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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 3(d) and 4 of the Convention. Nursing breaks and protection of employment. The Committee notes the observations from the Confederation of Workers of Argentina (CTA) and the General Confederation of Labour of the Argentine Republic (CGT-RA) received in 2013 – which repeat previous observations – concerning the non-application in practice of sections 178 and 179 of Act No. 20744 concerning employment contracts. The Committee requests the Government to indicate the measures taken to ensure better application in practice of sections 178 and 179 of Act No. 20744 concerning employment contracts and to send further information including, for example, the number of inspection visits, the number of enterprises inspected, infringements reported and measures taken in this respect, the sectors of activity covered, etc.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 2 and 4 of the Convention. Scope of application and protection of employment. In its previous comments relating to the observations from the Confederation of Workers of Argentina (CTA) concerning employment protection for certain categories of workers, the Committee asked the Government to examine the possibility of including in the national legislation the necessary additional safeguards in order to give better effect to the Convention with respect to women workers in domestic service and agriculture. The Committee notes with satisfaction the adoption of Act No. 26844 of 13 March 2013 establishing special regulations governing employment contracts for domestic workers and Act No. 26727 of 21 December 2011 establishing regulations for work in agriculture. The aforementioned laws establish protection against wrongful dismissal for women on maternity leave, with the subsidiary application of the Act relating to employment contracts (sections 40 and 50, respectively).

Article 3(d). Nursing breaks. In its previous comments relating to the observations from the CTA, the Committee drew the Government’s attention to the practical difficulties of applying the provisions relating to nursing (breastfeeding) in the workplace. The Committee notes with satisfaction the adoption of Act No. 26873 of 3 July 2013 concerning the promotion of breastfeeding, section 4(s) and (t) of which provide for the promotion of regulations needed for the protection of nursing working mothers and the establishment of nursing facilities at the workplace. The Committee also understands that the Bill giving mothers who are breastfeeding the choice between daily breaks or a reduction in daily working hours has been adopted. The Committee requests the Government to confirm this information and to send a copy of the adopted Act.

The Committee is raising other points in a request addressed directly to the Government.

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

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.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report. It notes in particular the Government’s reply to the communication from the Internal Trade Union Committee of Telefónica de Argentina alleging misuse of internships (pasantías) in the company’s call centres and pointing out that the interns were barred from the maternity benefits prescribed by the labour legislation. According to the Government, the pasantías system, established by Act No. 25.165 of 15 September 1999, was devised only for students in higher education who conclude agreements with certain approved enterprises or bodies in the public or the private sector, and the interns are in any event covered by their parents’ social insurance. Section 9 of Act No. 25.165 states that internships give rise to no relationship in law between the intern and the enterprise in which the internship takes place. The Government points out, however, that section 11 of the above Act allows internships of up to four years and a working week of up to 30 hours distributed over five days, the Committee observes that these periods may appear to be particularly long for a person undergoing training. Furthermore, being necessarily limited to health care, the protection provided by the parents’ social insurance is unable to meet all contingencies, particularly in the case of parents who do not work or who are deceased. In these circumstances and in view of the importance it attaches to maternity protection, the Committee hopes that the Government will reconsider this matter.

Article 3(c) of the Convention. With reference to its previous comments, the Committee notes the information supplied by the Government. It notes with interest general resolution 247/96 of the Ministry of Health and Social Action approving a compulsory medical programme for health insurance workers under which the latter are covered for medical benefits that are consistent with this provision of the Convention. The Committee would be grateful if the Government would provide information, as required by Part V of the report form, on the practical implementation of the compulsory medical programme, including statistics on the number of employees covered by the programme in relation to the total number of employees, and the number of women workers who have received medical assistance during pregnancy, confinement and the postnatal period. It hopes that the Government will also be able to provide extracts of relevant reports by the Superintendencia de Servicios de Salud, established in 1998, which is the body responsible for supervising the operation of the health services nationwide, together with any available information on the number and nature of contraventions reported and penalties imposed.

