiction. In fact, a large part o f the
occupational accident cases were tried in the federal jurisdiction. First, with the frantic
construction o f infrastructure and public buildings at the turn o f the century, as well as
the expansion o f state institutions, the state was an important employer with a significant
part o f the countrys workforce on its payrolls. Second, the railroads had a high incidence
o f accidents, many o f which were serious and even fatal. Court cases involving railroad
companies were generally considered to belong to the federal jurisdiction because o f the
inherently federal nature o f this form o f transportation. In addition, they were often state-
owned, making the state party to the litigation. In other cases, the federal jurisdiction
applied because the litigating parties belonged to different provinces.
Although the general rule was that occupational accidents involving railroad
companies were o f federal jurisdiction, the above-mentioned case Alieva v. La Compania
Francesa de Los Ferrocarriles de la Provincia constitutes an exception. The case was
presented to the Provincial Court o f the first instance in the city o f Santa Fe and
97
continued to the court of appeals. The issue o f jurisdiction was contested in the very
sentence. When the case arrived in the court o f appeals, the railroad company claimed it
should be dismissed and reinitiated in the federal court because it had been presented in
the wrong jurisdiction. A dismissal would obviously have been to the benefit o f the
company, as the plaintiff most likely did not have the funds to start the whole judicial
process all over again. The Provincial Court o f Appeals contrary to what was procedure
in other cases involving railroad companiesdetermined that the provincial jurisdiction
was appropriate since the lawsuit concerned damages and damages were a matter o f
general civil law. The judges therefore dismissed the companys objection and continued
to uphold the ruling from the first instance, granting the plaintiff compensation.07
The contested jurisdiction in cases o f occupational accidents involving railroad
companies is further illustrated by the case Angel Lorenzo v. F.C. Sud.6s Called to rule on
the appropriate jurisdiction for the case, the Capitals Federal Court o f Appeals resolved
on 3 February 1916 that it belonged to the federal jurisdiction in which it had been
initiated. The decision was not unanimous, however. Judge Jose N. Matienzo dissented
from the interpretation o f the majority and sustained that, since the case concerned
damages according to the principles o f the Civil Code, and it did not invoke an article o f
the Constitution, a national law, or a treaty, the case was not o f federal jurisdiction. The
issue was also debated in the case Gerardo Bugallo v. F.C.S.?9 where in the same court
o f appeals Judge Tomas Arias joined Judge Matienzo in his interpretation that the case
67 BDNT, no. 17 (30 June 1911): 281-292.
68 Garmendia, 65-69.
69 Ibid., 84-86.
98
was not o f federal jurisdiction. However, with the three other appeals court judges voting
to the contrary, the federal jurisdiction was confirmed. Nevertheless, the courts division
illustrates the contested nature o f the issue.70
These kinds o f procedural vacillations and confusions constituted another obstacle
for workers in their encounter with the courts. Since no unequivocal precedent had been
set with regards to jurisdiction in these cases, there was always a risk that the whole
lawsuit could be dismissed if the judges o f a particular court decided it had been initiated
in the wrong jurisdiction. Not in a position to afford two lawsuits, the result o f a dismissal
was in practice the same for the worker as that o f losing the case. An additional
complication concerning jurisdiction presented itself if the accident victim was covered
by an insurance policy. Although the point o f the accident insurance was to ensure the
worker automatic compensation, insurance companies on various occasions refused to
pay the premium stipulated in the policy contract, leaving the victim with no other option
but to claim his right to compensation in the courts. When a worker was covered by an
insurance policy, however, the procedure for was different than in the regular lawsuits for
damages.
Since the activities of insurance companies were regulated by the Commercial
Code, the claims against them had to be initiated in the commercial courts, rather than in
the civil courts, despite the fact cases over damages were regulated by dispositions o f the
Civil Code. An illustrative example o f some of the confusions and difficulties this created
for the workers is the case Catalina Ciarnelo de D Onofrio v. Faustino Di Vaco,71
70 Ibid. See also 107-108.
71 Garmendia, 38-44.
99
sentenced by Judge Juan B. Estrada in the capitals commercial court o f the first instance
on 24 December 1914. The plaintiff was the mother of Domingo DOnofrio, who had
died from an occupational accident on 4 March 1913 while at the orders o f Faustino Di
Vaco. Di Vaco had insured all o f his employees against occupational accidents in the
insurance company The River Plate. When the victims mother did not receive the
compensation o f 4,800 pesos stipulated by the insurance policy, she contacted the
insurance company to make her claim. The insurance company, however, referred her to
Di Vaco, who again referred her back to the insurance company as the party responsible
for providing the compensation.
Frustrated in her attempts to obtain what was rightfully hers, she filed a lawsuit in
the commercial court against the employer Di Vaco. Her claim, however, was rejected on
the grounds that the employer Di Vaco could not be made responsible for the accident,
since the insurance policy replaced his financial responsibility with that o f the insurance
company. The ruling was upheld in the court o f appeals on 22 June 1915. In addition, the
ruling established that in cases where workers were covered by accident insurance,
judicial action should be taken against the insurance company rather than the employer.
This was confirmed in the following cases: Luoni y Delbosco v. La Industrial, Gelsomina
Belardi v. La Industrial, Ana B. de Tranquilli v. La Rural, Margarita R. de Perez y su s
hijos menores v. Carols De C illisy la Compahla La Nueva Zelandia.12 The courts
thereby effectively stopped the insurance companies attempts to dodge their financial
obligations to the workers. Nevertheless, the confusion reigning over whom it was
appropriate to sue for damages in these cases, as well as the separate commercial
72 Ibid., 44.
100
jurisdiction for cases involving insurance companies, constituted additional obstacles in
the workers encounter with the judicial system.
An Eclectic Jurisprudence
Last, but not least, one o f the most serious obstacles for workers consisted in the
vacillations in the jurisprudence and the wide and often eclectic range o f laws, articles,
and dispositions that were invoked by the judges in their rulings. While in some cases
judges attempted to establish the principle o f the inverted burden o f proof and the
doctrine o f contractual fault and occupational risk, these attempts were far from
constituting juridical precedent. There was absolutely no guarantee that one judges
interpretation would be followed by anothers in a different ruling. As this chapter has
shown, the only principle to have been established as something close to a precedent was
the expanded notion o f fault. All the other ways judges tried to stretch and adapt the
existing legal framework to accommodate the new social reality were highly contested
and not unanimously accepted or applied.
Unless the worker could be sure to prove negligence, carelessness, or an omission
o f security measures on behalf o f the employer, the outcome o f his case would therefore
always be highly insecure. He could be lucky and find a judge willing to apply a more
radical interpretation, as in the case o f Quesada and Alvarez, or he could be fortunate
in the sense that the accident had been produced by a machine or a cauldron so that the
principle o f the inverted burden o f proof could be invoked. In all these cases, however,
there was always the chance that the sentence would be overturned in the court of
appeals. The lack o f a coherent judicial precedent created considerable insecurity for
101
potential plaintiffs for whom going to court was a costly and risky enterprise in itself-
and surely led many to defer from legal action.
Alejandro Unsain, one o f the foremost experts on labor law at the time and a
prominent personality in the National Labor Department, summed up the situation
succinctly in his later book on the 1915 Occupational Accident Law:
Before the passage o f Law 9688, the situation for the worker plaintiff in [cases of]
occupational accidents could not have been more wretched with respect to the
procedure. Following to the letter the general terms o f a regular civil suit (juicio
ordinario), the lawsuits lasted interminably, benefiting the employer, but exhausting
the patience o f the worker. It was also the workers obligation, in the position o f
plaintiff, to provide all the proof. This latter circumstance constituted a powerful
obstacle. The result of the situation was predictable. Tired o f ail the inconveniences put
in his way, the worker ended up rescinding his right, or accepting whatever he was
offered. Regular civil law resulted contrary to the interests o f the victim, both because
o f the content o f its legal provisions, as well as due to its procedure. One could even
claim that, in many cases, the true obstacle was to be found in the procedural code,
rather than in the civil code.73
Conclusion
In the years before the passing o f the Occupational accident Law, workers in
certain cases resorted to the courts in order to obtain compensation for the financial
hardship brought about by accidents occurred to them in the workplace. O f all the minor
and major accidents that occurred, however, most were never brought to the courtroom.
As the quote above from Alejandro Unsain illustrates, most workers never initiated any
kind o f action legal or otherwiseto obtain a compensation from their employers. If
the employer did offer some financial support to an accident victim, even if it was just
paying for medical expenses, the worker probably took whatever he was offered without
73 Alejandro Unsain, Accidentes del trabajo: Exposition y comentarios a la Ley N" 9688 y a sus decretos
reglamentarios (Buenos Aires: Editores Gotelli y Peralta, 1917), 237-238.
102
further discussing whether or not he was entitled to more.
When workers did take their cases o f occupational accidents to court, however,
judges were forced to rule according to the Civil Code and its notion o f fault in the
absence o f an Occupational Accident Law. While between 1900 and 1905 judges applied
the notion o f fault literally and restrictively, there was a change in the jurisprudence after
1905 which opened up for a more liberal definition o f what constituted fault. If the
accident was due to failure o f the equipment, the employer could be found to have been
at fault because it was his responsibility to ensure its good condition. Any omission of
safety measures that could possibly have prevented the accident from occurring now also
entered into the expanded notion o f fault. If the employer hired a child to work for him
and failed to ensure that the minor did not perform tasks that were dangerous to a person
o f young age, his responsibility for the accident could be established. In certain cases,
judges tried to go further than just employing an expanded notion o f fault. Using a wide
range and an eclectic mix of articles from the Civil and Commercial Codes, as well as
special laws such as the National Railroad Law, they were sometimes able to introduce
such novel concepts as the doctrine o f occupational risk and the inverted burden o f proof.
Despite their often creative stretching and bending o f the existing legal
dispositions, there were severe limitations to how far judges could go in their creativity of
interpretation if they were to avoid undermining their own professional authority. Miguel
Angel Garmendia gave an apt description o f the situation before the passage o f the
Occupational Accident Law in 1915: Having failed in all their efforts, the judges could
not apply the doctrine o f occupational risk in the complete and categorical way
established by the special Occupational Accident Law. The jurisprudence could not go
103
that far. That would have meant, in truth, an usurpation o f functions corresponding to the
Legislative P ow er.. . . The judges could not create special rules for occupational
accidents, and they limited themselves to favoring, where possible, within the norms o f
the existing written law, the situation o f the accident victims or their families 74
In truth, the existing juridical situation with respect to occupational accidents was
highly unsatisfactory to all the parties involved. For the workers, the courts could never
constitute a satisfactory alternative to a special Occupational Accident Law. This was not
only because the changes in the jurisprudence were modest, but also because o f all the
other obstacles the workers faced in their encounter with a slow and complex court
system. The endless duration o f the lawsuits and the confusing jurisdictional situation
were factors that made resorting to the courts an unattractive, if not impossible,
alternative for most victims o f occupational accidents. For the employer, even if the odds
were in his favor in the case o f a lawsuit, the jurisprudence had made clear that it was
possible for him to lose and be sentenced to paying a significant sum in compensation to
the accident victim. This double insecurity, first over whether or not he might win the
lawsuit, and, second, over how much money he would eventually have to pay his
employee, made many employers take out private accident insurance to protect
themselves from possible financial losses.
In addition to taking out private insurance, the unpredictability o f the situation
also made many employers push for the passing o f an occupational accident law. One o f
the earlier Occupational Accident bills debated in the Argentine Congress was in fact
presented by the Argentine Industrial Union in 1906. The increasingly obvious need to
remedy the insufficiencies o f the general dispositions o f the Civil and Commercial Codes
74 Garmendia, Jurisprudencia del trabajo, 31.
104
in matters of occupational accidents, together with the lack o f any substantial resistance
to a law among employers, paved the way for the passing o f the Occupational Accident
Law in 1915. The following chapter will examine the effects o f the law as well as the role
played by the courts in its interpretation.
105
CHAPTER 3
A FRUSTRATED HOPE OF REDRESS: THE LIMITATIONS OF THE
1915 OCCUPATIONAL ACCIDENT LAW
Despite judges attempts to make room for workers demands and adapt the
existing legal framework to Argentinas new social and economic conditions, the
insufficiencies o f court-made labor law in cases o f occupational accidents were clearly
evident. Nothing short o f the passage o f an occupational accident law adopting the
principle o f occupational risk could constitute a real solution for workers who fell victims
to accidents in the workplace. Because o f the conspicuous nature o f the problem,
occupational accidents received considerable attention in the public debate, and the need
to find a legislative solution to the problem was not lost on the nations politicians.
The first occupational accident bill was presented in the Chamber o f Deputies in
1902, and when this did not pass, it was quickly followed by others.1 In 1904, the most
comprehensive labor bill to date was presented as the Ley national del trabajo, or the
National Labor Law, in which the regulation o f occupational accidents had a prominent
place.2 The bill suffered the same fate as that o f its predecessor, however. The third
attempt at passing a law o f occupational accidents was initiated by the Argentine
Industrial Union in 1906. In 1907, two initiatives were presented to the Chamber of
Deputies, one by the Socialist deputy Alfredo L. Palacios, and one by the recently
1This summary of unsuccessful bills presented in the Argentine Congress before the passing of the
Occupational Accident Law in 1915 is based on Unsain, Accidentes del trabajo, 6-8. For a comparative
analysis of the different bills, see BDNT, no. 20 (Julio 31 de 1912): 29-31.
2 The bill was published in the Diario de Sesiones de la Camara de Diputados (hereafter DSCD), 1904,
1:109-171.
106
established National Labor Department and its president Jose Nicolas Matienzo. Deputy
Escobar presented another bill on 16 May 1910, and then again in 1912. The Executive
Power, frustrated in its attempt to pass a National Labor Law, tried in 1910 to obtain the
legislatures sanction o f a bill concerning occupational accidents that was profoundly
different in nature than the other bills. Rather than a separate occupational accident law,
the bill suggested the incorporation o f eight articles into the Civil Code. Two additional
bills were introduced before a law was finally passed, one by Alfredo Palacios and his
Socialist colleagues Juan B. Justo and M. M. Laurencena, and another by Rogelio Aray
and othersboth bills were presented in 1912.
In spite o f all these attempts, it took until 1915 before Argentina had a general
occupational accident law, based on the principle o f occupational risk. With the passage
o f Law 9688, all industrial workers who had suffered an accident at work were
automatically entitled to compensation. After the law was passed, workers no longer
needed to prove the existence o f fault; the employers responsibility was automatically
presumed. In theory, workers no longer had to rely on the courts to claim their
compensation either. The law made obtaining the compensation an administrative rather
than judicial procedure. One would therefore think that the law implied an unequivocal
improvement in the workers situation compared to the preceding period.
Unfortunately, this was far from the truth. This chapter will show that, although
the law certainly constituted an improvement by abolishing the notion o f fault and
relieving the worker o f the burden o f proof, other factors contributed to undermining its
potential benefits. The main problem was the system it adopted for payment o f the
compensation. While during the preceding period compensations were paid to the worker
107
in a lump sumand a significant sum the law both limited the amount o f the
compensation and adopted a system o f payment in partial installments rather than in a
lump sum. The result was that the financial compensation became so negligible it seemed
more like an insult than a real attempt to compensate the workers loss. One of the
strategies workers employed to remedy their desperate situation was againto resort to
the courts. This chapter examines the judicial interpretations o f Law 9688 and the
continued importance o f Argentine judges in defining labor law in matters o f
occupational accidents.
The 1915 Occupational Accident Law
An apparent wide-spread consensus on the necessity o f a special occupational
accident law was not enough to get a bill through both chambers o f Congress and passed
into law. It took something a lot more drastic. On 23 May 1913 there occurred a
formidable explosion in one o f the workshops belonging to the Ministry o f Public Works
by the Riachuelo, causing the death o f fourteen workers and several other people/ None
o f the workers was insured against occupational accidents. The accident acquired
exceptional notoriety both because o f its catastrophic nature and the fact that the
employer in this case was the Argentine state. In accordance with the contemporary
discourse o f paternalism, there existed the notion that the employer ought to assume the
responsibility for the safety o f his employees, either by taking out accident insurance or
by spontaneously providing the accident victim with some compensation, even if no law
obliged him to do so. Up until this point, insuring workers against accidents had still been
3 DSCD, 1913,1:455-456,26 May.
108
considered largely a private responsibility, and not one that could be forcefully imposed
by the state through law. In this case, however, the state, in its private character of
employer had ignored its paternalistic responsibility by neglecting to insure its
employees.
These circumstances made the Argentine Congress rush through the passage o f a
partial occupational accident law in 1913, which made the victims o f the accident, and all
state employees who might suffer accidents in the future, entitled to compensation.4 Two
years later, in 1915, the Congress finally passed the first general occupational accident
law, Ley 9688 de accidentes del trabajo? In another unusually quick discussion
procedure, the bill was presented in the Chamber o f Deputies on 25 September 1915 and
approved two days later. The Senate had no objections to the bill, passing it into law on
29 September.6 Alejandro Unsain pointed out some o f the reasons for the laws rapid
sanction. Since the foundation o f the National Labor Department in 1907, one o f its
primary concerns had been to provide statistics on occupational accidents, amply
demonstrating both the wide-spread nature o f the phenomenon as well as the surprisingly
common arrangement o f private occupational accident insurance. Once it had been
showed that employers to a significant degree accepted insuring their workers against
accidents, there were few reasons to object to the legal formalization o f their
responsibility to compensate.7
4 Ley 9085, ALA, 1889-1919. 888-889.
5 Ibid., 949-953.
6 The legislative debates from the Chamber o f Deputies are in DSCD, 1915,3:538-572, 25 September and
ibid., 579-611,27 September. The Senate debates are in Diario de Sesiones de la Camara de Senadores
(hereafter DSCS), 1915: 718-723,28 September and ibid., 765-770, 29 September.
7 Unsain, Accidentes del trabajo, 5.
Second, Unsain pointed out that the jurisprudence had played an important role in
illustrating the shortcomings o f the Civil Code in cases o f occupational accidents and the
urgent need for a special law to regulate the matter. He also mentioned the recurrent
claims for accident compensation raised by the labor movement in their numerous strikes
in the years preceding the passing o f the law. Against this backdrop, the 1913 accident in
the port facilities o f the Ministry o f Public Works had been the event that had finally
convinced the legislature that the passing o f a law could no longer be put off.8 All these
factors taken together explain the relative consensus that reigned in the legislature with
regards to the 1915 occupational accident bill and the unusually short time it took for
Congress to pass it into law.
A first necessity o f the law was to provide a definition o f what constituted an
occupational accident. The laws Article 1 stated that all industrial employers were
automatically responsible for accidents occurred to their employees during the hours o f
work and as a consequence of the performance work duties, as well as for accidents
produced by unforeseen circumstances or acts o f God inherent to the job. Two points
were therefore established: First, not all workers in general were entitled to occupational
accident compensationonly those employed in a profession or industry mentioned
explicitly in the law. Second, the accident had to have occurred not only during the hours
o f work, but also as a direct consequence o f and during the performance o f the workers
regular occupational tasks.
The laws application was further restricted by the specification that it would be
limited to workers making an annual salary o f less than 3,000 pesos, and only if they
8 Ibid., 5-6.
110
were employed in the following industries: Any general industrial establishment making
use o f mechanized force; construction, conservation and repair work on buildings, rail
roads, port facilities, etc.; work in mines and quarries; transportation and loading; the
manufacturing and use o f explosives, flammables, or electrical materials. Workers
employed in forestry and agriculture were covered only insofar as they were engaged in
belated transportation or activities involving an inanimate, motorized force. Repair and
installation o f telegraphic and telephone poles and equipment were also covered. At the
end o f the list, the legislators specified that additional industries or occupations could be
added by decree in the future.9
There were a few situations in which employers generally presumed
responsibility did not apply. One was if the accident victim had intentionally provoked
the accident. A second exception was if the accident had occurred exclusively due to the
accident victims grave fault (culpa grave). Finally, in the situation that the accident had
been produced by unforeseen circumstances not inherent to the industry or occupation,
the employer was also exempt from responsibility.10 In all these cases, the exceptional in
the situation would have to be proved by the employer to waive his obligation to
compensate for the accident, and, consequently, had to be tried in court for the judges to
make the final decision.
The law established a system o f voluntary, rather than obligatory, accident
insurance. According to the 1915 Occupational Accident Law, employers could substitute
their legal obligation to compensate the accident victim by taking out an accident
9 Article 2 listed the industries and occupations covered by the law.
10 The exceptions from the general rule of the employers responsibility were specified in the laws
Article 4.
Ill
insurance policy in any one o f a number o f insurance companies approved for this
purpose by the government.11 One o f the ways in which the law constituted an
improvement compared to the spontaneous arrangement o f private accident insurance that
had existed in the previous period, was that it included occupational diseases as eligible
for compensation. Law 9688 established that if a disease could be shown to have been
contracted as a direct result o f an employees working conditions and occupational
obligations, he was entitled to compensation according to the same scale as that applied
in cases o f accidents.12 The kinds o f occupational diseases covered by the law were to be
specifically enumerated in the laws regulatory decree. From the workers perspective,
the laws most significant benefit, however, was the unequivocal establishment o f the
principle o f occupational risk and the employers responsibility, with the complete
abolishment o f the notion o f fault. In theory, the law made compensation for occupational
accidents and diseases automatic, eliminating the need to resort to the courts. This turned
out to be an ideal rather than reality, however.
Judicial Interpretations o f Law 9688
As with any law, the Law o f Occupational Accidents was not definitive with its
promulgation. With time, its various articles and dispositions were contested in the
courtrooms, giving the judiciary an important role in defining the concrete contents and
application o f the law. Besides, the nature o f occupational accidents was such that it
easily lent itself to controversy. An employer might try to argue that the accident was
11 Art. 7.
12 Art. 22.
112
unrelated to the workers regular work functions, or that it had been caused by the
workers own grave fault, arguing he should be exempt from paying the compensation. In
these cases, there were few other options for workers than to obtain the final decision o f
the courts. In addition, there were technical aspects o f the law that needed definition.
Although the laws appropriate jurisdiction, system o f compensation, and procedure in
case of litigation were all established in the text, they could only find their definitive
practical form in the jurisprudence.
Defining Occupational Accidents
One o f the first theoretical notions o f the law which needed definition in practice
was the term occupational accident. Although the first article established the employers
responsibility to compensate all accidents occurred at work and in the execution o f work
duties, it was not immediately evident what this meant in practice. The most immediate
issue confronted by the judges became whether to give a liberal or restrictive
interpretation o f the terms during the hours o f work, as a consequence o f and in the
execution o f work duties. 13 The case Barbagallo v. Compania Lacrozeu illustrates some
o f the laws problems o f interpretation. The worker Barbagallo had been injured when
run over by a wagon filled with earth. At a first glance, there was nothing unusual about
this case o f an occupational accident. However, Barbagallo had been injured by the cart
while, during one o f his breaks, he was sleeping underneath it. Thus, the case presented
the following contradictions in terms o f interpretation: While the accident had occurred in
This was the wording o f An. 1.
14Jurisprudencia Argentina (hereafter JA) 2 (1918): 922-925 (Camara Civil 2a. de la Capital, 1918).
113
the workplace and during the hours o f work, could it be established that it had occurred
as a consequence o f and in the performance o f work duties?
Judge Lagos in the capitals civil court in the first instance gave a liberal
interpretation o f the term occupational accident and ruled that there had been a direct
relation between the accident and Barbagallos job. He concluded that the possibility o f
suffering such an accident was a risk inherent to the kind o f work the plaintiff performed,
and that the fact that it had occurred when he was resting did not deprive him o f his right
to compensation. While Lagos recognized that the plaintiff had shown carelessness by
going to sleep underneath a wagon loaded with earth, his carelessness was not as serious
that of his employer who had tolerated the employees habit o f resting underneath the
wagons.15
Lagos liberal interpretation was not accepted by the court o f appeals, however.
According to Judge Helguera, the case could not qualify as an occupational accident,
since it had not occurred while the employee was working, but rather while he was
resting. Helguera stated: [The accidents] that happen outside o f the job, due to acts that
have no direct or indirect relation with the job, are not comprised by [the laws]
dispositions. 16 In addition, Helguera emphasized the employees own carelessness in
choosing to rest underneath a wagon filled with earth, resting his feet on the tracks. In his
opinion, this qualified as the kind o f grave fault exempting the employer from his
responsibility to compensate the accident.17 Judges Zapiola and Beltran adhered to the
15 Ibid., 922- 923.
16 Ibid., 924.
17 Ibid.
114
opinion o f Judge Helguera, making it a three to two majority in favor o f revoking the
appealed sentence and applying a restrictive interpretation o f the terms o f the law.18
However, as the jurisprudence took shape in the following years, it was the liberal
interpretation o f the law that won out.
In the case Colucci de Devoto v. Mullen,19 the Capitals Federal Court o f Appeals
on 14 March 1919 ruled that it is not necessary for the accident to occur during w o rk ...
or in the moment o f work, in order for it to merit compensation; it is sufficient that it
happens because o f work, even if it should occur outside o f the place [of work] itself, as
long as there is a causal relationship [between the work and the accident].20 In short, the
court in this case decided to put a greater emphasis on the causal connection between the
execution o f work and the production o f the accident, than on a literal interpretation o f
the laws requirement that it occur during the hours o f work.
On various occasions, workers suffered accidents while not, literally speaking, on
the job. Room was increasingly made for the interpretation that certain accidents
occurring outside o f the workplace itself, and even outside the regular hours o f work,
could be considered occupational accidents. Again, the important criterion was that there
was a relationship, either direct or indirect, between the incident and the victims work.
Different scenarios could fall within this category o f cases. In Lopez v. La Panificacion
18 While in the first instance there was only one ruling judge, in the appeals court there were five. The five
judges ruled by simple majority vote.
19JA 3 (1919): 112-115 (Camara Federal de la Capital, 1919).
20 JA 3 (1919): 114. The plaintiff in this case was not rewarded compensation on procedural grounds. He
had initiated the lawsuit against the captain o f the boat where the accident occurred, but the court dismissed
the action because the captain, John Mullen, was not the plaintiff s employer.
115
Argentina, S.A.,21 Manuel Lopez filed a lawsuit over an occupational accident suffered by
his son Alfredo. On 12 January 1921 Alfredo had been on his way to work as a delivery
boy with the bakery Panificacion Argentina. Attempting to get on a tram in motion, with
a basket in his hands, he had fallen, and the tram car had proceeded to run him over and
kill him.
The court applied an ample definition o f the term occupational accident in its
decision. Lopez was not, after all, at work when the accident occurred, nor was he
performing his work duties when attempting to get on the tram. In addition, the company
claimed that the accident had been caused by Lopez own negligence because he tried to
get on the tram while carrying the basket. These baskets were apparently not supposed to
be taken home by the employees but should be kept at the company.22 Judge Lagos o f the
Capitals Civil Court in the first instance ruled that, in order to define the criterion o f
what ought to be considered workplace, one should not get locked into the factory
interiors with the idea that only accidents occurring inside the factories,. . . , are
comprised by the law . . . ,23 He consequently decided in favor o f the plaintiff, and his
ruling was upheld in the court o f appeals on 14 November 1923.24
This liberal definition of what constituted an occupational accidents was also
established in other cases. In Rodriguez v. La Rural,25 Domingo R. Rodriguez had been
21 JA 11 (1923): 1022-1025 (Camara Civil la. de la Capital, 1923).
22 Ibid., 1023.
23 Ibid., 1024.
24 Ibid., 1025.
25JA 2 (1918): 235-241 (Camara Civil la. de la Capital, 1918).
116
the victim of an accident when he was attacked by a fellow worker. The attack was
provoked by Rodriguez breaking a strike in which the fellow worker participated, and it
had occurred outside o f the workplace while Rodriguez was being transported to the job
in one o f the employers cars. Could this be considered an occupational accident in spite
o f the fact it had occurred outside the workplace, outside the hours o f work, and as a
result o f an attack by a third party and not as a direct consequence o f the execution o f the
specific tasks inherent to Rodriguezs job? Judge Casabal was of the opinion that,
indeed, it could.
In his ruling o f 17 July 1918, in the Capitals Civil Court in the first instance,
Casabal stated: We have seen that one o f the conditions established by the law is that the
accidents must happen as a result o f and in the execution o f work. . . . But this does not
im ply.. .that [the accidents] must necessarily have been caused by the tools used in the
job, during the regular hours o f work, and in the workplace itself.26 Casabal sentenced
the insurance company La Rural to pay Rodriguez 3,500 pesos in compensation, a
decision that was upheld in the Capitals Civil Court o f Appeals on 26 August that same
year. When Jurispmdencia Argentina published the sentence, it was accompanied by a
commentary by Leonidas Anastasi, who heartily agreed with Casabals interpretation.27
Casabals sentence merits attention not only for its liberal interpretation o f the notion of
occupational accidents, but also for what it established with respect to strikes. According
to Casabals ruling, the strike, with its concomitant possibility o f violence, needed to be
considered as part o f the employees occupational risk. The strike was the connection
26 Ibid., 238.
27 Ibid., 235-236.
117
between the incident and Rodriguezs job that made him eligible for accident
compensation from his employers insurance company.28 Strikes, rather than aberrations
or exceptions to a normally harmonious state o f affairs between employers and
employees, were considered by the judges as inherent to the nature o f work.
The liberal definition o f what constituted an occupational accident established in
the above-mentioned sentence does not seem to have changed significantly over time. If
anything, judges found room for an increasing variety o f cases that qualified as
occupational accidents during the 1920s and 1930s. One rather extreme case will serve to
illustrate the point. In the case Ruiz C oriay otra v. Administration de los ferrocarriles
del estado,29 the wife and children o f Crescencio Ruiz Coria sued for occupational
accident compensation after their husband and father had been stabbed to death by
another o f the companys employees. Ruiz Coria was employed as stationmaster at the
Santa Fe junction and had reported a group o f switch operators to the police and to the
company administration when they refused to take up work on 11 June 1918 because the
company had not provided them with raincoats. As a result, the leader o f the group, a
man named Pierini, had been dismissed from his job on 13 June, and on the following
day had attacked and stabbed to death the station master Ruiz Coria.
While the railroad company alleged that this was homicide, and not to be
considered an occupational accident, Judge Basavilbaso disagreed and sentenced the
company to pay the plaintiffs 3,000 pesos. The sentence was pronounced in the Capitals
28 Ibid., 236 and 240, expressing the opinion o f Anastasi and Casabal, respectively.
29JA 19 (1926): 287-292 (Camara Civil la. de la Capital, 1926).
118
Civil Court in the first instance on 21 December 1925 and was confirmed in the Court o f
Appeals on 17 March 1926. Basavilbaso stated: The jurisprudence is, on a daily
b a sis. . . applying the law to cases where the accident victims have suffered injuries
produced by other elements than m achinery. . . . The Law o f Occupational Accidents is,
by its nature, a generous law, and petty solutions are not compatible with it. The railroad
company therefore owes compensation for the death o f one o f its employees, sacrificed
by the company and in its interests... .30
Defining Grave Fault (Culpa Grave)
If the judges were the ones with the final word on what an occupational accident
actually was, they were also the ones who defined what it was not. One o f the most
common defenses alleged by employers in the courtrooms was that the accident had been
caused by the employees grave fault, thus freeing the employer from the obligation to
compensate in accordance with Law 9688s Article 4.31 When defining the term grave
fault, judges again had to decide between a liberal or restrictive interpretation. A liberal
interpretation would make room for a wide range o f exceptions to the employers
generally presumed responsibility to compensateto the detriment o f the workerwhile
a restrictive interpretation would safeguard the intentions behind the law. The
jurisprudence from an early date settled on the latter interpretation.
30 Ibid., 289.
jl Law 9688's Article 4 stated that the employer would be free o f his obligation to compensate an
occupational accident if the accident had been "intentionally provoked by the victim, or if it was owed
exclusively to the victims grave fault.
119
In fact, the restrictive interpretation o f grave fault was embodied in Law 9688s
regulatory decree.32 The decrees Article 131 established that the only situation
qualifying as grave fault was the workers violation o f the establishments work
regulations. However, violations o f informally established work regulations did not
constitute grave fault. For the employer to be able to invoke this exception to the general
rule o f his obligation to compensate the victim, the work regulations had to have been
approved by the National Labor Department and posted in a visible place indicated by the
Department.33 In addition, the worker had to have been able to avoid the accident with
the means at his disposal in the moment o f the accident.34 Finally, the regulatory
decrees Article 133 established that grave fault was not to be confounded with
occupational carelessness (imprudencia profesional)\ that is, the kind o f carelessness
resulting from performing the same tasks repetitiously/3
Despite these seemingly explicit definitions, judges were left to define what
specific actions constituted grounds to deny accident victims their compensation. The
general tendency o f the jurisprudence was to make little room for employers allegations
o f workers grave fault. In the case Scherman v. Greiser,36 the cabinetmaker Scherman
had lost two fingers and incapacitated a third on his right hand when using a machine
saw. The defendant claimed grave fault on behalf o f the employee, stating that the use of
the machine was not part o f Schermans regular work functions. He had several witness
32 The regulatory decree is reproduced in JA 14 (1924): 116-130 (Seccion Legislation).
33 Art. 134.
34 Art. 131.
35 Art. 133.
36JA 1 (1918): 894-896 (Camara Civil 2a. de la Capital, 1918).
120
to back up his claim that Scherman had violated an explicit prohibition by using the
machine saw. The judge in the first instance ruled in favor o f the defendant, dismissing
Schermans claim to compensation.
In the court o f appeals, however, the judges thought differently. Despite the fact
that the defendants witnesses testified to the existence o f signs stating the prohibition to
come close to the machines, these signs could not, in the judges opinion, qualify as the
kind o f work regulations required by the regulatory decree. Besides, under no
circumstances could the operation o f the machine, no matter how rigorously the division
o f labor was enforced, be considered so foreign to the regular tasks o f the cabinetmaker
Scherman as to constitute grave fault.37 Thus, the judges set the following precedent: In
order for grave fault to exist, it was necessary for the victim to have disobeyed an explicit
prohibition (part o f a set o f work regulations previously approved by the National Labor
Department and visibly displayed).38 In addition, there would have to exist proof o f a
negligence and carelessness that no person caring about their own life would commit.39
The sentence is noteworthy not only for the strict criteria it established for what would be
admitted as grave fault, but also for the little weight it attributed to the defendants
witnesses. These were, in fact, more numerous than the witnesses provided by the
plaintiff, but the judges in the court o f appeals declared them legally suspicious,
because they were the defendants employees and their testimonies thus tainted by their
desire to satisfy the patron.40
37 Ibid., 894-895.
38 Ibid., 894.
39 Ibid. 895.
40 Ibid., 894-895.
121
Another concept closely related to grave fault was that o f occupational
carelessness. While evidence o f grave fault deprived the worker o f his right to
compensation, negligence that could be characterized as occupational carelessness did
not. Alejandro Unsain argued that it was inherent to the nature o f occupational accidents
that they would frequently be caused by the workers own carelessness: Adapted to the
environment, physically and mentally fatigued, and with his attention weakened by the
noise and the mechanical nature o f his habitual work, the worker will, little by little,
begin to neglect the small and common precautions.41 Accidents caused by this dazing
or stupefaction produced by the nature o f the work should n o t to be confounded with
grave fault. According to Unsain, these situations constituted the majority o f occupational
accidents, and should they have qualified as grave fault, the whole law would have been
superfluous.42
One would expect that judges would opt for liberal interpretation o f what
constituted occupational carelessness as a logical corollary to their restrictive
interpretation o f grave fault, and according to the laws intentions. This was also
confirmed in the jurisprudence. In the 1919 case I. De Quintanilla Carmen v. Ferrocarril
de Buenos Aires al Pacifico 43 it was established that a railroad worker entering a train in
motion and subsequently suffering an accident was eligible for compensation. The judges
ruled that entering a train in motion had to be considered occupational carelessness,
deriving from the railroad workers habitual performance o f his work functions, rather
42 Ibid.
43 Sentence cited in JA 14 (1924): 92 (Seccion Legislation) (Camara Civil 2a. de la Capital).
122
than grave fault. Almost ten years later, the jurisprudence did not seem to have changed.
On the contrary, the liberal criterion seems to have been employed with even more
flexibility. In Sold de Campora y otros v. Cla. de T.A. A r g e n t i n a the tramway
conductor Campora had suffered a fatal accident when exiting a moving tramway car
inside the Caridad station. The company Tranvias Anglo-Argentina claimed Campora
had incurred in grave fault by violating work regulations that had previously been
approved by the National Labor Department. Judge Varangot, however, made no room
for the companys allegations. On 18 December 1928 he sentenced the company to pay
the family o f the deceased 5,300 pesos in compensation. The sentence was upheld in the
court o f appeals on 17 May 1929.
The rationale behind the decision to dismiss the defendants claim that the victim
had violated work regulations approved by the National Labor Department merits
attention. Varangot emphasized that, even in spite o f the existence o f such regulations, if
the company did not make sure to enforce them rigorously, their violation by the
employees could not qualify as grave fault. He proceeded to qualify Camporas
negligence as tolerated occupational carelessness and declared the company to have
been directly responsible for the accident, because o f its habitual tolerance o f infractions
o f its own work regulations.45 Thus, Varangot in his ruling went further than the mere
application o f the dispositions o f Law 9688s regulatory decree. While the regulatory
decree made it sufficient for the employer to prove that work regulations approved by the
National Labor Department were visibly displayed, and that the worker had violated one
44 JA 29 (1929): 679-681 (Camara Civil la. de la Capital, 1929).
45 Ibid., 681.
123
or several o f these regulations, Varangot added that the employer had to prove the strict
enforcement of the regulations to be able to claim grave fault on behalf o f the worker.
The court of appeals, however, was hesitant to accept Varangots rationale, which
strictly speakingconstituted an addition to the law rather than its strict application. In
their statement, the appeals court judges limited themselves to claiming that the existence
of the work regulations had not been persuasively proved by the defendant.
The restrictive interpretation o f what constituted grave fault, and the difficulties
employers faced when trying to obtain exemptions from their legal obligation to
compensate their employees, are further evidenced by the 1923 case Crosta deM elg a y
otros v. Castagnino.46 In this case, the employer alleged that the victim was intoxicated at
the time o f the accident, which usually automatically qualified as grave fault.47 The
Capitals Civil Court, both in the first instance and the court o f appeals, did not make
room for the defendants allegations, however. The judges argued that the employer was
aware that his employee had the habit o f being drunk at the job, and since he had
tolerated this state o f affairs, he should also be sentenced to paying the compensation.
Therefore, it was not enough for the employer to prove that his employee was drunk at
the time o f the accident; he also had to prove that he was unaware o f this exceptional
situation. If not, he could be held responsible for not having taken the necessary
precautions to prevent the accident. The jurisprudence also established that, in cases o f
intoxication, it was not enough for the defendant to show that the employee had a habit o f
46JA 13 (1924): 160-161 (Camara Civil 2a. de la Capital, 1924).
47This was established in the following cases: Rossito v. La Continental, JA 10 (1923): 248-249 (Camara
Civil la. de la Capital, 1923); Asesor de menores v. Rocha, JA 11 (1923): 1039-1040 (Camara Civil la. de
la Capital, 1923), and Bello v. Ymaz, JA 24 (1927): 316-319 (Camara Civil la. de La Plata, 1927).
124
drinking, nor would pointing to a strong smell o f wine from the victim suffice to prove
grave fault. There had to be convincing evidence that the employee had been drunk in
the moment o f the accident, and that this was the only reason why the accident had
occurred.50
The Burden o f Proof
If the employer wanted to be exempt from his obligation to compensate the
accident victim, he was the one who had to prove the latters grave fault. This was in
accordance with the principle o f the inverted burden o f proof that was part and parcel of
the doctrine o f occupational risk established in Law 9688. As has become clear, judges
set strict standards for what they were willing to accept as sufficient evidence o f grave
fault. For one, it was not enough for the employer simply to present witnesses. The case
Scherman v. Greiser demonstrated how judges were particularly hesitant to accept the
testimonies o f other employees, because o f their uneven power relationship to the
defendant. In Ministerio de menores v. F.C.C. Bs. Aires,51 it was established that the
victims grave fault,. . . , cannot be established by the mere opinion o f witnesses; [it can]
only be established by concrete facts.. .52 An even stricter criterion for sufficient proof
was established by the Capitals Federal Court o f Appeals on 19 September 1924, as it
48 Romaj v. Ferraro, ,/4 22 (1926): 891-893 (Camara Civil la. de la Capital, 1926).
49 Taina de Panizza v. The River Plate, JA 13 (1924): 443-446 (Camara Civil la. de la Capital, 1924).
50 This was stated in a commentary to the case Asesor de menores v. Roma, Cia. de seguros, JA 26 (1927):
1344-1345 (Camara Comercial de la Capital, 1927).
51 JA 7(1921): 359-360 (Camara Civil la. de la Capital, 1921).
52 Ibid., 360.
125
confirmed the sentence in the first instance in the case Sosa v. Gobierno de la nation:53
The alleged grave fault,. . . , ought to be proved so conclusively that there will not be
the least trace o f doubt in the mind o f the judge that the victim wished and voluntarily
caused the incident that injured him.54
However, the principle o f the inverted burden o f proof did not relieve the plaintiff
o f eveiy obligation to provide evidence. Before the employers responsibility to
compensate the accident could be presumed, it first had to be established that the incident
was, indeed, an occupational accident. It was a common situation that the defendant
would deny his capacity as employer, or contest the allegation that the accident had been
produced as a consequence o f the employees regular work function. In these cases, it
was the plaintiffs responsibility to provide evidence to the contrary. It fell to him to
prove that he was employed by the defendant at the time o f the incident, that the accident
had happened as a consequence o f his service to the employer, and the nature and extent
o f the injury he had suffered.55
While judges employed a restrictive criterion in terms o f what they accepted as
proof o f grave fault, they applied a much more relaxed standard when considering the
plaintiffs evidence o f an occupational accident. In the case Torres v. Cia Sansinena de
JA 14 (1924): 77-78 (Camara Federal de la Capital, 1924).
54 Ibid., 78.
55 The extent o f the principle of the inverted burden of proof was discussed in various sentences and
commentaries. See, for example, Diego de Juirazar, Alcance de la inversion de la prueba en los juicios por
indemnizacion de accidentes del trabajo, JA 28 (1928): 623-624; commentary to the case Knebel v. Maier,
JA 25 (1927): 113-114 (Camara Civil la. de la Capital, 1927), and Unsain, Accidentes del trabajo, 243-
246. See also the following sentences: Alvarez v. La Continenta,! JA 2 (1918): 442-443 (Camara Civil
2a. de la Capital, 1918); Santapau de Grafiigna v. Arias, JA 17 (1925): 147-149 (Camara Civil 2a. de la
Capital, 1925); Nunez v. Fenili, JA 18 (1925): 1018-1019 (Camara Civil la. de la Capital, 1925); Apadula
v. Compania de tranvias La Nacional, JA 28 (1928): 747-749 (Suprema Corte de Buenos Aires, 1928),
among others.
126
carnes congeladas La Negra, 56 it was established that, a series o f assertive
presumptions would suffice as proof o f the accident, not requiring a strictly direct
proof.57 If the defendant did not explicitly deny the occurrence o f the accident, nor its
consequences, the truth o f the incident was automatically presumed. From all the judicial
decisions examined so far, it appears that workers had come into a very comfortable
situation by the 1920s, considering the liberal interpretation of the term occupational
accident and the restrictive application o f the notion o f grave fault. There were other
aspects o f the law, however, which completely undermined its intended benefits, the most
important o f which concerned payment o f the compensation.
The System o f Compensation
Before 1915, judges had determined the amount o f the compensation for
occupational accidents at their discretion, and the sums had been significant. Law 9688
adopted a fixed scale according to which different kinds of injuries were to be
compensated. Article 8 established four different categories of occupational accidents:
Those resulting in death; those producing an absolute and permanent incapacitation for
work; those resulting in partial but permanent incapacitation, and those producing
temporary incapacitation. The first category o f accidents, those resulting in death, obliged
the employer to pay up to 100 pesos in funeral expenses, as well as to compensate the
workers family with a sum equaling 1,000 times the victims daily salary, but not
exceeding 6,000 pesos. The same sum corresponded to workers with absolute and
56 JA 11 (1923): 564-568 (Camara Civil 2a. de la Capital, 1923).
57 Ibid., 564.
127
permanent incapacitation, obviously without the funeral expenses. In cases o f partial but
permanent incapacitation, the victim was entitled to a compensation equal to 1,000 times
the daily reduction he had suffered in his salary due to the accident. If the accident
resulted in temporary incapacitation, the compensation was based on h alf the workers
daily salary multiplied with the number o f days he had been incapacitated. Consequently,
the highest compensation corresponded to cases o f death and absolute and permanent
incapacitation; the lowest to the cases o f temporary incapacitation.
Generally, the sums resulting from this method o f calculation were lower than the
ones obtained in civil law suits over damages prior to the passage o f the law. As
Alejandro Unsain pointed out, the adoption o f [the principle] o f occupational risk
directly influences the sum of the compensations.58 The principle o f occupational risk
could be thought of as a compromise: In exchange for making a much larger number o f
workers eligible for compensation, the compensation they all received would be lower
than those they had been entitled to for damages under civil law.59 The main problem
with the compensation, though, was not primarily its reduction compared to the sums
obtained before 1915. Rather, it was the arrangement for how the compensation was to be
paid that in practice defeated the laws purpose o f improving the workers situation.
While before 1915 the victorious plaintiff in a civil suit over damages had been
awarded his compensation in a lump sum, this changed with the passage o f the law.
According to Law 9688, the employers or the insurance companies in cases o f
occupational accidents were to deposit the compensation in a special section o f the Caja
59 See ibid., 165-166 for a theoretical explanation o f this relationship based on the French jurist Sachet.
128
N ational de Jubilaciones y Pensiones, called the Section Accidentes. The bank would
then invest the sum o f the compensation in government bonds, and the accident victim or
his family would receive the monthly interest the bonds produced.60 With an interest rate
o f 5.60 %, the result was that the sum actually obtained by the worker or his family was
miniscule. Alejandro Unsain remarked: We already know that an interest o f 5.60 % does
not constitute any kind o f efficient assistance, not even in the cases o f highest
compensation, such as those o f death and absolute and permanent incapacitation,. . . . 61
He proceeded to show the absurdity in the situation for workers who had suffered minor
injuries, and who were therefore entitled to smaller compensations. Taking as an example
a worker with a daily salary o f three pesos, and who suffered the loss o f a phalanx, he
showed that, if paid in a lump sum, the worker in question would be entitled to a
compensation o f 180 pesos. However, if this compensation was invested in the Section
Accidentes o f the Caja National de Pensiones y Jubilaciones, in accordance with Law
968Ss Article 9, he would receive a monthly payment o f 0.75 pesos.62
An interest o f only 5.60% made even the maximum compensation o f 6000 pesos
yield a miserable 20 pesos a month, leading Unsain to proclaim: Such an insignificant
interest is not even remotely close to replacing the income brought home by the head of
the family before his death. With the [system of] interest, the family continues just as
destitute as before; living in the greatest misery while they have deposited in their name a
capital that would bring them happiness, but which they cannot touch.63 The system
60 Law 9688s Article 9 and Article 105 o f its regulatory decree.
62 Ibid.
63 Ibid., 151.
129
adopted for payment o f the compensation rendered the law practically worthless.64 The
rationale behind adopting such a system was characterized by a condescending
paternalism on behalf o f the legislators. Their concern was that the accident victim, if
given his compensation in a lump sum, would irresponsibly squander it all at once,
subsequently becoming a burden on society in his poverty.65 Nevertheless, the legislators
were aware o f the insufficiency o f the monthly sum received by the victim or his family
according to the new law. In the parliamentary discussion, even Deputy Bas, who was
behind the bill, agreed with its critics that there were problems with the system of
payment based on interest. As a solution, he suggested that someone propose an
addendum to the law that would enable judges to resolve, on a case-to-case basis, that the
compensation could be paid in a lump sum if this was could truly benefit the accident
victim and his family.66 However, the addendum was never proposed, and the system of
compensation in Law 9688 became that o f monthly interest payments rather than a one
time lump sum.
The system o f interest thus produced a desperate financial situation for the victims
of occupational accidents, especially those entitled to the lowest compensations. Faced
with a partial or complete loss o f their income, they received no significant financial
compensation which could have helped them abate their losses. Not even a year after the
64 According to the National Labor Department, the average monthly salary for workers in the city of
Buenos Aires in 1921 was 173 pesos. In the case o f death, the family of someone earning the monthly
average would therefore be entitled to less than 20 pesos a month; i.e., less than one-eight o f the lost
income. For list o f average salaries in the city of Buenos Aires between 1914 and 1921, see Cronica
Mensual del Departamento Nacional del Trabajo (hereafter CMDNT), no. 56 (August 1922): 901.
65 This was expressed by Deputy Bas when the bill was discussed in the Chamber o f Deputies. DSCD,
1915,3:601,27 September.
66 Ibid.
130
passage o f the law, two reform bills were proposed in the Chamber o f Deputies
attempting to remedy the situation. One was presented by the government through the
National Labor Department; the other by the Socialists. The governments bill
exclusively proposed to reform the laws Article 9, making room for the lowest
compensationsthose corresponding to cases o f temporary incapacities, and all
compensations below 500 pesosto be paid in a lump sum.67 The Socialists reform bill
was the more extensive, proposing profound changes to several o f the articles o f Law
9688, including Article 9 which concerned payment o f the compensation. They proposed
that any amounts below 1,000 pesos should be paid directly to the victims in a lump sum.
Alternatively, if the victim so desired, it could be paid in monthly installments equal to
half the victims salary during the year preceding the accident.68 In spite o f the obvious
need for an immediate reform of the law, however, none o f these bills was passed into
law.
Formal solutions to the problem thus having failed, more informal ones were
attempted. In fact, it was the administration of the Caja National de Pensiones y
Jubilaciones which took the liberty o f effectively ignoring the exact wording o f the law
on this point. The bank established the practice o f giving accident victims with temporary
incapacities their compensations directly and in a lump sum. With compensations for
partial but permanent incapacities, the employers were obliged to make the deposit in the
67 DSCD, 1916, 1:609-610, 17 July.
68 Ibid., 547-556,26 June.
131
Caja, but the bank would then proceed to hand over the lump sum to the accident victims,
avoiding its investment in bonds.69
A final solution to the problem was presented only in 1918, three years after the
passage o f the law, when President Yrigoyen issued a new interpretive decree o f the
laws Article 9 regarding payment o f the compensation. The decree formalized the
practices already established by the Caja National de Pensiones y Jubilaciones Civiles in
cases o f partial permanent and temporary incapacities. In all other cases, the decree
upheld that the compensation be deposited in the bank and invested in bonds. However,
the accident victims or their families were to receive not only the monthly interest
rendered by these bonds, but also monthly quotas o f the capital deposited by the
employer.70 Before this clarification, the effect o f Article 9 had been that the accident
victims compensation was in practice confiscated since the workers or their families
never saw the actual sum, just the miniscule interest it earned.
The Constitutionality o f Articles 9 and 10
The only parts o f the Occupational Accident Law ever alleged to be
unconstitutional were the laws two institutional creations: the Section Accidentes and
the Caja de Garantia, both established within the Caja N ational de Jubilaciones y
Pensiones. Article 9 dictated the deposit o f the compensation in the Section Accidentes
and the subsequent investment in government bonds whose interests and part o f the
69 Memoria de la Seccion Accidentes del Trabajo de la Caja Nacional de Pensiones y Jubilaciones

