ELEVEN YEARS OF PTISM AND KIRCHNERISM (2003-2014)

“ELEVEN YEARS OF PTISM AND KIRCHNERISM (2003-2014) – RECENT CHANGES AMONG CONTINUITIES IN BRAZIL AND ARGENTINA’S LABOUR REGULATION”

Wallace dos Santos de Moraes

ABSTRACT:

This paper seeks to discuss labour regulation under the Worker´s Party (PT) administrations in Brazil (2003-2014), and the Kirchner family’s in Argentina (2003-2014). The research sought to establish how they treated the institutional heritage left by their neoliberal predecessors. The path dependence concept was used to understand the matter. Our methodology was based on a compared empirical analysis between the historical periods – 1990’s and 2000’s – and between both countries, emphasizing the main changes in labour legislation. We note the different depth of neoliberal measures between both countries, as well as the distinct responses to them.

Keywords: Labour Regulation; Social Policy; The Lula Administration (2003-2010); The Rousseff Administration (2011-2014); The Kirchner Family Administration (2003-2014).

RESUMO:

O objetivo deste paper é verificar se a chegada de governos de base popular alterou o curso das políticas trabalhistas implementadas nos anos 1990. Mais precisamente trata-se da discussão sobre a regulação laboral sob os governos petistas (2003-2014) e da família Kirchner (2003-2014), respectivamente no Brasil e na Argentina. O fito da pesquisa foi verificar como trataram a herança institucional deixada pelos antecessores neoliberais. Utilizamos o conceito de path dependence para o entendimento da questão. Nossa metodologia baseou-se na análise empírica comparada, tanto: entre os períodos históricos, década de 1990 e anos 2000; quanto entre os países, sempre privilegiando as principais alterações na legislação trabalhista. A pergunta que procuramos responder é: o caminho iniciado sob o período neoliberal dos anos 1990, caracterizado pela flexibilização de direitos, foi revertido tanto por Lula da Silva e Dilma Rousseff, quanto por Néstor e Cristina Kirchner?

Palavras-chave: América Latina; regulação trabalhista; Brasil; Argentina; anos 1990; anos 2000.

 

“ELEVEN YEARS OF PTISM AND KIRCHNERISM (2003-2014) – RECENT CHANGES AMONG CONTINUITIES IN BRAZIL AND ARGENTINA’S LABOUR REGULATION”

Wallace dos Santos de Moraes[1]

 

Despite its huge heterogeneity, Latin America, as José L. Fiori reminds us, has always been synchronised. Whether in the wars of independence at the first half of the nineteenth century; in the primary-export integration to Europe’s industrial economy, after 1870; or in the developmentalist policies employed since the 1930’s, as a solution to the capitalism’s crisis. The coincidences go on. During the Cold War, in the 1940’s, almost all countries made their communist parties illegal, and in the 1950/60’s and 70’s, several military coups against democratically elected governments occurred.[2]

In the 1980/90’s, Latin America wasn’t left out of the neoclassic experiences; actually, the mainland was a big laboratory for its policies. So much so that no other place has been injected in such a deep and drastic manner with the Washington Consensus’ prescription and, at the same time, has suffered so much because of it. Besides the low growth rates and the structural unemployment, the crises derived from it can be widely noticed throughout the mainland, like the ones in Venezuela (1989-1992); Mexico (1994); Brazil (1998/99); and Argentina (2001).Neoclassic policies have sustained and deepened three historical Latin-American shortfalls[3]: 1) income inequality and patterns of injustice; 2) the state’s incompetence to achieve socially desired results; 3) accountability.Despite the similarities among Latin-American countries, the progression and content of transformations under neoliberalism have varied  significantly , mainly dictated by decisions of political nature, in response to the struggle and organicity of domestic actors. Although we don’t refute the region’s common processes and characteristics, we point out that each country must be studied carefully, for there are particular relations within and different ones towards the others.

The concept of path dependence will help us to coherently understand the process. We define it as the ascertainment of choices made in certain junctures that result in positions in the present, which, once established, reduce the possibilities of alternative paths, as if there was a social causality dependent of the taken course observed in history.[4] In other words, path dependence outlines that, when choosing a certain path, a specific actor, or group of actors, is imbued with almost irreversible institutional heritages, demanding high costs for their reversal. Moreover, path dependence may include both positive and negative aspects.

Therefore, the creation of labour rights represented the beginning of the capital-labour (K-T) ratio’s path dependence. It emerged in the early decades of the twentieth century, under the predominance of social-democratic ideas, during a crisis in liberalism resulting from the ascension of anti-capitalist movements and the strengthening of trade unions. This walked side by side with a change in the state’s role.

The adoption of neoclassic policies at the end of the twentieth century, with the deregulation, flexibilisation and withdrawal of rights and/or increased difficulty in obtaining them – when the primacy of negotiation over legislation was supported –, has meant a deflection from the path. With it, the old path was destructed and  a new one, contrary to the interests of workers, was initiated. We call this a path dependence crisis or deflection. That was a worldwide trend, in which Brazil and Argentina fit.Under a comparative perspective of the varieties of capitalism, there are five great interpretations specifically for Latin America (LA).One of them is by Renato Boschi[5]and Eli Diniz[6] and adds new analysis methods firmly based on the institutional background and on the flexibility of definitions of the region’s existing models. A different interpretation, as a basis for the Regulation Theory, is by Robert Boyer[7] (2005) and his wage-labour nexus concept. A fourth one is based on the methodological proposal built up by Evelyne Huber[8], which stipulates some criteria for the study of Latin-American economies without being attached to Eurocentric perspectives due to the huge differences between both regions. Lastly, Collier & Collier [9](1991) analyse the capital-labour ratio based on the concept of critical juncture.

But if there are so many comparative studies on varieties of capitalism in Latin America already, what’s the purpose of our research? Although they are utterly relevant and necessary analyses, their approach was different from ours. None of them treated the labour relations in Latin America on the twenty first century based on the path dependence concept, as we will.

When suggesting a method for analysing models of capitalism in Latin America, Sheahan (2002) rejected some of VOC’s arguments[10], claiming they are too focused on the characteristics of European economies, which are very much different from Latin American models. Hence the pertinent precaution of developing a study capable of identifying the proper characteristics of each country. At the same time, his studies show a certain lack of awareness of labour relations in some countries and don’t identify the new paradigms of the 21^st century model. Although his charts are very informative, his analyses do not reach the 2000’s – exactly when the period we intend to study begins.

From the methodological principles of regulation theory, Robert Boyer created a chart that aimed to represent the Latin-American model. Thus, Brazil has figured as a mix of clientelism and market orientation during the 1900’s, with rather flexible labour relations and slow economic growth. The Argentinian form of regulation is presented as largely market-oriented, with a high rate of labour flexibilisation. Nevertheless, Boyer mindfully observed the peculiar characteristics of Latin America, but in the previous context, that is, the neoliberal model. Therefore, his considerations are already obsolete for the new context, even though many aspects linger on.

In a hardworking study about labour movements in Latin America, Collier & Collier state that the emergence of Labour has been a key factor for capitalist development in the mainland. The authors are part of the classic social-democrat perception, according to which the institutionalisation of labour movements occurred by the hand of elites who took over power in the first decades of the 20^th century, thereby depriving the working class of the lead role, and making it dependent on measures taken by the ruling classes.

