Worker cooperatives have succeeded in recovering factories and companies and in undertaking many valuable projects that dignify men and women through work in solidarity. However, on occasions, justice does not accompany the effort.
By Dr. Miguel Julio Rodríguez Villafañe
Work is becoming more and more precarious and the financial is preferred to the productive. While the remaining production is replacing a large part of human labour with technology. These technologies make companies more profitable, but they have brought about the so-called “technological unemployment”, which increases the existing general unemployment. Where once thousands of employees were needed, now only a few hundred are enough.
Thus, many jobs have disappeared and are disappearing and others are diminishing in number, a trend that the reality says will increase in the future.
This generates a real “throwaway mentality” of working people, which condemns them to poverty and depression.
Formal dependent salaried work, which was central to the country’s workforce, is diminishing day by day and has given rise to a large number of precarious or informal jobs, real subsistence ventures.
It can be painfully stated that, since the “structural violence of unemployment”, almost two generations have not known stable employment from their parents.
In the search for dignity for all through work, the cooperative and mutual logic has given, among other responses, the possibility of grouping around a worker cooperative. As the International Labour Organisation (ILO) refers to them, they are “self-managed enterprises, based on respect for and compliance with the cooperative principles developed by the international cooperative movement, namely: voluntary and open membership, democratic management by members, economic participation by members, autonomy and independence, education, formation and information, cooperation between cooperatives and concern for the community”.
In this way, it has been possible to recover factories and businesses and to undertake many valuable undertakings that dignify men and women through solidarity-based work.
However, at times, a labour judiciary not specialised in cooperative or mutual matters has produced inadequate rulings, without taking into account the spirit and essence of the type of worker cooperative organisation and its specific legal dynamics.
It is now of concern that the High Court of Justice of the Province of Córdoba (TSJ), Labour Chamber, in one of these judgements, in the case “C. G. P. v. Cooperativa de trabajo Independencia limitada y otros – ordinario – despido”, on 31 March 2022, upheld the claimant’s claims, taking criteria that are not appropriate in these cases and applied erroneous interpretations in worker cooperatives, since, in them, the members are not employees but owners at the same time. In addition, they have institutional settings to discuss their perspectives and grievances, which was not done in this case by the plaintiff.
However, using criteria and presumptions of labour law that are not directly applicable to solidarity economy organisations, the courts limit themselves to charging the cooperative with the member’s obligation to participate or not in the life of the institution, without analysing that, in this respect, it is the plaintiff member herself who must take care to participate in the life of the solidarity organisation and make the claims that she considers relevant, which in this case has not been the case. Everything that is characteristic of a worker cooperative has always been guaranteed, in respect of which there is no room for presumptions, which can be applied in the case of employers’ organisations, in which the workers do not participate in the decision-making process.
Nor should we fail to take into account the specific characteristics of this type of institution, such as the fact that the members have the right to sit on the Board of Directors, to participate in the assemblies, that each member has only one vote in the assemblies, and that the assemblies approve, among other things, the balance sheets and the returns which are distributed according to the work actually carried out. In the case of the worker cooperative, the services of the members are their contribution to the entity and not an employment relationship.
Furthermore, it has not been contemplated in the case under analysis that the defendant worker cooperative has been authorised to operate by the National Institute of Associativism and Social Economy (INAES) and it has been proven that it has complied with all the requirements for its operation and its own legal obligations.
At the same time, in no way was there any direct labour intermediation with the contracting Mutual, insofar as the cooperative provided its services in fulfilment of its corporate purpose, through its members, as is the case here. The co-operative did not act as an employment agency, because its services were organised by the entity, and were carried out on an ongoing basis under the supervision of its own members.
Furthermore, the provision of services for third parties by the cooperative, in this case to the mutual society, is not in itself a sufficient indication of the existence of labour fraud, as the Supreme Court of Justice of the Nation itself has referred to in its rulings. Nor was there any legal or factual reason in the ruling to condemn the contracting mutual society as the direct employer.
The serious aspect of the recent case law of the Supreme Court of Justice, beyond the specific case, is that these precedents mean that many worker cooperatives are unable to obtain contracts and work for third parties. All this, faced with the possibility of being condemned by rulings that could lead to their disappearance, because they cannot assume serious costs unjustly with inappropriate claims, and even less so if the third parties who hire them are unduly condemned.
How many more cases will the justice system have to deal with and, consequently, how many will be harmed by rulings such as those that are being questioned today? Who will protect all these human beings who fall within the framework of Special Law 20.337 and the values and principles of cooperativism?
Suffice it to say that INAES in the year 2021 granted 2215 registrations to cooperatives, 96.8% of which belong to Worker Cooperative Registries. In other words, 2,144 entities authorised in just one year, of which 1,203 belong to the Central Region of our country. In addition, in the first three months of the year 2022, INAES granted 1,235 Worker Cooperative Registrations, projecting to end the year with a total of 4,940. The hopes of dignity that lie behind each worker cooperative cannot be dashed by inadequate jurisprudential interpretations.
(*) Miguel Julio Rodríguez Villafañe is a constitutional lawyer, specialist in cooperative law and opinion journalist.