Civiles, BDNT, no. 36 (January 1918): 187-188.
70 The decree is reproduced in JA 14 (1924): 131-132 (Seccion Legislation). For a brief analysis o f the
decree by Alejandro Unsain, see JA 1 (1918): 369-370.
132
compensation sum itselfwould be paid to the victim in monthly installments. Article 10
established the Caja de Garantia, which was where the compensation should be
deposited in the case an accident victim died but did not leave behind any family to
inherit from him, or if his family was living abroad. The state would use the funds o f the
Caja de Garantia to guarantee payment to accident victims whose employers were
financially incapable o f complying with their legal obligation to compensate.
Both these articles came up for judicial review in Argentinas Supreme C ourt. In
Mansilla v. Ferrari,71 the plaintiff alleged that requiring the deposit o f the compensation
in the Seccion Accidentes was unconstitutional. He argued that, since the compensation
belonged to the accident victim, the government had no right to determine how to dispose
o f it. Law 9688s Article 9 therefore violated Articles 14 and 17 o f the Constitution,
which protected private property. The Supreme Court made no room for the argument.
Since the victim would receive the entire amount o f the compensation in the endeven if
only after several yearsthe court denied there existed a violation o f the property rights
safeguarded by the Constitution.72 It also argued that Law 9688 introduced new legal
principles, which were not limited to the protection o f the worker, but whose ultimate,
higher goal was the reconciliation o f the collective interests o f labor and capital.73
Therefore, the laws Article 9 had to be considered within the novel framework
constituted by this larger goal, and not be judged according to traditional legal principles.
71 JA 10 (1923): 655-657 (Suprema Corte de Justicia Nacional, 1923).
72 Ibid., 656.
73 Ibid.
133
The Caja de Garantia was contested in the Supreme Court, too. In this case,
however, it was the employers rather than the workers who considered themselves
wronged. Obviously, employers were not eager to have to pay occupational accident
compensation in cases where a dead employee left behind no family to receive the
money. They claimed it an usurpation o f private property by the state to have to pay the
amount into the Caja de Garantia. Why should money corresponding to their
employee or rather, his successors be confiscated by the state through the Caja de
Garantia to be used at some point in the future to pay a completely different employee
whose employer was unable to comply with his legal responsibilities? The Supreme
Court made no room for the employers argument either. In its ruling in Asesor de
menores v. F.C.O.74 on 5 October 1918 it stated: It is also evident that the dispositions o f
the law in question . . . do not constitute a confiscation o f property.. . . This is only about
making effective the companys responsibility to compensate the accident suffered by
one o f its employees.75 With these two rulings, the Supreme Court had put an end to the
discussions o f the two most controversial articles o f Law 9688, supposedly leaving no
more doubts about the nature o f the compensation payment. The employer should deposit
the compensation in either the Seccion Accidentes or the Caja de Garantia, and the
victim would receive the sum in monthly installments over a period o f ten years.
74JA 2 (1918): 557-559 (Suprema Corte de Justicia Nacional, 1918).
75 Ibid., 558.
134
Jurisdiction and Compensation Payment
The problems with respect to payment o f the compensation were not resolved yet,
however. The 1915 Occupational Accident Law had been passed by the Argentine
Congress to be applied nationally. Nevertheless, even in the case o f national laws
Argentine federalist principles reserved for the provinces the right to draft their own
regulatory decrees specifying how the laws should be implemented in practice. In short,
the general principles o f the law could be determined by the national government to apply
to the entire territory o f the nation, but the concrete measures o f implementation were left
to the provincial legislatures. The regulatory decrees defined the practical and procedural
aspects of the law and could, theoretically, not modify the laws content or jurisdiction.
In the case of the 1915 Occupational Accident Law, the way the provinces
attempted to implement the law in practice directly challenged its intended national
jurisdiction. Although the laws Articles 9 and 10 provided for the establishment o f one
Seccion Accidentes and one Caja de Garantia within the national Caja Nacional de
Jubilaciones y Pensiones, the provincial regulatory decrees dictated that the
compensation be deposited in a range o f different local institutions.76 In the regulatory
decree of the Province of Buenos Aires, issued 14 March 1917, it was established that the
employers should deposit the compensations in any o f the branches o f the Banco de la
Nacion or the Banco de la Provincia, later to be transferred to the main branch o f the
latter in La Plata. The Province o f Cordoba decreed that the deposit should be made in
76 The parts o f the provincial regulatory decrees pertaining to the deposit o f the compensation are discussed
in Enrique Diaz de Guijarro, La Caja Nacional de Jubilaciones y Pensiones como unica depositaria de las
indemnizaciones por accidentes del trabajo, JA 14 (1924): 5-25. The provincial regulatory decrees of
Buenos Aires, Cordoba, Santa Fe, Entre Rios, and Salta are published in their entirety in ibid., 133-173
(Seccion Legislation).
135
the Caja Provincial de Jubilaciones', i.e., the provincial branch o f the Caja Nacional de
Jubilaciones y Pensiones, while in the Province o f Entre Rios the employers were told to
deposit the compensation with the provincial Labor Office (Oficina del Trabajo).
The adverse consequences o f this confusing state o f affairs were bome by the
workers. First, employers avoided making any deposit at all while it had not been
unequivocally established where they were supposed to make it. They argued that they
would not expose themselves to the danger that, once they had deposited the money in
one institution, they would be ordered to do it again in an o th er/' Second, with each
province operating with their own system for the deposit o f the compensation, the
financial solidity of the institutions was often less than sound. The situation was
particularly critical for the provincial Cajas de Garantia, or their equivalents, as these
received a minority o f the total deposits.
The final solution to the reigning chaos came with a Supreme Court decision on
3 September 1924, in the case Netto v. Ferrocarriles de Entre Rios.78 In its ruling, the
Supreme Court extensively elaborated on the spirit o f the law.79 Citing the
parliamentary debates preceding the passage o f the law, the judges concluded there could
be no doubt that the legislators purpose had been to create one Seccion Accidentes and
one Caja de Garantia in order to insure the financial solidity o f the institutions and
77 Judge Dellepiane considered this argument to be both understandable and legitimate when he ruled in
Perez v. F.C.S. in the Provincial Court o f Appeals in the Province o f Buenos Aires. His ruling is
reproduced together with the subsequent Supreme Court sentence, JA 16 (1925): 14-17 (Suprema Corte de
Justicia Nacional, 1925).
79 It was considered part o f the judges professional obligation to rale in accordance with the spirit of the
law, which meant to insure that the judicial interpretation o f the law corresponded to the purpose with
which it had been passed. Legislative debates were one o f the most important sources judges used when
looking for the laws spirit.
136
consequently guarantee the accident victims the effective protection o f the law.80 Once
this had been decided, the Court proceeded to rule that the national legislature had acted
within its constitutional boundaries when giving the law such a purpose, since Law 9688
was complementary to the Civil Code and therefore constitutionally o f national
jurisdiction. It consequently ruled that the provincial regulatory decrees which ordered
the deposit o f the compensation in separate provincial institutions, and not in the national
Caja Nacional de Jubilaciones y Pensiones, were unconstitutional. The ruling was
followed almost immediately by a Presidential decree, issued on 6 May 1925, mandating
the transfer o f all deposits made in the provinces to the national Seccion Accidents and
Caja de Garantia.M
By deciding that the 1915 Occupational Accident Law and by logical extension,
labor legislation in general should be considered complementary to the Civil Code, the
court again tried to fit the new legislation into the already existing legal frameworks
rather than define a new set o f terms for the regulation o f the relationship between labor
and capital. Although at a first glance these issues o f jurisdiction and interpretation might
seem o f a purely technical character, they had concrete consequences for the nature o f
Argentine labor law in the period between 1900 and 1943. Choosing to interpret labor
legislation as an extension o f civil law meant that only laws that could persuasively be
argued to fit within the framework o f the Code could be o f national jurisdiction. Others
would remain the jurisdiction o f the provinces.
*JA 14(1924): 10-16.
81 The decree is treated in Enrique Diaz de Guijarro, La Caja Nacional de Jubilaciones y Pensiones como
unica depositaria de las indemnizaciones por accidentes del trabajo, 16.
137
In case o f the Occupational Accident Law, its connection to the Civil Code could
be established relatively easily by pointing to the previous jurisprudence o f considering
workers rights to compensation in accordance with the Civil Codes regulation o f
damages. The same connection could not as easily be established for other labor laws,
however. As industry developed in Argentina in the 1920s and 1930s, the regulations
required by the new relationship between labor and capital had increasingly less in
common with the Civil Codes regulation o f the location de s e n icios. As Chapter 4 will
show, the result o f interpreting labor legislation as a simple extension o f the Civil Code
was that Argentine labor legislation remained a fragmented collection o f partial
measures, which ultimately failed to effectively address workers needs.
Workers Situation and Responses
The Compensation
The first ten years after the passage o f Law 9688 had been characterized by a
complete confusion with respect to the system o f payment o f compensation, undermining
the positive benefits workers were intended to obtain from the law. Although the problem
o f negligible monthly payments in cases o f temporary and partial permanent incapacities
had been formally resolved with the 1918 regulatory decree, the situation was far from
satisfactory for workers who had suffered complete permanent incapacities, or for the
families o f victims who had died. With the sum o f the compensation and the
corresponding interests divided into monthly quotas over a period o f ten year, the
amounts they received per month were still modest, to say the least. Even the maximum
138
compensation o f 6,000 pesos rendered only a capital payment o f 50 pesos a month, plus
interest, and only a few workers and families were entitled to the maximum
compensation. The situation only worsened over the years, as inflation further diminished
the real value o f the fixed compensations. Law 9688 had no dispositions that provided for
the inflationary adjustment o f the compensations over time, which meant that the
maximum compensation obtainable was 6,000 pesos in 1915 as well as in 1939.
It should come as no surprise that, if given the choice, workers preferred the
compensation paid directly in a lump sum rather than in monthly quotas, and they
employed various strategies to achieve this. One solution they opted for was to obtain the
compensation directly from the employer, without involving either the National Labor
Department or the Caja National de Pensiones y Jubilaciones. Employers had few
objections to this solution, as it enabled them to pressure the workers to accept a smaller
compensation than they were entitled to by law in exchange for receiving it as a lump
sum. Another strategy was to opt for a civil lawsuit for damages according to the Civil
Code, rather than for occupational accident compensation according to Law 9688. This
option was explicitly established in the laws Article 17. In case the accident had indeed
been caused by the carelessness or fault o f the employer, the worker maintained the
opportunity to file a regular lawsuit over damages. The suit would then be judged
according to the Civil Code, with the plaintiff needing to prove the fault o f the employer
to be eligible for compensation.82 If the plaintiff opted for a civil lawsuit, he was
automatically excluded from invoking Law 9688, and vice versa.
82 For an explanation o f this option, see commentary by Alejandro Unsain to the case Teruel, Alvarez y
otros v. Ferrocarril Central Buenos Aires, JA 1 (1918): 366-370.
139
Claiming compensation for damages according to the Civil Code was not
generally an attractive option for workers even if they were tempted by the possibility of
receiving a larger sum o f money in a lump sum. The lawsuits were difficult to win; they
were costly and time-consuming; and the burden o f proof fell to the worker as plaintiff.
Although there are several examples o f cases o f industrial accidents where workers or
their relatives opted for the action for damages,83 they constitute a minority compared to
those initiated according to Law 9688. The option embodied in Article 17, rather than
causing a wave o f claims to damages, led to the development o f a different legal practice.
Workers initiated legal action in accordance with the Civil Code, but without the
intention o f ever bringing it to completion. Instead, they would reach a settlement with
their employers before the case came to judgment. The arrangement made it possible for
workers to receive the compensation in a lump sum, at the same time as they could
compromise with the employers with respect to its amount.84 The persistence o f the
practice and the failure to correct the insufficiencies o f the law is brought out by a
1934 decree, issued by the Ministry o f the Interior, which explicitly prohibited plaintiffs
and defendants in civil lawsuits over occupational accidents to enter into any agreement
or settlement.85
Feigning civil lawsuits was not the only strategy workers employed in their
attempts to obtain the compensation in a lump sum. In their lawsuits for compensation
8j See, for example, Moyano v. Comp. Azuc. Tucumana, JA 5 (1920): 486-487 (Provincia de Tucuman,
1920); Del Castillo v. Ferrocanil Oeste, JA 26 (1927): 490-491 (Camara Federal de la Capital, 1927);
Barbieri de Barral v. S.A. Luis Magnasco y Cia., JA 28 (1928): 108-111 (Camara Civil 2a. de la Capital,
1928), among others.
84 The practice is mentioned in Unsain, Accidentes del trabajo, 152.
85 Boletin Informativo del Departamento Nacional del Trabajo (hereafter BIDNT), no. 169 (February
1934): 3801-3803.
140
according to Law 9688, workers often petitioned the court to rule that their compensation
be paid to them directly rather than deposited in the Caja de Jubilaciones, invoking an
eclectic range o f exceptional circumstances with which they hoped to persuade the courts
to make an exception to the law as it was written. The jurisprudence in these kinds o f
cases shows an interesting division into two strains: In many cases, judges dismissed any
claims to exceptions from the terms o f the law, asserting that the law was unequivocal in
its dispositions with respect to the deposit in the Caja de Jubilaciones.86
In the early 1920s, however, several important sentences challenged this
interpretation and opened for the direct and immediate payment o f the compensation in a
lump sum to the accident victim. In a two-thirds majority ruling, the Capitals
Commercial Court o f Appeals on 19 June 1922 gave a radical reinterpretation o f the