The methodology used by Collier and Collier (1991) consists of applying the idea of critical juncture and its heritage focusing on crucial periods of change in the relationship between the state and the labour movement. This change refers to two types of cleavages: between Labour (L) and State (S) and between L and capital (K).

We may say that little remained from those analyses. The beginning of the 20^th century and the policies of the new administrations established new paradigms in both countries and throughout the mainland, which were reflections of the rearrangement of social forces.

After this brief bibliographic overview, let us proceed to the analysis of law-production within the scope of labour law. First, we will briefly discuss the institutional heritage left by the adoption of the first neoclassic policies, aimed at dismantling what the state had to favour society.; Then we’ll discuss the policies adopted after the arrival of grassroots presidents at the Executive – Lula da Silva and Néstor Kirchner – as well as their political heiresses – Dilma Rousseff and Cristina Kirchner -, comparing them and studying their headways and regressions, always from the worker’s perspective. The central question that must be answered is: Have these presidents changed the guidelines on labour rights left by the previous neoliberal administrations? Let us begin with Brazil.

CONCILIATORY UNIONIST CAPITALISM: THE BRAZILIAN CASE

Regarding labour policies, Brazil went through a liberal period until 1930, when a new economic model was established. The “Vargas Era” had begun. In that context, labour laws were legally consolidated[11] with significant State intervention in the economy. Some theorists defined the period as developmentalist, others called it state corporatism. During the 1980’s, the strength of trade unions and organised workers achieved new labour rights, reaching its apex with the 1988 Constitution. Striking was their main weapon.[12]

At the same time, liberal policies once again gained traction decisively. They were stimulated by the world’s greatest powers, big businesses, the reorganisation of collective associations of businessmen and by the intensive broadcasting of their ideas, gaining hearts, minds and most of all, governments. However, they would only become hegemonic over the next decade. That hegemony arose as a result of:1) the political victories of moderate right coalitions in the f 1989, 1994 and 1998 elections; 2) international organisations’ demands for primary surplus; 3) bureaucratisation, allurement and, consequently, impairment of trade unions; and 4) disguised censorship in the mass media, which has broadcast the liberal theses as the only possible way forward.

Therefore, the 1990’s were marked by: A) economic opening, which stimulated competition for the global market; B) a programme of privatisation; C) flexibilisation and/or withdrawal of rights; and D) increase of unemployment levels.

At this point, the labour mobilisation levels were very low, especially if compared with the prior decade.[13]A process of bureaucratisation and “oligarchisation” took over the leadership of trade unions, characterised by “defensive” negotiation instead of “progressive demanding”. The retreat of organised social movements was quite noticeable. Its main outcome was the fact that the struggles were then taken to the elections, turning them into History’s passive agents instead of active ones.

Besides, within the context of  economic opening,  associations of businessmen started to demand substantial changes to the precarious developmentalist model. The government has satisfied these demands, and in such context, the counter-reforms of the state, Labour and Social Security took place. In the 1990’s, demands regarding Labour legislation were particularly supported as a panacea for several economic problems in Brazil’s insertion into the globalised economy.“Excessive rights” were pointed out as obstacles to economic growth and to Brazil’s competitiveness in the international scenario. The Vargas Era had to end in order to reduce the so called “Brazilian Cost”. These were typical expressions from that time.

In such a context, against which, it was said, it would be useless to fight  several changes to the labour legislation were undertaken through Constitutional Amendments, Laws, Provisional Measures (PM), Decrees and Ordinances.T These changes flexibilised rights and/or impaired the inspection needed for their enforcement, or suggested a negotiation between employer and employee without appeal to the Judiciary. There are three types of measures that changed worker rights under Fernando Henrique Cardoso’s presidency listed below:

1)       CHART 1:  Changes in working time – These measures establish the worker’s complete dependent and subordinated adaptation to the exclusive interests of employers:

Source: Elaborated by the author

2)       CHART 2: Changes in the social security system and others:

Law/year	Subject	Comments
Law 8.949/94	Cooperatives	Highly criticised because it opens breaches for labour  fraud – placing at the same level companies who hire workers as freelancers, outsources, and now cooperative, allowing them to neglect rights and benefits.
Constitutional Amendment n.19/1998	Probationary Internship in the public service	This rule extended the probationary internship period from two to three years, among other measures. In force.
Constitutional Amendment n. 20/1998	Changes the social security system for public and private workers.	Requires a contribution time related to age in order to grant retirement pensions. Current requirements are a minimum ten years time of public service work, and five years on the job for the retirement of public servants. Considering the possibility of private insurance, it enables the fixation of the maximum limit for public servants’ retirement pensions as equivalent to the general social security system. In force.
Constitutional Amendment n. 24/1999	Classist legal representation in Labour Court.	Abolished classist legal representation[14] from the Labour Court.
Law 9.958/2000	Statute of limitations Rural	Consolidation of the statute of limitations for rural workers, who are able to reclaim in court only the rights from the last five years of employment. In force.
Law 9.958/2000	Established the Dispute Resolution Committee (DRCs)	This is a flexibilisation of rights by means of changes in procedural laws. The DRCs intend to negotiate labour rights denied by employers throughout the period in which the employee was working. Therefore, its existence, in the name of expediting the process, in practice means the withdrawal of some labour right(s) for the sake of the employer who denied it (them).  In force.
Law 10.272/2001	Controversy over the severance payment amount.	“In the event of termination of the employment contract, when there is a controversy regarding the severance payment amount, the employer is required to pay the employee, on the date of appearance in labour court, the incontrovertible share of this payment, under penalty of paying it with a 50% addition.” Studying the law literally, one could conclude that it favours the worker. The problem is that it substitutes another one, which provided the payment of the due amount in double, and not only 50% as now. In force.
Provisional Measure n.1950/2000. This Provisional Measure was converted into the Law 10.192/2001	Prohibition of Wage Indexation Clauses	The Provisional Measure prohibited the stipulation or fixation of an indexation clause related to price indexes. The Law 10.192, from 02/14/2001, maintains this prohibition. This is a Law in favour of Fernando Henrique Cardoso’s economic policy, based on the rejection of wage indexation.

Source:  Elaborated by the author

3)       CHART 3: Laws that increase rights for workers.

Law/year	Subject	Comments
Law 10.421/ April of 2002	Maternity leave	Before the Constitution, the time off for parental leave was 90 days, regulated in 1967. After the Constitution, it was extended to 120 days, about 4 months. The Cardoso adminsitration only regulated what was already established in the Constitution. This time off was stipulated on his last year in office.
Law n. 10.243. 06/19/2001	Disregards benefits as wage	“For the effects expected in this article, the following utilities granted by the employer will not be regarded as wage: I –clothing, equipments and others used during service.”

Source:  Elaborated by the author

Analyzing the above charts we realise that the changes occurred primarily on five fields.            1)Flexibilisation of working time; 2) changes in social security laws; 3) changes in procedural laws; 4) new methods of recruitment as a way of circumventing labour rights; 5) prohibition of indexation. All these changes were to the detriment of the interests of workers and demanded by businessmen. The only measures that benefited workers were:1) maternity leave regulation – already established in the Constitution; 2) banned employers from charging for the instruments and other necessary materials to the employee’s work. We may also include here the “bolsa-escola”[15], not as a labour right, but as a welfare policy aimed at reducing the suffering of  poor families.

