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Modificación de la Ley de Quiebras

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Modificación de la Ley de Quiebras Powered By Docstoc
					Modificación de la Ley
          de Quiebras
   After many years of struggle by workers of
    recovered companies, this year saw the
    amendment of Law No. 24,522 through the
    approval of Law 26,684.

   Law 24,522, enacted in 1955, recognized 50% of
    workers compensation and unless they became
    bankruptcy creditors, were not entitled to
    participate in the contests. Decreed the
    bankruptcy, the law provided a period of 4 months
    for the settlement, leaving the worker outside any
    system.
   After the crisis that Argentina went through in
    2001, countless broke businesses and workers
    began to try to regain their jobs in what is now
    called "recovered companies."

   In 2002, the reform of the bankruptcy law (Law
    25.589) introduced Article 190, which gives the
    legal possibility for workers to settle in the
    cooperative form and continue to operate the
    factory until its liquidation.

   In 2011, after a large number of court rulings that
    supported the reform, it was possible to go from a
    law of firm liquidations to a law that enables
    workers to keep their jobs despite bankruptcy.
    (Law 26 684)
To analyze the benefits provided by this new law,
we will focus on three points:


   Workers.

   Cramdown.

   Cooperative Education
                              Workers
Law 24.522 (1995)                    Law 26.684 (2011)
Not permitted to participate in      Can participate in contest
contest                              Can integrate the Control Commitee

                                     Must be informed of creditors
                                     presented

Prompt payment:                      It rises to 3% the amount for the down payment.
                                     Employee Payroll, debt, labor and pension
1% of gross income                   obligations.
                                     Empowers the court to pay the emergency room.
                                     Joined the informal worker.


It does not recognize work credits    It Recognizes work credits interest
interest (just mortgage).
Control Committee. Law 26684
   This change is central because it puts the worker as a
    participant. It is composed of 3 workers with the
    following powers:

   Information

   Advice

   Control

The law requires the trustee to notify all bankruptcy
actions
            Workers / Bankrupcy
Law 24.522 (1995)                 Law 26.684 (2011)

                                    Does recognize compensatory
Does not recognize compensatory
                                    interests
interests




   It only recognized a 50% of      It recognizes the 100% of
   labor compensation               labor compensation
      Cramdown (o salvataje).
The process by which during the contest judge authorizes third
  parties to acquire the bankrupt company's shares for the
  purpose of avoiding bankruptcy

Law 24.522 (1995)             Law 26.684 (2011)
                                48a article is included that allows the
 Was possible. Only by          workers organized in cooperatives to
 paying in cash                 participate in the bailout through
                                their compensation, taken up to 100%
                                of it’s amount.
       Cooperative Constitution
     Laws 24.522 (1995) /                            Law 26.684
        25589 (2002)
Before the reform, there was no way
for the workers to take control of the
company after bankrupcy

                                          1- - The work serves as a guarantee credit
With the amending of 2002 (art. 190)
                                          to the continuity of the farm.
workers were allowed to continue the
                                          2 - Can use a 100% of the labor credit for
exploitation of the production unit by
                                          the acquisition of assets.
forming cooperatives, just until the
                                          3 - The term is for ONE production
liquidation (4 months).
                                          cycle.
Did not grant privileges

                                         By request of the Cooperative, the judge
                                         can suspend executions for up to 2 years
 Cooperative Constitution
Laws 24.522 (1995) /                Law 26.684
   25589 (2002)
                       Authorizes judges to decide the
                       immediate continuation of the
                       production unit.

                       State is forced to assist cooperatives in
                       the technical aspects of management


                       Participation of the Cooperative in
                       setting the sales value of the production
                       unit
    Argentine Cooperative Legislation
   There is currently a General Law of Cooperatives (Law
    20,337), which provides the framework and regulates
    all cooperatives as a whole.

   In order to discuss the drafting of a bill of Worker
    Cooperatives, a National Commission for Cooperative
    Work (NCCW) was created, involving different
    federations of cooperatives.

   The INAES (National Institute of Cooperatives and
    Social Economy) posted 12 points as the fundamental
    basis, proposing that the National Commission
    worked towards a common project, to then be
    submitted to Congress and seek its approval.
       Talking Points for the draft law

   At that meeting it was established that as a guiding
    principle of any legislation that worker cooperatives
    should be subject to the WORLD DECLARATION ON
    WORKER COOPERATIVES, adopted by the General
    Assembly of the ICA in Cartagena, Colombia, on
    September 23 2005.