R7
laws dispositions. Rather than ordering the payment o f the compensation in monthly
installmentswhich would have amounted to only 36 pesos and 15 centavos per
monththe family o f the accident victim was accorded the compensation in a lump sum
to invest the amount in property. The courts rationale was that, in spite o f the apparently
inflexible terms o f the lawwhich explicitly ordered the deposit o f the compensation in
86 See, for example, Tamborini v. Sarabia, JA 1 (1918): 677-679 (Camara Civil la. de la Capital, 191S);
Alonso y Fernandez v. The Smitfield and Argentine Meat Company Ltd., JA 9 (1922): 274 (Camara Civil
2a. de la Capital, 1922); Capobianco de Lettieri v. Novais, ibid., 271 (Camara Civil 2a. de la Capital,
1922); Destefani de Morello y otros v. La Continental (comp, de seguros), JA 11 (1923): 317-318
(Camara Civil 2a. de la Capital, 1923); Sordelli v. Empresa ferrocarriles del estado, JA 14 (1924): 786
(Camara Civil 2a. de la Capital, 1924); De Diego v. Vattuone y Bosso Hnos., J A 2 \ (1926): 781-7S2
(Camara Civil la. de la Capital, 1926); Gargaglione de Agliotta v. Carabelli y otros, JA 28 (1928): 135-136
(Camara Civil 2a. de la Capital, 1928).
87 Villaroel v. La Continental, cited in footnote to the case San Martin de Vidal v. La Continental, JA
20 (1926): 939-941 (Camara Comercial de la Capital, 1926).
141
the Section Accidentesthe decision to give the victim the compensation in a lump sum
was in accordance with the legislators intention.88
Two other decisions reiterated this liberal interpretation o f the legislators
intention an intention which obviously had not found its expression in the wording o f
Q (]
the law itself. In Sabarini v. Bonacossa, the Provincial Court o f Appeals in La Plata
decided that, when the compensation was paid without the intervention o f the judiciary, it
should automatically be deposited in the Caja de Jubilaciones. However, if the case was
decided in the courts, it was the judges privilege to determine whether the compensation
should be handed over directly to the accident victim or his family, or be deposited in the
Caja.90 The court based its decision on Articles 38 and 39 o f the provincial regulatory
decree, which explicitly accorded the judges this privilege. The decree also provided a
list o f possible circumstances in which the direct payment o f the compensation was
legitimate.91 One o f these circumstances was if the amount received in monthly
installments was so meager that it proved entirely insufficient to cover the familys
needs.92 In the benchmark case Pate v. Capano ,93 which was decided with a vote o f four
88 Ibid., 940.
89 JA 10 (1923): 421-422 (Camara Civil la. de La Plata, 1923).
90 Ibid., 422.
91 The regulatory decree is reproduced in JA 14 (1924): 133-138 (Seccion Legislation). Articles 38 and 39
were two o f several dispositions of the provincial regulatory decree which contradicted or exceeded the
national law. Alejandro Unsain noted that, although they may have been reasonable and just, they were
certainly not legal. Unsain, Accidentes del trabajo, 156-157.
92 That the plaintiff could receive the compensation in a lump sum if monthly installments were completely
insufficient to meet the familys needs had also been the rationale behind the decision in the above-
mentioned case Villaroel v. La Continental. The court considered the monthly 36 pesos and 15 centavos
insufficient to constitute any real benefit to the family, but if the compensation in a lump sum was spent on
property, it would give the family some real security.
9iJA 13 (1924): 125-131 (Camara Civil la. de la Capital, 1924).
142
against one, the plaintiff was accorded the compensation in a lump sum on the basis that,
should he have received it in monthly installments, it would have been completely
insufficient for his sustenance.94 In this case, the decision did not rely on a regulatory
decree.
While the general rule was still that the deposit should be made in the Caja de
Jubilaciones, the jurisprudence had established that it was the judges prerogative to
grant the plaintiff his compensation in a lump sum. Litigation therefore became one o f
the few ways in which workers and their families had any chance o f enjoying the
intended benefits o f Law 9688. As time went on and compensations grew proportionately
smaller due to inflation, it became increasingly easy to argue for the insufficiency o f the
monthly installments. The two different strains o f judicial interpretations coexisted all
through the 1920s and 1930s, constituting an example o f how Argentine judges again
took it upon themselves to amend the weaknesses o f the law in ways that were not,
strictly speaking, accorded to them by the Constitution. If, in a civil law system, the
judges function was supposed to be limited to the literal application o f the law, in
Argentina they significantly exceeded their duties. Workers faced with a legislature that
either failed to pass protective labor laws or passed laws so poorly designed that they
provided no real protectionturned to the courts in an attempt to remedy their situation.
Even in the case where a law existed, the most important part o f the state in the definition
o f labor law continued to be the judiciary rather than the legislature.
94 Ibid., 128.
143
Procedure and Jurisdiction
There can be little doubt that the issues revolving around payment o f the
compensation constituted the major problem o f Law 9688. Nevertheless, the law
presented other problems for workers, and some o f the old obstacles they had
experienced in their encounter with the courts in the period before 1915 did not
automatically disappear with the passage o f the law. One o f the major problems before
1915 had been the lengthy and costly civil procedure in lawsuits over damages. A goal of
Law 9688 was to make litigation a simpler, cheaper, and, most importantly, quicker
process by using a summary procedure.95 Neither the law nor the regulatoiy decree
ever clarified what a summary procedure was, however. Again, the issue was left to be
resolved in practice in the courtrooms, where the judges took it upon themselves to define
the procedure as best they could. According to Unsain, judges in the first instance had
developed a system where it was possible to obtain a final sentence within a month o f the
initiation o f the lawsuit. The problem was that this system was not followed by the court
o f appeals, which treated cases o f occupational accidents according to the traditional
rules established in the Procedural Code, making it impossible to expect the same
expediency in the second instance as in the first.96
A second problem for workers previous to 1915 had been the confusing situation
with respect to jurisdiction. Claims for damages were resolved in either federal or local
95 Law 9688s Art. 15.
96 Unsain, Accidentes del trabajo, 238-241.
144
courts depending on the nature o f the case.97 An additional problem had presented itself
when the accident victim was covered by an accident insurance policy, in which case the
courts decided that the legal proceedings belonged in the local commercial court rather
than the civil court. Little or nothing changed with respect to this confusing state o f
affairs after the passage o f Law 9688. The first issue to be determined was whether the
laws national application automatically and consequently made it federal jurisdiction.
The question was resolved in a series o f Supreme Court sentences, which established
that, since the law was complementary to the Civil Codealthough it was national in
charactercourt action involving occupational accidents belonged in the local or
provincial courts, not the federal.98
There were plenty o f exceptions to this seemingly straightforward rule, however.
If the case in question involved people from different provinces, an agency o f the state, a
foreigner, or an area o f federal jurisdiction such as the national rivers or ports, legal
action had to be initiated in the federal courts.99 Especially problematic were cases where
the accident had happened on board a ship, or where a railroad company was involved.
What if an accident had occurred on board a ship while it was anchored in a port and not
at sea? Was it then o f federal or local jurisdiction? Another issue which brought forth
97 As Chapter 2 made clear, the issue was most contested in cases involving railroad companies, which
were accepted in both federal and local courts.
98 This was the interpretation reiterated in the following Supreme Court sentences: La Inmobiliaria (Cia. de
seguros), JA 9 (1922): 511-512 (Suprema Corte de Justicia Nacional, 1917); Ciarella v. Peychaux, JA 3
(1919): 344-345 (Suprema Corte de Justicia Nacional, 1919); Cartasso de Cherot v. Ferrocarriles de Entre
Rios, JA 5(1920): 87-88 (Suprema Corte de Justicia Nacional, 1920); Caja Nacional de Jubilaciones y
Pensiones Civiles v. Ferrocarril de Santa Fe, JA 9 (1922): 823 (Suprema Corte de Justicia Nacional, 1922);
and Defensor de pobres v. Ferrocarril de Santa Fe, JA 16 (1925): 407 (Suprema Corte de Justicia Nacional,
1925).
99 This was established in the Constitutions Article 100 and in Law 48, ALA, 1852-1880, 364-369.
145
doubts was what employees should be considered directly involved in navigation or
maritime commerce, and who should be treated as mere auxiliaries. While litigation
initiated by the former belonged in the federal courts, that of the latter corresponded to
the local courts. In general, cases involving railroad companies also belonged in the local
rather than the federal courts. An exception, however, was when the plaintiff invoked
dispositions of the National Railroad Law, Law 2873, claiming fault on behalf o f other
employees at the service o f the railroad company. In these cases, the appropriate
jurisdiction was federal, as was resolved by the national Supreme Court on 3 July 1925 in
Del Castillo v. Ferrocarril Oeste.m
Debates over the appropriate jurisdiction in cases where accident victims were
covered by an insurance policy were also renewed after the passage o f the law. The issue
was finally resolved in the important plenary sentence to Maulem v. La Central
(compania de segnros),m where twelve o f a total o f fourteen judges decided that such
cases were still o f commercial rather than civil jurisdiction. It is worth noting that many
o f the decisions over jurisdiction could only be arrived at by dismissing claims that had
been initiated in the wrong court. Often the decision was one in the first instance and
different in the court of appeals. For workers, the insecurity created by this situation
constituted a serious obstacle in their encounter with the judicial system. In this respect,
little seemed to have changed from the period preceding the Occupational Accident Law.
100JA 16 (1925): 385 (Suprema Corte de Justicia Nacional, 1925).
101 JA 17 (1925): 284-289 (Camaras en Pleno de la Capital, 1925).
Conclusion
In short, it must be concluded that the 1915 law completely failed to improve the
precarious situation faced by workers victims o f occupational accidents. Despite the
beneficial aspects o f the law such as the abolishment o f the notion o f fault, concomitant
inverted burden o f proof, the liberal definition o f the term occupational accidents, and the
restrictive interpretation o f the notion o f grave fault the system o f compensation
undermined all the laws good intentions. With the payment o f the compensation in
monthly installments over a ten-year period rather than in a lump sum in cases o f
complete, permanent incapacitation and death, victims received amounts that were
entirely insufficient to mitigate their difficult financial situation in the aftermath o f an
accident. With the obvious weaknesses o f the law, one would think that it would soon be
replaced. Nevertheless, this did not happen until 1940, when Law 12.631102 was passed.
Even Law 12.631 cannot be regarded as a new law o f occupational accidents, since it
only provided for the modification o f certain articles o f Law 9688, none o f which
involved the system o f compensation. In practice, occupational accidents in 1943 were
regulated by the same basic principles as in 1915.
In addition to the obstacles and inefficiencies in the legislative process, several
other factors can explain why the law was never reformed. From the perspective o f the
legislature, although the Radicals in power in the 1920s did not completely ignore labors
needs, the basis for their power was the middle classes rather than the workers. President
Yrigoyen did, however, present a Labor Code bill to Congress in 1921, but-just as the
previous one presented in 1904 it never obtained the sanction o f any o f the legislative
102ALA, 1920-1940. 856-858.
with permission of the copyright owner. Further reproduction prohibited without permission.
147
chambers. In general, the Radicals preferred to respond to labors demands on an ad-hoc
basis when forced to do so during strikes, rather than with comprehensive legislative
solutions . Little seems to have changed in the 1930s with Justos military government. In
spite of corporatist influences, the need for a legislative regulation o f modem, industrial
labor-capital relations was largely ignored at a time when solutions to the economic crisis
took first place on the political agenda.
From labors perspective, the leading ideology o f the organized labor movement
during the late 1910s and 1920s was Sindicalismo. Although more moderate than their
Anarchist predecessors with respect to their view o f the state, the Sindicalistcis believed
that concessions should be extracted from employers directly rather than from the state.
Pushing for legislation through Congress did not figure prominently on their agenda. The
ideological current which saw legislative reform as the most important solution to the
problems o f labor-capital relations was Socialism. The Socialists were never strong
within the organized labor movement, however, although the party made significant
contributions to the legislative process in Congress. During the 1920s, with the exception
o f the railroad and dock workers unions, the labor movement in Argentina was not
particularly strong either. Without a strong organization and not yet numerically
important enough to make it politically important to cater to their needs, there was little
chance o f labor pushing through a reform by force o f their own strength. The scenario
changed during the 1930s, when the working classes grew significantly in numbers as a
result o f the new industrialization policies, and the strength o f the labor movement grew
concomitantly, but the focus still was primarily on extracting concessions directly from
employers.
148
In this situation, individual workers again resorted to the courts to try to mitigate
their losses. Some took advantage o f the laws Article 17, which established the right to
choose between legal action for damages according to the Civil Code and compensation
according to the Occupational Accident Law. Feigning the intention o f carrying through a
civil lawsuit, they would reach a settlement with their employers before the case reached
judgement. The arrangement enabled workers to obtain the compensation in a lump sum,
although they had to compromise with employers by agreeing to settle for a smaller
amount than that to which they were actually entitled. Another strategy workers
employed was to petition the courts for payment o f the compensation in a lump sum
rather than in monthly installments. On this point, a dual jurisprudence developed. While
some judges ruled that the compensation in all cases should be deposited in the Section
Accidentes o f the Caja de Jubilaciones, others proclaimed that it was a judicial privilege
to order the payment o f the compensation in a lump sum in cases where its payment in
monthly installments was entirely insufficient to meet the workers needs.
There can be no doubt that, in the latter strain o f interpretation, Argentine judges
took significant liberties in interpreting the letter o f the law, exceeding the functions
intended for them by the civil law system. It seems fair to say, then, that the judiciary
continued to be a primary shaper o f Argentine labor law with respect to occupational
accidents, just like it had been in the period before 1915. The judiciary shaped Argentine
labor law in another way, too. Through its rulings on issues o f jurisdiction, it determined
that the Occupational Accident Law and, by extension, labor legislation in general
should be considered complementary to the Civil Code rather than as a new legislative
149
field. The consequences o f this interpretation for the nature and extension o f Argentine
labor law will be the topic o f discussion in the following chapter.
150
CHAPTER 4
NATION OR PROVINCE: THE CONTESTED JURISDICTION OF MINIMUM
WAGES AND THE EIGHT-HOUR DAY
The issue o f jurisdiction was a central theme in the debates over Argentine labor
legislation. As a new legislative field, it was not immediately obvious whether it should
fall to the national or the provincial governments to regulate labor issues. According to
the Argentine Constitution and the federalist principle on which it was founded, any
power not delegated to the national government by the Constitution was retained by the
provinces.1 However, the power to promulgate the Civil, Commercial, Penal, and Mining
Codes, was explicitly conferred on the national government.2 By extension, it also fell to
the national government to promulgate laws that were complementary to the Codes. The
question, then, became whether labor legislation should be considered a new field o f
legislation, with nothing in common with the structures o f traditional civil law, or
whether it should be considered an extension o f the Civil Code. In the former case, labor
laws should be promulgated by the provincial legislatures with local jurisdiction and by
the national government only for the national capital and federal territories. In the latter
case, it fell to the national government to promulgate laws which should apply nationally.
In the case o f the Occupational Accident Law, both the Chamber o f Deputies and
the Senate agreed that it should be considered complementary to the Civil Code and
therefore o f national jurisdiction. Several factors lent themselves to this interpretation.
1Constitution de la Nation Argentina, Art. 104.
2 Ibid., Art. 67, Subparagraph 11.
151
First was the fact that cases o f occupational accidents had been resolved judicially in the
period preceding 1915 in accordance with the dispositions o f the Civil Code regarding
damages. In addition, the law implied a modification o f the notion o f responsibility,
which was one o f the classical concepts o f the Civil Code. Finally, this notion o f
responsibility was tied to another o f the Codes pivotal concepts, that o f contract. Taken
together, all these circumstances made it much easier to argue for the laws intimate
relation to the Civil Code than what was the case with other pieces o f labor legislation.
The appropriate jurisdiction o f other important labor laws, such as those
establishing minimum wages and limitations to the legal workday, was much more
contested. For instance, several provincial legislatures asserted what they claimed to be
their constitutional right and promulgated laws o f their own before the national
legislature did so. The Argentine Congress did not pass a national eight-hour day law
until 1929, but the Province o f Mendoza had already passed a local law in 1918. The
Cordoba passed an eight-hour day law in 1919, and various other provinces followed suit
in the early 1920s. Many o f the same provinces also passed general minimum wage laws.
A general minimum wage law was not passed by the national legislature in Argentina
before 1943.
This chapter will analyze the legislative debates over jurisdiction with respect to
labor legislation between 1900 and 1943 and the role played by the Supreme Court in
determining whether labor law should ultimately be considered national or provincial
domain. The chapter will make clear that the tendency was for the Supreme Court to
insist on its interpretationfirst voiced in rulings on the 1915 Occupational Accident
Lawthat labor legislation should be interpreted as complementary to the traditional
152
dispositions o f the Civil Code regarding contracts and the location de servicios.
Consequently, it should fall to the national, rather than to local, government to
promulgate labor laws. The Supreme Courts interpretation was one which was also
increasingly shared by the national legislators. By the 1920s, with the growth and
diversification o f Argentinas economy, industry was acquiring a more significant
economic importance. This fact, coupled with the concomitant numerical growth o f the
Argentine working class, made it an increasingly pressing necessity for the national
government to assume sole control o f the regulation o f the relationship between labor and
capital.
Claiming labor legislation was complementary to the Civil Code made it possible
for the national legislature to assert their exclusive legislative authority in the field o f
labor law. Ironically enough, however, by choosing to interpret the field o f labor
legislation as an extension of traditional civil law rather than a new legislative field, the
courts as well as Congress contributed to creating a situation in which Argentine labor
law could not adequately address the new situation o f labor-capital relations inherent to
modem society. Overcoming these institutional obstacles would have required political
will and the courage to redefine entirely the field o f labor law in response to the
necessities o f modem, industrial society. Labor was not yet strong enough or important
enough electorally to extract the latter from the governing elites.
The Disputed Jurisdiction o f Labor Legislation
That the Occupational Accident Law was passed by Congress with hardly any
debate over the appropriate jurisdiction made it an exception in the context o f Argentine
153
labor legislation, because almost all the other bills presented in the national legislature
experienced exhaustive debate about this point. An illustrative example is the first labor
law passed by the national Congress, the 1905 Sunday Rest Law. The law was the first of
a series o f partial implementations o f the National Labor Law bill {Ley Nacional del
Trabajo). The bill had been presented in 1904 by Julio A. Rocas Minister o f the Interior,
Joaquin V. Gonzalez, as a response to the 1902 general strike. It took the form o f a
comprehensive labor code, in spite o f the fact that the Argentine Congress at the time had
not yet passed a single labor law. Gonzalez, in his address to the Chamber of Deputies,
pointed to the failure o f the Civil Code to accommodate modem labor-capital relations
and the necessity to promulgate a new and separate Code that would exclusively regulate
this relationship.3
Although Gonzalez argued for the need to consider labor legislation as a new and
separate legislative field, the National Labor Law was still to be considered an extension
o f civil law as it defines and regulates the exercise o f the civil rights related to industrial
work."4 Therefore, its promulgation corresponded to the national legislature according to
the Constitution. The 1904 National Labor Law bill was never passed, in fact it was never
even treated in Congress. There was widespread resistance to it among politicians,
industrialists, and workers alike, and a consensus that the law was premature and would
have been impracticable. Even Alfredo Palacios, the tireless Socialist legislator, claimed
that, rather than passing a Labor Code, it was better to pass labor legislation piece by
3 DSCD, 1904, 1: 82-83, 6 May.
4 This was established in the bills Article 2.
154
piece.5 However, even if a National Labor Law could be persuasively argued to be an
extension o f the Civil Code and its regulation o f the location de servitiosand therefore
o f national jurisdiction the same could not automatically be assumed to apply to
individual pieces o f labor legislation.
When Alfredo Palacios presented the Sunday Rest bill in the Chamber o f
Deputies in 1904, he argued that a Sunday Rest Law was just one o f the aspects o f the
labor contract, regulated by civil law, and that the law should consequently be national in
scope.6 Other representatives were o f a different opinion, however, among them Deputies
Demaria and Gouchon. In the congressional debates preceding the law, Demaria asserted:
T h is.. . is a matter which will fundamentally hurt the autonomy o f the provinces and
which the Argentine Congress neither can nor should approve in this form ' Gouchon
concurred: Here, the nature o f our fundamental charter has not been taken into account.
The Constitution, which establishes a federal system o f government, has been ignored,
and we are enacting a law o f an entirely unitary character.8
7 DSCD, 1904,2:476,22 September and DSCD, 1906, 1:1113.28 September. For a synthetic treatment of
the 1904 National Labor Law bill and other Labor Codes presented to Congress in the period under study,
see Marcela Aspell de Yanzi Ferreira, Los proyectos de codigo de trabajo presentados a las camaras del
congreso nacional 1904-1974, Cuademos deHistoria, Cordoba (Academia Nacional de Derecho y
Ciencias Sociales de Cordoba. Instituto de Historia del Derecho y de las ideas politicas) 1993, no. 3:75-
123. Between 1900 and 1943, there were three Labor Code bills presented to the National Congress by the
Executive Power, and two more initiatives on behalf o f members o f Congress. In addition to the 1904 bill,
the Executive Power presented a Labor Code bill in 1921, and another in 1933. In 1928, Senator Diego
Luis Molinari made his contribution to the efforts to give Argentina a national Labor Code, and in 1941 the
1933 bill designed by Carlos Saavedra Lamas, was reintroduced by the representative to the Chamber of
Deputies, Pio Pandolfo. Ibid.
6 DSCD. 1904,2:572-573, 28 September.
7 Ibid., 626,30 September.
8 Ibid., 627,30 September.
155
Nevertheless, the opponents to making the law national in character found
themselves in the minority in the Chamber o f Deputies, and the bill was sent to the
Senate in the jurisdictional form it had been given by its initiator Palacios. In the Senate
the issue came up for debate again. Senator Damasio Palacio claimed that the bill, rather
than regulating the labor contract, addressed issues o f health and social necessity and
therefore had little or nothing to do with the Civil Code.9 The Senator also adduced
practical reasons why the matter was best left to the provincial legislatures. The regional
differences displayed by the national industry, as well as different regional customs and
practices, would make a national law impracticable, he claimed.10 The Senate therefore
changed the bills jurisdiction and limited its application to the federal capital.11 The
Chamber o f Deputies accepted the changes introduced by the Senate, and the law was
promulgated on 6 September 1905.12
The debate over jurisdiction was repeated in all subsequent discussions o f labor
legislation. When the Women and Child Labor Law was discussed in the Chamber of
Deputies in 1906 and 1907, it was first presented with national jurisdiction, then local,
and thenafter having consulted the opinion o f the president o f the recently formed
National Labor Department, Jose Nicolas Matienzo was voted as national in its general
9 DSCS, 1905,1:618,29 August.
10 Ibid., 29 August.
11 Another change introduced by the Senate was to eliminate the dispositions o f the bill which established
that the workers pay would not be docked for the weekly day off. Arguing along traditional liberalist lines,
Senator Palacio claimed it was an attack against private property to make employers pay their workers for
a day they did no work. Ibid., 619. In practice, this rendered the law without much effect, as few workers
who were used to working Sundays could afford to take the day off without pay.
12 Ley 4661, ALA, 1889-1919.650-651.
156
dispositions, but with certain articles o f the law pertaining only to the federal capital.1-'
Matienzo, in his message to Congress, made a point o f the necessity to adapt labor
legislation in Argentina to the federal principles o f the Constitution: .
Labor legislation in the Argentine Republic cannot take on the unitary form it has
in France, Italy, Belgium, Spain and other European nations If we want to avoid
exposing ourselves to the Supreme Court invalidating our labor laws as
unconstitutional, it is indispensable that they conform to the nations Constitution,
distinguishing between issues o f a federal character and those o f provincial
jurisdiction. This will also allow for a certain flexibility o f the laws in question to make
room for regional differences and the different customs and necessities o f our various
provinces and territories.14
It is worth taking a closer look at which o f the Women and Child Labor Laws
dispositions were voted as national and which applied only to the federal capital, since
the law constitutes a particularly poignant illustration o f the issues at stake in the debates
over labor legislation jurisdiction. The laws first article universally prohibited the
employment o f children under the age o f ten, or children over the age o f ten who had not
yet finished their obligatory education. Article 2 made it unlawful to employ children
under the age o f sixteen in night work, or in tasks potentially harmful to their health,
instruction, or morality. Article 6 made it the obligation o f the employers to insure the
moral and physical safety o f women and children in the workplace.15 All these articles
were to apply nationally.
Article 9 contained dispositions that were to apply locally to the federal capital,
national territories and to any establishment run by the national state. These included the
13 The parliamentary debates regarding the Women and Child Labor Law are found in DSCD, 1906,1:788-
809, 7 September; ibid., 876-890,14 September; ibid., 1099-1119,28 September; and 1907,1:115-127, 10
June; ibid., 227-243,19 June; ibid., 314-334,26 June; ibid., 362-381, 1 July; ibid., 390-414, 3 July; ibid..
433-444, 12 July, and DSCS, 1907, 1:1081-1084,30 September.
14 DSCD, 1907,1:236, 19 June.
15 Ley 5291, ALA, 1889-1919, 735.
157
establishment o f the eight-hour work day and forty-eight-hour work week for minors
under the age o f sixteen, the prohibition to employ women as well as minors under the
age o f sixteen in night work between 9 P.M. and 6 A.M. and in any dangerous or
unhealthy industry in general. Other dispositions with local application concerned
working conditions for women who had just given birth and established their right to a
thirty-day leave o f absence during which they could keep their position. Women were
also given the right to breast-feed during the workday without that time being counted
toward the regular breaks to which they were entitled.
The main difference between the local and national dispositions, was that those
applied nationally were considered extensions o f the traditional principles o f the Civil
Code regulating the legal status o f women and minors,16 while those applied locally
constituted regulations o f working conditions. The regulation o f working conditions
including security measures, work procedures, rest periods and work scheduleswas the
authority o f the provinces in accordance with the provincial police power, or poder de
policia.' The poder de policia was the power and obligation o f the local governments to
ensure the safety and well-being o f the province inhabitants and included the regulation
o f working conditions, since this was a means to protect workers health and safety. The
local authority to regulate working conditions could take the form o f provincial laws or
decrees, or o f municipal ordinances. Consequently, in Argentina, the relationship
between labor and capital was concurrently regulated by three different governing bodies:
16 For a treatment o f womens legal status in the Civil Codes of Argentina, Chile, and Uruguay in this
period, see Asuncion Lavrin, Women, Feminism, and Social Change in Argentina, Chile, and Uruguay,
1890-1940 (Lincoln: University o f Nebraska Press, 1995), chap. 6.
17 As previously mentioned, the Argentine Constitution, as its North American counterpart, established that
all powers not delegated to the national government by the Constitution was retained by the provinces.
158
the national legislature, the provincial legislatures, and the municipalities. The core o f the
debates concerning labor legislation jurisdiction was therefore to determine if the law in
question constituted a regulation o f working conditions, or if it modified the nature o f the
labor contract. In the former case, it should be local; in the latter, it should be national.
Alejandro Unsain mentioned in his extensive analysis o f the nature o f Argentine
labor legislation, published in three volumes in the latter half o f the 1920s, that although
the distinction might seem clear in theory, it was not always so in practice.18 Opinions on
the matter were many and subject to change during the course o f the period here under
study. Although the debates concerning jurisdiction were certainly formalistic and may
have been used as an excuse to limit the scope o f a particular labor law or obstruct it
altogether, one should be careful not to dismiss the federalist argument too easily as pure
window-dressing to cover up a conservative agenda. The focus on the politically
centralist nature o f the Argentine state has ignored some o f the concrete consequences of
Argentine federalism. With the battle for provincial political autonomy largely lost
through the much-used practice of national government intervention in provincial
elections, defending provincial legislative autonomy became an important issue for the
province representatives to the national legislature.
Especially noteworthy in this respect was the role played by the Senate, which
with two representatives from each province was also referred to as the representative
organ o f provincial autonomy.19 In several cases, labor legislation bills sent to the
Senate from the Chamber o f Deputies with national jurisdiction were returned approved
18 Alejandro Unsain, Legislation del trabajo (Buenos Aires: Valerio Abeledo, 1925), 1:123.
19J. L. Arzeno and V. B. Durand, Notas sobre legislation industrial) obrera (generalidades) (Buenos
Aires: Valerio Abeledo, 1923), 59.
159
with only local application. The Sunday Rest Law has already served as one example.
Following the passage o f the Sunday Rest Law in 1905 and the Women and Child Labor
Law in 1907, the issue o f jurisdiction came up for debate again when the National Labor
Department and the Employment Bureaus (agendas de colocaciones) were established in
1912 and 1913 respectively, and when the Railroad Workers Pensions Law was passed
in 1915 and the Homeworker Law in 1918.20 The National Labor Department was given
local jurisdiction, as was the Homeworker Law. They fell in the same category as the
Sunday Rest Law; i.e., they were considered to regulate working conditions rather than to
affect fundamental aspects of the labor contract. The Employment Bureaus Law and the
Railroad Workers Pensions Law were made national, falling into the same category as
the Women and Child Labor Law and the Occupational Accident Law.21
The first twenty years o f the twentieth centuryand the first twenty years of
Argentine labor legislationwere characterized by an eclectic mix o f laws applying to
the whole republic and laws that were only o f local jurisdiction. So far, the discussion has
centered only on the local laws passed by the national legislature for the capital and
national territories. Implicit in their restricted character, however, was the recognition o f
the provincial privilege to pass similar laws for their own jurisdictions. Because o f the
traditional strong focus on the city o f Buenos Aires in the historiography, it has often
been presumed that the absence o f labor laws passed by the national legislature, and the
local character given to many o f those that were passed, meant that labor laws were non
20 Ley 8999, ALA, 1889-1919.880-881; Ley 9148, ibid., 898-899; Ley 9653, ibid., 930-931, and Ley
10.505, ibid., 1077-1078.
21 Note that the Railroad Workers Pensions Law was argued to be o f national jurisdiction not because it
was complementary to the Civil Code, but because the national railroad companies were under the direct
authority of the national government, which regulated safety measures, working conditions, salaries, and
benefits.
160
existent in the rest o f the nation. This assumption needs clarification. Although in some
cases the national government preceded the provincial governments in matters o f labor
legislation, in other cases the provinces led the way.
Limiting the Workday
In 1906, the Socialist deputy Alfredo Palacios presented the first bill limiting the
legal workday. He proposed the establishment o f the eight-hour day and forty-eight hour
week.22 Other and similar bills were initiated in the Chamber o f Deputies three more
times during the 1910s, and ten times during the 1920s. In the Senate, the Socialist
Enrique del Valle Iberlucea presented four bills between 1913 and 1917.23 Nevertheless,
the Argentine Congress did not pass a national eight-hour day law until 1929. Until then,
only women and minors enjoyed the benefit o f a limited legal workday as established in
the 1907 Women and Child Labor Law. The law was replaced in 1924 with one that was
much more extensive.24 In the 1907 law, the eight-hour day applied only to minors under
sixteen years o f age, and only in the federal capital. The 1924 law, however, extended the
eight-hour day to women over the age o f eighteen, and minors under eighteenboth
male and femalewere prohibited from working more than six hours a day, or a thirty-
six hour week.25 One particularly illustrative difference between the 1907 and the 1924
DSCD, 1906,1:140-141,28 May.
2j A list of all the legislative initiatives regarding the limitation of the work-day made in Congress up to
1940 can be found in I. Esterkin and A. Ruprecht (h.), Derecho argentirto del trabajo: Legislaciony
antecedentes nacionales (Rosario, Argentina: Editorial Ciencia, 1940), 2:350-351.
24 The replacement to the 1907 law was Ley 11.317, AL4, 1920-1940. 191-193.
25 Ley 11.317, Art. 5.
161
laws was that, while the 1907 law contained a mixture o f national and local dispositions,
the 1924 law was incorporated as a whole into the Civil Code and consequently applied
in its entirety to the whole country. In 1907, dispositions concerning the length o f the
workday had been considered to constitute regulations o f working conditions. In 1924, a
majority agreed that they could be incorporated into the Civil Code.
Argentina was o f course a very different place in 1924 than it had been in 1907.
The 1920s have been pointed to as the time o f origin for Argentinas modem industry,
and one in which the industrial sector experienced considerable growth.26 Therefore, the
need for comprehensive labor laws was increasingly felt and less controversial in the
1920s than what it had been in the early 1900s. It was also easier to argue for the national
character o f a labor law that applied only to women and children without hurting the
sensibilities o f provincial legislators, because the legal status o f these two groups were
subject to special consideration by the Civil Code. In addition, there can be little doubt
that the special protection o f women and children was a much more conservative and
uncontroversial issue than that concerning protective legislation for male workers.
Arguing along the lines o f the need to protect the future generations from the physical
and psychological degeneration that would result from mothers working under dangerous
and immoral conditions, or from children experiencing a premature exposure to physical
labor, this was the male legislators way o f ensuring the well-being o f the nations future
human capital.
Nevertheless, the decision to interpret all the dispositions o f the 1924 law as
complementary to the Civil Code also reflected a change in the juridical interpretations of
36 See Villanueva, "El origen de la industrializacion argentina.
162
Argentine labor law. Aspects o f labor law which had previously been considered working
conditions, and therefore o f local jurisdiction, were now argued and acceptedto be
modifications o f the labor contract. Consequently, they were applied nationally as
extensions o f the Civil Code. The change in interpretation was surely a response to the
already mentioned changing conditions o f the Argentine social and economic reality. As
industry developed and the working classes constituted an increasingly important part of
the population both politically and economically, the need for the national government to
take control o f labor legislation became increasingly pressing. In spite o f the tendency to
centralize areas o f labor legislation that had previously been left to the provincial
legislatures, however, the controversies over jurisdiction were not resolved during the
period here under study.
The situation was different for male workers than for women and children with
respect to legal limitations o f the workday. On a national level, male workers did not
benefit from an eight-hour day law until 1929. However, several provinces had
established the eight-hour day quite some time before the national law was passed.27 In
the Province of the Mendoza, Article 45 o f the 1916 provincial Constitution stated the
obligation o f the provincial legislature to pass a law regulating the workday. In the same
article, the eight-hour day was established for state employees.28 The law promised in the
1916 Constitution was promulgated already in 1918, under the number 732,29 making
Mendoza the first province in Argentina to have an eight-hour day law. What is
27 The following account o f the provincial eight-hour day laws is taken from the legislative debates
preceding the passing o f the 1929 national law, DSCD, 1928,4:449, 18 September.
28 The Constitution o f the Province of Mendoza, reproduced in JA 15 (1925): 98-113 (Seccion Legislacion).
29 Provincia de Mendoza. Recopilacion de leyes provinciates, libro 2, folio 2 8 .1 am grateful to Ricardo