On the other hand, fundamentally important rights like vacation and the thirteenth salary weren’t changed, showing a high level of path dependence from the previous state corporatism model.

The Cardoso administration initiates a new path for Brazilian labour rights, essentially based on the subordination of the interests of workers to those of businessmen’s. Our challenge is to investigate whether the governments of Lula da Silva and Dilma Rousseff continue or reverse what was created by their predecessor.

Finally,  the adoption of the first liberalizing policies in the 1990s not only brought forth the loss of universal labour rights, but above all the increase in poverty, inequality and violence in Brazil. The government created some socially-oriented programmes that sought to reduce inequality, but it wasn’t enough to obstruct its growth. Furthermore, banking institutions received strong support and security, reaching the highest profits yet.

The neoliberal period was a big defeat for labour. The government, capital and most of all, the big media monopolies  forged a “forced consensus”, legitimizing the then-current policies. Therefore, strikes were treated as an offense to society. The strikers’ proposals were spresented as merely corporative and against the interests of society and the country. The Judiciary played its role considering them illegal, imposing high fines to the most combative unions, weakening their action. The social sections that supported the struggles and popular claims were completely excluded from the media, and so, simply did not seem to exist. Amidst their guaranteed freedom, the unions could not improve rights, nor increase their combativeness; quite the opposite: They lost benefits and the strength to fight. Additionally, productive restructuring and privatisations drove millions of workers to the bitterness of unemployment.[16]Against these adverse circumstances, Luiz Inácio Lula da Silva was elected President of Brazil. A huge percentage of citizens put their hope in the new administration. Let us take a closer look.

THE LULA ADMINISTRATION (2003-2010)

This period cannot be studied without understanding the institutional heritage left by the Cardoso administration.The economy was opened and integration with international markets was pursued; almost all government-owned corporations were privatised or opened to private capital; the currency was stabilized with low inflation and monetary tightening. All these factors weren’t capable of achieving what all capitalist economies seek: Economic growth. Despite all liberalizing measures applied for its sake, it was insignificant. The most politically influential sector, and thus the most favoured, were the banks – with high interests and soaring profits – and without due counterbalance to society.

Industrial businessmen aimed to regain their power of influence through the renewal of their collective associations’ strategies. Their primary demands were: Tax reform, lower interests, state aid from  due to foreign competition, and reduction of labour expenses. Trade unions and social movements nearly crumbled and were left without the strength to bargain. As a result, worker associations  only weakly acted to pressure employers and the state to improve their quality of life and to enact income distribution, something much needed, especially considering that that income was substantially produced by the proletariat.

The Workers Party’s (PT) victory was only possible because the Cardoso administration and its policies had become completely discredited. Lula da Silva, with a very different posture and different proposals from 1989, seemed palatable and even the most viable choice to economical and political elites who intended to take over political control, though there was a subliminal fear of a lack of governability, caused by PT’s “radicals”. At that point, Brazil was the most unequal country in the world, with high rates of unemployment, workers in precarious conditions – some of whom working under conditions comparable to slavery – , poverty, hunger and the resultant violence. More than half of the economic activity rate (EAR) was comprised of people who did not have a formal job and, therefore, were entitled neither to labour nor to social security rights.The heritage left by the Cardoso administration regarding social rights – which are our main subject –  was the need to start the deconstruction of what was created under state corporatism. We have mentioned before several of measures which impinged upon labour rights. The changes in social security laws were made to extend the amount of worked time required in order to qualify for  the retirement pension. All these rules were widely requested by the capitalists’ associations. Faced with these circumstances, let’s see  what was accomplished by Lula da Silva’s presidency on his two mandates by looking at the main changes to the labour legislation. We must say in advance that not all laws were against workers’ interests. Some of the rules enacted were in favour of workers, others against their interests, and others still , advanced the interests of the unionists enrolled at labour federations that supported Lula. We have divided the rules into three categories: 1) Pro-unionist; 2) Laws against Labour; and 3) Pro Labour Laws. Let’s see.

CHART 4: PRO-UNIONISTS LAWS:

Law/year	Subject	Comments
Law 10.790/2003	Concession of amnesty to leaders of trade unions for their participation in strikes.	Grants amnesty to leaders and representatives of trade unions and workers punished for participating in the Petrobrás strikes during September 1994 and September 1996.
Proposal of Constitutional Amendment 395/2005	Trade union reform	It widely satisfied CUT’s[17] demands. Regarding its corporate and bureaucratic interests, this amendment was truly victorious, especially when it comes to the legal acknowledgement of labour federations and the subsequent increase of their leaders’ visibility power; the difficulty in creating competitor trade unions; representation at workplace; the prevalence of Central’s decisions over those of grassroots organizations; and  protection of the rights of union activities.
Law 11.282/2006	Amnesty to the Brazilian national postal service company employees, who were punished for their participation in strikes.
Law 11.295/2006	Changes article 526 from the Consolidation of Labour Laws[18], establishing the right to unionise for the employees of a trade union.
Law 11.648/2008	Acknowledgement of extant  labour federations.	CUT and other labour federations were acknowledged as governing bodies for trade unions.

Source:  Elaborated by the author

CHART 5: LAWS AGAINST LABOUR:

Law/year	Subject	Comments
Flexibilizing laws from the Cardoso administration.	Renewal	All flexibilizing laws created under Cardoso were renewed or not contested by Lula da Silva, demonstrating his compliance with them. We’d like to draw attention to the ones which flexibilised working time and social security laws.
Constitutional Amendment nº 47, July 5th, 2005.	Changes articles 37, 30, 195 and 201 from the Constitution, in order to reform social security	Lula da Silva continued and deepened what was initiated by Cardoso. The transformations on social security have followed a global trend of imposing the requirement of having a higher age and more time in service in order to obtain a full retirement pension. Without question this has meant a defeat for workers’ interests.
Law 11.196/2005	Permits the recruitment of service providers as a one-person company.	This modality of recruitment, named “juridical person”, allows the employer to be exempt from paying vacation, 13th salary, Time in Service Guarantee Fund (FGTS), overtime, severance pay and transfers the responsibility of paying taxes as well as the social security contribution to the employee. This type of recruitment is disadvantageous for workers.
Proposal of Constitutional Amendment 395/2005	Trade union reform	One of the reform’s main characteristics is the prevalence of the negotiated over the legislated, which means the possibility of disregarding laws through negotiation. This proposal is under evaluation by the National Congress’s Comissão de Constituição e Justiça e de Cidadania[19] (CCJC)  since October 2011.
Law 11.603/2007 Allows commerce  employees to work on Sundays and holidays.			The Lula administration approved Law 10.101, from  19/12/2000, which permits  commerce employees to work on Sundays and holidays.
Law 11.788/2008	Student internships	In practice, allows the use of students’ workforce without granting them the rights of formal workers.

Source:  Elaborated by the author

CHART 6: DUBIOUS INTERPRETATION

Provisional Measure 284/2006 turned into the Law: 11.324/2006.

