Analysis of the ruling of the Supreme Court “Editorial Río Negro SA”

Analysis of the ruling of the Supreme Court “Editorial Río Negro SA”

In a brief jurisprudential elaboration, due to the considerations that will be discussed below, last Thursday, August 29, the Supreme Court ruled that the company Editorial Rio Negro SA is not jointly and severally liable for labor debts incurred by a dealer.

As background to the case, the Superior Court of Justice of Rio Negro had ruled in favor of the plaintiff, in a claim for labor debts filed against both the employer -Distributor of the Rio Negro Newspaper- and the Publisher that publishes it. At this point, the Court invoked Article 30 on the grounds that it was inexplicable to publish the newspaper without conceiving its distribution.

It is necessary to remember that Article 30 of the Labor Contract Law (LCT, hereinafter) provides for different assumptions of solidarity, which have given and are the subject of continuous doctrinal and legal discussion to date.

The Provincial Court, within the elements of the articles, was based and considered that the substance should be circumscribed around the configuration of the second of its hypotheses: Editorial Rio Negro delegated to the distributor, at least in part, its normal and specific activity of your establishment. Additionally, it was highlighted that the paper newspaper, as a product ready for the consumption of journalistic information, was not perfected except with its specific assembly (work that in the case in question was carried out by the distributor, who had to intersperse the various sections of the journal into a main body).

Based on what was said, it was concluded that the delegation of the last part of the productive execution unit of the newspaper verified solidarity. This is so, since the distributor does not receive a finished product, but rather participates in a product process that corresponds to the publisher. This is how, at the discretion of the Provincial Court, the hypothesis of provision by a third party of a normal and specific activity of the publishing establishment is configured.

As a defense at the time of filing the Extraordinary Federal Appeal, the Editorial jointly and severally convicted relied on the arbitrariness of the sentence, alleging that the product (the activity of the publishing house, specifically) began with the publication of the information, and ended with the Dispatch of the product to the distributor, who only has to order the material and put it in conditions to be consumed by the public.

Regardless of whether the case was received by the Supreme Court, the analysis carried out is, to say the least, controversial, where it is only highlighted that «the conclusion (of the Superior Court of Rio Negro) only finds support in an inordinate extension of the scope of application of Art 30 LCT , in a way that its text does not consent to, distorting its content by assigning it a meaning that unacceptably exceeds its purposes and therefore must be discarded” (cf. paragraph 5 of the ruling). This is how, without further guidelines than those mentioned above, the complaint is granted, declaring the Extraordinary Appeal admissible, and leaving the appealed judgment without effect.

The -necessary- criticism that must be made of the ruling under analysis is that a good opportunity is lost for our Supreme Court to set an objective criterion on how to interpret or, rather, how far the factor of joint and several liability goes that sets the LCT in its article 30. The Court did not take any argument from the doctrinaires who for years have been promoting different interpretative solutions, either within the so-called strict positions or the so-called broad ones. As an example of the first, which the Court could have applied to the «Editorial Rio Negro» case, Dr. Julio Grisolia has been able to point out that «those tasks that, although necessary for the operation of the establishment, are incidental and perfectly separable from the activity carried out by the contracting party, as they are not part of the normal and specific (proper) line of business of the company”.

Thus, the interpretation and scope of Art. 30 LCT may be broader or more restricted, depending on the legal protection it provides, but the Supreme Court must necessarily be reproached for reversing a sentence on the sole grounds of alleged arbitrariness, for understanding «an excessive extension of the scope of application of Art 30». Strictly speaking, the focus should have been on whether or not the task carried out by the plaintiff was a potential subcontracting of the Editorial, corresponding to the normal and specific activity of the establishment. It would have been all the more interesting to establish, or at least attempt, interpretive guidelines of what should be understood as normal and specific activity, and for the Court to shed a cloak of light with respect to broad or restrictive doctrines in interpretive matters.

In sum, the Court’s doctrine on outsourcing, from “Rodríguez v/ Compañía Bottling” to “Benitez v/ Platform Cero”, has fluctuated enough to justifyEditorial Rio Negroits interventionIt is worth remembering that where the “Rodríguez” ruling resolved on the merit of interpreting article 30 of the LCT that it was not appropriate to claim joint and several liability for labor credits from an employer who supplied another with a specific product, expressly disassociating himself from its further processing, preparation and distribution, the «new criterion» of the Court for judging joint and several liability based on «Benitez» implied abandoning the restrictive criterion of extension, holding that in order to define the acceptance or rejection of solidarity, the existence of » a technical execution unit between the company and its contractor, according to the implicit reference made by the regulation in question (art. 30), to art. 6 of the same legal system”. It was then inferred from «Benitez» that solidarity depended on the proof of that unit, referring to the establishment, which is specified in art. 69 of the LCT as a segment of the company, which serves its purposes.

What is valuable, and what must be meant from the “Rodriguez” and “Benítez” rulings, is that beyond the effects of one and the other, the Court truly wanted to establish doctrine, establishing criteria and guidelines for the assessment of the matter of Article 30. This was how, ultimately, he urged the judges to consider the facts and evidence of each specific case.

Contrary to what has been said, in “Editorial Rio Negro” the Provincial Court wanted, precisely, to analyze the facts and merit the activity in question, where the Court only branded the reasoning of the Superior Court of Justice of Rio Negro as “excessive”. In other words, and we could well maintain, it was inconsistent with the doctrine that had been in force since “Benitez”.

As a corollary, we must say that the trigger question of this opinion article remains (unfortunately) unfinished and open as a result of the commented ruling. We understand that the Supreme Court has not carried out a detailed analysis of the newspaper distribution and sale activity, on the one hand, nor has it sought to deal with the different edges that, from Rodriguez to Compañía Embotelladora, persist without unified criteria until the day of the date.

JULIAN COSSO Abogado (UBA), Lawyer, founding partner of CYT Abogados, with a practice area advising companies in situations of insolvency and crisis.

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