Puebla for facilitating me with a copy of this law.
163
particularly noteworthy about this law, in addition to its early sanction, is that it applied
to agricultural workers as well as factory workers. The inclusion o f agricultural workers
made the law an exception in the context o f Argentine labor legislation, which was
generally limited to workers o f industry. The Occupational Accident Law, for example,
explicitly excluded agricultural workers unless their regular tasks included the use o f
machinery.
The inclusion o f agricultural workers can be fairly easily accounted for by the
dominant economic importance o f the wine industry in Mendoza. Already at the
beginning o f the century, Mendozatogether with the Provinces o f San Juan and Rio
Negrocould account for 43,000 hectares o f grape vines. By the year 1914/15, this
number had grown to 124,000.30 Because o f the economic predominance o f the wine
industry, the provincial government took a strong interest in safeguarding its smooth
operation. To avoid disruptions in production, it was also necessary to cater to the
demands o f wine workers.31 It could also be argued that the agricultural work o f the
Mendoza winery workers had more in common with urban factory work than with
regular agricultural labor.
The second province to pass an eight-hour day law was the Province o f Cordoba,
which after the capital o f Buenos Airesand together with the Province o f Santa Fe
was the most important urban industrial center in Argentina. The Cordoba law was
passed in 1919 and included industrial workers as well as commercial employeeswith
',0 Palacio, La antesala de lo peor, 132.
'5l For an account o f the wine industrys influence on politics in Mendoza, see Donald L. Peck,
Argentinian Politics and the Province of Mendoza, 1890-1916 (Ph.D. dissertation, St. Antonys College,
Oxford. 1977).
164
the exception o f bakery workersbut it did not extend its benefits to agricultural
workers.32 San Juan followed suit with its own eight-hour day law in 1923, which also
extended its benefits to agricultural workers.33 It makes sense that the provincial
legislature o f San Juan would follow the example o f Mendoza, considering the almost
identical nature o f their economies. In the same year, the Province o f Tucuman passed its
eight-hour day law, which included forestry as well as agricultural workers.34 Two more
provinces passed eight-hour day laws in 1923: Saltawhere the law went under the
name Ley Giiemesand San Luis. The Province o f Santa Fe joined the group in 1927.3:>
The Ley- Giiemes included agricultural workers, but set this group apart from the rest of
the workers comprised by the law by establishing nine hours as the legal maximum work
day instead o f eight. The Province o f Santa Fe, in spite o f being an agricultural province
p a r excellence, did not include agricultural workers in the benefits o f the law.
A total o f six provinces had therefore preceded the national legislature in the
regulation o f the legal workday. In 1928 the Argentine Chamber o f Deputies finally
discussed and approved a national eight-hour day bill, which was treated and passed into
Ley 2784, modified en part by Ley 2805. The law is reproduced in F. Greil Castellanos, Leyes obreras de
la Repitblica Argentina (Buenos Aires: Antonio Lacort, 1939), 500-501.
33 The law is reproduced in JA 20 (1926): 85-86 (Section Legislacion).
'4 Ley 1346. The law is reproduced in La legislacion laboral en Tucuman: Recopilacion ordenada de leyes.
decretos y resoluciones sobre derecho del trabajo y seguridad social 1839-1969 (realizada por Ana Maria
Ostengo de Ahumada bajo la direccion de Mariano R. Tissembaum y Victor Daniel Alvarez) (Tucuman,
Argentina: Universidad Nacional de Tucuman, Facultad de Derecho y Ciencias Sociales, Institute de
Derecho del Trabajo Juan Bautista Alberdi, 1969), 1:249.
j5 The eight-hour day law for the Province o f San Luis is published in BDNT, no. 84 (December 1924):
1485-1487, and the Ley Cuemes in CMDNT, no. 74 (February 1924): 1206-1209.1 have been unable to
locate the text o f the 1927 Santa Fe law.
165
law by the Senate in August 1929.36 At this point, the legal establishment o f the eight-
hour day was not really a controversial issue anymore. In fact, the eight-hour day had
been established in practice for some time, primarily in the federal capital and
surrounding areas. In the parliamentary debates preceding the passage o f the law, Senator
Alejandro Ruzo, who had previously served as president o f the National Labor
Department, claimed that, although Argentina did not yet possess an eight-hour day law,
it had nevertheless been among the first countries to implement it in practice.37 Although
applicable to the situation in the national capital, Ruzos assessment did not accurately
describe the situation in the provinces, where the workday could be anything from ten to
sixteen hours, limited only by the rising and setting o f the sun.
Even for the city o f Buenos Aires the statement was a truth with considerable
modifications. Research performed by the National Labor Department showed that the
average workday had declined from approximately nine hours in 1915 to eight hours in
1920, and that average was maintained in both 1921 and 1922.38 The survey from 1922
had included 64,143 workers in various industries in the city o f Buenos Aires, but it is-
worth noting that it was limited to industrial workers and did not include, for example,
commercial employees. The situation for this latter group was a lot less favorable. In a
different survey, published in 1922, and which included only grocery stores and
hairdressers, it was found that employees worked between thirteen and sixteen hour
36 Ley 11.544, ALA, 1920-1940.226-228. The first time an eight-hour day bill was approved by the
Chamber o f Deputies, in 1921, it was never treated by the Senate and expired in accordance with the Ley
Olmedo.
37 DSCS, 1929,2:32, 29 August.
38 See statistics in CMDNT, no. 65 (May 1925): 1059.
166
days.39 An investigation published in 1924, surveying a wider range o f different
commercial establishments than just grocery stores and hairdressers, found that the
average workday for the 5,950 employees included was nine hours and thirty-nine
minutes.40
The favorable situation for industrial workers in the city o f Buenos Aires
compared to other groups o f workers and other parts o f the country can be explained by
the stronger position o f organized labor in the capital than in the provinces, and by the
higher rates o f unionization among industrial workers than commercial employees. The
organized labor movement had through a series o f strikes over the years managed to
obtain the concession o f the eight-hour day directly from their employers, in accordance
with their guiding idea that the relationship between labor and capital ought to be
negotiated directly, and that only workers themselves could successfully fight the
workers struggle.
When the eight-hour day law was finally passed in 1929, it therefore caused little
controversy. The main point o f contention in the legislative debates in the Chamber of
Deputies centered around whether or not to extend the laws benefits to agricultural
workers and domestic servants, and the Senate swiftly approved the bill without much
discussion at a ll41 In the final voting, Congress decided not to include agricultural
workers, nor domestic servants, and gave the Executive Power ample room to make
39 CMDNT, no. 56 (August 1922): 899-900.
40 CMDNT, no. 81 (September 1924): 1419-1432.
41 DSCD, 1928,4:417-472, 18 September, and ibid., 490-532, 19 September; DSCS, 1929,2:23-36,29

August.
167
exceptions to the law.42 By 1929 there was also a general consensus in the national
legislature that this kind o f labor legislation should be interpreted as an extension o f
regular civil law and its regulation o f the labor contract, or the location de servitios. The
law therefore had national jurisdiction and was incorporated into the Civil Code. Again,
what during the 1900s and 1910s had been considered as regulations o f working
conditions by constitutional definition the authority o f the local legislatures in their
provincial or municipal form came to be generally accepted during the 1920s as the
jurisdictional authority o f the national legislature. With the development and growth o f
the Argentine industry in the 1920, the political and economic benefits o f unifying labor
legislation under the auspices o f the national government became increasingly clear.
The courts also played a part in this development. They were on several occasions
called on to rule on the constitutionality o f labor legislation, and in the process
commented on several contested issues o f interpretation. The Supreme Courts decisions
concerning the Occupational Accident Law and the constitutionality o f its Articles 9 and
10, had established that the Occupational Accident Law was complementary to the Civil
Code. Thus, the Supreme Court confirmed the interpretation that labor legislation or at
least labor legislation o f this kind was constitutionally the domain o f the national
legislature. Although none o f the provincial eight-hour day laws was ever challenged in
the courts as unconstitutional, a municipal regulation o f the workday was brought to the
Supreme Court o f the Province o f Buenos Aires.
42 One group o f workers particularly affected by this was the railroad workers, as the Executive Power in
the 1930s issued a series o f decrees effectively rendering the law without much effect for them. See Joel
Horowitz, Argentine Unions, the State, and the Rise o f Peron, 1930-1945, Research Series University o f
California, Berkeley, Institute of International Studies; no. 76 (Berkeley, California: Institute of
International Studies, University o f California, Berkeley, 1990).
168
In 1920, the municipal council o f General Pueyrredon in the Province o f Buenos
Aires had issued an ordinance prohibiting night work in bakeries between 9 P.M. and
4 A.M. Seeing their business endangered, or at least inconvenienced, by the ordinance, a
group o f bakery owners took the municipality to court, claiming the ordinance was
contrary to the provincial Constitution.43 On 26 April 1921, the provincial Supreme Court
ruled in favor o f the plaintiffs with the following rationale in the words o f Judge Pereyra
Miguez:
I recognize that the municipality, for health reasons, can impose regulations on the
establishments and industries.. . with respect to their locations, buildings, things and
means. In certain cases, it can also impose regulations on people, due to their necessary
relationship with [the industry]. However, I do not think that this power extends to the
direct and immediate regulation o f the labor contract, under the pretext o f health
reasons . . . . To lighten the tasks o f the bakery workers . . . would probably be a
humane and useful deed, but I do not se e ,. . . that this involves the local public health,
which is the responsibility o f the municipality. Since this is not the case, and since it is
not [a task] included in any o f the functions accorded to the municipalities by the
Constitution and the law, it is clear that this could only be done by the general
governm ent. . . .44
The decision was important enough to receive attention in the major Buenos Aires
newspaper La Prensa, which in an article entitled Labor Jurisdiction stated:
The merit o f this sentence is great with respect to the question motivating the writing
o f this article. Emanating from a provincial court, it recognizes that it does
not fall to the local jurisdiction to regulate the conditions o f the labor contract, and
it makes categorically clear which are the municipal powers with respect to
the labor process. These [powers] pertain to the places in which work is performed,
and to the means employed; to everything that could be related to the general
conditions o f health, but the persons themselves; that is, the workers, fall under the
category o f civil law, the legislation o f which is the authority o f the federal power 45
43 Arena y otros v. Municipalidad de G. Pueyrredon, JA 6 (1921): 368-369 (Suprema Corte de la Provincia