Domestic work

Lula vetoed part of this PM which would favour about 6.5 million domestic workers in Brazil. After intensepressure from the media (several reports on Globo newspaper and TV news), the government decided to refuse:1) the obligatory payment of FGTS to domestic workers; 2) the payment of a 40% fine to the employee in case of wrongful dismissal. These are, by the way, classic rights afforded to formal workers in Brazil. The justification for the veto was avoiding an increase in the rate of  informal work. However, the Lula administration passed the rest of Provisional Measure 284, which guarantees paid rest period, preferably on Sundays, vacation of 30 calendar days instead of 20 workdays, and the prohibition of deducting of expenses such as dwelling, food and hygiene from domestic workers’ salary. Really “kind” social measures indeed, which help us to distinguish domestic workers from slaves.

Source:  Elaborated by the author

CHART 7: PRO-LABOUR LAWS

Law/year	Subject	Comments
PM 132/2003 from 10/20/2003, turned into Lei 10.836/2004	Bolsa-família programme	The bolsa-família programme helped millions of people to escape extreme poverty. It has played an important role in saving lives, but it does not enable the emancipation of people and it is far less than what is dedicated to bankers and speculators.
Law 10.779/ 2003	Concession of unemployment insurance to fishermen.	Establishes the concession of unemployment benefits for artisanal fishermen during periods of fishing bans.
Law 10.710/2003.	Changes the Law nº 8.213, from 07/24/1991.	Reestablishes the payment of maternity leave, by the company, for  pregnant employees. The amount paid by the employer is compensated by the company’s debts regarding their social security contributions.
Law 11.770/2008.	Creates the  “citizen company” programme, dedicated to prolongingmaternity leave through tax incentive, and changes the law nº 8.212, from July 24th, 1991.	Maximum time for maternity leave was settled at 12 weeks and could be extended to two more, with a medical certificate. After the Constituent Assembly in 1988, that time was extended to 120 days, with the possibility of a two-week prolongation. During Lula’s administration, it could be optionally extended to six months. The feminist and healthcare movements were  responsible for pressuring in favour of pregnant women. It was truly incoherent to have the Ministry of Health advocating six months of breastfeeding while the female worker was only allowed a 120 days leave.  There is no loss for businessmen with the upgrade to this benefit.
Various laws	Creation of public service careers	There were many laws which regularised the professions of public servants during the Lula administration, and several public service careers were even created. Additionally, the government opened many positions in the federal civil service to be filled through public examination. .

Source:  Elaborated by the author

We may conclude by listing some important aspects of the changes undertaken by the government. By analyzing the laws described above, we notice that most of the changes satisfy the interests of businessmen and unionists. Additionally, we may say that the Lula administration is a continuation of the Cardoso administration, showing a high rate of path dependence for the reasons below:

1. The measures which flexibilised labour laws under the Cardoso adminsitration were renewed by Lula da Silva, which shows he complied with them. That is, he did not reverse them and, therefore, neither restored or established a new developmentalist project, nor clamped down on the neoliberal policies.
2. The social security regulation, which worsened the situation of workers during the Cardosoadministration, was deepened by Lula da Silva.
3. The PTist administration created new ways of flexibilizing laws to the detriment of  workers’ interests.
4. Reduced working hours, salary adjustment to the actual cost of living and steady employment were not put into effect by the government. The protection against arbitrary dismissal was not implemented, sustaining the disrespect to ILO’s Convention 158, like the previous administrations.
5. None of the pro-labour measures were universal. The government favoured fishermen, pregnant women, some sections of the public service and mainly the already existing labour federations, which were legally acknowledged, while several other social sections remained forgotten. It should be noted that none of the measures counted on the contributive involvement of businessmen. In other words, the governmentrestrained itself when undertaking pro-labour measures so that the profits of capitalists were not harmed.
6. The Lula administration differs from the Cardoso administration  in that it acknowledged some of the demands put forward by unionists – who are his primary social basis – when he pardoned some unionists penalised by the previous administration.
7. The PTist administration has substantially increased public employment, reopening examinations for several job posts. That was really positive for the portion of workers who aimed for a position in the public service, looking for stability in a context of widespread unemployment and insecurity in the private sector.
8. The conciliation between social classes was his main feature, intending to unite the interests of capitalists and unionists, nevertheless keeping workers submissive and without a substantial enhancement of rights. The only exception we must make is regarding Bolsa-Família, which aided a considerable number of people, improving their quality of life and in return allowed PT to remain in power for at least three more terms.Capital was not burdened with any onus during this period, quite the opposite. The Brazilian Development Bank (BNDES) and the government itself have helped it with exemptions and funding. The collective associations of businessmen did not need to refine their collective action because the government did not break with the established mode of production, neither did it satisfy workers’ interests in general.
9. With trade unions and social movements weakened and unable to bargain, rights did not increase. Although the political power of CUT’s unionists grew, the major social inequalities remained.

The policy of economic stability by means of inflation control through high interest was identical to that of the previous administration. Furthermore, the labour federation created by Lula continued to be his main social basis, increased by the Bolsa-Família beneficiaries, ensuring the election of his political heir. The path dependence regarding the Cardoso administration was huge. There were no major changes, but there were great continuities.

THE DILMA ROUSSEFF ADMINISTRATION (2011-2014)

The institutional heritage left by the previous administrations and mainly by Lula, her political godfather, turned out to be big and almost irreversible, as the path dependence concept shows.Changes to macroeconomic policies were practically ephemeral. Fiscal adjustment, primary surplus and few social investments characterised her policies’ liberal approach. Simultaneously, the government provided multiple tax exemptions, federal VAT reduction for automakers and other industrial sections.

Regarding Social Security, among countless changes, Rousseff regularised the supplementary pension for public servants, instituted by the Constitutional Amendment n.20 from December 15^th 1998, issued by the Cardoso adminsitration. As we have already shown, Lula da Silva had also continued the social security counter-reform through other constitutional amendments. This regulation was a great regression when establishing the complementary pension for federal public servants, which was an indubitable loss of rights to workers.

During the early years of the Rousseff administration, most of the public service went on strike, demanding better salaries, better working conditions, etc. The president responded with a paltry raise and, simultaneously, with a law which will impede almost all strikes  by public servants. A huge regression.

While few additional labour rights were created, all flexibilizing measures adopted by the previous administrations were renewed or not questioned, which shows compliance with them, as was the case with the social security counter-reform. Additionally, , in June 2013 the biggest popular uprising in Brazilian history emerged as an expression of dissatisfaction with all levels of government. The enraged population occupied the National Congress and attacked the main symbols of the state: government palaces, legislative assemblies, city councils, tollbooths, and windows of banks. One of the many reasons which drove people to the streets was widespread disappointment with the PTist administrations, which were not substantially different from their predecessors.

Let us look at the main legislative changes from this period.

CHART 8: Laws against the interests of workers:

Law/year	Subject	Comments
Multiple laws, mostly the ones which flexibilise working time.	Renewal and/or compliance with flexibilizing measures.	All the flexibilizing measures from the Cardoso and Lula administrations were renewed or not questioned by Rousseff, showing her agreement with them. See previous charts.
Law nº 12.618/2012	Establishes the complementary pension system for federal public servants (…); sets the maximum limit for the concession of retirements and pensions through the special insurance system.	Unfavourable to public servants, as it   does not guarantee full retirement. This law applies both to new servants  and old servants who decide to migrate to complementary insurance.

