Extensión de las normas tuitivas del derecho laboral al estadío previo de la formación definitiva del contrato de trabajo

Abstract

The contract, as a social phenomenon, legal instrument and main channel with which economic relations are developed in our society, has been assigned a privileged place in the study of law and superlative social relevance. Not only because it is the main means by which the economy develops, but also because -as a social and economic phenomenon- its conception varied in each historical period.

Although the starting point for its study was always the same (agreement of wills), this consensus, mutatis mutandi, has been assigned different effects in each historical economic model, especially in recent times.

Regarding the birth of contracts in general, they arise from the acceptance of the general business conditions offered. Contractual overcrowding leaves no room for prior discussion.

However, sometimes the contract is the result of paths traveled at different rates, with the possibility of stops and changes of direction. The progressive formation of the agreement, sometimes, is the reflection of different realities that have their own dynamism.

In these cases, the contract is formed ex intervallo temporis, an antecedent stage in which the parties deliberate, discuss and try to reach the best agreement. This opens a period of negotiations, in which the parties interested in debating the content of a possible contract recreate reciprocal aspirations, specify points and analyze different negotiation stages, until finally reaching an agreement, or not (autonomy of will).

Those negotiations carried out by the pre-contracting parties prior to the final perfection of the agreement, as already stated, suppose the concurrence of legally lawful material acts, which entails the need for its legal regulation.

And it is precisely for this reason that in the field of Civil and Commercial Law, the last reform of the Civil and Commercial Code of the Nation specifically dealt with legislating such an area of ​​action.

This scenario does not exceed the field of individual labor relations, where the conclusion of the labor contract supposes -in certain cases- a complex business whose details must be adjusted step by step.

In this pre-contractual stage, the negotiation of asymmetric contracts (more specifically the employment contract) requires specific legal mechanisms intended not only to protect fair and efficient contractual negotiation, but also the protection of the weak contractor; for example, the dependent worker.

The Labor Contract Law and its complementary regulations deal with balancing that initial negotiation inequality throughout the life of the employment relationship and, specifically, at the time of its termination, but it is silent when it comes to extending its protective cloak to the contract formation stage.

Faced with the absence of specific regulations in labor legislation, their own solutions must be built. The present work proposes to identify the gestation stages of the employment contract; accurately describe the problematic situations that are generated from it and propose solutions to prevent certain prevailing contractual positions from affecting the rights of those who appear in a situation of greater legal, economic or social weakness in the relationship, without the possibility of negotiating the terms of the contract that you must or wish to enter into.