de Buenos Aires, 1921).
44 Ibid., 369.
45 Jurisdiction del trabajo, La Prensa (Buenos Aires), 22 June 1921.
169
The provincial Supreme Court interpretation opened the way for the passing o f a
national law prohibiting night work in bakeries in 1926.46 In addition, the decision
contributed, like the others pronounced on the Occupational Accident Law, to define
labor legislation constitutionally as national in jurisdiction.
By the late 1920s, the courts as well as a majority o f the national legislators
concurred in interpreting regulations o f work hours and schedules as part o f the labor
contract rather than a specification o f working conditions. Thus, it appeared that the
contested issue o f labor legislation jurisdiction was close to being resolved in favor o f the
unification o f all labor legislation under the authority o f the national government. This
unification did not happen in the period here under study, however. Since the national
jurisdiction of labor law depended on its intimate relationship to the Civil Code, the
legislators had to convincingly establish the connection between a piece o f legislation and
the Civil Codes regulation o f the labor contract if the law was to receive national
jurisdiction.
Although a connection to the Civil Code was argued and accepted for an
increasing number o f laws, it did not apply universally. The law regarding opening hours
for commercial establishments serves as an interesting example in this regard.47 The bill
established the obligation for all commercial establishments to close at 8 P.M. and
prohibited them from opening before 6 A.M. Generous exceptions were allowed for
restaurants, hotels, bars, cafes, and for book shops, newspaper and flower stands attended
only by their owners. The exceptions were intended to apply only to the capital and
46 Lev II .338. ALA. 1920-1940. 198-199.
47 Ley 11.320, ibid., 193-194.
170
national territories, with the implication that, when the provinces promulgated their own
regulatory decrees, they would define their own exceptions. The Chamber o f Deputies
had approved the bill on 10 August 1922, and the Senate treated it on 30 September 1924.
In the Senate, yet again, the issue o f jurisdiction was the main point o f contention.
In the final vote, eight senators voted in favor o f the laws national jurisdiction and eight
in favor o f only local jurisdiction. The senators in favor o f local jurisdiction argued that
the bill was a regulation o f the administration o f commercial establishments, which
corresponded to local or municipal authority. Those in favor o f national jurisdiction
argued it was primarily a regulation o f the working conditions o f commercial employees,
and therefore complementary to the Civil Codes dispositions regarding the labor
contract. Finally, with the weight o f the vote o f the Senate President, the law was passed
with national jurisdiction.48
Law 11.320 was not in effect for long, however. On June 13 1925, a mere two
weeks after its sanction, Radical President Alvear vetoed it as unconstitutional because o f
its national jurisdiction. The Executive Power argued that the law was not, strictly
speaking, a labor law since it did not primarily regulate the relationship between
employer and employee. Pointing to the fact that many o f the commercial establishments
included in the law were attended only by their owners, Alvear claimed: We are here in
the presence o f a law that is directly connected with a question o f commercial
establishments closing time or the ceasing o f industrial activities which, prima facie, is
the authority o f the municipality.49
a*DSCS, 1924, 1:827-835,30 September.
* DSCD, 1925,2:109,17 June.
171
Alvear proceeded to advance the argument that it was not in the countrys interest
to make such a law apply nationally, because o f the wide range o f provincial differences
in geographical, climatic, and economic conditions. Therefore, and in accordance with
the Constitutions Article 104, it should be up to the provinces to regulate when their
commercial establishments should open and close. Commenting on the confusing issue o f
jurisdiction, the President stated: It is undoubtedly not easy to come up with a general
rule that permits separating the national and provincial jurisdictions, and that, when
applied, does not bring forth uncertainties This is why the criterion has to be formed
and resolved in confrontation with each and every given situation, taking into account the
nature o f the Argentine institutional organizations, which does not authorize a unitary
legislation in all matters o f government, whatever the benefits o f such a unity might
be.50
Although it seems difficult to distinguish the difference between a law regulating
the opening and closing of commercial establishments and one prohibiting night work in
bakeries, a confluence o f factors probably determined the Presidents veto. According to
La Prensa, the law had brought forth considerable resistance on behalf o f owners o f
commercial establishments, as well as their employees. Consumers had also objected to
the laws limitation o f their privilege to carry out their commercial activities at their
convenience.51 With the middle class one o f the pillars o f Radical Party support, it seems
likely that passing a law curbing the activity o f commercial establishments would not be
a politically wise choice.
50 Ibid., 110-111.
51 La ley sobre cierre de comercios a las 20 ftie bien vetada, La Prensa (Buenos Aires), 13 July 1925.
172
In addition, however, the law was in a difficult gray area legally. Some saw it as
primarily seeking to better the conditions for the commercial employees, who were
subject to excruciatingly long work days. The law could therefore be considered a
limitation o f the workday for commercial employees. Others, however, considered it to
be a law that purely regulated commercial activity. The law included commercial
establishments such as cafes, bars, and restaurants, where alcohol was served, and the
regulation o f the dispensing o f alcohol had a long tradition o f being o f municipal
jurisdiction. Some o f the issues at stake also overlapped with those debated when the
Sunday Rest Law was passed, with local jurisdiction, in 1905. It is worth noting that the
Provinces o f Cordoba and Jujuy had both preceded the national legislature by passing
laws regulating the opening and closing hours o f commercial establishments in 1919.52
After the law was vetoed, the Chamber o f Deputies failed to gather the necessary
two-thirds majority to insist on the passing o f the law in its original form.53 The national
legislature did not pass a law regulating the opening hours o f commercial establishments
until 1934, and this time it was passed with only local jurisdiction. More provinces
passed similar laws in the wake o f the veto, with the Province o f San Juan being the first
in 1928, followed by La Rioja in 1933, Entre Rios in 1936, and Santa Fe in 1938.54 The
fact that the law concerning opening and closing hours for commercial establishment was
the only labor law vetoed in this period, poignantly illustrates the difficulties involved in
trying to force the new labor legislation into the structure o f the Civil Code. With the
52 In Cordoba, the regulations o f opening hours were included in the eight-hour day law, while in Jujuy, it
was passed as a separate law. See Greil Castellanos, Leyes obreras, 500-50land 630, respectively.
53 DSCD, 1926,3:567, 6 August
54 Greil Castellanos, Leyes obreras, 604; 688; 395-396, and 370-373.
173
increasing complexity of the relationship between labor and capital, more and more o f its
aspects needed legal regulation that could not easily be argued to fit into the Civil Codes
dispositions regarding the labor contract. In spite o f the Supreme Court decisions and the
increasing consensus on behalf o f the national legislators to interpret labor legislation as
complementary to the Civil Code, the political will to make all labor laws into a
nationally unified body o f legislation did not exist. The failure o f all the Labor Code bills,
not just in the sense that they were never passed, but that they were never even discussed,
testifies to the general indifference o f the legislature to the necessity to redefine labor law
so that it could appropriately respond to modem labor-capital relations. Instead o f a
unified, national body o f legislation, local and national labor laws kept existing side by
side, and the issue of jurisdiction was resolved on a case-to-case basis. In addition to the
limitation of the legal workday, the unresolved nature o f labor legislation jurisdiction was
forcefully brought forth in debates over minimum wages.
The Minimum Wage
The minimum wage was often debated in connection with the limitation o f the
workday. Several o f the bills presented to the national legislature regarding the legal
workday contained dispositions concerning minimum wages. Minimum wage bills were
also presented separately several times from 1919 onward.55 No national minimum wage
law applying to all workers was ever passed, however. What was passed by the national
legislature were minimum wage dispositions for state employees. This was done, not by
55 For a list o f the bills concerning minimum wages presented in both the Chamber of Deputies and the
Senate, see Esterkin and Ruprecht, Derecho argentino del trabajo, 2:357-358.
174
passing a separate minimum wage law, but rather by including minimum wage
dispositions in the national budget. Minimum wage regulations for state employees were
first included in the national budget in 1918. A second way in which the national
legislature had legislated minimum wages was through the Homeworker Law, passed in
1918 with local jurisdiction; i.e., applying to the federal capital and national territories.56
The fairly unsophisticated nature o f Argentine industry in this period, and the modest rate
o f mechanization, made the putting out system widely used. Textile manufacturers, shoe
manufacturers, milliners, and others usually had a fair share o f their employees working
from their own homes. These homeworkers often found themselves under worse
conditions than those in the factories. Paid by the piece, they worked longer hours than
workers in factories, and their wages were generally lower. In addition, it was common
practice for employers to deduct various kinds o f fines from their salaries if there were
faults with the goods produced.
A major part o f the 1918 law was therefore concerned with establishing legal
mechanisms for fixing reasonable wages for this group o f workers. The law gave the
National Labor Department the authority to establish so-called wage committees, if this
be requested in writing by a minimum o f fifty workers in a given industry. The wage
committees were to consist o f an equal number o f workers and employers from the
industry in question and would be presided over by an outside person designated by the
Executive Power through the National Labor Department. Their task was to set a
minimum wage, either per hour or per piece, for all the homeworkers o f the industry in
Ley 10.505. ALA. 1889-1919. 1076-1078.
175
question. Any failure to comply with the decision o f the wage committee was punishable
by a fine o f between 100 and 300 pesos.57
As was the case with the eight-hour day law, the lack o f a separate minimum
wage law on the national level did not mean the total absence o f such laws in the entire
country. Several provinces had legislated the matter, often as part o f their eight-hour day
laws. This was the case with the Province o f Mendoza, where minimum wage
dispositions were included in the above-mentioned Law 732 from 1918. The laws
Article 5 set the minimum daily wage for private employees at 2 pesos, and that o f
provincial state employees at 2.50.58 The Province o f Saltas Ley Giiemes, from 1923,
opted in its Article 28 for the differentiation o f the minimum wage: For the province
capital, no adult worker should be paid a daily wage below 4 pesos; for the areas
dedicated to agricultural and cattle industry, the minimum daily wage was set at 3 pesos;
for the day laborers (peones) occupied in the regions o f Yruya, Santa Victoria, Molinos,
Cachi, La Poma, and San Carlos, it was set at 2 pesos, and for the areas dedicated to
cattle ranching (not the industrial part o f the process), the minimum wage was set at
2.50.59
The Province of Tucuman also passed a minimum wage law in 1923, the same
year it passed the eight-hour day. The law set the minimum daily wage at 4.20 pesos for
all workers employed in factories and workshops in the entire provincial territory. It did
not include workers paid by the piece, who would have to negotiate their salaries with
s7 The dispositions regarding minimum wages were included in the laws Articles 13-23.
58 Unsain, Legislacion del trabajo, 1:385. The rate was established in the laws Art. 5.
59 Ibid., 386.
176
their employers. In the case such an agreement was not reached, or if the salary
negotiated should prove to be significantly inferior to what could be considered its just
price, the law determined that the minimum wage would be set by intervention o f the
provincial labor department.60 That same year, the Province o f San Juan passed its
minimum wage law, adopting the same system o f differing minimum wages according to
regions and professions as that passed in the Province o f Salta. In some areas o f the
province, the minimum daily wage for workers employed in factories, wineries,
commercial establishments, mines, workshops, and the like, was set at 3.50 pesos, while
the same occupational categories would receive 3 pesos in other areas. Agricultural
workers would receive 3 pesos in all regions, but workers employed in the cattle industry
would receive 3 pesos or 2 pesos daily, depending on the region. Chauffeurs and carriage
drivers would receive 4 pesos or 3 pesos, according to zone. The law also established that
the minimum daily wage for employees o f the provincial and municipal administrations
would be 0.20 pesos higher than for workers in private industry.61 Finally, the Province
o f San Luis established minimum wages for both state and private employees in Law
782, passed in 1923. The law set a minimum daily wage of 2.50 pesos for state
employees, and 2 pesos for workers in private industry.62
An obvious problem with these laws, which fixed the minimum wage in absolute
terms, was that they rapidly became obsolete as a result o f rising prices and inflation. The
Homeworker Law avoided this predicament, since it left it up to the wage committees to
60 Ibid. The entire text o f the law was published in the CMDNT, no. 65 (May 1923) and can also be found
in La legislacion laboral en Tucuman, 250. The law went under the number 1348.
61 Unsain, Legislacion de trabajo, 1:387. The law can also be found reproduced in its entirety in JA 20
(1926): 87-88 (Seccion Legislacion).
62 The law is reproduced in BDNT, no. 84 (December 1924): 1485-1487.
177
determine the amount o f the minimum wage in accordance with the economic conditions
of the time. The problem was also avoided in the case o f the state employees, who had
their minimum wage established in the national budget, a law that was discussed and
renewed every year. When Alejandro Unsain in 1925 published the first volume o f his
Legislacion del trabajo, the current minimum wage for state employees was a monthly
salary of 160 pesos, or a daily wage o f 6.40 pesos, a significantly higher amount than that
established in the provincial laws. The municipality o f the city o f Buenos Aires had
adopted the same rate for its employees.6j
If the provincial laws were to keep up with economic developments and not
become outdated, they needed either frequent reform or replacement. In Mendoza, for
example, the dispositions of the 1918 law that concerned minimum wages were replaced
in 1927 with Law 922.64 The new law established a minimum daily wage o f 4.80 pesos
for state and municipal employees, as well as industrial and winery workers. Commercial
employees were granted a minimum daily wage o f 4 pesos, and for the remaining
workers employed in the agricultural and cattle industries; i.e., those who were not
employed in the wine industry, the provincial Executive Power would set the minimum
wage in cooperation with the local Labor Office. The minimum wage would be set in
accordance with the economic conditions o f each industry, but was not to be below 4
pesos, nor above 5.65 One o f the most interesting aspects o f Law 922 was the severity o f
63 Unsain, Legislacion del trabajo, 1:388-389. The higher minimum wage established for municipal and
government employees in the national capital can be partly explained by the higher cost o f living in the city
of Buenos Aires than in most provinces.
64 Law 732 was primarily concerned with establishing the eight-hour work day, but also contained
minimum wage dispositions. Law 922 was solely concerned with setting the legal minimum wage. The law
is reproduced in its entirety in Greil Castellanos, Leyes obreras, 446-447.
65 These dispositions were included in the laws Articles 1-3.
178
the penalties it established for not complying with the requisite wage payments. Article 8
ordered fines o f between 50 and 1,000 pesos for every infraction o f the law, and the
doubling o f the amount for repeated infractions. The only alternative to paying the fines
was prison. The severity o f these penalties becomes evident when considering that fines
imposed by most other labor laws did not exceed 100 pesos, and that the penalties in the
provincial minimum wage law were imposed per infraction', i.e., for each person paid
below the minimum wage.
Since the law affected the economic interests o f one o f the most important private
industries in the province; namely the wine industry, one would expect it to provoke
considerable resistance. In 1929, the case Viiiedosy bodegas Arizu (S.A.) v. Provincia de
Mendozabb was brought before the Argentine Supreme Court. The case centered on the
winery Arizus claim to 8,793.85 pesos from the Province o f Mendoza as compensation
for the increased wage expenses the winery had had to shoulder after the passage o f Law
922. At the heart o f the matter, and the basis for the winerys claim to compensation, was
the alleged unconstitutional nature o f the provincial minimum wage law. At the time Law
922 was passed, in July 1927, the Arizu winerys daily wage was 3.50 pesos for winery
workers, and 3 pesos for workers employed in the agricultural tasks o f the industry. The
law, however, dictated that these workers should be paid 4.80 and 4 pesos respectively,
constituting a significant increase in wage expenses for the winery. After attempting to
have their current wage rates approved by the provincial Industrial Directorate (Direccion
de industrias) in October 1927, they were notified by the latter o f their obligation to pay
the wage rates established by Law 922. Faced with the serious threat o f incurring
179
inexorably high fines in the case o f non-compliance, the winery started paying the new
wage rates on 16 November 1927. By 21 January 1928, the increased wage expenses
incurred by the winery in comparison to their old wage rates constituted the amount o f
8, 793.85 pesos, forming the basis for the winerys claim to damages.67
The reason why the winery did not initiate legal proceedings over the minimum
wage dispositions established in Law 732 in 1918, but only after Law 922 was passed in
1927, was explained by the plaintiffs representative, Emiliano Lorca. He pointed out that
the minimum wage established by Law 732, in contrast to the rate fixed by Law 922,
corresponded to the daily wages already being paid by the winery at the time.68
Therefore, Law 732 unlike Law 922had not made the winery incur increased
expenses nor suffer economic damages.69 In addition, the penalties established for
infractions o f Law 732 were much more modest than those o f Law 922, since the
absolute maximum fine was set to 100 pesos. Non-compliance was therefore a more
plausible alternative in case o f the old law than with the new.
The disagreement over the constitutionality o f Law 922 followed the traditional
arguments o f the other debates concerning the appropriate jurisdiction o f labor
legislation. The plaintiff argued that a minimum wage law could only be defined as a
regulation o f the fundamental aspects o f the labor contract, therefore to be considered
complementary to the Civil Code. As defined by the Constitution, all legislation
constituting additions or modifications o f the Civil Code was the exclusive jurisdiction o f
67 Ibid., 385.
68 As mentioned above, Law 732 set the minimum wage at 2.50 pesos an hour for state employees and 2
pesos for workers in private industry.
69.7,4 31 (1929): 385.
180
the national government, consequently making Mendozas Law 922 unconstitutional.70
The defendant countered by invoking the constitutional right o f the Argentine provinces
to regulate the conditions o f their industries and to insure the life, health and moral o f
their citizens in accordance with their poder de p o lic ia l
The Supreme Court in its decision ruled in favor o f the plaintiff, sentencing the
Province o f Mendoza to pay the Arizu winery the demanded compensation o f 8,793.85
pesos and declaring Mendozas Law 922 to be unconstitutional.72 In its rationale, it stated
that, although the provincial poder de policia certainly constituted one o f the most
undefined and comprehensive powers retained by the provincial government, it could not
invade the domain o f powers exclusively delegated to the national government. Since the
regulation o f the labor contract constituted a part o f the Civil Code, and the proclamation
of the Civil Code had been given explicitly and exclusively to the national government,
the provincial authorities could not alter or modify aspects o f the labor contract by
invoking their poder de policia, or any other power for that matter.73
The Supreme Court left no doubt as to whether or not establishing a legal
minimum wage could be considered a pure regulation o f working conditions rather than
as an aspect o f the labor contract: . . . Mendozas minimum wage laws regulate the
essence o f the labor contract, altering the Civil Code, and [do] not [regulate] the safety
and hygienic conditions under which work is to be perform ed. . . .74 Having pronounced
70 Ibid.
71 Ibid., 386.
72 Ibid., 390.
73 Ibid., 389.
74 Ibid., 390.
181
its opinion on the issue o f jurisdiction so unequivocally and declared the laws
corresponding unconstitutionality, the Supreme Court conveniently avoided the second
part o f the constitutionality question raised by the plaintiff, who claimed that the law was
also contrary to Argentinas 1853 liberal Constitution for violating its three principal
liberties o f work, industry, and property.75 Since the court ruled that only the laws
jurisdiction was unconstitutional, it left the road open for the passage o f a national
minimum wage law in the future.
Such a law was not passed before 1943, however. With the stock market crash on
29 October 1929 and the following world economic depression, unemployment rose,
creating poor conditions for the passing o f a minimum wage law. Adding to the economic
turmoil provoked by the onset o f the world depression was the coup staged by the
Argentine military in September 1930. With the military in power the Argentine
government and legislature had other priorities than improving conditions for the
working classes. While there were nineteen minimum wage bills introduced in the
Chamber o f Deputies between 1919 and 1929, none was presented between 1929 and
1936./6 In the absence o f a national minimum wage law, what continued to exist were the
minimum wage dispositions for state employees included in the national budget every
year, as well those established in the Homeworker Law. In addition to establishing
minimum wages for state employees, the national budgets contained other attempts at
regulating minimum wages for workers in private industries. One example is the 1937
national budget, which gave industrial establishments the right to have import taxes paid
75 Ibid., 387 and 390.
76 Esterkin and Ruprecht, Derecho argentino del trabajo, 2:357-358.
182
on tin cans returned on the condition that they could show they were paying their workers
wages satisfying minimum living conditions.77
Since the Supreme Court had determined once and for all that the provincial
legislatures could not pass general minimum wage laws within the mandate o f the
Constitution, what followed in the wake o f the Supreme Court sentence on the provincial
level were partial minimum wage laws for provincial and municipal employees. These
laws were more like contracts between the state as employer and its employees than labor
laws in the traditional sense o f the term. They were passed in the following provinces:
Jujuy in 1935,7S Tucuman in 1937,79 and La Rioja in 1941.80
Conclusion
When labor legislation first made its entry onto the Argentine political arena at
the beginning o f the twentieth century as a result o f the first major incidents o f labor
unrest, the issue o f jurisdiction immediately became one o f the major points o f
contention. The debate centered around whether labor laws were primarily regulations o f
aspects o f the labor contract, one o f the central aspects o f the Civil Code, or if they
should be considered as regulations o f working and industrial conditions. If the first was
the case, they were by constitutional definition the authority o f the national legislature
and o f national jurisdiction. If the second was the case, however, their promulgation
77 See Ley 12.345 de presupuesto general de la Nation para 1937, Art. 40, ALA, 1920-1940. 75S. It is
questionable whether these intricate and roundabout measures had any concrete effect.
78 Greil Castellanos, Leyes obreras, 636-637.
79 Ibid., 428 and La legislacion laboral en Tucuman, 271-273.
80JA 1942-III: 35 (Section Legislacion).
183
corresponded to the authority of the provincial legislature in accordance with the
Constitutions Article 104, which gave the provinces legislative autonomy in all matters
not assigned to the national government.
Before the 1920s, the labor laws that had been passed in Argentina were o f a
mixed jurisdictional character. Some o f the laws passed by the national legislature were
national, while others applied only to the capital and national territories. The Sunday Rest
Law was local, but the Occupational Accident Law was national, just to mention two
examples. However, labor laws did not only emanate from the Argentine Congress. Some
of the provinces went further than the national government in matters o f labor legislation
and passed both eight-hour day laws and minimum wage laws before any such laws had
managed to receive the attention and sanction o f Congress.
During the 1920s, however, the tendency was to interpret increasingly numerous
aspects of labor legislation as regulations o f the labor contract and therefore
complementary to the Civil Code and the legislative domain o f the national government.
Part o f the reason for this emerging consensus was surely the growing numerical and
political importance o f the working classes and the increasingly pressing need for the
national government to take control o f the regulation o f the relationship between labor
and capital in a uniform fashion for the whole country. However, the appropriate
jurisdiction of labor legislation could not be determined by the legislators convenience
alone. The ultimate state authority on jurisdictional and constitutional disputes were the
courts, and, in the end, it was their privilege to define the appropriate jurisdiction o f this
new field o f legislation. In several important rulings on the constitutionality o f the
Occupational Accident Law, the municipal ordinance prohibiting night work in bakeries
184
in the municipality o f General Puerreydon, and the Province o f Mendozas minimum
wage law, the court established the doctrine that labor laws should be considered
primarily as extensions o f the Civil Code and consequently o f national jurisdiction.
What were the consequences o f the increasingly accepted interpretation that labor
legislation simply constituted an additional aspect o f traditional civil law? Since the
purpose o f civil law is the regulation o f the relationship between private individuals,
judges and legislators alike chose to think o f labor legislation in this period as the simple
regulation o f the individual relationship between the employer and the employee. In
short, they were trying to fit a new social reality and a whole new legislative field into a
traditional, liberal legal framework based on laissez-faire ideology. This was obviously
problematic. Over time, labor legislation was a field that increasingly outgrew the
traditional framework o f civil law. Instead o f the individual interests between employer
and employee, what needed regulation were the collective interests vested in the
relationship between labor and capital. As labor law moved from involving the
individual to involving the collective, particularly from the 1930s onward with the
growth o f the union movement, its character also changed from private law to public law.
The relationship between capital and labor increasingly involved the state and the states
interests in addition to the relationship between employers and employees.
An additional problem with trying to fit labor legislation into the framework o f
traditional civil law was that there were aspects o f labor law that would not easily and
automatically fit into the notion o f the labor contract, as this was defined in the Civil
Code. This was the case, for example, with the law regulating the opening hours o f
commercial establishments, vetoed by President Alvear in 1925. It seems a rather
185
arbitrary distinction that the regulation o f night work in bakeries was an aspect o f the
relationship between employer and employee, while a regulation o f the opening hours o f
commercial establishment was not. By insisting on the interpretation that labor law
constituted an aspect o f the Civil Code, it became difficult to pass national labor laws that
did not legalistically fit into the traditional framework o f civil law. Trying to fit labor law
into the Civil Code therefore prevented the development o f a unified, comprehensive
labor legislation which could potentially have responded to the new necessities o f modem
labor-capital relations.
Another consequence o f interpreting labor law as complementary to the Civil
Code was to make it impossible to resolve the contested issue o f jurisdiction. In spite o f
the tendency o f the national government to take over the legislative authority previously
conceded to the provinces in such matters as the eight-hour day law and minimum wages,
there were other areas o f labor legislation which remained local in character. The
provinces passed their own laws regulating Saturday and Sunday rest, as well as the
opening hours o f commercial establishments. The Homeworker Law applied only to the
capital and national territories, although without the provinces passing their own
equivalent laws. Labor legislation in Argentina in this period thus remained a mixture o f
partial measures, some o f local, others o f national, character, depriving workers o f any
efficient and comprehensive protection o f their rights.
Comprehensive protection could only come if labor legislation was redefined as
an entirely new and separate legislative field, subject to its own set o f rules reflecting the
special characteristics o f the relationship between labor and capital, a relationship
profoundly different from that between private individuals regulated by the Civil Code. A
186
unification and redefinition of labor legislation depended on the national government
taking charge o f the matter, which again depended on a political will to supersede
traditional institutional obstacles. Such a complete rethinking o f the field o f labor law
also depended on an organized labor movement to fight for it. In Argentina, the labor
movement generally focused on extracting concessions directly from employers without
the intervention o f the state. Although it is true that unions became more receptive to
state intervention in their affairs during the 1920s, and especially the 1930s, they were
primarily interested in obtaining the states support during strikes and in direct
negotiations with employers, rather than lobbying it for a comprehensive program of
labor legislation.
There was one exception to this rule, however, and that was the Federation of
Commercial Employees in the 1930s. Commercial employees turned out to have a
particular advantage with respect to obtaining protective legislation within the existing
legal framework. Since the rules defining their rights and obligations in relation to
employers were embedded in the Commercial Code, it became possible for the
commercial employees to lobby for legislative reform entirely within the framework o f
the Code, avoiding the lengthy disputes over jurisdiction that were so characteristic of
other labor law debates. In 1934, they managed to obtain a reform o f the Commercial
Code, which constituted the most extensive labor reform in Argentina to date. This
reform will be the topic o f the following chapter.
187
CHAPTER 5
MAKING LABOR LAW OF THE COMMERCIAL CODE: STRETCHING THE TERM
COMMERCIAL EMPLOYEE, 1900-1943
The choice to define the emerging field o f labor law as a simple extension o f
traditional civil law had important consequences for its nature and effects in the period
between 1900 and 1943. In addition to making it impossible to pass a national, unified
labor legislation, it also meant that the most efficient strategy to pass labor laws was to
use the already existing legal framework as the basis for reform. It was not only the Civil
Code which contained dispositions pertaining to the relationship between employer and
employee, however. The Commercial Code had a separate regulation o f this relationship,
although limited to employees involved in mercantile activities, o f which the commercial
employees constituted one o f the most important groups. This chapter examines the
Commercial Codes dispositions concerning commercial employees and how they were
applied by the courts, first in the period from 1900 to the 1934 Commercial Code reform,
and then in the period following the reform until 1943.
The 1889 Commercial Code contained seven articles dedicated exclusively to the
rights and obligations o f commercial employees.1 The most important benefits the Code
granted commercial employees were the right to sick leave, the employers obligation to
notify the employee one month in advance o f dismissal, and, in the absence o f such
notification, to compensate the employee with the months salary. No other groups o f
workers in Argentina enjoyed similar legal benefits during the first thirty years o f the
1These were embodied in the Commercial Code's Articles 154-160.
188
twentieth century. The articles appear to have been taken directly from the 1829 Spanish
Commercial Code, and had also been incorporated into the 1859 Commercial Code for
the province o f Buenos Aires. They were probably remnants o f old corporate legislation
and as such bore little resemblance to capital-labor relations in the twentieth century.
Nevertheless, in the absence o f any specific, updated legislation, the Commercial Code
was what existed. Since the benefits were established in the form o f a Code and not a
law, the only way commercial employees could assert their rights was through the courts.
Where a law would have contained specific procedures and rules for enforcement, the
Code established a right which was only enforceable by judicial action, much like the
right to damages established in the Civil Code. From the turn o f the century, commercial
employees litigated to claim the Codes benefits.
Over the course o f time, the courts interpretation and application o f the
Commercial Codes labor law changed in accordance with the developments in
Argentinas commerce and industry. Because o f the exceptional nature o f the
Commercial Code dispositions, it was attractive for many to claim its benefits. One o f the
questions the courts had to determine was therefore who qualified as commercial
employees. This chapter shows how the judicial interpretations o f the term commercial
employee slowly changed from a restrictive interpretation between 1900 and 1920 to a
more liberal interpretation during the 1920s as a response to the increased diversification
o f Argentine commerce. It shows how a jurisprudence developed that stretched the term
commercial employee to include workers in commercial establishments previously
excluded from the Codes benefits.
189
Since the Commercial Code explicitly regulated aspects o f their labor contract,
commercial employees were especially well positioned to use the already existing legal
framework to promote reform in the field o f labor legislation. With the diversification
and numerical growth o f commercial establishments during the 1920s, the Federation of
Commercial Employees gained sufficient strength to actively promote such reform. By
the early 1930s, the Federation launched a national campaign to achieve the passing of
labor laws that would improve the working conditions o f its affiliates.2 In 1932 the
national legislature passed the English Saturday Law, and in 1934 the law regulating
opening hours for commercial establishments. Both laws had local jurisdiction.3
More importantly, the commercial employees obtained a significant reform o f the
Commercial Code in 1934. The 1934 reform amplified the old Commercial Codes
benefits in several ways. First, it extended the existing benefits o f the Codes Articles
154-160, in addition to adding new benefits to the old articles. Second, it redefined the
notion of commercial employee to include workers previously excluded from the Codes
benefits. In this respect, it reflected a tendency in the jurisprudence dating from the 1920s
to grant benefits to commercial employees who were not necessarily involved in direct
customer contact. The successful passing o f the reform did not reduce the courts role in
interpreting the Codes terms, however. As this chapter will show, judges continued to
stretch the notion o f commercial employee, and certain courts even went as far as to
include industrial workers in the Codes benefits.
2 In the early 1930s the Federation o f Commercial Employees was under the leadership o f Angel Borlenghi
and had close connections with the Socialist Party. These connections, together with Borlenghis political
astuteness, put the Federation in a particularly good position to push for labor reform through the national
legislature. See Horowitz, El movimiento obrero, 253.
'The 1934 law regulating opening hours was the same as that vetoed in 1925, only this time it was
presentedand passedwith local instead of national jurisdiction.
190
Labor Law in the 1889 Commercial Code
The Commercial Codes dispositions o f interest to the topic here under study were
primarily embodied in the Codes Articles 154-160, which regulated the relationship
between commercial employers and employees. Although these were certainly not labor
laws in the traditional sense of the term, they established rights for commercial
employees that other employees o f private industries and establishments did not benefit
from until the 1940s. Particularly noteworthy were Articles 155 through 158. Article 155
established that, in the case of an unforeseen accident, which made the employee unable
to perform his work functions, his position would be reserved for him for up to three
months. During this time, he would also be entitled to his regular salary. The benefit was
contingent on the accident not having been provoked by the victims own fault, but it was
without a doubt the most advanced, not to say the only, arrangement for sick leave
existing in Argentina at the beginning o f the century. In a commentary to the case Mauro
v. De M icheliy Cia. , 4 the author pointed out that the Commercial Code in this respect
provided much more extensive benefits than the Occupational Accident Law.
Article 156, which has already been the object o f analysis in Chapter 2,
established the employers automatic obligation to compensate his employee for any
damage or extraordinary loss incurred while at the formers service. As such, Article
156 adopted the principle o f occupational risk approximately twenty-five years before it
was embodied in the Occupational Accident Law. In the above-mentioned commentary,
the system established by Articles 155 and 156 was appropriately characterized as an
* JA 18 (1925): 304-307 (Camara Comercial de la Capital, 1925).
191
extraordinary advancement in comparison to the civil law legislation regarding the
location de servicios.5
The Code also ensured commercial employees the right to compensation in
certain cases o f dismissal. Article 157 regulated the appropriate procedures for the
termination o f the labor contract between commercial employers and employees, which
was usually one with an open date for termination.6 In the case that either employer or
employee should wish to terminate the employment, Article 157 established the
obligation to give the other party notice with one months anticipation. The article
continued: The dismissed employee will be entitled, except in cases o f notoriously bad
conduct, to the salary corresponding to this month, but the employer is not under the
obligation to keep him in the establishment or in the execution o f his functions.7 The
primary purpose o f the article was to ensure the previous notification in cases o f
dismissal or renunciation so that the employee would have time to find new employment
and the employer the time to find his replacement. If the employer failed to give
notification, he had to pay the dismissed employee the final months salary as
compensation, unless the dismissal was caused by the employees bad conduct.
5 Ibid., 304.
6 Again, the term labor contract, as it is used here and in the Civil and Commercial Codes, did not
necessarily imply a written contract. It simply refers to the arrangement between the employer and his
employeeformal or informalfor the latter to sell his services to the former for a fee.
7 Codigo de Comercio, Art. 157.
192
Judicial Interpretations o f the Commercial Code before its 1934 Reform
Cases involving these articles o f the Commercial Code were tried in the
Argentine courts already at the turn o f the century.8 As is to be expected, over a period o f
more than thirty years, judicial interpretations changed as judges were forced to respond
to the changing conditions o f Argentine commercial life, which became increasingly
complex. With the arrival of the large department stores in the 1920s, the relationship
between commercial employers and employees changed significantly from that which
had characterized the traditional smaller establishment o f only one or two employees at
the time the Commercial Code was promulgated. The courts had the final word in
deciding the concrete content o f the Commercial Code in different respects. One
definition they had to make was who was to be considered a commercial employee and
therefore a beneficiary o f the protections offered by Articles 155-157. They also had to
determine what qualified as a just cause for the dismissal o f an employee, freeing the
employer o f his obligation to compensate with a months salary. A third important aspect
the courts were called upon to decide was whether it was possible for employers to
legally make their employees sign contracts renouncing their right to the months
compensation accorded to them by the Commercial Codes Article 157.
8 The first case I have found that involved the Commercial Codes Article 157 dates from 1897 and is
mentioned by Enrique Diaz de Guijarro in his article La protection al empleado de comercio en las
legislaciones peruana y boliviana y en el Codigo de Comercio argentino, JA 21 (1926): 16 (Section
Doctrinaria). The case was tried in the Capitals Commercial Court, and the employee was denied his right
to compensation. Especially during these early years it is difficult to locate sentences involving commercial
employees and their right to compensation, because many o f these cases were tried in the courts o f the
Justice o f the Peace due to the claims small amounts.
193
Stretching the Term Commercial Employee
In the general absence o f any major protections offered to labor in this period, it is
only to be expected that the Commercial Codes benefits were attractive also to people
who might not be considered commercial employees in the strict sense o f the term.
During the first two decades o f the 1900s, however, the courts gave a restrictive
interpretation o f the term commercial employee. Following this restrictive
interpretation, it was not enough to be directly engaged in activities that were, without a
doubt, commercial in nature. It was also necessary to be a permanent employee on a fixed
monthly salary. This was the ruling o f the Capitals Commercial Court o f Appeals in
1910 and was adhered to by the same court even as late as 1923. In that year, the appeals
court judges established that the Commercial Codes Article 157 did not extend its
benefits to a traveling salesman who was paid in the form o f commissions on his sales
rather than by a fixed monthly salary.10 Four o f the five appeal courts judges voted in
favor o f the restrictive interpretation, denying the salesman the right to a months
compensation for unjust dismissal without previous notice. Only Judge Casares voted in
the opposite sense.
Jurisprudencia Argentina published a commentary to the sentence, whose author
claimed that the court majority had incurred in an obvious error o f interpretation, and that
permanent commercial employees qualified for compensation independent o f the form in
9 The case is mentioned in the footnote to the case Lopez v. Martinez, JA 25 (1927): 1512 (Camara
Comercial de la Capital, 1927).
10 Aguas v. Cafe Paulista (S.A.), JA 11 (1923): 1350-1352 (Camara Comercial de la Capital, 1923). The
sentence was followed by an identical ruling only two days later in a case against the same employer. See
footnote in ibid., 1350.
194
which they received their salary.11 The commentary can be seen as a reflection o f a new
tendency in the interpretation o f the Commercial Code, one which was less restrictive and
increasingly concerned with defending the social value o f the Codes dispositions. The
tendency became noticeable in the first half o f the 1920s as a response to the growth and
increasing specialization o f commercial personnel.12
The 1925 case Sagreras v. Martinez Hnos. y Cia13 illustrates the disagreements
that existed with respect to the interpretation o f the term commercial employee. In the
first instance, Judge Labougle had granted the plaintiff Sagreras the compensation o f one
months salary upon his dismissal from the company Martinez Hnos. y Cia., since the
defendant had failed to show the dismissal had been provoked by the employees bad
conduct. The defendant, however, claimed to be exempt from the obligation to
compensate the plaintiff, not because Sagreras had exhibited bad conduct, but rather
because Sagreras was not an employee, but a worker (peon). Sagreras worked in the
defendants bakery making croissants and kneading dough. He was therefore not
involved in the commercial activities o f the bakery in the strict sense o f the term, since he
did not attend the customers. Consequently, the bakery owners asserted that Sagreras had
no rightful claim to the protection offered by the Commercial Codes Article 157. Judge
Labougle dismissed the defendants objection in the first instance, but the matter
provoked considerable disagreement among the five judges in the court o f appeals.
11 Ibid.
12Judge Fauvety o f the Justice of the Peace Appeals Court pointed to this development in the explanation
for his vote in a much later case concerning the Commercial Code. See Greil Castellanos, Leyes obreras,
733.
13JA 18 (1925): 675-677 (Camara Comercial de la Capital, 1925).
195
Judge Melendez first presented his decision and its rationale. He asserted that the
benefit accorded by the Commercial Codes Article 157 was by its very nature an
exception and should therefore be interpreted restrictively. He proceeded to argue that the
plaintiff had failed to show that he fell under the protection o f the article. As a bakery
worker (obreropanadero), he did not qualify as a commercial employee, and Article 157
referred to activities o f a completely different character than those performed by
Sagreras.14 Judge Padilla did not agree with Melendez, however. He pointed out that the
Commercial Codes Article 157 covered both commercial agents (factor) as well as
employees, and Sagreras could not be considered a day laborer or worker since he was a
permanent employee on a fixed, monthly salary. He was consequently entitled to the
compensation o f one months salary upon having been dismissed by his employer due to
no fault o f his own. O f the three remaining judges, Judge Estrada adhered to Padillas
interpretation, whereas Judges Casares and Cranwell sided with Melendez. With a three
against two majority, the Commercial Court o f Appeals thus denied Sagreras the right to
compensation.15
With the diversification o f commercial activities, as well as the growth o f the big
department stores, commercial establishments increasingly employed people in a wide
range o f functions, many o f which involved little or no customer contact. It therefore
seemed increasingly arbitrary to make the distinction between somebody engaged in
selling a product and the person who had prepared and packaged it, or put in on display.
14 Ibid., 676.
15 Ibid., 676-677.
196
Or, to use the above example, what was truly the difference between the employee
kneading the dough o f the croissants and his co-worker who sold them to customers?
The tendency to interpret the notion o f commercial employee more liberally
started to coexist alongside the traditional restrictive interpretation after 1925. In 1927,
compensation was accorded to a baker performing functions similar to that o f Sagreras,
although in this case, he was also in charge o f the bakery, which made it easier to claim
he was performing strictly commercial functions as well.16 Compensations at dismissals
were also granted to a technical smelter (fundidor tecnico), and to an employee in a shoe
factory whose tasks consisted in cutting and measuring the leather (cortador modelista).11
Considering a technical smelter and a shoe factory worker as commercial employees
rather than industrial workers seems a considerable stretch o f interpretation. In both cases
the plaintiffs received a fixed monthly salary, which, in the judges opinion, made them
employees rather workers. Nevertheless, stretching the term commercial employee
so far that it included factory workers, regardless o f whether they received a monthly
salary, was an elastic interpretation o f the 1889 Commercial Code.
The more liberal interpretation o f Article 157 was eloquently expressed in the
case Baroni v. G un}%when Judge Coll in the Capitals Commercial Court in the first
instance granted the plaintiff Baroni the right to compensation on the following grounds:
. . .[T]he term employee used by the article in question comprises all those who
16Juan Bautista Franzesi v. Benito Enriquez, Gaceta delForo 72:102-103 (Camara Comercial de la
Capital, 1927).
17 Jose Gelman v. Goldstein, Berdichevski y Celia, Gaceta del Foro 76:72 (Camara Comercial de la
Capital, 1928) and Francisco Marcello v. Rubinetti, Maragliano y Bracuto, Gaceta del Foro 79:338-339
(Camara Comercial de la Capital, 1929). I am grateful to Bias Gomez for his help in locating these
sentences.
18JA 14(1924): 256-258.
197
cooperate or contribute in the merchants activities, without making the distinction
between the functions they perform or the functions relative importance to the
business.. . 19 Judge Coll went beyond defending the protection offered to the individual
commercial employee as a basis for his liberal interpretation and exhorted the greater
social interest that lay in providing dismissed commercial employees with a means of
subsistence.
With a liberal interpretation o f the term commercial employee, Argentine judges
again stretched and bent the already existing legal framework o f the Commercial Code to
accommodate the developments in Argentine commercial life, which were not being
adequately regulated by specific legislation. Again, they fulfilled the function o f shaping
labor law and channeling social conflict through institutional structures. There were
serious limitations to their attempts to make labor law with the Commercial Code,
however. The main problem was the lack of consistency in the jurisprudence. The liberal
application o f the term commercial employee did not replace the restrictive one. Rather,
the two started to co-exist from 1925 onward. The distinctions between who were entitled
to the Commercial Codes benefits and who were not therefore seemed increasingly
arbitrary during the 1920s, making evident the need for a decisive reform o f the Code.
Just Cause for Dismissal
In addition to defining who did and who did not qualify as a commercial
employee, judges decided the effective extension o f Articles 157 benefits in a different
way. The employer would be free o f his obligation to compensate his dismissed
19Ibid., 257.
198
employee if the employee had been fired with just cause (justa causa); that is, if he had
caused the dismissal by his own inappropriate behavior. The vague notion o f just
cause, however, lent itself to debate and was often at the core o f the dispute between
employer and employee. Again, judges had the final word in defining the terms concrete
content. Similar to the definition o f the term commercial employee, their interpretations
o f what constituted a dismissal with just cause was subject to change over time.
The Commercial Code outlined fairly clearly what behavior by the employee
would give legitimate grounds for dismissal. If the employee turned out to be incapable
o f performing the work functions inherent to the position for which he had been hired, the
employer could dismiss him or her without the obligation to pay a months salary as
compensation. The same was established for cases where the employee committed an act
o f fraud or abuse o f confidence, or if he did business on his own behalf without the
explicit permission o f the employer.20 The employee was also expected to show his
employer the appropriate respect. Employers often invoked other circumstances that, in
their opinion, constituted grounds for the just dismissal o f employees. One such
circumstance was bankruptcy. In a case dating from the year 1897, the court ruled that
dismissals due to bankruptcy automatically made the employees right to a months
compensation inapplicable.21 By the 1920s, however, bankruptcy no longer qualified as
just cause for dismissal. In the above-mentioned 1924 case Baroni v. Gun, the court
sentenced Gun to pay Baroni a compensation o f 225 pesos in compensation in spite of
Guns allegations that he should be exempt from payment since the dismissal had been
20 Codigo de Comercio, Art. 160.
21 JA 21(1926): 16 (Section Doctrinaria).
199
caused by bankruptcy.22 The doctrine that bankruptcy did not constitute just cause for
dismissal was subsequently reiterated in the cases Garcia, Iglesias y otros v. Poplizio and
Lopez v. M artinez}1
The notion o f just cause thus evolved from having a liberal application at the
beginning o f the century to having a more restrictive and limited application by the
1920s. This interpretative development coincided with that o f the term commercial
employee in the sense that both tendencies went from a weaker to a stronger protection of
the rights established in the Commercial Code. The defense o f these rights was not
unconditional, however. If the employee had abandoned his position to participate in a
strike and was subsequently dismissed, he was not considered eligible for compensation.
In Navarro v. Banco Espaiiol del Rio de la Plata,24 Judge Cranwell stated that Navarro
had voluntarily abandoned his position when deciding to take part in a strike at the bank.
The ruling clearly illustrates the limitations o f the protections offered commercial
employees within the liberal, individual framework o f the Commercial Code.
The Legality o f Renouncing the Rights o f Article 157
The liberal legal structure did not only presume the relationship between the
employer and the employee to be primarily individual; it also presumed that it was free.
According to laissez-faire ideology, contracts o f which the labor contract was just one
22JA 14 (1924):256-258 (Camara Comercial de la Capital, 1924).
22JA 15 (1925): 890-891 (Camara Civil 2a. de la Capital, 1925) and JA 25 (1927): 1512-1513 (Camara
Comercial de la Capital, 1927) respectively.
24JA 11 (1923): 207-209 (Camara Comercial de la Capital, 1923).
200
subcategorywere arrangements entered into by two parties in equal conditions and with
equal influence on the negotiation o f the contractual terms. It assumed that both parties
were completely free to accept or reject the agreement. Under this assumption,
commercial employees were also entirely free to voluntarily sign away the Commercial
Codes benefits. The practice o f making prospective employees renounce their legal right
to compensation in cases o f dismissal without previous notice was widespread among
commercial employers. In a 1924 article in Jurisprudencia Argentina, Enrique Diaz de
Guijarro pointed out that the standard printed job applications used by the larger
commercial establishments asked for the applicants explicit renunciation o f the benefits
accorded by Article 157. In effect, their employment hinged on the renunciation o f this
benefit, and in practice meant the complete annulment o f the Codes protection.25 In
spite o f the fact that employees signed away their right to be compensated if dismissed,
they sometimes attempted to reclaim their right through the courts, hoping judges would
rule the signed agreement to be void and without effect, since it was an open annulment
o f a codified legal principle.
Their hopes were frustrated, however. Although judges in some cases during the
1920s ruled to protect the benefits o f Article 157, the standard interpretation continued to
be that its free renunciation was legitimate and legally binding.26 Nevertheless, this
interpretation was no longer undisputed by the early 1920s. In the 1923 decision to
Sadum i v. Cibridn Hermanos,27 Judge Labougle declared the renunciation o f Article 157
25 Enrique Diaz de Guijarro, Nulidad de la renuncia a los beneficios del articulo 157 del Codigo de
Comercio, JA 14 (1924): 94 (Section Doctrinaria).
26 This was the ruling in Ipcar v. Harrods, JA 2 (1918): 650-651 (Camara Comercial de la Capital, 1918).
27JA 18(1918): 294-295 (Primera Instancia de lo Comercial de la Capital, 1923).
201
to be invalid, subsequently sentencing the defendant to pay the plaintiff one months
salary in compensation for having dismissed her without just cause. Labougle went
beyond thinking in the terms o f the traditional liberal legal framework and asserted that
Article 157 was not essentially intended to protect individual interests, but that it was
rather protecting a general interest.28 Commenting on the notion o f contractual liberty, he
stated:
The laws have respected the rights o f the parties to contract freely, and they have
done so to guarantee the development o f individual action and in its interest. Their
dispositions, by protecting peoples property, actions, and honor, have also at the same
time pursued a goal of individual wellbeing and social stability.. . In this sense, it is
not admissible, nor should preferences be established, which protect the stronger
against the weaker, who, due to their position o f dependence, always find themselves
forced to accept what is imposed on them by the people who give them work or
benefits.29
Labougle therefore made clear the shortcomings involved in relying on laissez-
faire principles to regulate modem labor-capital relations. Nevertheless, his ruling was
overturned by the Capitals Commercial Court o f Appeals in 1925. The appeals court
judges simply referred to the consistent ruling o f the court o f recognizing the legality o f
the renunciation o f the benefits o f Article 157, a jurisprudence they were evidently not
swayed to challenge or change.30 In fact, the Capitals Commercial Court o f Appeals
reiterated this interpretation as late as into the beginning o f the 1930s. Although not all
employees were forced to renounce their right to the protection o f Article 157, the
judicial recognition o f the legality o f such agreements severely limited the Commercial
28 Ibid., 294.
29 Ibid., 294-295.
30JA 18 (1925): 296 (Camara Comercial de la Capital, 1925).
202
Codes possible positive effects. One could say that the most important consequence o f
the jurisprudence during the first thirty years o f the twentieth century was to point out the
necessity for a reform o f the Commercial Code. Two o f the main points a reform had to
address were to expand the definition o f the term commercial employee and to abolish
the legality o f agreements renouncing the Codes benefits.
Extending the Benefits o f the Commercial Code: The 1934 Reform
The reform bill presented in the Chamber o f Deputies on 18 August 1932 was a
partial reform o f the Commercial Code, involving only the renovation o f Articles 154
through 160. By this partial reform, however, Argentine legislators introduced some o f
the most advanced pieces of labor legislation in Argentina to date, offering those who
came in under the Codes dispositions a unique protection compared to all other groups
o f workers in Argentina before 1943. Two important factors came together to make this
possible. One was the mere existence o f these articles in the Commercial Code from
1889, which made it possible to argue for a reform through the existing legal framework
and in accordance with the prevailing interpretation that labor law was simply an
extension o f the Civil and Commercial Codes regulation o f the labor contract. Another
essential precondition was the special situation o f the commercial employees and their
organization, the Federation o f Commercial Employees. By the early 1930s, the
Federation o f Commercial Employees was strong and coherently organized under the
astute leadership of Angel Borlenghi. The Federation had important connections with the
Socialists, who occupied a particularly strategic position in the Concordancia
government led by General Agustin P. Justo. Strong organization, political leadership and
203
connections, together with the fact that they could advocate for reform within the already
existing legal framework o f the Commercial Code, enabled the commercial employees to
lobby the legislature successfully to obtain protections no other groups enjoyed.31
Expanding the Term Commercial Employee
The core o f the proposed reform centered on extending the benefits embedded in
the Commercial Code by making the Codes dispositions applicable to a larger number o f
employees and by considerably amplifying its protections. With respect to the first, the
most important change introduced in the reform bill was to replace the terms
commercial agents and employees of the 1889 Code with the simple term commercial
employee, which was then specifically defined to include agents, employees, traveling
salesmen, clerks, or workers.32 When expounding the motivations behind the reform,
Deputy Courel pointed to two main reasons that had led the bills authors to introduce
this change in the terminology. First, he outlined the changes that had occurred in
Argentine commercial life since the Commercial Code had been passed in 1889. At that
time, commercial establishments were small and simple, often run by one person only,
who was employee, boss, and owner all at the same time. This was no longer the case in
1932. Today, Courel stated, a large and important commercial establishment counts
on a whole body o f accountants, bookkeepers, managers, commission agents, traveling
31 This is a good example o f the kind o f fit" between interest group organization and institutional structure
which Theda Skocpol points out as essential to obtaining legislative change successfully. See Skocpol,
Protecting Soldiers and Mothers, 54-57.
j2 The original terms used are factores y dependientes de comercio in the 1889 Code and simply
empleados de comercio in the reform bill, which continued to define these as factores, dependientes,
viajantes, encargados u obreros. Codigo de Comercio, Art. 154 and following articles. DSCD, 1932,
5:188-190, 18 August.
204
salesmen, employees, merchandise distributors, cashiers, packers, distributors o f small
equipment and articles within the establishment, watchmen, and permanent workers
listen carefullyand permanent workers, who are a commonplace in the profusion o f
commercial establishments distributed across the entire territory o f the Republic.33
Second, he referred to the diverse interpretations given in the jurisprudence o f the
term commercial employee and the fact that, in many cases, the months compensation
accorded by the Commercial Codes Article 157 had only been granted to those in direct
contact with customers. This had caused the unjustified exclusion o f a large part o f the
personnel from the benefits o f the mentioned article, who although they do not treat
directly with the public, perform equally important functions within the commercial
mechanism.34 Consequently, the reform sought to amplify the term commercial
employee to include everybodyalso workerstaking part in the commercial
establishments many and varied activities. With this new and expanded definition o f the
term, the number o f commercial employees to come under the benefits o f the Code would
amount to approximately 800,000.35
The proposed specification o f the term commercial employee to include agents,
employees, traveling salesmen, clerks, and workers met with considerable resistance
when it came to the inclusion o f the word workers. The different employers
organizations wrote letters to the Chamber o f Deputies expressing their concern that the
inclusion o f the word workers (obreros) implied the extension o f the Commercial
33 Ibid., 194.
34 Ibid., 195.
35 Ibid., 194.
205
Codes benefits to industrial workers. The conservative press published articles
estimating that the reformed Code would apply to 2,640,000 workers and employees, of
which 880,000 would be employees and 1,760,000 would be workers.36
Defending the bill in the Chamber o f Deputies, Courel refuted these estimates and
explicitly stated that the reform was intended to benefit only permanent workers hired to
perform manual labor within commercial establishments: This is not a b o u t. . . the
industrial worker; this is about the workerwhether he is called a watchman, a packer,
etceterawho is permanently contributing his effort in the commercial operations . . . ,
and who because he is performing a manual activity is unjustly excluded from the Article
157 which protects commercial personnel in the case o f dismissal.37 To avoid further
misunderstanding, however, the wording o f the bill was changed to leave no room for
doubt. The term commercial employee was now carefully defined as agents, employees,
traveling salesmen, clerks, or workers who perform functions inherent to commerce
(factores, dependientes, viajantes, encargados u obreros que realizan tareas inherentes
al comercio).38 The authors thereby hoped to calm their opponents and convince them
that the reform was only intended to apply to the approximately 800,000 people working
in commercial establishment, and not to an additional 1,760,000 industrial workers. This
was the form in which the bill was voted and accepted by the Chamber o f Deputies.
35 The numbers were suggested in the article Observaciones al despacho de la comision de legislacion
general de la honorable Camara de Diputados sobre indemnizaciones por despido, plazos de preaviso,
vacaiones anuales remuneradas y otras disposiciones complementarias, La Prensa (Buenos Aires),
17 August 1932.
37 DSCD, 1932,5:196, 18 August.
38 The bill, with these changes, was presented again in the Chamber o f Deputies on 13 September 1932.
Ibid., 775-777,13 September.
206
Amplifying the Codes Benefits
Having thus defined who the reform was supposed to include, the other main
issue o f debate was the content and extension o f the reform itself. The bills authors
proposed to significantly improve the protections offered in Articles 155-158. Where the
1889 Code gave the employee the right to maintain his position and receive salary for up
to three months in cases o f accidents, the reform proposed to extend the benefit to apply
also to cases o f illness. Employees with more than ten years o f service would be entitled
to six months salary instead o f three, and all employees had the right to keep their
position without salary for a whole year after these three or six months expired. The
Codes Article 156 was given a completely new content. The 1889 version simply stated
that the employer was responsible for any damage or extraordinary loss incurred by the
employee while at his service. In the reform, it gave commercial employees the right to
paid annual vacations. Employees with higher seniority had the right to longer vacations
than those with fewer years o f experience in the establishment.
Another major reform was proposed to the Commercial Codes Article 157. The
article in its new version established the necessity to give notice one month in advance
before dismissing an employee with less than five years o f service, while employees with
more than five years o f service were entitled to receive notice two months in advance. If
the employee was dismissed without the advance notice established in the Code, the
employer was under the obligation to pay the compensation corresponding to the term of
advance notice; i.e., either one or two months. The main reform o f Article 157, however,
was the introduction o f full-scale severance pay in cases o f dismissal. Independent o f the
right to compensation when dismissed without advance notice, the Article established
207
that employees had the right to compensation in all cases o f dismissal. The compensation
would amount to half the employees monthly salary multiplied with the number o f years
o f service rendered to the employer. In no case could the amount be lower than one
months salary, nor higher than 500 pesos for each year o f service. Furthermore, in case
o f the employers death, the employee would still be entitled to severance pay, although
not to compensation for the lack o f advance notice o f dismissal. If the employee died, his
or her family would receive the severance pay. The reform bill also introduced the
explicit prohibition o f all agreements to renounce the benefits o f the Code.
Article 158 proceeded to establish that the right to compensation in cases o f
dismissal without previous notice, severance pay, paid vacations, and sick leave would
also apply to employees on fixed-term contracts. Previously, only those employees with
contracts without a fixed date o f termination were included in the benefits o f the
Commercial Codes Articles 155-157. Finally, the reform bill proposed that contracts
with fixed dates of termination should be considered automatically renewed unless the
employer gave advance notice o f dismissal. With the introduction o f these major changes,
the reform was much more than a mere expansion o f previous benefits; it offered a whole
new set of benefits to a significantly increased number o f people.39
j9 The presentation and discussion of the bill in the Chamber o f Deputies can be found in DSCD, 1932,
5:775-822,13 September.
208
The Parliamentary Debates
The Chamber o f Deputies approved the reform bill on 14 September 1932, and
subsequently sent it over to the Senate for discussion.40 The Senate, however, was
divided in its opinion o f the reform. Two o f the three members o f the special legislative
committee, Senators Alberto Arancibia Rodriguez and Carlos Serrey, proposed
considerable changes to the bill, while the one remaining member, Socialist Senator
Mario Bravo, suggested that the Senate accept the reform bill in the way it had been
voted by the Chamber o f Deputies 41 In the subsequent vote, the Senate decided with ten
votes against nine; i.e., with only one votes majority, to follow the recommendation o f
the majority o f its legislative committee and make severe restrictions to the bill, most o f
them centering on the essential Article 157 42
Most importantly, the Senate did not accept the novel introduction o f full-scale
severance pay, which lay at the core o f the bill passed by the Chamber o f Deputies. It was
only willing to accept an extension o f the right to compensation in the absence o f
advance notice o f dismissal for employees with more than five years o f service. In
addition, it refused to accept a whole range o f the other proposed reforms. First, it
eliminated the arrangement that the employees family receive compensation in case of
the employees death. Second, where the Chamber o f Deputies gave employees with
40 The final and accepted form o f the reform bill passed by the Chamber o f Deputies and sent to the Senate
is reproduced in DSCS, 1933,2:252-258,19 September.
41 The changes introduced to the bill by the majority o f the Senate committee are reproduced together with
the original version from the Chamber of Deputies in ibid. Senator Mario Bravos opinion follows
immediately, ibid., 259.
42 The complete Senate discussions of the bill are in ibid., 259-282,19 September and ibid., 357-372,22
September. For the final form in which the bill was returned to the Chamber o f Deputies, see DSCD, 1933,
5:385-387,25 September.
209
more than ten years o f service the right to receive salary for six months in case o f illness
or accidents, the Senate only accorded them full pay for the first three months, stipulating
that for the last three months, they would receive only half their salary. Third, the Senate
refused to extend the obligation to give previous notice o f dismissal to contracts with
fixed termination, and last, but not least, it introduced an elaborate list o f situations in
which employees could be dismissed immediately and without right to compensation.
The list led Deputy Ruggieri to exclaim that the Senate had hereby eliminated even the
most remote possibility that the employees can free themselves from the whims o f their
em ployer.. .43
When the Chamber o f Deputies received the bill in revision from the Senate, they
refused to accept any o f the changes introduced and insisted on the sanction o f the bill in
its original form. This time, the Senate approved it with a nine-to-eight majority. The
obstacles were not quite overcome yet, however. When the bill was sent to President
Justo for endorsement, he imposed a partial veto,44 claiming that one o f the bills
dispositions was retroactive. The article in question established that the new law would
apply to all cases o f dismissals having taken place after 1 August 1932. The purpose o f
the article was to prevent employers from dismissing their employees as a strategy to
evade the obligations imposed by the reform.
Since the major costs o f the reform for employers involved severance pay owed to
employees with the most years o f service, employers hoped that firing, and then rehiring,
their employees would annul the years o f previous service for the purposes o f the law. It
43 Ibid., 395.
44 For the debates concerning the institution and peculiarities of the partial veto, see DSCD, 1934, 3:411-
434, 18 July and DSCS, 1934,2:329-344, 18 September.
210
would later turn out that employers had little grounds for concern, however. Although the
law established that seniority up to five years preceding the passage o f the law would
count in the estimation o f severance pay, the Supreme Court ruled the article
unconstitutional for retroactivity in Pedro Saltamartini v. Cia. de tranvias "La
National.45 When the Chamber o f Deputies, and then the Senate, chose to accept the
presidential veto, the bill was directly passed into law, with the exclusion o f the vetoed
article, on 18 September 1934.46
The Novelty o f the Reform
The reform o f the Commercial Codes Articles 154 through 160, under the name
o f Law 11.729, went much further than any o f the previous Argentine labor laws. By
granting commercial employees the right to severance pay, paid vacations and sick leave,
Law 11.729 foreshadowed social welfare benefits which would later be granted to all
workers under the government o f Juan D. Peron. The novelty o f the law was not lost on
contemporary observers. Alejandro Unsain, in an extensive commentary published in
1935, stated: The new la w ,. . . , constitutes a modification o f vast economic, juridical,
and social importance.47 Although the law certainly constituted a novelty in the context
o f Argentine labor law, its importance should not be exaggerated. Some o f its measures
simply confirmed and institutionalized practices that were already established. Railroad
4SJA 55 (1936: July-August-September): 720-739.
45 The reform received the denomination o f Ley 11.729 and was published in ALA, 1920-1940.477-483.
Note that it is here published with the %'etoed article included.
47 Alejandro Unsain, Empleados de comercio: Exposition y comentario a la Ley N I I . 729 (Reformando

