Whistle-blowing Service in Argentina is mandatory and is a valuable tool in any organization’s corporate governance strategy, because it empowers employees to act on misconduct and helps maintain a safe workplace, while protecting profits and reputation.
However, in Argentina, in terms of Corporate Social Responsibility, the voluntary aspect governs. These codes of conduct depend on the company’s self-assessment to the extent that is convenient to its image and prestige. Indeed, non-observance does not cause any consequence or legal sanction.
New Laws and Legislation
On 1 March 2018, Law 27,401 came into force, which establishes the criminal liability of private legal entities for corruption offences.
Scope. The law encourages the cooperation of companies in the prevention and investigation of corruption. Legal persons may be exempt from punishment and administrative liability when they have:
- a) implemented an integrity program with minimum elements defined in the law, and
- b) self-reported the fact to the authorities and returned the undue benefit.
Although the implementation of an integrity program is, in principle, a voluntary decision of each company, Article 24 of the law makes it mandatory for all contracts with the Government.
The law not only makes companies responsible for the conduct of their managers and employees, but also by any third party — suppliers, distributors, business partners — to obtain an undue benefit for the company.
To exempt their directors from punishment or accede to an agreement of effective collaboration, the integrity programs that companies implement must incorporate complaint lines and internal investigation procedures. These procedures must be compatible with the constitutional rights of the persons reported and subject to an investigation.
Because the legislation is recent, a practice adopted by the companies prior to Law 27,401 is the establishment of complaint lines that allow employees to make complaints anonymously. This has not yet been regulated by the law or its decree. Protections for whistle-blowers have been fixed in current law. But an effective compliance program should include a mechanism so that employees of an organization and others can report alleged or actual misconduct or violations of company policies confidentially and without fear of retaliation.
For whistleblower complaints, a) define the types of complaints; b) have round-the-clock availability c) keep different channels available and publicize them; d) preserve anonymity; and e) determine who will receive the reports.
In Argentina, the law was recently enacted and has a very low implementation rate. In practice, companies have not yet seen concrete and generalized results of the implementation of an integrity system, especially in those companies that must comply because they contract with the Government. But the course has been set.
Country-by-country and EU whistle-blowing rules need to be taken into account in setting the best practices and policies in this growing area of risk, including what an employer must do when faced with a whistle-blower claim, such as whether an investigation is required, protections of the employee who complained of company practices and litigation issues.
Best practice requires companies to take action in advance by creating a hotline and training its employees in ethical behavior.