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Judgments to retirees: the antecedents that they play against the Government

November 9, 2018 - By Joseph Taylor

The Supreme Court is about to decide how the readjustment and updating of assets should be applied to retirees who made judgments. From the background that is in the Courts, it appears that about 23 Chambers of the different Chambers of Social Security and Appeals across the country, 22 were pronounced for applying the ISBIC index (index of basic wages of industry and construction ) of the INDEC and only one the RIPTE (Taxable Remuneration of Stable Workers) that elaborates the Ministry of Labor and is the one that seeks to apply the Government. And of the 64 judges who intervened in those rulings, 60 leaned for the ISBIC and 4 for the RIPTE.

On the other hand, the file that is being analyzed by the Supreme Court, the retired Lucio Orlando Blanco, who retired in 2003 with less than 50% of the average salary, arises that if the Court confirms the judgment of the judges Luis Herrero and Carmen Dorado of Room II of the Social Security Chamber, corresponds to have a 31% higher than the one that, applying the RIPTE, the ANSeS offers with the Historical Repair. And, applying the ISBIC, a retroactivity 50% higher for the accumulation of these differences over 15 years.

The Court’s decision has an impact on more than 150,000 lawsuits that date back to 2002 (16 years) and beyond, which are still without a final judgment due to the ANSeS appeals and delays in the courts. Since last April (Resolution 56/18), this difference extends to the determination of the average salary of the last 10 years fixed by the salaries of new retirees.

These trials correspond to the so-called Elliff case when, in 2009, the Supreme Court upheld the ruling of Chamber II of the Chamber, which determined that, between 1995 and 2008, when the mobility law came into force, those salaries had to be updated by the ISBIC .

In contrast, ANSeS does not accept the Elliff ruling and maintains that the RIPTE update index set in the 2016 Historical Repair Act must be applied.

The difference is not less since between 1995 and February 2009 the increase of ISBIC is 435%; while the RIPTE gives an increase of 178%. This difference alters the calculations of retroactive and readjustments of assets, especially for those who retired after mid-2003.

For this reason, in 97% of the cases, the RIPTE shows an average remuneration and a salary and a retroactive one lower than those of the sentences. The difference is smaller for those who retired between 2002 and 2005 because during the years of convertibility wages remained almost unchanged. And it enlarges for those who retired later. For this reason, without being the most representative and favorable to the plaintiff, even in the Blanco case, a difference arises in favor of the retiree.

In the Justice, of the survey of the Trocc├│li Study, among other arguments, it appears that 22 Chambers of the Social Security Chamber rejected the RIPTE index because it was approved by law 27,260 in July 2016 to update the assets and cancel the pension debts of retirees and pensioners who voluntarily adhered to the Historical Reparation. As a result, the judges say, this index can not be applied to those who did not adhere to or rejected the agreement offered by ANSeS. They also argue that the RIPTE is not representative because it excludes certain salary items and that Law 27.260 of 2016 did not apply at the time the trial began and the Elliff doctrine did. In addition, many retirees already received their favorable judgments with the readjustment of the ISBIC, so applying a lower index would be discriminatory and clearly a “downward” adjustment.

The Federal Chamber of Appeals of Comodoro Rivadavia, which ruled in favor of the RIPTE, (Salamanca Valeria case) argues that the RIPTE “is consistent with the principles of proportionality and substitution of social security, keeping a fair and due proportion to the activity ” In the first instance, some courts also favored the RIPTE.

On the other hand, in the Blanco case, judges Herrero and Dorado insisted that retirement should have a “fair and reasonable” relationship with what the retiree earned in his active phase, a condition that is not met because it represents just under half of the average salary I had when I was active.

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