los articulos 154 a 160 del Codigo de Comercio) (Buenos Aires: Valerio Abeledo, 1935), 45.
211
workers and telephone employees already enjoyed paid vacations, a benefit they had
managed to secure through collective bargaining.48 During the parliamentary debates, it
had also been pointed out that several commercial establishments compensated
employees at dismissal with sums from three to five months salary. Nevertheless,
Deputy Vicchi made an accurate assessment when he argued that these were habits
practiced in the large-scale commercial establishments o f the capital o f Buenos Aires and
were far from representative o f a general state o f affairs in commercial life in the country
in general.49
Although the law might have been, at least partially, rooted in national reality, it
also took significant inspiration from the international intellectual and political
environment, where the influence o f corporatist ideas was significant. Prominent among
the international antecedents that inspired the reform was Mussolinis Law 1.825 from
1924, regulating the labor contract for private employees. The law was constantly
referred to in the presentation o f the bill and invoked as a model on which many o f the
reformed articles were based.30 Unlike the Italian law, which regulated the private labor
contract in general, the Argentine law only applied to the labor contract between
commercial employers and employees. Unsain remarked on the rather strange legislative
method o f adopting such an extensive labor reform in the form o f a revision o f the
Commercial Code. In his opinion, Congress should have rather adopted these measures in
the form o f an extensive and complete separate law regulating the labor contract for all
48 Ibid., 127.
49 DSCD, 1932, 5:845, 14 September.
50 DSCD, 1932, 5:193-203,18 August.
212
workers and not just for commercial employees.51 However, because labor legislation
was considered a mere extension o f the existing traditional legal frameworks o f the Civil
and Commercial Codes, it was easier to pass labor laws that could persuasively be argued
to fit naturally into the structures o f the Codes. This way institutional obstacles such as
the often lengthy debates over jurisdiction could be avoided, and there was a greater
chance the bill could make it out o f the legislative chambers in the form o f law before
expiring in accordance with the Olmedo Law.
Deputy Sierra expressed this sentiment in the parliamentary debates: This [the
reform], which ought to constitute a special law separate from the Argentine commercial
codification, we accept within the Code in order to facilitate its sanction, because we
want it to p a ss.. .52 Trying to fit the new legislative field o f labor law into the traditional
legal frameworks therefore gave the most ironic result: The most advanced labor reform
in Argentina to date was based on the reform o f legal dispositions, which dated from the
Spanish Commercial Code of 1829! To take it to an extreme, the pressing new necessities
o f modem society in the field o f labor-capital relations were being addressed with legal
dispositions regulating the medieval corporations, causing Unsain to remark that
sometimes, the brand new is nothing more than the reappearance o f the o ld .. .53
51 Unsain, Empleados de comercio, 24.
52 DSCD, 1932, 5:792, 13 September.
53 Unsain, Empleados, 227.
Applying the Commercial Code to Industrial Workers: Judicial Decisions 1934-1943
The reform had had the explicit purpose o f remedying shortcomings and
imprecisions o f the 1889 Code that had been thoroughly highlighted in the jurisprudence
between 1900 and 1934. The legislators therefore paid particular attention to providing an
unequivocal definition of the term commercial employee. In so doing, they hoped to
remedy the unfair situation produced by a highly variable jurisprudence in the application
of the old Commercial Code. They also paid careful attention to the wording o f the law to
make less room for judges free interpretation o f its terms.
There were characteristics o f Law 11.729, however, that gave the judges an
equally, if not more, important function in defining the content to the reformed Code.
One was the fact that the reformed articles passed directly into the Code without the need
for a regulatory decree. The usual procedure when a law was passed by Congress was for
the government to promulgate a regulatory decree, specifying the laws terms and how it
should be enforced. The regulatory decree therefore gave the government significant
power to define the concrete content o f the law. In the case o f the reformed Commercial
Code, however, the absence of such a decree in practice relegated all powers o f
interpretation to the judges. In addition, there was no penalty established for not
complying with the dispositions o f the reformed articles. Thus, the only way commercial
employees could assert their newly assigned rights, in cases where these were not
automatically respected by employers, was by litigation.
In the abundant jurisprudence that followed in the wake o f the reform, one issue
that deserves careful examination is how judges chose to define the category of
commercial employees, and particularly the term workers performing tasks inherent to
214
commerce. These court decisions serve as a poignant illustration o f the pivotal
importance o f the judiciary in shaping labor law and highlight the problems involved for
workers in having to rely on the courts for an effective implementation o f their benefits.
Diverging Opinions: Extending Benefits to Industrial Workers
The Argentine Congress had taken much time and care to define the content and
extension o f the term workers performing tasks inherent to commerce as a subcategory
o f commercial employees because o f the resistance the term had caused when the bill was
first presented. Nevertheless, the terms interpretation became one o f the most
controversial issues in the subsequent jurisprudence. The controversy centered around
whether or not industrial workers were included in the benefits o f the law, and different
courts reached different conclusions. The Capitals Justice o f the Peace and the Capitals
Commercial Court o f Appeals established a jurisprudence o f extending the benefits o f the
Commercial Code to industrial workers, but the capitals Civil Court o f Appeals, as well
as the provincial Supreme Courts o f Buenos Aires, Tucuman, Entre Rios, and Salta ruled
to the contrary. Both interpretations and their rationales will be examined below.
On 10 December 1935, twelve judges o f the Capitals Justice o f the Peace
pronounced a plenary ruling (fallo plenario) in the case Manuel Carrera v. Fabrica
Argentina de Calzado.54 As a plenary ruling, the decision carried particular weight in
establishing precedent. The practice o f plenary rulings had been initiated in an attempt to
give unity and coherence to a jurisprudence that was often too ridden with contradictory
interpretations to offer litigants the desirable predictability, a predictability that also lent
54 JA 52 (1935: October-November-December): 936-961 (Justicia de Paz Letrada de la Capital, 1935).
215
authority to the judiciary as interpreter o f the law. In a plenary ruling, each judge made a
lengthy exposition o f his ideas and rationale o f interpretation, and the final decision was
determined by majority vote. The majority decision stood as the official interpretation o f
that particular court, to be adhered to by the courts judges in the future.
In this 1935 case, ten judges expounded their interpretation o f the reformed
Commercial Code and the appropriate extension o f the terms commercial employee and
workers performing tasks inherent to commerce. In the absence o f an official regulatory
decree to rely on for their interpretation, the judges looked to the parliamentary debates
to determine the legislators intentions behind the law. Especially important in this regard
was the legislative committees presentation and explanation o f the bill. The judges core
concern was to determine whether or not industries should be considered commercial
activities in the wider sense of the term, thus making industrial workers by logical
conclusion workers performing tasks inherent to commerce. The Commercial Codes
Article S defined the kinds o f economic activities to be considered commerce. Among
the list of activities enumerated was the transformation o f goods with the purpose o f
profiting on their sale, and the general term factories was explicitly included as
commercial acts in general.33 Invoking this article o f the Commercial Code, Judge
Casares stated: [FJrom a juridical point o f view, any distinction made on the basis of
whether the worker is involved in the elaboration o f products or in the distribution o f
merchandise, is inadmissible.56
55 Codigo de Comercio, Art. 8, Subparagraphs 1 and 5.
56JA 52 (1935: October-November-December): 937.
216
Casares thereby went against the explicit intention o f the legislators o f excluding
industrial workers. Deputy Courel had unequivocally emphasized the exclusion o f
industrial workers in the final presentation o f the bill in response to the concerns raised
by industrialists.57 In an effort to reconcile his decision with the intention o f the
legislator, Casares stated that, in spite o f Courels comment, an integral study o f the bills
exposition did not support the exclusion o f industrial workers. In his opinion, the mention
of commercial establishments made in the parliamentary debates, meaning businesses
involved in sales to the public, had to be taken as only one example among many kinds o f
commercial establishments, o f which factories constituted another.38 Finally, Judge
Casares made reference to the discussion o f the bill in the Senate, where he claimed there
had been no disagreement over the extension o f the term and the inclusion o f industrial
workers in the laws benefits.59
Despite Judge Casares attempts to reconcile his interpretation o f the law with the
intention o f the legislators, even he him self seemed aware o f the rather obvious
contradictions his ruling incurred with respect to the parliamentary debates. Addressing
the problem in a roundabout way, Casares pronounced that he considered the text o f the
law, rather than the parliamentary debates, to be the true expression o f the legislators
intention: The Chambers deliberations must be considered authoritative illustrations to
the text [of the law], but only as long as they do not prove contradictory to it, and the
ideas have been put forward without notable contradictions.60 Casares here diminished
57 DSCD, 1932, 5:196,18 August.
SSJA 52 (1935: October-November-December): 938.
59 Ibid., 943.
60 Ibid.
217
the legislators authority and capability o f clearly expressing their legislative intentions,
and assigned to the judges the privilege o f defining the essence o f the law. Without
exaggeration, Casares seemed to define for himself and his fellow magistrates functions
that came dangerously close to constituting an usurpation o f legislative power.
Judge Iriondo disagreed with Casares interpretation. When looking for the true
motives and intentions behind a law, he stated, a judge should look to the concrete
circumstances o f the laws passage. These were, more specifically, the laws
preparations, the parliamentary debates, and the opinions o f juridical commentators.
Referring to the legislative debates, Iriondo was in no doubt that the intention o f the
legislators was to give the terms commercial employee and workers performing tasks
inherent to commerce a restrictive interpretation, excluding industrial workers. To
support his claim, he also pointed to the opinions o f such influential juridical
commentators o f the period as Alejandro Unsain, Leonidas Anastasi, and Manuel Pinto.61
Giving his vote in favor o f excluding industrial workers from the benefits o f the
law, he also marked his difference o f opinion with Judge Casares regarding the judges
function o f interpretation: . . .[T]he significance and extension o f the term in
question,. . . , does not permit resorting to arguments extraneous to the law itself in order
to arrive at its true interpretation.62 Undoubtedly, Iriondos opinion was that which most
closely conformed to what had been the legislators intention. The debate over the
extension o f the term commercial employee had been the reason why the legislative
committee presented two drafts o f the bill. The second was a response to the criticism and
61 Ibid., 945-947.
62 Ibid., 947.
218
widespread resistance to the first versions definition o f the term commercial employees
simply as agents, employees, traveling salesmen, managers, or workers. The second
version specified that the only workers to be considered commercial employees were
workers performing tasks inherent to commerce.63 Explaining the change in
terminology, Deputy Ruggiero stated: I think the opinion is now unanimous about this
point, which was subject to criticism by some employers organizations. They
erroneously interpreted the word worker to include workers who had nothing to do
with commerce and whose situation should be considered in a different legal statute and
not in a reform o f commercial law.64
Nevertheless, of the twelve judges voicing their opinion in the Justice of the
Peaces plenary decision, nine voted in favor of including industrial workers in the
benefits o f Law 11.729. In addition to Judge Casares, these were Judges Suarez Caviglia,
Saavedra, Fauvety, Garriga, Arancibia Rodriguez, Miranda, Oderigo, and Urdapilleta.
The remaining three who voted in favor o f their exclusion were, in addition to Judge
Iriondo, Judges Marin and Quimo Costa. With a crushing majority, the Capitals Justice
o f the Peace therefore decided to ignore the legislatures intentions in its application o f
the law. There were probably many reasons why. With the development o f Argentine
industry in the 1920s, and especially the 1930s, the legal vacuum in labor law was more
noticeable than ever before. During the years o f economic crisis in the 1930s, it also
become particularly important to contain social conflict within the existing institutional
structures to prevent workers discontent from assuming more radical political
63 The two different versions of the bill can be found in DSCD, 1932, 5:189-190,18 August and ibid., 775-
777, 13 September.
64 Ibid., 781, 13 September.
219
expressions. In this respect, it is important to remember the concern with communist
influences in the decade o f the 1930s. Consequently, judges were just as much involved
in resolving the social question in the mid-1930s as they had been at the beginning o f the
century.
Since the city o f Buenos Aires was the countrys undisputed industrial center, it is
not surprising that another court in the capital aligned itself with the Capitals Justice o f
the Peace in including industrial workers in the Commercial Codes benefits. In a ruling
from 1935, the Commercial Court o f Appeals reached the same conclusion as that o f the
above-mentioned plenary decision. In Carlos Werner v. Cerveceria Palermo (S. A ),65
Judge Eduardo Williams in the first instance, like Judge Casares, invoked the inherently
commercial nature o f all industryand particularly that o f a brewery, whose ultimate
purpose was to sell beerwhen ruling that the industrial worker Carlos W emer was
entitled to 617.93 pesos in compensation from the Palermo brewery for unjust dismissal
and owed salaries. The ruling was upheld in the Capitals Commercial Court o f Appeals.
That both the Capitals Justice o f the Peace and the Capitals Commercial Court
agreed to include industrial workers in the benefits o f the law is o f significant importance
when considering that these were the courts that decided the majority o f the cases
involving the reformed Commercial Code. There was therefore a significant chance that
an industrial worker in the city o f Buenos Aires would be conceded the benefits o f the
law. Workers in other parts o f the country were not so lucky, however. Different from the
Capitals Justice o f the Peace and Commercial Court, the great majority o f both lower
65 JA 52 (1935: October-November-December): 218-220 (Camara Comercial de la Capital, 1935).
220
and superior courts in the provinces excluded industrial workers from the benefits o f Law
11.729.66
Debates over the appropriate interpretation o f the reformed Commercial Code
also raged among jurists. A majority o f the experts considered the jurisprudence o f the
Capitals Justice o f the Peace and Commercial Court to be erroneous. Enrique Diaz de
Guijarro made this point in a commentary to the Justice o f the Peaces plenary ruling in
Manuel Carrera v. Fabrica Argentina de Calzado, where he concluded that there was
little doubt that the law was always meant to exclude industrial workers.67 He was joined
in his conclusion by two o f the most prominent experts on labor legislation at the time,
64 See Nicolas Yunta v. Cia. General de Fosforos Sud Americana (S.A.), JA 54 (1936: April-May-June):
318-319 (Suprema Corte de Tucuman, 1936); Joaquin Bulacio v. Ingenio La Corona (Cia. Azucarera
Argentina), JA 55 (1936: July-August-September): 710-711 (Suprema Corte de Tucuman, 1936); Ricardo
Maciel v. Lamberto Maciejewsky, JA 62 (1938): 310 (Suprema Corte de Tucuman, 1938); Carmen
Stangatti v. Industria Serica Argentina (S.A.), JA 56 (1936: October-November-December): 668-670
(Camara Civil 2a. de La Plata, 1936); Jose Pineiro v. The Smithfield and Argentina Meat Co. Ltd.,
JA 61 (1938): 542-545 (Camara Civil la de La Plata, 1937); Estanislao Srydlowski v. Molinos Fenix
(S.A.), JA 60 (1937: October-November-December): 304-305 (Justicia de Paz de Villa Maria (Cordoba,
1937); Gumersindo Rippa v. Augras y Cia., ibid., 306-308 (Superior Tribunal de Entre Rios, 1936); Jose
Peroni v. Pellitero y Cia., JA 66 (1939: April-May-June): 330-331 (Suprema Corte de Buenos Aires. 1939);
Norberto Lencinas v. Molinos Fenix, ibid., 1017-1018 (Superior Tribunal de San Luis, 1939); Arturo Ricott
y otros v. Sociedad de electricidad de Rosario, JA 68 (1939-40: November-December-February): 240-247
(Camara Federal de Rosario, 1939); Francisco Pascual Villanueva v. Filippini (S.A.), JA 70 (1940: April-
May-June): 601-603 (Camara de Apelaciones en lo Comercial y Criminal de Mendoza, 1940); Dario
Ferrada v. Standard Oil Co., JA 73 (1940: January-February-March): 109-113 (Camara Federal de Bahia
Blanca, 1939). In this decision, the judges in the Court of Appeals listed previous cases where they had
resolved the issue in an identical way; that is, excluding industrial workers from the benefits o f the law.
These cases were Tonini v. La Reginense, Grillo V. Baretto, and Prezioso v. Cooperativa Valle Fertil.
Ibid., 113. Although this geographic line o f divide was a general rule, it had a few exceptions. For example,
in the capital, the Civil Court o f Appeals excluded industrial workers from the benefits o f Law 11.729. See
Bernardo Drames v. Lorenzo J. Rosso (sue.), JA 60 (1937: October-November-December): 864-866
(Camara Civil la. de la Capital, 1937); Paulino Garate v. Josefina Alvear de Errazuriz, JA 63 (1939: July-
August-September): 541 (Camara Civil 2a. de la Capital, 1938); Manuel Antonio Soto Corbett v. Cia. de
Construcciones Civiles (S.A.), JA 70 (1940: April-May-June): 270-273 (Camara Civil la. de la Capital,
1940). In the provinces, the Federal Court o f Appeals in Parana ruled to include them. See Vicente Coronel
v. Quebrachales Fusionados (S.A.), JA 75 (1941: July-August-September): 282-285 (Camara Federal de
Parana, 1941). In this decision, too, the judges listed previous cases where they had resolved the matter
identically. These cases were A. Chamorro v. Cia. del Este Argentino de Electricidad, Isidoro Quevedo v.
Molinos del Rio de la Plata, S.A., Alberto Leiva v. Molinos del Rio de la Plata, S.A., Alberto Fernandez,
Ramon De los Reyes, Ramon Esperidion Rios, y Gregorio Torres v. Molinos del Rio de la Plata. Ibid., 282.
67 Enrique Diaz de Guijarro, La indebida extension de la Ley 11.729 a los obreros de la industria, JA 52
(1935: October-November-December): 936-942.
221
Alejandro Unsain and Leonidas Anastasi.68 Unsain also mentioned a pamphlet written by
Angel Borlenghithe leader o f the Federation o f Commercial Employees who had
contributed significantly in the preparation o f the bill in which Borlenghi analyzed the
reform o f the Commercial Code and explicitly stated that industrial workers were not
intended to be included in the laws benefits.69
Others were o f a different opinion. The Buenos Aires newspaper La Razon
published on 12 September 1932 the opinion o f Commercial Judge Francisco
Cermesoni.70 According to Cermesonis interpretation, the proposed reform intended to
amplify the notion o f commercial employee to the extent that it would also comprise
industrial workers.71 Francisco Garcia Martinez, in his 1935 monograph Empleados y
Obreros del Comercioy de la Industria, concurred with Cermesoni: Whatever is said to
the contrary in order to exclude important groups o f permanent workers o f industry,
whether [the industry] is commercial or manufacturing, is to go against the clear purposes
that drove the legislator.72
68 Unsain, Empleados, 86-89; Guijarro also referred to a 1934 article in the Revista del trabajo, seguroy
prevision social where Leonidas Anastasi had expressed the same point o f view.
69 Unsain, Empleados, 87-88.
70 The opinion was reproduced in DSCD, 1932,5:824-825,13 September.
71 Ibid., 824.
72 Francisco Garcia Martinez, Empleadosy Obreros del Comercioy de la Industria: Exposiciony

Comentario de la nueva Ley 11.729, sobre reformas a los articulos 154 al 160 del Codigo de Comercio,
Doctrina, Jurisprudencia y Legislation comparada (Buenos Aires: Editorial Araujo, 1935), 33.
222
Workers Suffer the Consequences
The reigning disagreement with respect to the extension o f the term commercial
employee and the two opposing trends in the jurisprudence had several important
consequences for those trying to claim the protections offered by the law. Most
importantly, industrial workers trying their cases in the Capitals Commercial Court or
Justice of the Peace were likely to be granted benefits which industrial workers in other
parts of the country, who tried their cases in other courts, were likely to be denied. The
application of the law with respect to industrial workers was therefore inconsistent and
arbitrary. Because o f the arbitrariness in the laws application the only way industrial
workers could have even the remotest chance o f claiming the laws benefits was by
litigation. It is highly unlikely that employers would automatically grant industrial
workers financial benefits that were highly disputed. In these cases, the reliance on the
courts for enforcement o f the law therefore became absolute. The same could be said to
hold true for many other workers who found themselves in that gray area between
industrial worker and commercial employee. There were plenty o f industries whose
activities were divided into two branches, one industrial and one commercial. Where one
ended and the other began was often difficult to determine, and workers were frequently
involved in several activities overlapping between the industrial and the commercial.
Again, the only ones able to determine their status, and whether or not they were entitled
to the benefits o f the law, were the judges.
Since there was no regulatory decree establishing penalties for non-compliance
with the law, the only way an employee could make a reluctant employer comply with
the laws dispositions was by taking him to court. Employees with the time and resources
223
to take their employer to court would always be a minority. Employers could comfortably
risk a trial, the most serious outcome o f which would be that they had to pay their
employee what they already owed him, in addition to the trial costs. Only in the capital o f
Buenos Aires did the consistent rulings o f the Justice o f the Peace and the Commercial
Court give employers a powerful incentive to comply, not only with their legal obligation
to their commercial employees, but also to extend these benefits to their industrial
workers. Nevertheless, it was still an incentive rather than an obligation.
Conclusion
An analysis o f the Argentine Commercial Code and its 1934 reform illustrates to
the fullest the problems involved in trying to fit a new legislative field such as labor law
into the existing legal framework. The 1889 Commercial Code offered commercial
employees certain protections in cases o f illness and dismissal without previous notice.
Because these benefits were embodied in a Code rather than in a specific piece o f
legislation, the only effective means commercial employees had to ensure their
enforcement was through the courts, effectively making the judges rather than the
legislators the ones who truly defined the content o f the law. Commercial employees
claimed their rights in the courtrooms already from the beginning o f the century. In the
period before the 1934 reform, the two most important issues resolved by the
jurisprudence were the extension o f the term commercial employee and the legal validity
o f contracts in which employees renounced their right to compensation in the case o f
unjust dismissal.
224
From about 1925 there was a change in the jurisprudence with respect to the
interpretation o f the Commercial Code, reflecting the new realities o f Argentine
commercial life with an increasing preponderance o f the larger department stores at the
expense o f smaller commercial establishments. Some judges now started applying the
term commercial employee more liberally than before, to include people in commercial
establishments who performed functions other than those o f direct customer contact.
Around the same time, judges for the first time attempted to rule that the renunciation o f
the benefits o f Article 157 was illegal. Although they managed, on a case-to-case basis,
to expand the term commercial employee, the Codes protections were undermined by
the failure o f an alternative jurisprudence to establish the illegality o f contracts where
employees were forced to renounce their rights to the Codes benefits. In fact, the legality
o f such arrangements was upheld until the early 1930s.
The need for a change in the Commercial Code to make its benefits effective
therefore became increasingly evident to legislators and commercial employees alike, and
by the beginning o f the 1930s the moment for reform was propitious due to a confluence
o f factors: The influence o f corporatist ideas in the 1930s, the strength and political
astuteness of the Federation o f Commercial Employees and its leader Angel Borlenghi,
and the close ties between the Federation and the Socialists, who were in a particularly
influential position in the military government o f President Justo. In 1934, Congress
promulgated the reformed Commercial Code, significantly extending the already existing
protections, as well as introducing new ones. The reform introduced increased
compensation in cases o f dismissal without previous notice and full-scale severance pay.
It extended the terms for sick leave and established employees right to paid vacations.
225
The term commercial employee was extended to include workers performing tasks
inherent to commerce in an attempt to include all employees in commerce. Any
renunciation o f the benefits o f the new law was declared void and illegal.
In spite o f the positive aspects o f the reform, incorporating labor law into the
existing structure o f the Commercial Code involved many problems. The fact that the law
was incorporated directly into the Code and not promulgated as a special law, determined
that its specific content and interpretation would not be defined in a regulatory decree.
Consequently, the power to define the law in practice continued to rest with the judges in
the courts, just as it had done in the period preceding the reform. In fact, with respect to
the dispositions o f the Commercial Code, the judges were the true shapers o f labor law in
the entire period between 1900 and 1943. While a special law appropriately enforced
would have applied universally, court-made labor law applied only on a case-to-case
basis. This meant that the law defined by a judge in one court would not necessarily be
the same as that defined by a judge in another. For every judge applying an elastic notion
of the term commercial employee or worker performing tasks inherent to commerce,
there was at least one other who chose to apply these terms restrictively.
For industrial workers and commercial employees alike, this made it difficult, if
not impossible, to count on anything resembling a predictable protection o f the law.
Forced to try their luck with the courts, they could be either successful or unsuccessful at
claiming the Codes benefits. More importantly, it was often the case that the only way
they could benefit from the Codes protections was byw ay o f litigation, since there was
no defined penalty for the employers non-compliance with his obligations. Granted that
being taken to court involved trouble and expenses for employers, it involved even more
226
trouble and expenses for the employee, who more often than not opted out o f litigation.
By incorporating labor reform into the existing structure o f the Commercial Code,
legislators left employers compliance with the law to the latters own discretion.
Last, but not least, it should be remembered that a labor reform incorporated into
the Commercial Code had a limited scope by definition. Instead o f regulating the labor
contract between commercial employers and employees only, the real necessity by 1934
was to regulate the labor contract in general and to pass specific laws that would apply to
all groups o f workers. In fact, what was needed was a complete redefinition o f labor law,
which as a legislative field had increasingly less in common with the general dispositions
o f the Civil and Commercial Codes. In spite o f the courts attempts to fill the gap that
existed between the new social reality and the state o f legislation, judges contributions as
shapers o f social policy could never constitute a satisfactory alternative to a separate
body o f labor legislation.
227
CHAPTER 6
POLITICS OVER LITIGATION: LABOR LAW AND UNION ACTIVITIES
While the previous chapters have examined how workers used the courts in an
attempt to redress grievances with their employers on an individual level, this chapter
focuses on the collective aspects o f labor law by analyzing the relationship between the
courts and the organized labor movement. In a 1989 article in the International Labor
ancl Working-Class History, Emilia Viotti da Costa traced the developments in Latin
American labor history over the course o f the 1980s. She found that a dominant tendency
was the turn away from traditional union histories, often written from a Marxist
perspective, to a focus on workers everyday experiences in the workplace. This was an
attempt to remedy the weaknesses and limitations o f the traditional labor history, which
focused only on the small minorities o f organized workers, leaving out vast sectors o f the
working classes. Viotti da Costa, rather than advocating for one tendency over the other,
called for a synthesis o f the two approaches, one that could account for workers general
experience without losing sight o f the larger power structures in which they were forced
to operate.1 This dissertation attempts to answer that call for synthesis between
structure and experience, since an examination o f labor law in the courts provides
essential insights into how workers, whether they were organized or not, related to the
state.
1Emilia Viotti da Costa, Experience versus Structures: New Tendencies in the History o f Labor and the
Working Class in Latin AmericaWhat Do We Gain? What Do We Lose? International Labor and
Working-Class History, no.36 (Fall 1989): 3-24. Although her call for synthesis has been heeded by some
in the more recent years, it does not seem to be any less valid today than when it was made in 1989. For an
example of an attempt to ground the workers experience in the larger political structure in the case of
Argentina, see Daniel James, Dona Marias Story: Life, History, Memory, and Political Identity (Durham
and London: Duke University Press, 2000).
228
Nevertheless, an examination o f the union movement is essential to an analysis of
labor law in the period between 1900 and 1943. Labor unions, or so-called resistance
societies, had become a characteristic feature o f Argentine society already from the
1880s, and by the turn o f the century they had become strong enough to cause significant
disruptions in the economy when launching strikes. The large-scale general strike in 1902
prompted President Julio A. Roca to design the first National Labor Law bill, which was
presented to Congress by his Minister o f the Interior, Joaquin V. Gonzalez in 1904. This
was also the time when the workers organizations attempted to gain additional strength
by grouping into larger federations, such as the Anarchist FOA, later the FORA, the
Socialist UGT, and the &W/cn//.sra-dominated CORA.2
In spite o f these attempts at unification, the labor movement remained fragmented
throughout the 1920s, and its strength varied greatly from union to union and according
to the time period in question. In general terms, the strongest unions were those with a
direct influence on the export economy, such as the railroad workers unions, La
Fraternidad and La Union Fetroviaria, and the dock workers union, La Federacion
Obrera Marhima. Only in the 1930s did the labor movement start to gain sufficient
strength to make it an important actor in political and economic life. Unions were a
constant presence in Argentine economic and political life also before the 1930s,
however, and in different ways tried to obtain concessions from employers in terms o f
better wages and working conditions, primarily through the use o f strikes. Despite their
conspicuous presence, no laws were passed to regulate either the status or activities o f
labor unions. A total o f twenty-five bills were presented in one or the other Chamber o f
the legislature between 1900 and 1940, all o f them destined to suffer the same fate of
1 For a detailed account o f the growth and development o f the Argentine labor movement, see Chapter 1.
229
oblivion as most o f the other labor bills presented during this time.3 The regulation o f
union activities also occupied a central place in all the Labor Code bills presented during
these forty years, but as already shown, none o f them became law.
In the end, the only laws that existed with respect to the labor movement were the
repressive Residence Law and Social Defense Law. The former had been passed in the
aftermath o f the violent 1902 general strike and the latter after a bomb exploded in the
Teatro Colon in 1910.4 They were particularly directed against the Anarchists and
allowed for the deportation o f any foreign nationals who engaged in activities considered
disruptive to the public order. The laws reflected the commonly held belief among
Argentine elites during the 1910s that social unrest and especially Anarchist
influences were purely a result o f foreign demagogues and infiltrators and had no root
in the Argentine reality.
In spite of the absence o f any laws regulating the legal status and activities o f
unions, their existence was a fact o f life. Unlike what the previous chapters have shown
about the courts central position in defining labor law in its individual dimensions,
however, the judiciary played a much smaller role in defining the collective aspects o f
labor law. Only in a limited and indirect way did the courts make decisions which
affected the legal regulation o f union status and activities such as strikes, boycotts, and
collective bargaining.
J For a list o f the different bills presented in Congress concerning unions and union activities, see Esterkin
and Ruprecht, Derecho Argentino del Trabajo, 2:345-346.
4 For an anlysis of these two laws and particularly their impact on Anarchism, see Suriano, Trabajadores.
anarquismo y Estado represor.
230
Union Status and Legal Standing
When inquiring into the relationship between unions and the courts, one o f the
first questions that arises is whether unions during this period had the required legal
standing to be a party in litigation. Although the Civil Code primarily regulated the
relations o f private law; i.e., that o f the rights and obligations o f individuals, collective
entities could also, in certain cases, exercise the same rights and be subject to the same
legal obligations as an individual. In Argentine law, this legal status went under the
name o fpersoneria ju rid ic a l In short, acquiring personeria juridica, or legal personality,
made it possible for a collective entity not only to be a party to court action, but also to
own property and enter into legally binding contracts, just like any private individual.6
Legal personality could not be obtained automatically, but had to be granted by
the government upon its approval of the societys statutes.7 These statues ought to state
the purpose o f the collective entitys existence and the rules for its operation, and had to
show that the society had been created with a goal that could be claimed to be in the best
public interest.8 What the government could grant, it could also take away, however.
Legal personality could be revoked in cases where the government considered the
collective entity to have violated the conditions o f its legal authorization, or in cases
5 The regulation of the personeria juridica is embodied in the Civil Code's Arts. 30-50.
6 Codigo Civil, Art. 41.
7 Ibid., Art. 45.
8 Ibid., An. 33.
where the entitys dissolution was considered beneficial and necessary for the public
good.9
In general, few labor unions seem to have been interested in applying for legal
personality and to put their statutes to the scrutiny o f the government. It is obvious that
these general regulations o f the Civil Code offered a tenuous legal existence for many
labor unions, whose goals easily could be argued to be in opposition to the public
interest. Especially before 1915, with the domination o f Anarchist unions, it made little
sense for unions to seek the legal recognition o f the state they sought to abolish. Even
after the demise o f Anarchism, however, in the late 1910s and 1920s, unions focused on
obtaining concessions directly from employers and were generally skeptical o f any state
regulation o f their activities.
One notable exception in this respect was the Railroad Workers Union, La
Fraternidad, which in the 1920s had legal personality. Several factors set La Fraternidad
apart from the majority o f labor unions at this time. First, it was one o f the largest unions
in the country, and, second, the union had an uncommon strategic advantage due to the
central position it occupied in the export economy. Both these circumstances gave La
Fraternidad exceptional strength compared to other unions. Because o f the states vested
interest in resolving labor conflicts in the export sector, La Fraternidad had much more
to gain from official government recognition than most other unions. On more than one
occasion the government intervened as arbiters in labor conflicts in the late 1910s and
1920s that involved the railroad workers.10 A concrete benefit for La Fraternidad in
9 Ibid., Art. 48.
10 See, for example, Rock, Politics in Argentina and Horowitz, Argentine Unions, The State, and the Rise o f
Peron.
232
having been legally recognized was that agreements negotiated with the employers would
be legally binding.
In the 1930s, more unions acquired legal personality as the union movement grew
in strength and became less resistant to interaction with the state. Correspondingly, the
numerical growth in the working classes and the influence o f corporatism had by this
time made the government more inclined to negotiate directly with labor unions in
efforts to avoid labor conflicts and to grant unions legal recognition. According to a
survey taken by the National Labor Department in 1936, sixteen labor unions had
acquired legal personality, but o f the almost three hundred unions surveyed in total, this
was still an insignificant number.
The fact that the majority o f labor unions in this period were without legal
personality did not limit them in their union activities, but they functioned without the
rights corresponding to entities with personeria juridica outlined in the Civil Code. A
union was still, however, an association in fact (asociacion de hecho), which according to
the Civil Code could be classified as either a civil, commercial, or religious association,
depending on its purpose.11 Unions struck, negotiated with employers, and as Alejandro
Unsain pointed out even entered into collective bargaining agreements without legal
recognition.12 If the existence and status o f unions were not regulated by specific laws at
this time, the same held true for the practice o f collective bargaining. Had there existed a
law establishing the rights and obligations o f labor unions in collective bargaining
agreements rights and obligations that would depend on the union being legally
"Ibid., Art. 46.
12 Unsain, Legislacion del trabajo, 2:89.
233
recognizedthere would also have been more o f a reason for unions to be concerned
with acquiring personeria juridica. Without these laws, there was not much reason for
organized labor to seek state recognition.
On the contrary, there were obvious benefits to not having legal personality. Not
aspiring to legal recognition gave unions freedom to design their own statutes according
to the will and opinion o f the leadership and membership, and without the concern o f
having to adapt them to the standards o f acceptability set by the government. According
to the ideology o f many unions, this freedom from state intervention in their affairs was
an obvious and explicit goal. Another potential benefit to not having personeria was that
the union could avoid liability for damages. Legally recognized, the union could
hypothetically be taken to court in a lawsuit over damages, for example in the aftermath
o f a strike or a boycott.
In spite o f the fact that the majority o f unions did not have personeria juridica,
and despite there being no law regulating their activities and functions, unions were
recognized indirectly in several pieces o f labor legislation. The 1924 Women and Child
Labor Law specified that infractions o f the law could be denounced to the authorities
either by the compromised individual, or by a unions executive committee.13 The same
was established in the 1926 law regarding night work in bakeries,14 and the 1929 national
Eight-hour Day Law.15 Another law that indirectly recognized unions was the 1918
Homeworker Law. The wage committees established by the law were to consist o f an
13 Ley 11.317, Art. 23.
u Ley 11.338, Art. 7.
15 Ley 11.544, Art. 11.
234
equal number o f worker and employer representatives from the affected industries, and
the regulatory decree specified that the representatives should be elected by the respective
employer and workers organizations.16 The decree also established that these
organizations should be registered with the National Labor Department, but that having
legal personality was not a prerequisite.17 It becomes evident, then, that the state
recognized unions in fact, even if they were not recognized in law, and that authorities
interacted and negotiated with workers organizations regardless o f whether or not they
had legal personality. Thus, there were even fewer reasons for unions to expose their
statutes to state scrutiny to achieve a legal recognition that granted few benefits they did
not already enjoy in practice.
With unions being able to denounce the infractions o f labor laws to the courts,
regardless o f whether or not they had legal standing, it is worth looking into whether this
implied that they could also function as plaintiffs or defendants in trials. The Civil Code
explicitly granted a collective entity with personeria juridica the right to be a party to
litigation, which in theory implied that personeria was a necessity to partake in legal
action. Nevertheless as with many other aspects o f Argentine labor law in this period
theory and practice were two different things. Unions did, on a limited number o f
occasions, function as parties to lawsuits in spite o f a lack o f legal personality. Again,
social developments brought forth practices that had not yet been legalized.
16Ley 10.505, Art. 14 ; Art. 16 of the regulatory decree. The decree is published in Greil Castellanos, Leyes
obreras, 41-44.
17Art. 15 o f the regulatory decree.
235
Collective Bargaining
One o f the privileges supposedly accorded to unions with legal personality was
the ability to enter into legally binding contracts, but Argentine labor unions celebrated
collective bargaining agreements with employers regardless o f whether or not they had
legal personality. According to J. Ferrarazzo, the first collective bargaining agreement
was celebrated in Argentina already in 1902, between the marble workers union, the
Sociedad de Obreros Marmoleros, and the organization o f owners o f marble workshops,