Source:  Elaborated by the author

CHART 9:PRO-LABOUR LAWS

Law/year	Subject	Comments
Law n. 12.506/2011	Establishes the relation between severance pay and time in service	This law is  important for workers who have more time in service. It states:“Three days will be added to severance pay for each year worked at the same company, up to 60 days,making up a maximum of ninety days.”
Law n. 12.440/2011	Establishes the Certificate of Good Standing	In Venezuela there is an equivalent law, with an aggravation in case of labour debt: businessmen are not  able to receive funding or bid in public tendering. In Brazil, there are no such rules, making it more fragile.
Law n. 12.551/2011	Acknowledges remote work as a type of employment	Favourable to workers, because it acknowledges work from home or remote work as a type of employment, which must, therefore, respect all rights like any other. This law modified article 6 of the CLT,  which addresses remote work.
Law n. 12.690/2012	Describes the organisation and functioning of Labour Cooperatives	Favourable to workers, because it prevents cooperatives from being used to circumvent labour rights, as had occurred in multiple situations.

Source:  Elaborated by the author

The Cardoso administration  set a new guideline for the path of labour rights in Brazil. It set in motion the flexibilisation of labour and social security laws, going against workers’ interests. These measures imposed a new situation on the capital-labour ratio in Brazil. Lula da Silva did not reverse these measures and  even renewed them. President Dilma Rousseff follows the same conduct. Thus, when it comes to labour laws, we cannot say that the three administrations pursued completely different projects. On the contrary, we notice strongcontinuity and complementarity. From the path dependence perspective, the path initiated by Cardoso was steadily maintained by Lula da Silva and Rousseff.

 

THE ARGENTINE CASE

NEOLIBERAL PERIOD

On July 1989, president Raúl Afonsín handed on the presidential sash to Carlos Saúl Menem. That was the first constitutional succession since 1928, and the first time, since 1916, that a president turned power over to an opposing candidate: everything suggested a consolidation of the democratic regime in Argentina.[20]That did not happen. Economic and political elites in Argentina have serious difficulty in agreeing and are more predisposed to rupture than to conciliation. It wasn’t different with the new representative. Although Menem achieved a second term, his successor Fernando De la Rúa was not able to finish it. No doubt these administrations represented a period of big transformations, with no political or economical conciliation and their subsequent effects on society.

The Menem administration rigidly stuck to the neoliberal prescription for Latin America. His administration mostly adopted the calendar of reforms, privatising almost everything, following the monetarist line of inflation control, carrying out  economic and financial opening, and even dollarising the economy. In that context, labour and social security laws were equally attacked. Summing up, the Washington consensus was almost fully applied.

In turn, the collective associations of businessmen demanded more flexibility in labour relations, lower costs of employment recruitment, dismissal and upkeep.[21]All the arguments from the government and businessmen to attack labour rights were justified by the idea that employment would increase. Lanari’s empirical research refutes this argument by showing how the Washington consensus’ policies increased unemployment and, consequently, poverty.[22]

In order to resolve the chronic unemployment situation caused by the liberalizing policies, Menem didn’t create measures that would open new job posts. Instead he undertook a series of programmes (“politicas de promoción del empleo”) focused on subsidizing precarious jobs for the unemployed, which did not seek to promote a new form of social inclusion, but to ameliorate the unemployment  until labour market conditions were better. Hence, more than ten transitory employment programmes were implemented during the 1990’s, such as: Programa de Empleo Privado (PEP), Programa de Empleo de Interés Social (PROEDIS), Programa Coparticipado (PROCOPA), Programa de Asistencia Solidaria (PROAS), Programa de Entrenamiento Ocupacional (PRENO), Programa Asistir, Programa Servicios Comunitarios, Programa Desarrollo del Empleo Local, Programa Intensivo de Trabajo (PIT) and Programa Trabajar (PT). [23]

The neoliberal decade was  adverse  to the working class, with the loss of rights, low income, economic crisis, an exorbitant raise in unemployment and informal work levels, in contrast with the country’s historical trend of almost full employment.

Curiously, the oldest labour federation still active in Argentina – CGT – tended to support the labour flexibilisation initiatives conducted by the Executive.[24]Therefore, the government stimulated the creation of a consensus around  abandoning strikes and supporting legislative initiatives contrary to workers’ interests  like the employment law, the work accidents law, the social security reform, as well as the privatisation of public companies.[25]

On the other hand, the “piquetero” movement, based on direct action and horizontality, emerged as a great political force beyond the state’s institutional control, helping to build a new cycle of struggles for rights. Pari passu, that was an important moment of demonstrations and the (re)building of multiple social movements, the main slogan of which was: “que se vavan todos!”, against the political class in general.

The 1990’s show another common characteristic  of Argentina’s policies:  using the Judiciary for political ends. Under Menem, the Supreme Court mostly decided against the workers’ interests.[26]Its excuse for restricting labour rights was the emergency brought about by the economic crisis, overriding the regulation of collective conventions, according to which no law can be changed to induce the loss of rights and worsen the situation of workers.

Let’s take a look at the labour regulation in Argentina under the neoliberal period. Before that, one last explanation is needed. The period we understand as neoliberal includes the Menem (1989-1999) and De La Rúa (1999-2001) administrations, as well as the great political crisis marked by instability, with serious governability problems, when several politicians held the presidency in a short period of time (2001).[27]

CHART 10: LAWS AGAINST LABOUR[28]

Law/year	Subject	Comments
Law n. 24.013/ 1991	National Employment Law. e Flexibilisation of working time. – Creation of the “Procedimiento Preventivo de Crisis de Empresas”. Creation of four “Modalidades Promovidas” of recruitment. Contrato como medida de Fomento de Empleo, Contrato por Lanzamiento de Nueva Actividad, Contrato de Pratica Laboral and Contrato de Trabajo-Formación. These are fixed tern recruitment modalities with a promotion system (reduction of 50%-100% of contributions to social security).They were later overturned by the Law 25.013/98. – Regulation of temporary contracts and outsourcing. – Establishment of employment programmes for groups with employability difficulties.	The main characteristic of these laws was the felixibilisation of working time, because it reduced the maximum legal working time, and established calculation methods based on the average time, through collective negotiation. The intent was to legitimate collective dismissals, justififed for reasons of “force majeure” and economic or technologic causes. However, new employment modalities were created for specific excluded groups, even though they did not have the regular labour rights.
Law n. 24.467/ 1995	(Estatuto para la PyME – Régimen Especial de relaciones de trabajo para la Pequeña Empresa).	Small companies must propose to trade unions the alteration of certain regulations when deciding to restructure their personnel for technological, organisational or market reasons, without depending on the union leadership’s agreement. Authorises small companies to fragment of the 13th salary through collective negotiation. Under SMEs, the notice of termination notice has the duration of one month, regardless of the amount of time in service.
Law n. 24.522 – 1995	(Régimen de Concursos y Quiebras)	This established the prevalence of the negotiated over the legislated. The companies and the corresponding trade unions may negotiate a collective bargaining of crisis through a preventive agreement in up to3 years.
Law n° 24.465/1995	Employment Promotion Law	In order to createnew job posts, this law worsened labour activity and neglected labour rights – Creation of the Part Time Contract with the rendering of services for a set number of hours per day, during the week or month, for less than two thirds of the regular working time.
Law n° 24.465/1995	Employment Promotion Law: Creation of the Probationary Period for open-ended contracts, with duration of 3 moths, extensible to 6 months through collective bargaining. The labour relationship may be terminated without justification and/or indemnity.	During this period,  contributions to the social security system and to the “Fondo Nacional de Empleo” were exempted.(replaced by Law 25.013)
Law n° 24.465/1995	Employment Promotion Law: Creation of the “Modalidad Especial de Fomento del Empleo” regarding the recruitment of workers older than 40 years, women, people with disabilities, and veterans of the Malvinas, with a set duration (6 months to 2 years) and promotion system.	This modality of recruitment had a 50% reduction of contributions to social security, and no indemnity for the contract termination. (replaced by Law 25.013)
Law n° 24.465/1995	Employment Promotion Law: Creation of the Apprenticeship Contract for young people aged between 14 and 25 years old,  lasting from 3 months to 2 years.	The only right acquired with this contract is health care in case of work-related injury.(replaced by Law 25.013)
Law n° 25.013/ 1998	Reforma Laboral: Legalised the Apprenticeship Contract, turning it into a modality of fixed-term contract, replacing the system regulated by the Law n° 24.465. – Created a new modality of internship. This law is regulated by the Decree n° 1227/01.	These are arranged between a private employer and a unoccupied student, aged between 15 and 26 years. The contract may last from 3 months to 2 years. With labour considered as internship, young workers might even learn a profession, but without the security of rights,  they undoubtedly become a cheap workforce to be exploited by employers.
Law n° 25.013/ 1998	Reduced the indemnity for unjustified dismissal for employment contracts made from 03/10/98 onward.	The calculation is 1/12 of the wage, for each month or fraction of month longer than 10 days. Minimum: 2/12 of the wage. The basis cannot exceed 3 times the average of all remunerations established through collective bargaining. The Ministry of Labour sets the scales.
Law n° 25.013/ 1998	Outsourcing	Legalised the outsourcing of workers with fewer rights and smaller salaries.
Law n° 25.250/ 2000	Reforma Laboral:	Inverts the order of collective bargaining, privileging agreements between companies. – Establishes the obligation to maintain small (essential) tasks  during collective conflicts (strike).
Law n° 25.250/ 2000	Reforma Laboral:	Altered the Probationary Period for open-ended contracts, establishing: 3-6 months for companies in general; and 6 months-1 year through collective bargaining for small companies.