Article 4. In reply to the Committee’s previous comments, the Government states that women who are pregnant or who are on maternity leave whose employment contracts are terminated shall receive social protection under section 10(a) of Act No. 23.660 on the scheme applying to Obras Sociales, for the three months following the termination. At the end of that period, the woman continues to receive free health care under the abovementioned compulsory medical programme. Noting this information, the Committee recalls that in its earlier comments it observed that the provisions of the national legislation (sections 177 and 178 of Act No. 20.744 on labour contracts) were not sufficient on their own to ensure that full effect is given to Article 4 of the Convention, under which employers may not give notice of dismissal while a woman worker is absent on maternity leave or at a time that the notice would expire during such absence. The Committee therefore hopes that the Government will reconsider this matter and will be able to provide in its next report information on progress made in supplementing the abovementioned provisions of Act No. 20.744 on labour contracts, to ensure that this provision of the Convention is fully applied.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Article 3(c) of the Convention. 1. In its previous comments, the Committee asks the Government to provide information on the nature of the care ensured by the Obras Sociales to women workers during their maternity leave and the conditions in which such care is provided. In response, the Government indicates in its report that, under section 4 of Act No. 23.660 on the scheme applying to Obras Sociales, the Obras Sociales must, whatever their nature, submit annually to the Health Insurance Administration the programme of medical care benefits which they provide to their beneficiaries. The Committee takes note of this information. It recalls that, according to this provision of the Convention, women employed in industrial undertakings, whether public or private, are entitled to free care from a doctor or midwife. The Government is asked to indicate whether, and under which provisions, the Obras Sociales are required to provide free medical care to all women workers falling within the scope of the Convention, in accordance with Article 3(c). Please indicate whether the Health Insurance Administration has a supervisory role in this regard. Please also send copies of any relevant legislative, regulatory or administrative provisions.

2. The Committee notes that, according to the Government, as soon as the women worker informs her employer that she is pregnant, she is eligible for all the protective measures established for pregnant women by Act No. 20.744 on labour contracts, whether she is on probation or has completed three months’ service. The Committee notes that the rights laid down for pregnant women by section 177 of the above Act include entitlement during maternity leave to the cash benefits granted by the social security system. From the foregoing, the Committee understands that once the woman worker has informed the employer of her pregnancy, she is entitled to cash benefits throughout the maternity leave, regardless of how long she has been in the job. The Government is asked to provide information on this matter.

Article 4. In reply to the Committee’s earlier comments, the Government again refers to section 177 of Act No. 20.744 on labour contracts, which guarantees stability of employment for women workers from the time when they notify pregnancy to their employer. Furthermore, under section 178 of the same Act, any termination of employment during the seven-and-a-half months preceding or following confinement will be presumed to be on grounds of maternity unless the employer proves that the termination was for another reason. In the absence of such proof, the woman worker shall receive compensation for unjustified dismissal and a special allowance for maternity equal to one year’s salary. The Committee is aware that the abovementioned Act provides for a longer period of protection than the one laid down in the Convention and affords a number of guarantees against improper dismissal of workers during pregnancy and following confinement. However, these provisions are not sufficient, on their own, to ensure that full effect is given to this provision of the Convention. Article 4 of the Convention prohibits employers from giving notice of dismissal while the woman worker is absent on maternity leave or at a time that the notice would expire during such absence; it does not allow dismissal in certain specific or exceptional circumstances for reasons which the national legislation deems to be legitimate. That being so, the Committee hopes that the Government will be able to reconsider this matter and requests it to indicate in its next report any progress made to ensure that better effect is given to this provision of the Convention.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the communication from the Internal Trade Union Committee of Telefónica de Argentina alleging misuse of internships (pasantías) in the company’s call centres. The above trade union objects to the precarious working conditions of female students employed under such arrangements, and points out that their contracts bar them, inter alia, from the maternity benefits prescribed by the labour legislation. The Committee notes that in its report the Government provides no information in reply to the above communication, which was sent to it on 15 November 2001. It hopes that in its next report the Government will provide detailed information on the status of these women workers, in the light of the protection laid down by this Convention.

The Committee raises other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Article 3(c) of the Convention. 1. In reply to the Committee’s previous comments, the Government indicates that dependent women workers enjoy medical assistance in the framework of their social welfare ("Obra Social") which generally provides special cover for maternity. The Committee requests the Government to supply further information on the nature of the care provided for women workers in the framework of "Obras Sociales" during maternity leave as well as on the conditions on which care is provided. Please indicate the relevant provisions in legislation and supply a copy of them, in particular, the Act concerning "Obras Sociales".

2. Referring to its previous comments, the Committee notes the information supplied by the Government on section 2 of Legislative Decree No. 1.245/96. It notes that the Government has not indicated whether women workers who do not fulfil the qualifying period of three months laid down in section 11 of Act No. 24.714 concerning the family benefits scheme are nevertheless entitled to cash benefits from public funds or under a public assistance scheme. The Committee requests the Government to specify whether this is the case.

