Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Maternity Protection Convention, 1919 (No. 3) - Argentina (Ratification: 1933)

The Committee notes the comments made by the Confederation of Argentinian Workers (CTA) in 2007, as well as the information provided by the Government in 2008 and 2009. With respect to the Committee’s previous comments as regards the alleged misuse of internships (pasantías) in Telefónica de Argentina, the Government informs that the company explained that it has stopped concluding internship contracts as of October 2004 and no interns have been working for the company since February 2006.

Article 3(d) of the Convention. Nursing breaks. Section 179 of Act No. 20.744 on Labour Contracts provides that every nursing mother is entitled to two half-hour breaks per day to breastfeed her child. The CTA states that the application of this provision in practice has been very limited and that many workplaces do not have facilities available for nursing women. The Government replies that a draft regulation relating to the obligation of employers to establish nursing facilities and nurseries has been submitted to the House of Representatives. Besides, a draft law to amend section 179 of Law No. 20.744 on labour contracts enabling breastfeeding women to choose between daily breaks or a daily reduction of hours of work has been passed by the House of Representatives in November 2006 and is currently before the Senate (S‑0720/09). The Committee hopes that the Government will provide copies of the adopted legislation in its next report.

Article 3 paragraph c of the Convention. Medical benefits. The Committee asks the Government to provide information on the practical implementation of the compulsory medical programme established by General Resolution 247/96 of the Ministry of Health and Social Action.

Article 4. Employment protection. According to section 178 of Act No. 20.744 on Labour Contracts, any dismissal during the seven-and-a-half months before or following the date of confinement shall be presumed to be based on maternity, unless the employer produces proof to the contrary. In the absence of such proof, a dismissed woman worker shall be paid compensation for undue dismissal, as well as special compensation amounting to one year’s wages. In its comments, the CTA argues that the Government should establish that dismissals on the basis of pregnancy or birth are null and void and that a mechanism should be set up to obtain reinstatement and compensation for lost wages in such cases. The CTA further claims that domestic, agricultural and public workers do not enjoy any protection against dismissal related to maternity, because they are not included in the scope of application of Act No. 20.744 on Labour Contracts (section 2). In response to the comments of the CTA, the Government states that the Tripartite Commission on Equality of Opportunity and Gender safeguards maternity protection and that Argentinian legislation recognizes the illegality of employment termination of a woman worker on maternity leave or extended maternity leave on the basis of pregnancy or birth. It further explains in a subsequent report that, on the basis of the existing jurisprudence, sections 177 and 178 of the abovementioned Act should be understood as ensuring special employment stability and not an explicit prohibition of dismissal. The Committee observes that observations made by the CTA support its earlier conclusions that the provisions of the national legislation (sections 177 and 178 of Act No. 20.744 on Labour Contracts) were not sufficient to ensure that full effect is given to Article 4 of the Convention, which makes it unlawful for an employer to give notice of dismissal on any ground to a female employee on maternity leave. Taking into account that Article 4 is also applicable in respect of public sector employees, the Committee hopes that the Government will examine the possibility to include in the national legislation the necessary additional safeguards in order to give better effect to the Convention in this regard.