Source:  Elaborated by the author based on Argentina’s legislation and Lanari’s (2003) data

CHART 11: CHANGES IN SOCIAL SECURITY LEGISLATION

Law/year	Subject	Comments
Law n. 24.013/1991	National Employment Law	– Reduction of 50% to 100% of contributions to social security for the new modalities of recruitment. (Derogadas por la Ley 25.013/98).
Law n° 24.241/ 1993	Integrated System of Retirements and Pensions	The new system increased the age required in order to obtain full retirement.
Law n° 24.241/ 1993	Integrated System of Retirements and Pensions	By applying a scale, it determined the limit and reduced the payment for those who surpassed $3.100. – Cancelled the bi-annual adjustment of benefits, restricting it to the availability of budget. – Enabled the beneficiaries who decide to continue working to remain in service without losing their benefits, but they must continue to contribute without any increase in their retirement. – Conferred to the Executive the right to establish reductions of contributions to the social security system. – In case of judicial appeal to the Estate by a beneficiary, the expenses are divided between both sides.In the event of a sentence in favour of the beneficiary, it will be limited to the state’s budget availability.
Law n° 25.250/ 2000	Promotion system for new open-ended recruitments	Created a promotion system for new open-ended recruitments with reduction of contributions to social security that range from 33,33% to 50% of regular contributions. Limited the social security benefits according to the availability of budget.

Source:  Elaborated by the author based on Argentina’s legislation and Lanari’s (2003) data

CHART 12: PRO-LABOUR LAWS

Law/year	Subject	Comments
Law n. 24.013/1991	National Employment Law	Creation of the “Sistema Integral de Prestaciones por Desempleo”.This is the same as unemployment insurance. The workers whose formal labour relationships were terminated and are unemployed are able to receive financial aid. A significant number of workers were kept out of the programme, specifically those working in the following sectors: civil construction, agrarian, domestic service, Administración Publica Nacional, Provincial y Municipal, private schools and private universities. The installments are calculated using half of the best regular monthly wage from the previous 6 months of work, the amount of which  cannot be more than $300 or less than $150. The duration of the benefit duration is related to the time in service and to the “Sistema de Seguridad Social – Fondo Nacional de Empleo” contributions – from the 3 previous years before the contract’s termination. The coverage is 4 moths minimum and 1 year maximum.
Law n° 25.013/ 1998	Changed the termination notice regime for employment contracts made from 03/10/98 onward.	Determined the deadlines of termination notices: a) Employee: 15 days, b) Employer: in case the employee has worked for more than 30 days and up to 3 months: 15 days; more than 3 months up to 5 years: 1 month; more than 5 years: 2 months.
Law n° 25.013/ 1998	Indemnity for discriminatory dismissal.	Created the indemnity for discriminatory dismissal for employment contracts made from 03/10/98 onward, based on race, gender or religion. This was one of Menem’s few positive laws.

 

In the late 1980’s, Argentina began a period of great economic and employment crises. The adoption of neoliberal policies in the 1990’s did not soften the crisis. The government’s response was creating flexibilizing measures on labour relations along with employment programmes for the increasing number of unemployed. The job posts were, as usual, precarious and without rights.

In short, the main characteristics of the period were:

1)      The first labour flexibilisation laws occurred in 1991, the main characteristic of which was liberalizing the possibility of altering working time, establishing various open-ended recruitment modalities.

2)      In 1995, the probationary period came into effect, which allowed employers to dismiss workers during the first three months of contract without the onus of paying indemnities, including severance pay. During this period, employers were exempt from contributing to social security, but only to health insurance.

3)      Privatisation of the retirement system.

4)      A meaningless division of the 13th salary into three installments.

5)      An unemployment growth never seen before in Argentina, with a decrease of salaries and a worsening of working conditions.

6)      The government reduced the costs of recruitment and dismissal by encouraging the adoption of the flexible contract. In 1995, the Pyme Law 24.467 was approved, which reduced the costs of dismissal to one month, regardless of  the amount of worked time. Its implementation granted some benefits to SMEs: reduced costs of dismissal, and flexibilisation of working time, allowing collective agreements to settle more daily hours than the usual without exceeding the annual maximum time.

7)      The creation of a trade union requires the authorisation of the Ministry of Labour, which commands much of its action. The state’s corporative structure remains in force. Absurdly, the state controls: a) the conferral of the application and right to union’s representation; b) the call for elections; c) control of property; d) control of elections; e) forfeiture of the right of union representation, etc.

8)      The trend shown by the government was the conciliation between employer and employees around labour laws, pointing to a direct negotiation between unions and businessmen within the company . There was no improvement on inspection or enforcement, which remained quite precarious. In turn, workers had to appeal over and over to the Judiciary in order to recover their rights.

From a comparative perspective, the Menem adminsitration deepened labour flexibilisation more than Fernando Henrique, Lula da Silva and Dilma Rousseff.

9)      Finally, although Carlos Menem intensified the flexibilisation of labour laws, his administration also created some benefits for the working class.

