Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

Workmen's Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42) - Argentina (Ratification: 1950)

1. In its observation of 1994, the Committee noted a communication from the Congress of Argentinian Workers (CTA) alleging that the system introduced by Act No. 24028 on the compensation of industrial injuries and its implementing Decree No. 1792/92 reduced the level of protection provided for workers too far. The CTA stated in particular that the responsibility of the employer is presumed only in the case of an accident but that there is not legal presumption of the employer's responsibility when an injury results from a disease the origin or aggravation of which is attributed to work.

2. The Committee notes the comments - sent with the Government's report, received in January 1995 - made by the General Confederation of Labour of the Argentine Republic (CGT), referring to certain difficulties with the application of the Convention. According to the CGT, the legislation in force: (a) does not presume the employer's responsibility in the event of occupational diseases, even where they are considered to be strictly work-incurred ("profesionales"), i.e. caused solely by a risk factor present in the place of work; (b) establishes that in assessing incapacity in the case of occupational diseases with more than one cause a "quota" attributable to work will be determined, which is medically impossible; (c) fails to take into account, in establishing time-limits for the certification of the disease, the fact that certain occupational diseases are latent for a long period before taking effect, which means in practice that compensation cannot be claimed. The CGT indicates that the possibility of a radical reform of the legislation is being studied and adds that the Framework Agreement on Employment, Productivity and Social Equity includes an item on the preparation of a bill on protection against occupational risks.

3. The Committee notes the Government's report which contains a memorandum from the National Occupational Safety and Health Department of the Ministry of Labour and Social Security. Concerning the points raised previously by the Committee, it states that Argentine legislation and case-law - which derive from the application of Act No. 9668 of 1915, amended several times - was much broader in concept than the list provided for in the Convention. The Government states that Act No. 24028 of December 1991, which is currently in force, establishes that the employer is not presumed responsible for occupational diseases, and that this is a serious technical and conceptual mistake. It explains that occupational diseases and work-incurred diseases ("profesionales") are not the same thing. Occupational diseases include work-incurred diseases and other diseases linked to work, but work is not their sole cause. Work-incurred diseases are caused solely by risk factors present at the place of work, and therefore warrant the presumption of the employer's responsibility. The Committee notes that the Government accordingly acknowledges the pertinence of its comments. With regard to the other two points raised by the CGT, the memorandum from the National Occupational Safety and Health Department indicates that the time-limits established in the legislation in force prevent persons suffering from occupational diseases which do not appear until long after their first exposure to the harmful agent from claiming their compensation, and that the provision establishing that a quota attributable to work shall be determined for diseases with more than one cause is scientifically unsound.

4. The Committee reiterates its observation of 1994 to the effect that by ratifying the Convention the Government undertook, in accordance with Article 2, to consider as occupational diseases those diseases and poisonings produced by the substances set forth in the Schedule appended to the Convention, when such diseases or such poisonings affect workers engaged in the trades, industries or processes placed opposite in the said Schedule. So that the worker does not have to prove that the cause of his disease was occupational - which in some cases can be particularly difficult - the Convention established the system of a double list setting out the diseases in one column and the activities which may cause them in a column opposite. Since both the Government and the CGT refer to tripartite consultations and a study under way with a view to the adoption of new standards in this area, the Committee is bound to hope that the Government will take the necessary measures to bring national law and practice into harmony with the Convention in the very near future.

The Committee suggests that the Government may wish to seek technical assistance from the Office.

[The Government is asked to report in detail in 1996.]