   This declaration states that human beings carry out
    their work activities in three basic forms:
     a) independently
     b) as wage earners
     c) under a third form, the associated labor, where labor and
      management are carried out jointly without the limitations
      of individual work or exclusively under the rules of
      dependency-based labor.
Establishing a minimum income by law
 for members of Worker Cooperatives.


The meeting agreed to set a mobile poverty line

 and setting a number of exceptions that will

 safeguard the Cooperatives that may be unable

 to fulfill it in a certain time.
         Nature of Associated Worker
        Cooperatives, Cooperative Act.
Third Party Procurement possibility and limits

   The legal relationship between the cooperative and its
    members is of an associative nature, autonomous
    and incompatible with any labor contracts, civil or
    commercial.

   As for the Test-period, it’s agreed that it should be for
    12 months, and the probationer would enjoy full
    rights in the period.
     Cooperative Relationship with
            Labor Unions.


   It was established that each cooperative’s
    Assembly decides on the unions. If a cooperative
    decides not to, the right to unionize will be on
    the individual.
Minimum number of partners and
 establishment of the Board and
            Trustee.


   There was majority consensus in the not innovation
    at this point and to maintain the provisions of Law
    20,337. With a strong rejection of the possibility of
    incorporating the figure of a one-man management.
Fate of surplus. Reserves. Distribution
        of special quorum fees


   It was decided to keep the scheme of Law 20,337 on
    the fate of surplus, to sustain the figure of the
    cooperative and to give specific destination to the 5%
    earmarked for the fund of labor support.
   There was also general agreement to establish
    and regulate the obligation of all partners to
    attend meetings, being serious misconduct the
    failure to do so and set special Quorum for
    certain key points in the life of the cooperative,
    such a distribution of surplus, regular
    assemblies, and so on.

   There was consensus that the bill extended to
    the associate as the cooperative counterpart to
    the withdrawal of surplus, must be more
    important in the current law.
Cooperatives with lots of partners.
Documentation Requirements and special
quorum. District Assembly and action in
several jurisdictions.

   The INAES was explicit in setting a more
    severe regulation in terms of oversight
    and requirements to be fulfilled by these
    kinds of cooperatives, where the labor
    fraud is evident. Those present expressed
    their support for national control
    authorities to deal with these entities and
    seek their removal.
It was agreed that check fraud is more
  common in cooperatives that have a large
  number of partners (over 250), when they
  operate in different jurisdictions, with a
  great diversity of activities.
The idea is to set a restrictive approach and
  put emphasis on supervision, attending
  meetings, asking for more documentation
  and other tools to check and discourage
  fraud.
Social Benefits. ART and retirement
arrangements, aplicable regimes.
   It was proposed to let the cooperatives, through its
    assembly, to adhere to Autonomous Regime, “Monotributo”
    or Social Security Scheme and SIJP, set by law 22,241 for
    workers in a dependent relationship.


   Se estableció la posibilidad de crear la caja de jubilaciones
    propia, Proyecto sobre el que Fecootra trabaja desde hace
    un tiempo para aportar a la discusión y desarrollo este
    tema.
   The possibility was established of creating its own pension
    fund, project in which Fecootra has been working for some
    time to contribute to the discussion and development of
    this topic.
        Internal regulations. Basic
    guarantees for partners. (180/92).
           Disciplinary system.
   There was general agreement that cooperatives should
    have the legal obligation to establish internal regulations at
    the time of its establishment. The same must have the
    following: Distribution of Surplus, Discipline, Rights and
    Duties of the partners, Minimum Work Day, Employment of
    children and women.
   It was proposed that the INAES be the one who writes
    rules of procedure, which sets out the rights and
    obligations as the basis for cooperative work.
 To establish a system of exceptions to the minimum
  surplus, to taxes and social security, that allows the
  existence and consolidation of cooperatives that
  recently started their businesses, those who are
  experiencing temporary crisis, recovered companies
  and those created by the National Government to
  promote employment.
 Se consideró importante evitar toda norma que
  remita a la CTL, incorporando en su caso el texto de
  los artículos de dicha ley a la ley de cooperativas o
  directamente al Reglamento Interno, ello para
  desalentar fallos judiciales totalmente equivocados y
  perjudiciales para las cooperativas.
   It was considered important to avoid any rules that refer to
    the CTL, incorporating into the text of the Law, the articles
    of the current law of cooperatives or directly to the Rules of
    Procedure, this is to discourage wrong and detrimental
    court rulings to the cooperatives.

				
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