 

THE KIRCHNER FAMILY PERIOD (2003-2014)

Attempting to put an end to the institutional, economic and governability crisis, but mostly to the legitimacy crisis, Néstor Kirchner took over the presidency of Argentina in 2003. It is evident that his government began with a great deal of pressure and distrust from the people. The primary mission was to put out the fire made by the policies enacted by Menem, De La Rúa and the other presidents who briefly took charge in 2001. Kirchner and the political and economic elites in Argentina knew that some pro-labour policies were necessary, or the legitimacy crisis would go on. In that context, the flexibilisation policies became the main target.

In 2011, in the first trimester, the labour statistics were as follows: 23% of the EAR had informal jobs, while 7% were unemployed. These numbers are close to the ones before the neoliberal period.[29]Let’s take a look at a recent background in order to compare the unemployment rates below.

CHART 13: EMPLOYMENT, ACTIVITY AND UNEMPLOYMENT TIME SERIES 1990-2002

EMPLOYMENT, ACTIVITY AND UNEMPLOYMENT TIME SERIES 1990-2002
URBAN EMPLOYED			URBAN UNEMPLOYED		ECONOMIC ACTIVE RATE
Year	Total (millions)	Employment rate	Total (millions)	Unmployment rate	Total (millions)	Activity Rate
1990	S/D	36.1	S/D	7.5	S/D	39.1
1991	10,201,000	37.0	799,000	6.5	11,000,000	39.4
1992	10,474,000	37.3	793.000	7.0	11,267,000	40.0
1993	10,645,000	37.3	1,124,000	9.6	11,769,000	41.3
1994	10,694,000	36.3	1,254,000	11.5	11,948,000	41.0
1995	10,259,000	34.7	2,165,000	17.5	12,424,000	42.1
1996	10,251,000	34.3	2,065,000	17.2	12,316,000	41.5
1997	10,784,000	35.9	2,022,000	14.9	12,806,000	42.2
1998	11,433,000	36.9	1,685,000	12.8	13,118,000	42.3
1999	11,494,000	36.7	1,874,000	14.2	13,368,000	42.8
2000	11,465,000	36.2	2,044,000	15.1	13,509,000	42.6
2001	11,666,000	35.2	2,238,000	17.4	13,904,000	42.5
2002	10,968,000	34.1	2,965,000	21.5	13,933,000	42.4

Source: Lanari, 2003: 28.

 

 

CHART 14: Unemployment rate (%) per year – 1981/2011

 

Source: Elaborated by the author from INDEC’s data (http://www.indec.gov.ar)

Based on this data, we notice that the unemployment rate during the neoliberal period reached 17.3% in 1996, and in 2001, year of the great crises, it reached its apex, at 18.3%. Currently it is 7.1%, showing a significant decrease, though it is still high, especially if compared to the country’s long-term background.

Since poverty, unemployment and social instability were high, with almost daily protests, the government implemented the “Plan Jefes y Jefas de Hogar Desocupados” (PJJHD) in 2003. This welfare policy aids unemployed family heads. In March of that year, it reached 2.000.000 beneficiaries. Nevertheless, as of 2004, with the economy to an extent in recovery, the government decided to discourage the PJJHD, creating the Plan Famílias por la Inclusion Social and the SCE (Seguro Capacitación y Empleo). The first seeks to assist people with few possibilities of getting a job and are currently dependent on welfare. To take part in the SCE, individuals must commit to undergoing some kind of orientation and assistance in search of employment, basic training and then accept job offers.[30]

“In 2002, the PJJHD reached almost 1,800,000 beneficiaries, while Plan de Familias reached 36,000. In 2007, the PJJHD reduced its coverage to 757,000 people, while Plan de Familias reached 498,000 beneficiaries. The SCE only reached 71,000 people in 2007. In early 2010, the PJJHD was almost extinguished, while the Plan de Familias maintained the rates from 2007”[31].

These measures were necessary for the administration to gain legitimacy and to avoid conflicts with its allies, mostly inside CGT, whose own political orientation was being questioned by the emergence of grassroots activism cores.

Additionally, the labour struggle intensified when, in 2005, the government started to follow a clear orientation of wage restriction. Furthermore, with the crisis, the government created the REPRO programme (Programa de Recuperación Productiva), that subsidised wages for companies who claimed to be in a crisis, seeking to avoid the dismissal of workers. Féliz and Pérez remind us that Volkswagen and Ford had many workers subsidised by the government in this programme.

Now let’s take a look at the changes to labour rights. We will mostly discuss the changes made during the Kirchner administration in the Law: 20.744/76 – “Ley de contrato de trabajo”. We divided the main laws into two charts. The first is pro-labour laws, the second, laws against labour.

CHART 15: PRO-LABOUR LAWS

Law/year	Subject	Comments
Law: 26.428/2008.	Principle of preference to workers.	Stipulates that in case of doubt the worker must be favoured.
Law: 26.390/2008.	Prohibition of child labour	A needed measure, since the crisis drove millions of children to the precarious labour market.
Law: 26.088/2006.	Change to working conditions	Employers cannot change working conditions in a way that harms workers.
Law: 25.877/2004.	Prueba (Probationary) Period	While Menem adopted the possibility of the probationary period, Kirchner imposed that it be considered  time of service for rights and social security. However, he maintained the three-month probationary period.

Source:  Elaborated by the author

CHART 16: LAWS AGAINST LABOUR

Law/year	Subject	Comments
Laws 24.013/1991; 25.013/2000	Outsourcing	The Kirchner presidents did not reverse the possibility of outtasking, with outsourcing.
Law: 26.474/2009.	Part-Time Contract	Maintained the part-time contract created during the neoliberal period, but stipulated that workers hired under this modality have priority when filling actual posts.
Law: 24.013/1991.	Working time flexibilisation: Fixed-term contract; casual work and overtime bank.	The Kirchner government did not revoke the fixed-term contract nor the casual work created during the neoliberal period.
Law: 25.877/2004.	Termination notice	The termination notice regulation remained the same since the 1998 law.
Law: 25.877/2004.	Indemnity for unjustified dismissal	Did not revoke the reduction of indemnity for unjustified dismissal created during the neoliberal period. I If the company justifies the dismissal, it will pay half of what is required by the law. According to the law, it is sufficient to claim “force majeure” to pay half of the regular indemnity.

Source:   Elaborated by the author.

 

Kirchner’s policies did not manage – and did not seek – to reverse the heritage left by the neoliberal period. The path dependence was huge, especially if we take into account that nearly half of the EAR is either still unemployed  (almost 2 million people)  or working in the informal sector, that is, outside of the coverage of social security (approximately 4 million people).

In short, the path dependence for neoliberalism was significant, showing the following characteristics:

1)      The main flexibilizing laws adopted during the period of market-oriented reforms were renewed by Kirchner, especially if we look at the working time laws.

2)      There was no substantial change in relation to the neoliberal period.The state’s corporative structure remained in place, with all associative life under state control. The creation of a trade union still requires the authorisation of the Ministry of Labour.

3)      The SMEs continued to have the possibility of dividing the thirteenth salary into three installments, making it virtually meaningless.

4)      The unemployment rate remained high, even though it has decreased in relation to the previous period.

5)      Between 2002 and 2005, the government imposed a double-indemnity for dismissal.

6)      The High Court adopted a more tolerant posture towards the interests of workers. Simultaneously, the chief unionists follow the government’s agenda, rejecting confrontation via strike.

