The upcoming implementation of the EU Whistleblowing Directive is a good occasion to take a closer look at the cultural implications of whistleblowing in Argentina. Whistleblowing is increasingly perceived positively in Argentina, as a sign of integrity. However there is not yet specific legal protection for whistleblowers.
Whistleblowing has begun to be recognised almost as a sign of business integrity. It is the method by which those who excel in ethics and moral values find the courage to denounce a situation that harms the public good.
In Argentina, there is no legal definition or framework regarding employment law to protect whistleblowers. However, under the Corporate Criminal Liability Law there is criminal liability for private legal entities for crimes of corruption that have been carried out with their intervention or in their name or interests, or for their benefit, directly or indirectly. Section 24 establishes the need for compliance programmes where there are contracts with the public sector. These compliance programmes may include a whistleblower protection policy against retaliation and channels for reporting irregularities. Although these reporting channels (internal or external) are not mandatory, they are essential for the compliance programme to be effective.
According to the Corporate Criminal Liability Law, the minimum content of a compliance programme is:
- a code of ethics or conduct or the existence of integrity policies and procedures applicable to all directors, administrators, and employees;
- specific rules and procedures to prevent illegal acts in the field of public bids; and, in general, in the execution of administrative contracts or any other interaction with the public sector;
- periodic training for directors on the compliance program.
It also provides that Intrusion Prevention Systems (IPS) may include:
periodic analysis of risks and adaptation of the compliance programme as a result;
- visible and unequivocal support for the compliance program by senior management and management;
- internal channels for reporting irregularities open to third parties;
- a whistleblower protection policy against retaliation;
- an internal investigation system;
- procedures that verify the integrity and trajectory of third parties or business partners;
- due diligence during corporate transformation and acquisitions;
- continuous monitoring and evaluation of the effectiveness of the compliance programme;
- an internal manager in charge of the development, coordination, and supervision of the compliance program.
The lack of specific legislation and protection for whistleblowers may discourage those who have information on illicit activities to report them. However, there seems to be a tendency to implement corporate whistleblowing programmes in Argentina because there is a clear awareness of the advantages for the organisation in relation to responsibility for acts of corruption. When deciding punishment, for the breach of internal rules, judges must take into consideration the absence of surveillance over the activity of the perpetrators and participants, and self-reporting to the authorities as a consequence of an internal investigation.
A proposal before Congress since 2019 would introduce personal protection measures related to the employment relationship in the public and private sectors. These would include:
- Constructive dismissal claims with the right to receive double compensation without limit. In addition, the employee will have the right to sue for damages suffered with minimum compensation of not less than six months of remuneration.
- Requiring the definitive cessation of arbitrary or illegal activities and all their effects or consequences. This would reestablishment of the individuals prior working conditions before the dispute and payment of wages accrued and not received, plus damages.
- Transfer of the employee, if possible, to another area of the company or public sector office, with similar functions and responsibilities, and with identical remuneration to that received before the dispute.
Specific agencies may also regulate protection of whistleblowers in their sectors.
In Argentina, cases of corruption can be reported to the central anti-corruption office (Oficina Anticorrupción) and it is the regulation governing the anti-corruption office that allows for whistle-blower anonymity and confidentiality if desired.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.