io
Propietarios de Marmolerias. The collective agreement reached after a strike
established that the marble workshop employers could not hire workers who did not
belong to the marble workers union. In addition, the marble workshop owners ought to
support the union in cases o f strikes at the indication o f the unions executive committee.
In exchange for this support, the marble workers union would not permit any o f its
members to work for employers not belonging to the Propietarios de Marmolerias. The
contract also stipulated the creation o f a mixed council, consisting o f five representatives
from the workers organization and five from the employers organization. The council
was intended to resolve the differences originating between workers and employers.19
Another, more important and widely known, collective contract was signed in
1906 between the employers and workers in the typographical industry (artes graficas).
The agreement was renewed in 1909 and subsequently reproduced in the Boletin del
Departamento Nacional del Trabajo?0 The agreement consisted o f three main sections.
18 J. Ferrarazzo. La Action Obrera, 49, quoted in Unsain, Legislation del trabajo, 2:12S-129.
19 Ibid., 129.
20 BDNT, no. 10 (30 September 1909): 360-373.
236
The first section set the wages for all the different categories o f typographical workers,
making detailed distinctions according to work functions and experience. The second
section outlined working conditions, including maximum hours, which for day shifts
were set to eight and for night shifts to seven hours.21 Other working conditions covered
in the agreement included attendance, overtime, dismissals, and accident insurance.
In cases o f absence with previous notification or just cause, salaries were reduced
in accordance with the missed time at the regular salary rate. When the absence was not
considered to be with just cause, or if the worker failed to give notification, the reduction
in salary was equivalent to the missed time at overtime rate. There was a set limit to the
possible requisition o f overtime, not to exceed ten hours per week. Overtime work would
be remunerated with 50 % higher wages than regular work. The agreement stated that no
worker could be dismissed from or abandon a workshop without a previous notification
of six days, establishing that in the case o f non-compliance, the compromised party
would be entitled to a compensation o f 50 % o f the salary corresponding to those six
days. There would be no right to compensation in the case o f dismissal or work
abandonment caused by unauthorized strikes.22
If work had to be temporarily suspended due to unforeseen and unpredictable
circumstances, workers would not be entitled to receive wages. The same applied in cases
where the workshop had to close temporarily due to moving, repairs, cleaning, or
inventory accounts, but in these situations the owner would notify the personnel a week
in advance. Should it happen that work was suspended because o f an unforeseen lack o f
21 Ibid., 369.
22 These dispositions were embodied in Articles 1,5,7, 8, and 9 of the contracts section entitled
Reglamento de trabajo. Ibid., 370.
237
motive power (fuerza motriz), workers were nevertheless entitled to that days salary. The
contract also established that all typographical workshop owners were obliged to insure
their workers against occupational accidents.23 This testifies to the practice o f private
occupational accident insurance as early as the beginning o f the twentieth century.24
The purpose o f the final section was to ensure compliance with the agreement
from both workers and employers and to provide a solution to potential individual or
collective conflicts regarding working conditions and salaries. These issues would be
dealt with by a mixed committee (comision mixta), consisting o f an equal number of
workers and employers. The main purpose o f establishing the committee was to avoid
strikes by providing a venue for the conciliatory negotiation o f conflict. The committee
therefore embodied an ideal o f friendly cooperation and coexistence between employers
and their employees as an alternative to conflict and class struggle.
The ideal seems to have been difficult to achieve, however. In a 1907 letter from
the committees employer representatives to the workers representatives, the employers
complained about the workers lack o f compliance with the agreement. The employers
stated their dissatisfaction with the situation that, on several occasions, workers had
declared strikes without first presenting their grievances to the mixed committee for
arbitration. The letter read: The constant repetition o f these events makes the existence
o f the mixed committee inofficious. Created by mutual agreement to resolve the conflicts
that might emerge, it finds itself barred from accomplishing its purpose because the
workers ignore it and proceed directly [into striking]. Consequently, the obligations and
23 Articles 20 and 21 of contract section Reglamento de trabajo. Ibid., 371.
24 The practice is extensively treated in Chapter 2.
238
duties imposed by the agreement on both parties in practice only apply to the
employers.25
According to the same letter, the worker representatives to the committee
concurred with the employers in their appreciation o f the situation but claimed they were
without the necessary influence over their members to avoid these strikes, which were in
obvious violation o f the contract.26 The letter speaks to the resistance among organized
workers to enter into agreements o f cooperation with their employers. The desire on
behalf o f organized labor to maintain independence, and workers suspicion o f employers
and their motives, were some o f the most important reasons why there were not more
collective bargaining agreements or mixed committees at this early date.
Generally, employers were not particularly interested in recognizing and
negotiating with organized labor either. Fearing their strength as a collective entity, they
preferred to deal with workers on an individual basis, as the statutes o f the pasta makers
employer organization Union Fabricantes de Fideos illustrate. The statutes established
that employers belonging to the organization would only hear grievances presented
individually, and under no circumstances would they accept any demands made by the
union, or any demand presented by a group o f workers rather than a single individual. In
the case o f a strike, the organization secretariat would make a list o f the workers
involved, who would subsequently be banned from all the member pasta factories for six
months following the strike.27
25 BDNT, no. 6 (30 September 1908): 460.
26 Ibid., 461.
27 BDNT, no. 19 (31 December 1911): 777.
239
The example set by the typographical workers and their employers, both with
respect to the collective bargaining agreement and the establishment o f the mixed
committee, constituted an exception. When the National Labor Department, created in
1907, sent a letter to the Argentine Industrial Union on 15 May 1918, requesting its
opinion on the arrangement o f collective bargaining, the typographical workers contract
was still the only collective contract in existence in the city o f Buenos Aires. In their
reply, members o f the Argentine Industrial Unionrepresenting such different industries
as metallurgical establishments, cotton factories and candy producersdismissed both
the possibility and desirability o f such arrangements, claiming that they had no means of
making the labor organizations comply with their contractual obligations.
The employers, while in rhetoric not opposed to collective bargaining in principle,
justified their resistance by pointing to the lack o f legislation regarding labor unions and
collective contracts. Only when the appropriate laws were passed that would determine
the labor unions responsibility and the rights and obligations o f each o f the parties to a
collective bargaining arrangement could they consider it possible to enter into such
contracts with their workers.28 Although it was true that it would be difficult for
employers to enforce workers compliance with a collective contract in the absence o f a
law, the real reason why employers objected to the practice was more likely the obvious
benefits to dealing with workers on an individual rather than collective basis. Avoiding
the collective strength o f the labor force, employers could much more easily impose their
own working and wage conditions.
28 BDNT, no. 39 (October 1918): 15-30.
240
A much more common scenario than that o f collective bargaining was for the
unions through strikes to try to force employers to grant concessions on such issues as
wages, hours, and working conditions. These concessions would normally take the form
o f an informal agreement, which ensured a period o f peaceful coexistence. The peaceful
period would generally last for as long as the union had the strength to prevent the
employer from changing the terms o f the informal agreement, or until the terms were no
longer adequate, leading the union to initiate another strike to seek their improvement.
The practice allowed for the unions independence and the preservation o f the workers
right to strike, which in most union ideologies was considered labors most important
weapon in the class struggle. For employers, such an informal arrangement was
obviously preferable to a contract, as it left them free to change the terms whenever they
saw fit. After all, for unions to be in a position to obtain these concessions, they had to be
well organized with a solid membership base, and the economic conditions had to be
propitious to negotiation with employers. For all these factors to come together was
certainly the exception rather than the rule.
The typographical workers collective contract was renewed several times and
continued in existence until 1919, when Argentina experienced one o f its most violent
periods o f worker upheavals and subsequent government repression, culminating in the
infamous Tragic Week o f January 1919. It only reappeared later as a set o f minimum
conditions workers were able to impose on some o f the typographical establishments but
never again took the form o f a collective contract.29 A set o f minimum conditions was
much less comprehensive than a collective contract. In addition, it did not have a fixed
29 Unsain, Legislation del trabajo, 2:129.
241
duration and could therefore be violated by employers at any time. The typographical
workers contract was one o f the few examples o f collective bargaining in Argentina
before the 1920s. According to Unsain, the wine workers in the province in Mendoza had
celebrated a collective contract in 1918, and, in the capital, the musicians organized in the
Sociedad del Profesorado Orquestal had also had experience with collective
bargaining.30 In the Province o f Cordoba, the brewery workers o f the Rio Segundo
Brewery had also celebrated a collective contract, a case that will be treated in further
detail below.
In 1927, when Unsain published the second volume o f his Legislation del
trabajo, the only collective contract in existence was that celebrated by La Fraternidad.3I
Until the 1930s, then, the practice o f collective bargaining in Argentina was far from
common. The situation started to change in the 1930s, when the labor movement became
stronger and more capable o f obtaining concessions from employers. At this time, import
substitution industrialization produced a general growth in industry and a change in its
organization from smaller establishments with a limited number o f employees to larger
establishments with a much more numerous labor force. Increasing proximity between
workers and decreasing proximity between workers and employers in the larger industrial
establishment facilitated organization and lent a new strength to the union movement.
The economic crisis initiated with the stock market crash in 1929, and the
concomitant problems o f unemployment and reduced salaries, made workers
vulnerability to the changing conditions o f the market more obvious than ever. Facing an
30 Ibid.
31 Ibid., 2:129-130
242
economic crisis o f previously unknown dimensions, it became increasingly clear to
workers that the only way in which they could have any hope o f improving their own
situation was by joining forces in confronting employers and government. Employers
were also becoming increasingly interested in celebrating fixed contracts to gain control
over strike activity and achieve predictability in the production, which was considerably
more mechanized and large-scale than what had been the case in the 1910s and even the
1920s. True collective contracts in the 1930s were celebrated, for example, by the
Asociacion de Industrials del Fotograbado and the Federation Grafica Bonaerense in
I937,j2 by the Camara Sindical de Calefaction y Anexos and the Sindicato Obrero
Montadores de Calefaccion in 1936,33 and by the Asociacion Propietarios de
Marmolerias and the Sindicato Unico Obrero de la Construction in 1939.34 Railroad
workers and textile workers also celebrated collective contracts several times during the
1930s.35
With the limited diffusion o f the practice o f collective bargaining, at least until the
1930s, it is not to be expected that disputes over these agreements would frequently
appear in the courts. This is confirmed by the source material, where the absence o f
unions as litigators in general is conspicuous. One exception to the rule, however, is a
case from Cordoba.36 In 1919, a majority o f the brewery workers had formed the union
32 BIDNT, nos. 209-210 (July and August 1937): 5075-50S0.
33 BIDNT, nos. 220-221-222 (1939): 5336-5338.
34 Ibid., 5338-5340.
35 See Horowitz, Argentine Unions.
j6 The case is included in Dardo Rietti, Jurisprudencia del trabajo (tribunales de Cordoba) (Cordoba: Est.
Grafico A. Biffignandi, 1923), 1:93-127.
243
Obreros Cerveceros y anexos de Cordoba. Disgruntled with their working conditions,
which included workdays o f between ten and fourteen hours with no right to extra pay,
and a daily wage o f between 1.80 and 2 pesos, the union on several occasions presented
their demands for improvement to the employers, among them the brewery Rio Segundo.
Apparently successful in their efforts, the union on 3 November 1920 celebrated a
collective contract with the brewery, one that was signed by the manager Carlos Davis
and several union representatives. The contract was put into force immediately with a
stipulated duration o f one year, and, until 2 March 1921, both parties apparently complied
with its conditions.37
At this point, the brewery workers union decided to adhere to a general strike and
communicated to the manager their intention o f temporarily suspending work. According
to the union, the manager had replied the same day, accepting the temporary suspension,
but indicating the personnel he would need to cover for the workers who decided to go
out on strike. The general strike failed after only three days, however, and the brewery
workers returned to Rio Segundo to resume their job on 6 March, only to find that they
had all been dismissed by the administration, who had already taken on new personnel.
The union protested vigorously and several times demanded that the administration
comply with the contract signed in November. Frustrated in their attempts to make the
administration reverse its decision, the union representatives filed a lawsuit for damages,
claiming their right to the salaries corresponding to the months between the end o f the
JO
strike and November 1921, when the contract was supposed to expire.
37 Ibid., 98-99.
38 Ibid., 99-100 and 103.
244
In its defense, the companys representative made several arguments to persuade
the judge to dismiss the claim. First, the defendant made reference to a previous strike,
which had taken place in the establishment in February that same year, during which the
workers violently attacked the factory equipment and interior, causing damages for
approximately 8,000 pesos. Against this background, the administration had had little
patience with the second strike, declared less than a month later, and had decided it was
necessary to work with an entirely new personnel to avoid such situations in the future.
More to the point, the defendant alleged that the contract signed with the union was void
and without content, and that the union was without legal standing. Consequently, the
case should be dismissed.39
Justifying their grounds for a dismissal o f the case, the company claimed that the
contract had to be considered void because it had been signed under threats o f strikes and
violence. The company had therefore not entered into the contractual agreement with
consent, but rather had been forced to do so by the union under the threat o f a possibly
violent work stoppage. Since a contract signed by force o f threats was automatically void,
the defendants representative claimed that this in itself was sufficient grounds to dismiss
the case. In addition, the company refuted the unions very existence in a rather dubious
maneuver. The name o f the union figuring on the contract was Sindicato de Obreros
Cervecerosy Anexos, but the company claimed that, according to the unions own
statutes, the name was rather Sociedad Obreros Cerveceros y Anexos, or Sodded de
resistencia Obrera Cerveceros y Anexos. Since there was no union under the name
Sindicato de Obreros Cerveceros y Anexos, the company claimed the contract had been
39 Ibid., 103-109.
245
signed by a nonexistent entity and consequently had to be considered void. Finally,
regardless o f what was its right name, the company claimed that the union in any case
lacked the required capacity to sign such contracts, because o f its lack o f legal standing.
In fact, the union was excluded from even the possibility o f acquiring such standing,
since its goals were illicit and contrary to the public order.40
The case posed considerable interpretive challenges because o f the absence of
laws regulating the issues o f dispute. In line with what the previous chapters have shown,
the only possible recourse for Judge Horacio J. Ferryra was to bring out the Civil Code.
Addressing the first point raised by the defendant, Ferreyra cited Articles 937 and 938,
which stated that, although in principle contracts made under the threat o f violence were
void, such threats had to be proved to be o f a particularly extreme character. In support of
his argument, Ferreyra also cited H. Lafaille: Normally in civil law, a contract tainted by
violence is void. In industrial law, however, in the relationship between labor and capital,
many perfectly valid contracts are celebrated under the threat o f violence or force.. . .41
In the case o f the Rio Segundo Brewery, the added circumstance that the administration
had celebrated a collective contract with the union the year before, with largely the same
worker representatives, further weakened the defendants claim. Consequently, Ferreyra
rejected the defendants claim that the contract was void.42
The judge similarly dismissed the defendants claim that the union that had signed
the contract did not exist. He pointed to the contracts Article 1, which explicitly stated
40 Ibid., 105-107.
41 H. Lafaille, Contratos en el Derecho Civil Argentino, cited in ibid., 111.
42 Ibid., 110-111.
246
that the Brewery Rio Segundo recognized the Sindicato Obreros Cerveceros y Anexos, as
well as a letter from the former to the latter addressing the union by that name.43 With
respect to the unions legal standing, he conceded to the defendants point that the union
itself could not function as party to the litigation. However, rather than considering the
union as the plaintiff, Ferreyra interpreted the real plaintiffs to be all the 169 union
members who had initiated the lawsuit. The union therefore only existed as a
denomination o f the group o f people who made it up, and not as an independent unit with
characteristics different from the sum o f the individuals it comprised.44
Furthermore, Ferreyra stated that the contract in question waswithout doubta
collective contract, displaying all the characteristics o f such a document. It had been
celebrated between an industrial company and an association representing its workers,
and the object o f the contract was to regulate working conditions and hours, as well as to
establish the companys responsibility in cases o f occupational accidents. All these
factors made it a typical example o f a collective contract. Although special legislation
regarding collective contracts did not exist, Ferreyra did not find this to be an obstacle to
the legally valid celebration o f such contracts. In the absence o f a special law, he ruled on
the basis o f the Civil Codes general dispositions concerning contracts 45 Applying
Articles 625,628 and 629, he concluded that the company was guilty of breach o f
contract, and that the union was consequently entitled to the damages resulting from the
breach.46 All the companys objections thereby dismissed, Ferreyra sentenced the Rio
43 Ibid., 111-112.
44 Ibid., 112-113.
45 Ibid., 116-117.
46 Ibid., 124-125.
247
Segundo Brewery to pay the union members the salaries to which they were entitled for
the period from the contract was broken to its established expiration date.47
The court o f appeals did not uphold the sentence, however, and revoked it on
procedural grounds.48 As it stands, the sentence can only serve as an illustration o f an
exceptional case o f the celebration o f a collective contract before 1930 and o f union
litigation. There are other factors than the limited practice o f collective bargaining that
can explain unions absence from the courts. Especially in the first half o f the period here
under study, unions skepticism o f the state probably extended to the courts in addition to
the government and the legislature. Having examined over twenty labor periodicals from
the period between 1900 and 1943,1 found no reference to union litigation. Argentine
unions preferred to spend their scarce economic resources on a different strategy to
further their interests, one that they considered as much more effective; namely, the
strike.
Strikes and Boycotts
Strikes were, without a doubt, the most important and commonly used tactic at the
disposal o f organized labor. In line with workers beliefs that only they could be trusted
to improve their own situation, the discretional use o f the strike was the unions main
means o f making employers negotiate and make concessions regarding hours, wages, and
working conditions. Strikes were also one o f the aspects o f modem, urban, industrial
47 Ibid., 127.
48 Ricardo Riguera, in his article Contrato colectivo de trabajo, 18 (1925): 60 (Section doctrinaria)
makes reference to the appeals court decision. I have not been able to locate the decision itself, which
prevents me from knowing exactly what these procedural grounds were.
248
society that most worried the governing elites. In 1902, with one o f the first large-scale
general strikes led by the Anarchist labor movement, the Argentine government declared
a state o f siege and hastily passed the Ley de R e s id e n tia l or the Residence Law, which
ordered the deportation o f foreign agitators. Normally, the big general strikes brought
forth repression as a response from the government, especially when violence was
involved. In the aftermath o f the 1910 strike wave, when a bomb exploded in the
fashionable Teatro Colon, the government passed its second repressive law, the Social
Defense Law (Ley de defensa social).50 The law punished severely any use o f violence
during strikes as well as the use o f threats or violence to pressure other workers to join
the strike or prevent them from serving as strike breakers.51
The most immediate form o f repression was the direct use o f force in the form of
dispatching the police or the army to quell the strikes. Two o f the m ost violent examples
o f government repression o f strikes occurred in the city o f Buenos Aires during the
Tragic Week o f 1919 and in Patagonia in what has been called the Patagonia rebellion in
1921, although examples are certainly not limited to these events. During the Tragic
Week, upper-class paramilitary groups organized in the Liga Patriotica joined the
governments efforts to quell the strike, making evident upper-class conservative concern
with the labor movement and their lack o f faith in the governments ability to control it.52
As the historical literature has shown, government responses to labors strike activities
49 Ley 4144, ALA, 1889-1919.560-563.
50 Ley 7029, ibid., 787-789.
51 This was established by the laws Article 25, which made such threats punishable by between one and
three years in prison.
52 Ricardo Falcon and Alejandra Monserrat, Estado, empresas, trabajadores y sindicatos, 169.
249
were not limited to repressive laws, however. It was in response to the 1902 general
strike that the government first presented a bill for a national labor law in 1904. Although
the bill failed to obtain the interest o f Congress, and even less its sanction, several o f its
dispositions were passed as separate laws in the years following 1904. The Argentine
government therefore alternated between repression and concession in their relations with
the working classes.
Not all strikes were violently repressed either. When the government had a vested
interest in the resolution o f labor conflict, either because the strike paralyzed important
sectors o f the economy, or because workers support was important electorally, it
sometimes held back the dispatch o f police and armed forces to enable labor to maintain
pressure on employers to obtain concessions.53 Also, most smaller-scale strikes, which
did not occur in important economic sectorsas long as they did not involve violence
were mostly left to be resolved in one o f two ways. Either labor unions would run out of
resources and be forced to resume work without having managed to obtain any
concessions from their employers, or they would effectively manage to force the
employer to negotiate and reach an informal agreement on conditions o f hours and
wages. Needless to say, there were more examples o f the first category than there were o f
the latter.
The National Labor Department kept detailed statistics o f strike activity in the
entire country, but particularly for the city o f Buenos Aires. During the first three months
o f 1908, for example, thirty-two strikes were initiated in the capital, involving a total o f
7,009 workers. The strikes were motivated by a range o f different factors, such as the
5j See Rock, Politics in Argentina.
250
readmission o f dismissed workers (eight strikes), increase in salary (five strikes),
opposition to internal regulations in the workplace (three strikes), and union recognition
(one strike), to mention only a few. During the same quarter, fifty-six strikes, twenty-five
o f which had been initiated in the last three months o f 1907, had reached a conclusion.
The strikes had lasted on average twenty-four and a half days. O f the fifty-six strikes
concluded, only three had been resolved in favor o f the workers, while forty-eight had
failed. The majority o f the strikes (thirty-seven) had been resolved by the dismissal o f the
striking workers and their replacement with new personnel.54
The prominence o f the city o f Buenos Aires as Argentinas industrial center and
the center for labor union activities becomes evident when the these figures are compared
to those of the provinces. During the second half o f 1907, there were eight strikes in the
Province o f Tucuman, five strikes in the Province o f Buenos Aires, three in the Province
o f Mendoza, three in the Province o f Santa Fe, two in the Province o f Cordoba, one in the
Province o f Entre Rios, and one in the Province o f Santiago del Estero. Apparently, there
were no strikes in the Provinces o f Catamarca, Corrientes, Jujuy, La Rioja, Salta, San
Juan, and San Luis.55 Although there is considerable margin for underreporting in the
numbers obtained from the provinces, the contrast to the city o f Buenos Aires is still
stark.
In the period between 1907 and 1916, the annual average number o f strikes in the
city o f Buenos Aires was 129, with the year 1910 registering the highest number o f
54 BDNT, no. 5 (30 June 1908): 265-270.
55 Ibid., 271-273.
251
strikes (298) and the year 1914 the lowest (64).56 In addition to 1910,1917 turned out to
be a year with particularly intense strike activities, with a complete halt in the activities o f
thirteen railroad companies involving 100,000 workers.57 Later that same year, the meat
industry experienced a major strike wave, with thousands o f workers abandoning their
jobs in the frigorificos en Berisso and Avellaneda.58 After 1917, the yearly number o f
strikes in the capital of Buenos Aires fluctuated considerably, with 367 strikes in 1919,
206 in 1920, 86 in 1921,116 in 1922, and 93 in 1923.59 In 1928 it reached 137, but
during the early years o f the 1930s, numbers dropped again (42 strikes in 1931,122 in
1932 and 52 in 1933),60 surely as a result o f a combination o f the economic depression
and the military takeover. Strike activity picked up again as repression eased and the
economy recovered, reaching 109 in 1936.61
The numbers testify to the fact that strikes were a household phenomenon in
Argentina already at the start o f the twentieth century. About twenty years later, unions
started employing a different strategy in their struggle with employers: the boycott. By
exhorting their membersand as many other people as possible to refrain from buying
certain products, unions tried to hurt employers by interrupting their trade. Some o f the
larger and longer lasting boycotts were those launched against the brewery Bieckert and
the tobacco label 43. In spite o f the frequent use o f both boycotts and strikes, there
56 BDNT, no. 36 (January 1918): 60.
57 BDNT, no. 41 (April 1919): 40.
58 Ibid., 56-65.
59 CMDNT, no. 76 (April 1924): 1239.
60 BIDNT, no. 172 (May 1934): 3917.
61 BIDNT, nos. 206-207 (March and April 1937): 4927.
252
were no laws regulating either during the first forty years o f the twentieth century. Strike
regulations were usually part and parcel o f the bills presented to Congress concerning
labor unions and collective bargaining. The tradeoff presented to unions in these bills was
to give up their right to strike for official recognition and the negotiation o f a collective
contract. Few, if any, labor unions were willing to agree to such a tradeoff. The strike was
their main weapon in the fight against capital and their only hope o f making employers
concede to improvements in wages and working conditions.
As long as strikes did not affect core areas o f the economy, large numbers o f
workers, or involved violence, the government largely ignored them. In fact, according to
laissez-faire ideology, strikes were considered the legitimate means workers had to
negotiate the working conditions mandated by the market. If possible, the state ought to
remain on the sideline during these negotiations and let the workers and employers settle
the score themselves in a free measuring o f forces. On some occasions, the state
offered to serve as arbiter and mediator in conflicts between employers and employees.
Especially the National Labor Department considered it one o f its most important
functions to prevent labor conflicts from resulting in violence and to ensure that strikes
did not cause lengthy interruptions o f economic life.
Corresponding to the predominance o f Anarchist ideology, there was little
inclination among unions to accept this state intervention in their affairs before 1915. In
the late 1910s and the beginning o f the 1920s, state mediation became a little more
acceptable if unions considered it likely that state mediation could sway the balance of
forces in their favor. This was the case, for example, in the 1916 dock workers strike and
253
the 1917 railroad strike.62 Both sectors were o f crucial importance to the export economy,
which made the government more inclined to put pressure on employers to make
concessions to their workers in order to achieve a quick resolution o f the conflict. In the
1930s, when industry was generally more important to the economy and labor unions
were much less reticent to accept state mediation, the situation changed. State mediation
in strike conflicts became a much more common scenario.63
With labor unions general resistance to state involvement in their activities
during most o f this period, it was not to be expected that the courts would have much
direct involvement in the resolution o f strikes. Nevertheless, courts were involved in
deciding issues arising from strike activities in different ways. Workers who had used
violence or threats during strikes could be tried and punished in criminal courts. In
addition, however, courts were called on to rule on the legitimacy o f strikes more
indirectly when ruling in cases o f dismissal o f commercial employees. One o f the most
serious concerns for the authorities was the threat to public order strikes potentially
constituted. If violence erupted, repression was usually swift and its instigators punished
with jail sentences, or deported if they were not citizens o f Argentina. The 1910 Social
Defense Law, which was primarily concerned with the eradication o f Anarchism, also
contained an article which affected strike activities in general. Article 25 established that
anyone who through insults, threats, or violence attempted to induce another person to
take part in a strike or boycott could be punished with between one and three years in
62 See Rock, Politics in Argentina.
63 That labor unions in the 1930s interacted with the state fairly frequently has been pointed out both by
Joel Horowitz and Juan Carlos Torre in their works on the pre-Peronist labor movement. See Horowitz,
Argentine Unions and Juan Carlos Torre, La vieja guardia sindical: Sobre los origenes del peronismo
(Buenos Aires: Editorial Sudamericana: Instituto Torcuato di Telia, 1990).
254
prison. Needless to say the words insults and threats could comprise a wide spectrum
o f acts that usually took place during strikes or boycotts, making the repressive potential
o f the law considerable for unions and workers in general and not just those tied to the
Anarchist movement.
A couple o f cases confirm this assumption. One was a 1919 case from the
Capitals Criminal and Correctional Court o f Appeals. The case established the doctrine
that, if in the incitement o f a strike, insults, threats or insolence were used in order to
make someone take part in the strike, this constituted a crime.64 Another case, which
received detailed attention from the National Labor Department, was the first case
brought to the courts concerning boycotts.65 On 27 March 1919, a group o f workers had
formed a Committee under the name o f Comite pro-Boycott a Pedro Vasena e Hijos, as
part o f their ongoing conflict with the Compania Argentina de Hierros y Aceros Lda.
With the purpose o f garnering support for their cause, they started to distribute leaflets
and manifestos in order to make other unions and workers join in the boycott o f the
establishments owned by the Vasenas, o f which the Compania Argentina de Hierros y
Aceros was one.66 As a result, the company suffered considerable economic losses, which
led its director, Alfredo Vasena, to denounce the committee to the courts with a basis in
Article 25 o f Law 7029, the Social Defense Law. He submitted as proof several o f the
leaflets and letters distributed by the committee, calling the courts attention to their use
o f threats. In the leaflets, the committee exhorted the companys clients and agents to join
64 Tremoulet, JA 3 (1919): 752 (Camara Criminal y Correccional de la Capital, 1919).
65 BDNT; no. 44 (January 1920): 75-116.
66 Ibid., 75.
255
the boycott and abstain from using, working and trading with the companys products if
they wanted to avoid damages to their interests and to suffer reprisals on behalf o f the
workers organizations.67
The case carried an extensive commentary by the Attorney General (agente fiscal)
Jorge Eduardo Coll. In his analysis o f the Social Defense Law, Coll emphasized that the
law not only did not make boycotts punishable, but that the law itself recognized their
existence as a means in the workers struggle and as such considered them equal to the
strike. Therefore, a boycott did not constitute a crime in itself, only acts o f insults, threats
or violence did. He then proceeded to consider whether the case in question could be said
to constitute a manifestation o f such threats as those defined in the law. Coll argued that
such an interpretation would imply a liberal interpretation o f the word threat and would
be contradictory to the general legal principle that criminal laws always ought to be
applied restrictively. The Attorney General conceded that the case in question involved a
form o f coercion since, rather than trying to gamer support for the boycott by arguing for
its righteousness, the workers tried to make others adhere by causing fears o f economic
reprisals. Nevertheless, Coll considered that to threaten a strike formed part o f basic
democratic principles and had to be considered inherent to the practice o f boycotts. He
therefore concluded that the pro-boycott committee had not resorted to threats other than
those inherent to the practice o f boycotts, and since Law 7029 did not make boycotts
punishable, there was nothing in the committees strategy that could be considered
punishable by law.68
67 Ibid., 75-76.
68 Ibid., 75-104.
256
Despite the authority o f the Attorney Generals opinion, however, the judges in
the first instance, as well as in the court o f appeals, reached the opposite conclusion. They
decided that the pro-boycott committee had indeed used threats to gamer support for their
cause, and that these acts fell in under the dispositions o f Law 7029s Article 25.69 With
such a liberal interpretation o f what constituted a threat, it is obvious that Law 7029
although it could be claimed that it recognized implicitly the right to strike and boycott
limited this right severely. Only three years after the court had pronounced its ruling, Law
7029s Article 25 was abolished by the 1922 reform o f the Argentine Penal Code, by
which the notion o f threat or insult was dropped completely.
In the reformed Penal Code, the attempt to force a third person to participate in a
strike or boycott was only considered a crime insofar as it involved the use o f direct
physical violence. The use o f verbal threats or insults no longer implied criminal
responsibility. The Penal Code reform naturally had consequences for the jurisprudence
regarding strikes, as the case Regules v. Union obreros expendedores de nafta10
demonstrates. In this case, Judge Llavallol stated: All the testimonial evidence.. . rules
out the use o f physical violence to materially oblige third persons to join in the measure
o f commercial abstention and isolation described by the plaintiff as boycott. The use o f
such violence is indispensable for there to exist a punishable act (Penal Code,
Art. 158).. .71
09 Ibid.. 104-116.
70JA, 11:1376-1381 (Camara Criminal y Correccional de la Capital, 1923).
71 Ibid., 1377.
257
With threats or insults no longer being sufficient to incur criminal responsibility,
there was certainly more room for workers to maneuver when engaging in both strikes
and boycotts. The reform testifies to the extent to which the use o f strikes and boycotts
as long as they did not involve the use o f violencehad acquired legitimacy in Argentina
by the 1920s. They were no longer considered exceptions to a national natural order o f
peace and harmony, provoked by foreign agitators driven by ideological motives with no
root in the Argentine economic environment. Rather, they were inherent factors to
modem industrial life, to be expected and accepted both by employers and the rest o f
society.
In the 1930s, judges came to influence the legal regulation o f strikes a different
way, as they on a case-to-case basis took the privilege o f deciding which strikes could be
considered legitimate and which could not. As Chapter 5 showed, judges had generally
considered strikes to be just cause for dismissal when called to rule in cases concerning
commercial employees right to compensation in accordance with the Commercial
Codes Article 157. This was the state o f affairs even into the 1920s, but after the 1934
reform the jurisprudence shifted. While previously regarding strikes as a voluntary
termination o f the labor contract, judges now considered them as a mere temporary
suspension. Consequently, if an employee was fired in the aftermath o f a strike, he would
be entitled to compensation for unjust dismissal in addition to the regular severance pay
i f - and only ifhe had participated in a strike that was legitimate.
Although strikes sometimes resulted in the criminal prosecution o f workers who
had engaged in violent activities, a much more common and imminent threat to most
striking workers was their subsequent dismissal. Statistics from the National Labor
258
Department show that one o f the most common ways in which strikes were resolved was
by replacing the strikers with new personnel. The shift in the jurisprudence from
considering strikes as just cause for dismissal to interpreting them as a legitimate activity,
provided at least some security for those who could claim to be covered by the
Commercial Code. The compensation for unjust dismissal in itself was not the most
important result o f this change in the jurisprudence, however. After all, compensated or
not, the worker had still lost his job. What was more important was that employers might
refrain from dismissing striking workers altogether when faced with an obligation to
compensate all o f them.
Again, the Capitals Justice o f the Peace played a central role in adapting the
interpretation o f the Commercial Code in such a way that it addressed workers needs for
protection. In the case Claudio Hermida v. Abraham Berzon,72 the appeals court ruled
that the workers right to strike was undisputed as long as the strike did not involve the
use o f violence and its purpose was limited to obtaining improvements in working
conditions. These legitimate improvements in working conditions consisted in better
salaries, shorter hours, or the modifications o f work regulations. In addition, the sentence
established that it fell to the employer to prove that the strike had been illegitimate in
order to be exempt from his obligation to compensate the dismissed worker. In this case,
since the strike had been non-violent, and the defendant had not been able to prove it was
illegitimate, the court granted Hermida the corresponding compensation for unjust
dismissal.
a JA 59 (1937: July-August-September): 338-339 (Justicia de Paz Letrada de la Capital, 1937).
259
In short, the difference between a legitimate and an illegitimate strike was
whether the issues o f conflict were mere bread-and-butter issues, such as wages and
hours, or if they were o f a political character, pursuing ideological rather than economic
goals. While the former was recognized as a right, the latter was considered criminal.
Even legitimate strikes were subject to restrictions, however. In a 1939 ruling, the same
court ruled that, although strikes called with the purpose o f obtaining an increase in
salaries was in principle legitimate, their legitimacy hinged on the reasonable nature o f
the demands. In other words, the wage increase sought by the workers had to be
reasonable in relation to the establishments economic capacity, as well as with respect to
the kind o f work functions the workers performed.73 In this case, the plaintiffs claim to
compensation for unjust dismissal was rejected, because the judges did not find that the
demands that formed the basis for the strike were reasonable.74
What these sentences illustrate is how judges through their rulings in cases of
dismissals o f commercial employees in fact took it upon themselves to define the
concrete content o f the right to strike. In the absence o f a law, it was they who, on a case-
to-case basis, determined whether a strike was legitimate or not. They had proclaimed
this discretionary privilege for themselves in Cayetano Tueto v. Instituto Frenopatico
S.A.,75 where Judge Eduardo Angel Broquen established the following doctrine: It will
be the judges who, with the discretionary power attributed to them by law and doctrine,
73 Manuel Mendez v. Cuareta y Cia., JA 68 (1939-40: November-December-February): 865-868 (Justicia