Article 4. In reply to the Committee’s previous comments, the Government refers once again to section 177 of Act No. 20.744 concerning employment contracts which guarantees stability of employment for a woman worker from the time at which she notifies her employer of her pregnancy. Moreover, under section 178 of this Act, any dismissal during the seven-and-a-half months before or following the date of confinement shall be presumed to be based on the maternity unless the employer produces proof that the dismissal is on other grounds. 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 because of her maternity. The Committee is aware that the provisions of the abovementioned Act No. 20.744 apply to a period of protection longer than that laid down in the Convention and offer certain guarantees against unjustified dismissal of women workers during the period of their pregnancy and after confinement. These provisions are not, however, sufficient in themselves to guarantee full application of this provision of the Convention. In fact, Article 4 of the Convention prohibitsthe employer from giving a woman worker notice of dismissal during her absence on maternity leave, or from giving her notice of dismissal at such a time that the notice would expire during her absence, without referring to the possibility of authorizing dismissal in certain particular or exceptional circumstances for a reason that is considered lawful under national legislation. In these circumstances, the Committee hopes that the Government will be able to re-examine the issue and requests it to indicate in its next report any progress made with a view to ensuring full application of this provision of the Convention.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

Article 3(c) of the Convention. The Committee notes that since 1977, the Government has provided no detailed information on the nature of the medical benefits available to women workers during their absence on maternity leave. It therefore requests the Government to indicate which legislative or statutory provisions guarantee access for women workers to free attendance by a doctor or certified midwife, in accordance with this provision of the Convention.

Article 4. The Committee recalls that section 177(3), of Act No. 20744 concerning employment contracts guarantees stability of employment for the woman worker during pregnancy and after her confinement. However, the Committee notes that, according to information provided by the Government in its report, the presumption of section 178 of this Act, that any dismissal during the seven-and-a-half months before or following the date of confinement is motivated by the woman's pregnancy, is no longer irrefutable but can be refuted if evidence is provided to the contrary. The Committee is bound to emphasize that under the terms of Article 4 of the Convention, it is unlawful for the employer to dismiss a woman during her absence on maternity leave or at such a time that the period of notice would expire during such absence. The Committee trusts that the Government will re-examine the issue and take the necessary measures to give full effect to this provision of the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Article 3(c) of the Convention. The Committee notes that the Government's report contains no reply to its earlier comments. However, the Committee notes with interest the adoption in 1996 of Act No. 24.714 concerning the family benefits scheme which, under the terms of section 11, reduced the length of service required as a condition for entitlement to cash benefits during maternity leave from six to three months. The Committee once again requests the Government to indicate whether women workers who do not meet this condition are entitled to cash benefits from public funds or under a public assistance scheme. The Committee also requests the Government to continue to provide information on any new measures taken to ensure that all women workers covered by the Convention are entitled to cash benefits during their maternity leave, in accordance with this provision.

In this regard, the Committee notes that under section 2 of Decree No. 1245/96 implementing the afore-mentioned Family Benefits Act, a worker's length of service during the months immediately before his or her current activity may count towards the length of service required before the worker is entitled to benefits. The Committee would be grateful if the Government would clarify the term "in the months immediately before".

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

1. Article 3(c) of the Convention (Cash benefits). The Committee notes the information supplied by the Government in reply to its previous comments. It would be grateful if the Government would indicate whether women workers who do not fulfil the qualifying period provided for in the national legislation for the granting of cash benefits during maternity leave can, none the less, receive benefits out of public funds or under an assistance scheme. It also asks the Government to continue to provide information on any measures that might be taken or envisaged to reduce the qualifying period so as to facilitate maternity benefit claims by the women concerned.

2. The Committee notes the observations made in March 1992 by the United Trade Union of Education Workers of Buenos Aires (SUTEBA) on the application by Argentina of Convention No. 3, particularly concerning the length of maternity leave of temporary or supplementary women teachers in the province of Buenos Aires. It recalls in this connection that teachers are not covered by the Convention which applies, by virtue of Article 3, to women employed in industrial or commercial establishments as defined in Article 1.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

Article 3(c) of the Convention (paid benefits). The Committee takes note of the information supplied by the Government in reply to its earlier comments.

It notes, in particular, that no measures have been taken so far with a view to introduce modifications to the national legislation in order to repeal provisions on any qualification period for entitlement to the paid benefits due to a woman during maternity leave, provided for in Article 3, paragraphs (a) and (b), of the Convention. The Committee also takes due note of the Government's opinion expressed in the report, according to which such qualification period is deemed necessary for the purpose to avoid a possible misuse of the system.

With reference to its previous comments the Committee would like to draw the Government's attention once again to the point that Article 3(c) of the Convention does not stipulate any qualification period or conditions for entitlement to the paid benefits due to a woman during maternity leave. It can but reiterate its hope that the Government will reconsider its position and will adopt in the near future the measures necessary to ensure full application of this provision of the Convention, which has been the subject of the Committee's comments for a number of years, and asks the Government to furnish information on any progress made in this connection in its next report.