In short, the Kirchner administrations renewed or did not reverse the main flexibilizing policies from the neoliberal period. Only a few pro-labour laws were created and/or re-instated. Therefore we may conclude that this administration continued the flexibilizing measures and did not deepen them, but made use of various welfare programmes to soften them and to fight poverty and precarious employment. Nevertheless, these measures were enough to temporarily put out the fire of popular dissatisfaction with the country’s institutions. From November 2012 until November 2014, the protests against the government increased enormously throughout Argentina, recalling the actions from 2001 and 2002.

CONCLUSION

We will conclude this article by drawing two comparisons: one between both countries; and the other between the historical periods within each country. Taking the long-term perspective, we see a first similarity. That is, the origin of state intervention on the capital-labour ratio, which was linked to state corporatism in both countries.  In Argentina, corporatism had a strong partisan dimension, but not in Brazil. In both countries, it was a form of social control directed at the working class.

The neoclassic measures, adopted mainly during the last decade of the twentieth century, did not succeed in establishing a totally liberal relation between Labour and Capital. In other words, most of the labour rights survived the neoliberal attack on both countries, which shows significant path dependence in both cases.

Adopting a comparative perspective in our analysis turned out to be really important for us to realize how much symmetry there is in the adoption of labour policies in both countries. We were able to notice that the flexibilizing laws had considerable similarities both in their content and in the period during which they were enacted. Even their names were nearly the same.

The main changes in both countries were: 1) Flexibilisation of working time, with the creation of laws which allowed: part-time work, overtime bank, fixed-term work; 2) Legalisation of outsourcing, allowing worker recruitment through companies which pay lower wages and usually offer precarious employment; 3) Creation of laws regarding cooperatives, which enabled workers to be hired as members of cooperatives without formal rights; 4) Alteration of social security laws, increasing the time of service and contributions required for retirement; 5) Sanction of internship laws, which directly enabled hiring practices that neglected rights ; 6) Creation of the dispute resolution committees, “CCPs” in Brazil and the “Seclo” in Argentina, at the same period, seeking to avoid and/or reduce legal proceedings by workers against employers. According to Palomino and González (2006), the indemnities achieved via Seclo were considerably less than that to which the workers were entitled. These forms of negotiation usually neglect rights in the name of achieving speed, in contrast to the delays faced in the Justice system. Consequently, employers gain an advantage when disregarding rights.

Together, these changes represented a prevalence of the negotiated over the legislated, something that was demanded by the companies’ associations in both countries.

Regarding labour policies, there is no dichotomy between the neoliberal period (1990-2002) and the period that followed (2003-2014), even if one wishes to give it a different name. Instead, both countries saw a continuity of the flexibilizing policies of the 1990’s, which were mostly renewed, deepened and/or unquestioned by subsequent presidents. Therefore, the idea that the Lula da Silva, Dilma Rousseff, Néstor and Cristina Kirchner administrations were more beneficial to workers’s interests than those of Cardoso and Menem is an illusion. This illusion was created due to the attacks against labour rights initiated by the neoliberal administrations, but the fact that the following administrations did not reverse the established trend and actually continued it is overlooked.

Furthermore, in 2000, there was no significant increase of rights for workers.  There was some improvement with the reduction of poverty and unemployment, according to the official data. However, it still falls far short of the ideal life for workers.

On the other hand, since many rights remained intact, calling them liberals is a mistake. As we have shown, they even strongly intervened in the economy, also creating welfare policies for the poor – i.e, policies focused on fighting poverty or unemployment. All the analysed administrations had some policy of that kind. However, the ones from 2000 and 2010 had broader policies. If we compare both countries, we find that the Brazilian administrations made more investments. Additionally, all of them created or regularised some rights for workers, even if they were not very significant.

The worst president of all in terms of workers’ interests was Carlos Menem. The extremeness and range of neoliberal measures were really carcinogenic to social rights and even to the guarantees provided by the state. The government legislated various aspects:1) The probationary period, which could range up to one year, without guarantee of rights; 2) permitted the alteration of working time; 3) authorised the fragmentation of the 13^th salary; 4) reduced the costs of dismissal, with a lower indemnity or even no indemnity at all; 5) altered the social security laws, going against workers’ interests.

As a result, the popular uprising was huge. Between 1999 and 2002, almost on a daily basis, the population took to the streets and public squares for various reasons, setting in motion an important element for the inversion of the situation: direct action. The Kirchner administration could not ignore the voices from the calles, and therefore implemented some measures that differed from Menem’s.

In Argentina, the Kirchners did not reverse the labour damages from the menemist period. However, they were able to temporarily put out the fire of ebullience and social dissatisfaction left by their predecessors, especially with the focused policies and the consequent reduction of unemployment rates. At the end of Cristina Kircher’s mandate, in 2014, street protests gained a new momentum, criticizing the government which did not satisfy popular demands.

In Brazil, all the expectations regarding the workman president, as well as the female president, were not enough to make a significant improvement on labour rights happen. Fernando Henrique Cardoso initiated, but did not deepen the changes to the labour legislation. Lula and Rousseff expressed their continuity by renewing the laws created by Cardoso, flexibilizing rights and sometimes deepening them.

Based on the path dependence concept, neoliberalism represents the deflection from the path initiated in 1930/1940. Cardoso was a pioneer in the changes to labour legislation. On the other hand, the changes were and are far from being broad and unrestricted.  Most of the guarantees remained intact. For example, rights such as vacation and the 13^th salary have survived. The most significant changes occurred in the flexibilisation of working time and essentially in the increase of the time in service required in order to obtain a full retirement. Both were bad for workers. The path dependence created during the developmentalist period was huge; so much so that, though businessmen demanded them, changes were restricted to flexibilising working time without the possibility of altering the annual time amount.

The path dependence was also present in the administrations from the 1990’s and 2000’s. They did not attempt to reverse the path deflection started by the liberalizing policies, but renewed them and even deepened them.

Despite the resemblance, we may highlight three differences from PT in relation to the neoliberals: 1) Increase of welfare programmes focused on minimum income; 2) acknowledgement of labour federations and other small pro-unionist measures; 3) opening public examinations, increasing the public service. These measures are not labour rights, but may be seen as improvements for workers.

From the juridical normativity perspective, we may say, with no mistake, that these administrations assumed such an attitude that they seem to belong to the same political group, or to the same party, as the similarity and complementarity of their public policies make a pretty coherent whole.

Therefore, the successive changes to social security laws can be seen to strictly follow the same trend. Cardoso’s bolsa-escola becoming Lula’s bolsa-família; the maternity leave increased by the first and continued by the latter; and finally, all of Cardoso’s flexibilizing measures renewed by the representatives of the workers’ party. These measures made possible something sought by conservative politologists since Machiavelli: political stability or governability. Thus, the “conciliation” between capital and labour is consolidated in Brazil, with the tendency to subordinate labour’s interests.

Amongst other things, the similarity between administrations of separate ideological colours, making up  what we may call “official oppositions”, associated with neglect of workers’ interests, drove people to revolt against the political class in general, a fact displayed by the massive insurgent protests from June 2013 in Brazil, and in Argentina, in 2001, against Menem’s policies and 2013/14, against Cristina Kirchner’s.

In conclusion, we may use an expression from the VOC theory, that is, a single capitalism for both countries, characterised by subordinating the interests and rights of workers to the capital’s production cycles, for that was the main characteristic of the legislative changes to working time.

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ü  LEIS ARGENTINA:

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