de Paz Letrada de la Capital, 1939).
74 That the strikes motive had to be reasonable for the plaintiff to be eligible for compensation was also
established in Eduardo Cabral y otros v. Neyra e Hijos, JA 73 (1940: January-February-March): 308-310
(Justicia de Paz Letrada de la Capital, 1940).
75 Reproduced in Eduardo Angel Broquen, Empleados de comercio: La ley 11.729 a traves de algunos
casos de interpretation judicial (Buenos Aires: Libreria y Editorial La Facultad, 1936), 103-111.
260
will study all the circumstances o f a strike once it has been terminated and decide
whether its goal has been just, and whether the attitude o f the employees, workers, or
employers has been legitimate or abusive.76 Ruling certain strikes to be legitimate,
however, was far from establishing the legal right to strike.
The Capitals Justice of the Peace was not alone in ruling that workers right to
strike to obtain better wages and working conditions was legitimate. A ruling by
Mendozas Commercial and Criminal Court o f Appeals also proclaimed the workers
inherent right to strike, as long as the strike did not involve violence or damage to the
employers interests. Only strikes pursuing strictly economic goals were considered
legitimate, while political strikes were considered inadmissible.77 Nevertheless, the
rulings o f the Capitals Justice o f the Peace acquire a particular importance when
considering the extensive interpretation the court had given o f the term commercial
employee in the application of the reformed Commercial Code. As Chapter 5 has
shown, the court applied the benefits o f the Commercial Code not only to commercial
employees, but also to industrial workers.
The Right to Assembly
In addition to strikes, public manifestations were central to labor union activities.
According to liberal ideology, the right to assembly was one o f the basic rights of
76 Ibid., 110. This privilege was reiterated in Jose Ramon v. Carrier Lix Klett (S.A.), JA 67 (1939:
September-October-November): 720-722 (Justicia de Paz Letrada de la Capital, 1939).
n Teofilo Suarez v. Luis Filippini (S.A.), JA 70 (1940: April-May-June): 742-746 (Camara de Apelaciones
en lo Comercial y Criminal de Mendoza, 1940). In this case, the court considered the strike to be legitimate
and granted the plaintiff the right to compensation for unjust dismissal.
261
the countrys inhabitants. Despite its centrality, however, the right to assembly had not
been explicitly established in the national Constitution. According to Rafael Bielsa and
Joaquin V. Gonzalez, it existed only implicitly as an extension o f the principle o f the

7 ft
sovereignty o f the people and the republican form o f government. Although it was not
explicitly regulated by the national Constitution, the right to assembly was embodied in
several provincial constitutions, such as the Constitutions o f the Provinces o f Buenos
Aires, Corrientes, Santa Fe, Entre Rios, Santiago del Estero, Salta, Mendoza, Catamarca,
San Juan, and Jujuy.79
Although the government was particularly concerned with regulating and
controlling the right to assembly, no laws with this purpose existed. Instead, it was left to
the police to issue ordinances or edicts regarding how such public meetings should be
carried out. At the core o f the ordinances was usually the requirement to obtain police
permission before the manifestation could take place. In practice, police discretion in
determining who should be granted permission to hold public meetings was arbitrary, to
say the least.80 The Socialist Party resorted to the courts in 1928 to contest a denial o f
request to hold a public meeting,81 although the case was dismissed for having been
initiated in the wrong jurisdiction. The same happened when the Independent Socialist
Party protested that it had been denied permission to hold a public meeting, where the
78 See commentary to the case Iribame solicita permiso de reunion para el Partido Socialista in JA 27
(1928): 464.
79 Ibid.
80 R. Deguzaide Rioja makes this point in a commentary m JA 31 (1929): 733.
81 Iribame solicita permiso de reunion para el Partido Socialista, JA 27 (1928): 464-466 (Camara Federal de
la Capital, 1928).
262
topic to be discussed was entitled Against armed forces intervention in labor
conflicts.82
The constitutionality o f these police ordinances were contested several times in
the Supreme Court, resulting in a delineation and clarification o f police authority with
respect to the right to assembly. In the 1929 case Comite Radical Action,*3 the police in
the capital o f Buenos Aires had denied the Comite Radical A ction the right to hold a
public meeting in the intersection o f Diagonal Saenz Pena and Florida. According to the
plaintiff, the reason for the denial was that the Committee had not informed the police o f
the nature o f its constitution, its membership, or the goals it was pursuing. According to
the police, however, the meeting had not been allowed to take place because o f the place
the committee had chosen for it, a busy intersection and a favored place for women and
children to take walks.84 The plaintiff claimed its constitutional right to assembly had
been violated and called on the Supreme Court to rule on the constitutionality o f the
police decision. In its ruling, the Supreme Court commented on a range o f issues
intending to define more clearly the constitutional privileges and limitations o f the
polices right to regulate the right to assembly. The decision categorically established that
any police resolution violating the right to assembly was unconstitutional. However,
resolutions that only intended to indicate reasonable ways in which the right could be
exercised were constitutional. In the present case, this meant that the court considered it
to be legitimate for the police to refuse the request, since the place o f the meeting was
82 Gonzalez Maseda, JA 29 (1929): 23-29 (Suprema Corte de Justicia Nacional, 1929).
S*JA 31 (1929): 733-739 (Suprema Corte de Justicia Nacional, 1929). Although many of these cases
involved political parties rather than unions, the decisions had consequences for unions as well.
84 Ibid., 734.
263
inappropriate and the plaintiff in principle had retained his right to have the meeting,
even if he had to find a different place for it.
A few years later, in 1933, the provincial Supreme Court o f Buenos Aires ruled
on the constitutionality of the province police edict regulating the right to assembly. In
the case Robledo Puch,ss the provincial Supreme Court confirmed the polices right to
regulate the right to assembly in the absence o f a law, as long as the regulations were
reasonable and did not restrict the constitutional right unnecessarily. Based on this
criterion, the court decided it was legitimate for the police to demand that the
organizations in question notify the police o f their meetings five days in advance if the
meeting was going to be held outside, and forty-eight hours in advance if the meeting was
going to be held inside. However, the edict was unconstitutional when it established the
prohibition o f the use o f threats or injurious or denigrating expressions in public
manifestations. According to the court, this violated the right to free speech and
consequently the right to assembly.
Maybe more important than the delineation o f how the right to assembly could be
regulated, the court ruled that it was legitimate for anyone to contest the constitutionality
o f these ordinances, regardless o f whether or not they had been directly affected by them.
In other words, it was not necessary to have been denied a request for a public meeting in
order to contest the constitutionality o f the police regulations in court. This was important
because, if the right to assembly could only be asserted once it had been denied, the
courts decisions would have little effect in practice. Even if it mled that the plaintiffs
rights had been infringed, the courts decision would not restore them. With the courts
85JA 44 (1933: November-December): SS3-893 (Suprema Corte de Buenos Aires, 1933).
264
concession that anyone was entitled to challenge the constitutionality o f the police edicts,
even if they had not been applied to them personally, made it possible for the court to
more effectively safeguard the right to assembly than if its only option was to pronounce
a moral and symbolic verdict in the aftermath o f an infringement.
The 1941 Supreme Court sentence m Armando Arjones y otros confirmed many
o f the principles established in the previous sentences. It ruled that the right to assembly
was guaranteed in the Constitution, but legitimately subject to police regulations. It also
confirmed that the regulations had to be reasonable and could not contain dispositions
that in practice constituted violations o f the right. The sentence, which ruled on the
constitutionality o f the 1932 police edict regulating the right to assembly in the capital o f
Buenos Aires, went one step further than the other sentences, however. While it upheld
the part o f the edict which mandated previous police permission to arrange meetings in
public places, it stated that such permissions should not be required when meetings were
to be held indoors and involving only a limited number o f people with no subversive
purposes. In fact, this was a violation rather than a regulation o f the right to assembly.
Conclusion
While the courts were instrumental in defining labor law pertaining to individuals,
they were not remotely as important in the definition o f its collective provisions. Labor
unions in this period generally lacked legal standing, or personeria juridica, which in
theory prevented them from being a party to litigation. Indeed, there were few reasons for
unions to acquire legal standing during this period. In the absence o f a law regulating
SbJA 76 (1941: October-December): 739-745 (Corte Suprema de la Nacion, 1941).
265
union status and activities, there was also an absence o f any real benefit or privilege for
unions with legal standing compared to those without. In addition, unions were often
recognized in fact, even if not juridically. Several o f the Argentine labor laws, such as the
Women and Child Labor Law and the Eight-Hour Day Law, gave labor unions as well as
individuals the right to denounce infractions o f the law. Also, court action was not a
central element to union activities. With the limited diffusion o f the practice o f collective
bargaining, there was little need for unions to ensure compliance with contracts through
the court system. Although the practice increased during the 1930s as the labor
movement grew stronger and more numerically important, unions by that time found it
more efficient to resort to the government and the National Labor Department in their
efforts to obtain concessions from employers and the latters compliance with the terms
o f contract.
With the exception o f the one case from Cordoba involving collective bargaining,
the only collective aspects o f labor law that the courts were ever involved in defining
were strikes and boycotts and the right to assembly. After the reform o f the Commercial
Code, judges defined for themselves the privilege o f determining the difference between
legitimate and illegitimate strikes when ruling on workers right to compensation for
unjust dismissal. This created the rather peculiar situation where a collective practice was
regulated primarily on an individual basis. The most important consequence o f the
Supreme Court rulings on police regulations o f the right to assembly was their assertion
o f every citizens right to contest these regulations in court regardless o f whether or not
they had been directly affected by them. The concrete results were more limited,
however. Once the police had denied the permission to hold a public meeting, there was
266
little a court sentence pronounced months or years later could do to curb police authority
in practice.
This chapter has shown that, if court-based labor law was fraught with
insufficiencies in its individual aspects, it was even more limited with respect to the
collective aspects o f labor law. Although judges determined that non-violent strikes
pursuing economic goals were legitimate, their decisions only applied to a small number
o f workers. Even if the Capitals Justice o f the Peace and the Capitals Commercial
Court extended the benefits o f the Commercial Code reform to industrial workers, other
courts did not. The consequence was that only commercial employees and industrial
workers in the capital with sufficient resources to assert their right to strike in court
would be able to claim compensation for unjust dismissal. Even if the prospect o f having
to pay compensation in the aftermath o f dismissal may have prevented some employers
from firing their employees after strikes, it probably did not serve as a major deterrent.
As long as the legal right to strike had not been established in lawmaking illegal the
dismissal o f workers due to participation in strike activitiesthere was little real
protection in the courts decisions. Compensation or no compensation, the result was the
same: The worker had already lost his job.
With labor-capital relations becoming increasingly collective rather than
individual during the 1930s, the need for a legal recognition o f unions different from that
o f civil corporations regulated by the Civil Code became essential. After all, unions
main activities, strikes and collective bargaining, were o f a very different nature than
those o f regular civil corporations. The right to strike could not be a reality until it was
explicitly recognized and protected by law. More importantly, unions needed legal
267
recognition to successfully extend the conditions o f collective contracts to workers
beyond those o f a single industrial establishment. As unions started to pursue industry
wide agreements to include as many workers as possible in the benefits o f a collective
contract, they needed an explicit recognition o f their authority to negotiate such contracts
and a way to make them enforceable. The profoundly different nature o f a collective
contract applying to a large number o f industrial establishments from that o f a regular
civil law contract regulating the relationship between two parties, made a separate
regulation o f the former crucial to the protection o f labors collective rights.
As labor law increasingly needed to address collective rather than individual
interests, a legal response based primarily on the courts ad hoc assertion o f individual
workers rights became increasingly inadequate. The old legal structures where the courts
had played the central part in defining labor law had been stretched to the point where it
could no longer accommodate the maturely modem, urban, industrial Argentina. Given
the increased numerical importance o f the working classes in Argentina in 1940
compared to 1900, the government could no longer afford to ignore the necessities o f this
part of the population if it wanted to ensure its own electoral success. This meant that
labor law could no longer be left to the courts to be defined on a case-to-case basis, but
needed to be put into a coherent system with general application, designed and enforced
by the government.
268
CONCLUSION
Writing the preface to the third edition o f his classic Lineamientos de dereceho
del trabajo in 1956, labor law expert Mario L. Deveali reflected on how each edition of
his book had corresponded to a separate face in the development o f Argentine labor law.
The first edition had been completed before the end o f World War II and corresponded to
what Deveali called the juridical phase, which he characterized in the following way:
In accordance with the prevalent orientation o f the most authoritative doctrine before the
war, one attempted to fit the different manifestations o f labor law within the patterns of
traditional law, attributing a purely circumstantial character to those few normsmainly
of public law which defied such categorization.1
This dissertation has been dedicated to a detailed analysis o f the peculiar
characteristics o f the juridical phase o f Argentine labor law. In addition to the above-
mentioned defining feature of attempting to fit labor legislation within the traditional,
liberal legal framework, the juridical phase had other important characteristics and
consequences. First, it made the judiciary the most important part o f the state in defining
labor law. Second, it was a system that could only accommodate the individual and not
the collective aspects o f capital-labor relations, and third, it constituted an entirely
insufficient solution to labors needs and prevented the development o f a coherent,
unified, national body o f labor legislation.
The prominent position o f the judiciary in the definition o f labor law in this
period was largely a result o f the failure o f the legislature to respond to the new
1Mario L. Deveali, Lineamientos de derecho del trabajo, 3a. edicion, revisada y aumentada (Buenos Aires:
Tipografica Editora Argentina, 1956), Preface.
269
necessities o f modem labor-capital relations. The laws that were passed were often
relatively modest, like the 1905 Sunday Rest Law, which applied only to the national
capital and whose obligation to give workers one day o ff a week had plenty o f
exceptions. The 1929 Eight-Hour Day Law was passed at a time when the practice o f the
eight-hour workday had already been established for about ten years, at least in the city o f
Buenos Aires. The most extensive attempt made at labor reform came in 1934 with the
reform o f the Commercial Code, and even this was not a generalized labor reform, but
was only intended to be applied to commercial employees. Important labor laws such as
general minimum wage laws, laws regulating unions and union activities like strikes and
collective bargaining, and laws establishing severance pay and paid vacations for workers
in generalnot just commercial employeeswere conspicuous in their absence.
This legal vacuum can in part be attributed to the serious inefficiency o f the
Argentine legislature. Procedural obstacles inherent to the legislative process established
by the Constitution and the Olmedo Law, together with an attitude o f general indifference
on behalf o f the legislators, resulted in bills expiring before they were even discussed.
Neither was the labor movement an important factor in pushing for legislative reform.
With the predominance o f Anarchism during the first fifteen years o f the twentieth
century, legislative concessions from the state were not on the political agenda. When
Sindicalismo became the dominant tendency in the late 1910s and 1920s, the focus of the
labor movement was on extracting concessions on issues such as wages, hours, and
working conditions directly from employers. Even in the 1930s when the organized labor
movement for the first time acquired significant strength, its focus was on collective
bargaining and the states involvement in the negotiation with employers, rather than on a
270
program o f legislative reform. Last but not least, the working classes did not become
numerous enough to make it electorally important for politicians to cater to their needs
until the 1930s.
The predominance o f the judiciary in the definition o f labor law therefore came
about largely by default, and one should be careful not to exaggerate its significance.
Judges certainly did make attempts to stretch and bend the existing legal frameworks so
that they could accommodate workers needs. This happened as early as 1903, when
Emesto Quesada for the first time granted the victim o f an occupational accident
compensation in accordance with the Civil Codes regulation o f damages. During the
following decade, before the Occupational Accident Law was passed in 1915, judges
expanded the Civil Codes notion o f fault to increasingly make room for workers claim
to compensation.
Judges also played a significant role in stretching the legal frameworks o f the
Commercial Code beforebut especially afterits 1934 reform. In seven articles the
Commercial Code essentially made commercial employees the group o f workers with the
most extensive legal protection in Argentina in the period before 1943, establishing such
benefits as sick leave and compensation in cases o f dismissal without previous notice.
During the 1920s, with the increased diversification o f Argentine commercial life and the
growth o f the big department stores, commercial employees engaged in a wide range o f
tasks that were no longer limited to over-the-counter customer relations. The
jurisprudence reflected this change by sometimes stretching the notion o f commercial
employee to include workers who were not, strictly speaking, engaged in commercial
271
activities, such as a baker who was also in charge o f the bakery, a smelter, and workers in
shoe factories.
The stretching of the notion o f commercial employee became even more
significant after the 1934 reform o f the Commercial Code. The reform, which constituted
the most extensive labor reform in Argentina to date, established the right to severance
pay and paid vacations, in addition to extending the already established benefits o f sick
leave and compensation in cases o f dismissals without previous notice. The detailed
discussions in the Argentine Congress before the passage o f the reform had made it clear
that the legislators intention was to extend the notion o f commercial employee to include
other workers in commercial establishments than those employed in direct customer
contact. The arbitrary discrimination between an employee working in direct saleswho
was entitled to the benefits o f the old Code and another engaged in the packaging or
distribution o f merchandisewho was nothad become increasingly evident. However,
the legislative debates also made it clear that the benefits o f the Code were not intended
to be extended to industrial workers. Nevertheless, the Capitals Justice o f the Peace and
Commercial Court o f Appeals consistently ruled that industrial workers were included in
the benefits o f the reform because industries were inherently commercial establishments.
Judges not only effectively shaped labor law in the cases where they were called
on to interpret the general dispositions o f the Civil and Commercial Code, however. With
the demonstrated failure o f the 1915 Occupational Accident Law to provide victims with
any real financial redress in the aftermath o f an accident, judges again stretched the
specific terms o f the law considerably to avoid the complete undermining o f the laws
purpose. The laws Article 9 mandated the deposit o f the compensation in the Seccion
272
Accidentes o f the Caja de Jabilaciones, and its subsequent inversion in government
bonds. Victims would receive their compensation and interest in monthly installments
over a period o f ten years.
Even when victims and their families were entitled to the largest compensations
established by the law, these monthly installments were completely insufficient to
constitute any real help for the victim or his family to face the financial hardship in the
aftermath o f an accident. Although the law made no room for alternative interpretations,
there developed a dual jurisprudence in the 1920s with respect to payment o f the
compensation. One strain was to stick to the literal application o f the letter o f the law, but
another established the judicial privilege o f mandating the payment o f the compensation
in a lump sum if the plaintiff could show that the monthly installments were entirely
insufficient for his sustenance.
If the Argentine civil law system in theoiy intended judicial authority to be
limited to the mere application o f the letter o f the law, there was a considerable gap
between theory and reality. This dissertation has shown that Argentine judges asserted
considerable freedom o f interpretation in labor cases, both when applying the Civil and
Commercial Codes and when interpreting specific labor laws, such as the Occupational
Accident Law. Unlike the legislators, judges could not simply ignore the problems
emanating from modem, industrial capital-labor relations. The problems were presented
to them in their courtrooms, and they had the professional obligation to rule in all cases
before their courts. In trying to find solutions, they saw it as their role not only to apply
the law, but also to make sure the law responded to the necessities o f real life.
273
By stretching and bending the existing legal frameworks to accommodate
workers grievances, judges attempted to contain social conflict and prevent workers
discontent from assuming more radical political expressions, such as, for example,
Anarchism at the beginning o f the century and Communism in the 1930s. It is also likely
that, by channeling social conflict through institutional structures, judges hoped to curb
general strike activity. Throughout the first forty years o f the twentieth century, judges
therefore occupied a central position as professionals in the resolution o f the social
question. Like other groups o f professionals, such as the medical doctors, hygienists, and
natural scientists, judges claimed power and authority by proposing their own expert
solution to the conflictive nature o f capital-labor relations. Nevertheless, in asserting their
professional authority, judges had to walk a fine line. While on the one hand they could
exert significant power and influence by stretching the existing legal frameworks to make
room for workers needs, a too liberal interpretation o f what was actually in the law and
in the Codes would lead to an undermining o f their own authority. After all, the main
duty o f a legal professional was to know the law, not to invent or make it.
Court-made labor law therefore had obvious limitations. While there were
certainly judges who were willing to apply fairly radical interpretations o f the law, there
were others who were not. As this dissertation has shown, labor jurisprudence was far
from consistent. Ernesto Quesada may have ruled that the notion o f occupational risk was
embodied in the Civil Code by analogous interpretation, abolishing the notion o f fault as
a prerequisite to obtain damages, but most other judges were only willing to extend the
notion o f fault. While some judges claimed it was their privilege to mandate the payment
of occupational accident compensations in a lump sum in spite o f the laws explicit
274
dispositions to the contraryothers stuck to the letter o f the law. The Capitals Justice of
the Peace and Commercial Court may have been willing to extend the benefits o f the
Commercial Code to industrial workers, but other courts in other parts o f the country
were not.
For workers, resorting to the courts for a redress o f their grievances must
therefore have appeared fairly similar to playing the lottery. They could get lucky, or not.
Nevertheless, it was the only chance they had, because in a system o f court-made labor
law, rights had to be asserted and benefits had to be claimed. While a functioning system
o f labor legislation would have guaranteed at least in theoryrights and benefits for all
workers, a consequence o f court-made labor law was that only those with the possibilities
and resources to initiate legal action had any chance o f enjoying those benefits an
effective legislation ought to have guaranteed for everyone. Solving the social question in
the courtrooms therefore became an entirely insufficient solution for workers, whose
necessities could only be met in the form o f a comprehensive, national body o f labor
legislation.
Ironically enough, such legislation could not be passed in Argentina as long as
judges and legislators alike insisted on interpreting labor law as a mere extension o f
traditional civil law. The rationale behind the Supreme Court decision to rule the
provincial minimum wage law from Mendoza unconstitutional in 1929 was that it
constituted a regulation o f the labor contract, complementary to the Civil Code, and was
consequently the jurisdiction o f the national rather than the local governments. However,
there were plenty o f aspects o f the increasingly complex relationship between labor and
capital that could not convincingly be argued to fit within the traditional structures o f the
275
Civil Codes regulation o f the labor contract. While such a fit could persuasively be
argued in the case o f minimum wages and the eight-hour day, laws regulating, for
example, opening hours for commercial establishments and Saturday and Sunday rest did
not fit as easily. Argentine labor law therefore remained a mixture o f local and national
laws in spite of the increasingly obvious need for a national, comprehensive body o f
labor legislation.
Finally, this system o f court-made labor law had one other important limitation. In
all the above-mentioned situations where the courts resolved labor issues, they ruled on
labor law in its individual aspects. Individual workers sued individual employers for
damages, for occupational accident compensation, and for compensation for dismissals.
In fact, it is only to be expected that, although the courts played an important role in
defining labor law in its individual aspects, their role in determining its collective aspects
was very limited. With only an insignificant minority o f unions having legal standing
before 1943, and with the limited practice o f collective bargaining before the 1930s,
unions did not have much to gain from litigation. Besides, the court system in which they
would have had to operate was based on the individual, in accordance with the liberal
legal framework on which it was founded. While it could accommodate individual
capital-labor relations, it could not do the same with their collective expressions. In the
very few cases unions did participate in litigation, they were considered as a
conglomeration o f individuals rather than a collective entity.
Before 1930, industry still had a secondary place in the Argentine economy and
the labor movement was not yet strong or developed enough to make labor-capital
relations collective rather than individual. Up to this point, a system o f court-based labor
276
law, which relied on a case-to-case regulation o f the individual relationship between
worker and employer, was sustainable. However, the situation changed significantly in
the 1930s. With the industrial growth resulting from import substitution industrialization,
the working classes grew numerically significant, and the labor movement acquired a
previously unprecedented strength. As labor-capital relations became primarily collective
rather than individual, it was impossible to stretch and bend the existing legal framework
any further to accommodate them.
By the early 1940s, a system o f court-based labor law had become unsustainable.
The need to fill the legal vacuum with comprehensive labor laws, rather than with ad-hoc
judicial decisions, could no longer be ignored. Neither could the need to redefine labor
law as a separate legislative field with a different set o f characteristics from that o f
traditional civil or commercial law. The complete redefinition o f labor law also required a
new set o f courts that could adequately respond to the collective rather than individual
nature o f labor-capital relations, and where workers would face less procedural obstacles
than those confronting them in the civil and commercial courts. When Juan D. Peron
came into power, first as Secretary o f Labor and later as President, the long-felt need for
legal innovation in the field o f labor law was finally met. By promulgating a massive
range o f laws and decrees, and incorporating workers rights into the reformed 1949
Constitution, Peron replaced the courts with the executive as the leading state power in
the definition o f labor law. With the establishment o f the labor tribunals, the role o f the
courts changed from making law to applying it. The juridical phase o f Argentine labor
law had come to an end.
277
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Line Schj olden

Grad. (University o f Oslo) 1995

A dissertation submitted in partial satisfaction o f the

requirements for the degree o f

UNIVERSITY OF CALIFORNIA, BERKELEY

Professor Linda Lewin, Chair

ProQuest Information and Learning Company

Suing for Justice: Labor and the Courts in Argentina, 1900-1943

Doctor o f Philosophy in History

University o f California, Berkeley

Professor Linda Lewin, Chair

to the courts for a redress o f their grievances.

debated social question.

authority o f the national government. By choosing to interpret the field o f labor

1. FROM AGRICULTURAL TO INDUSTRIAL NATION:

2. EXPANDING THE NOTION OF FAULT: OCCUPATIONAL

3. A FRUSTRATED HOPE OF REDRESS: THE LIMITATIONS

4. NATION OR PROVINCE: THE CONTESTED JURISDICTION

5. MAKING LABOR LAW OF THE COMMERCIAL CODE:

6. POLITICS OVER LITIGATION: LABOR LAW AND

to thank the U.S-Norway Fulbright Foundation and the American-Scandinavian

Berkeley. UC Berkeleys Graduate Division and History Department provided continued

historical scholarship. I am grateful to Tulio Halperin Donghi for his willingness to

to-earth good advice.

I am eternally grateful to Tom Ostly, who transported me out to Stanford University on

to as my last research at their Law Library.

defeats and the victories. Thanks to you all!

ALA Anales de Legislation Argentina

BDNT Boletin del Departamento National del Trabajo

BIDNT Boletin Informativo del Departamento N ational del Trabajo

CGT Confederacion General de Trabajadores

COA Confederacion Obrera Argentina

CORA Confederacion Obrera Region Argentina

CMDNT Cronica Mensual del Departamento National del Trabajo

DSCD Diario de Sesiones de la Camara de Diputados

DSCS Diario de Sesiones de la Camara de Senadores

FOA Federacion Obrera Argentina

FOM Federacion Obrera Maritima

FORA Federacion Obrera Regional Argentina

JA Jurispnulen cia A rgentina

PSOI Partido Socialista Obrero International

UGT Union Gremial de Trabajadores

USA Union Sindical Argentina

sensitive, field o f investigation.1

formed and predominated at different points in time, reflecting changing contemporary

o f labor in relationship to the origins and workings o f Peronism. As Jeremy Adelman

propensity is reflected in the tendency to write pre-Peronist working class history as a

sequence o f tragic failures at the hands o f the oligarchy or cynical middle-class

Gino Germani, Julio Godio, and Samuel Baily.8

Gutierrez and Romero, Los sectores populares y el movimiento obrero, 109-110.

through the courts.

the Civil and Commercial Codes to cases pertaining to labor.

preceding the French Revolution, as John Henry Merryman points out:

representative republican federal form o f government. 14 This meant a president as the

executive power and a two-chamber solution to the legislative branch o f government to

capital. 13 The representatives to the Chamber o f Deputies were to be directly elected

each province, elected by the respective provincial legislatures by majority vote. In