Milei’s Labour Reform and the Erosion of Collective Bargaining: A Clash with the Inter-American Protective Approach

Since the adoption of the 1949 Constitution, which was later replaced by the 1957 Constitution, the principle of collective bargaining has been firmly established within its framework, enshrined in Article 14 bis. Over the subsequent decades, there has been a notable evolution towards sectoral collective bargaining, which has become the preferred method over the firm-level approach. Additionally, both the Collective Bargaining Act and the Contract of Employment Act have established that collective agreements could only adopt provisions more favourable for workers.

Nevertheless, drawing upon an export-oriented, market-centred model of development often endorsed – and to some extent, imposed – by International Financial Institutions, successive neoliberal administrations (notably in the 1970s, 1990s, and the Macri administration of 2015) have conceived collective agreements primarily as a tool for deregulation. This perspective has been manifested through two primary avenues: firstly, governmental emphasis on enterprise-level bargaining over sectoral-level negotiations; and secondly, the adoption of a novel approach in labour law termed "disponibilidad colectiva," allowing collective agreements to potentially diminish the rights protected by the Contract of Employment Act.

In late December 2023, the newly elected Argentine president, Mr Milei, who embodies a type of ‘authoritarian’ neoliberalism, bypassed Congress by enacting a controversial emergency decree (decreto de necesidad y urgencia) – DNU 70/2023. This decree ambitiously reformed hundreds of pieces of legislation, aiming to deregulate and ‘open’ the Argentine economy. Despite scarce justifications, its Title 4 has brought about a major labour law reform. Following the path laid by previous neoliberal administrations, the Milei government has conceived collective agreements as a tool to dismantle labour protections.

On the other side of the spectrum, the jurisprudence of the Inter-American Court of Human Rights, particularly in its Advisory Opinion 27/21 and the Caso de los Buzos Miskitos judgments, has firmly acknowledged freedom of association, the right to collective bargaining and the right to strike as fundamental human rights. Specifically, it has regarded collective agreements as a source of protection of workers’ rights rather than as a tool for dismantling them. This jurisprudence holds particular relevance within the Argentine legal framework, following the 1994 constitutional reform, whereby various international Human Rights instruments, including the American Convention of Human Rights, enjoy constitutional hierarchy.

This paper aims to scrutinise the impact of the authoritarian neoliberal stance adopted by the Milei administration, alongside its developmental ideology endorsed by international financial institutions, on the recent labour law reform. Specifically, it seeks to examine how collective bargaining and agreements are conceived as instruments to dismantle labour regulations. Furthermore, it intends to explore the Argentine constitutional framework and recent jurisprudence from the Inter-American Court of Human Rights, emphasising the role of freedom of association as a counterbalance to the approach of the Milei administration vis-à-vis collective bargaining and collective agreements as a source of workers’ rights protection.