Home Work Convention, 1996 (No. 177) - Argentina (Ratification: 2006)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations from the Confederation of Workers of Argentina (CTA Autonomous) and the Industrial Confederation of Argentina (UIA), received on 30 September and 1st October 2020, respectively. The Committee requests the Government to send its comments in this regard.

Articles 3 and 4 of the Convention. National policy. The Committee notes the Government’s indication that there has been no progress in the approval of the Bill amending Act No. 12713 of 29 September 1941 on Home Work (Act No. 12713). The Committee requests the Government to provide detailed and updated information on the measures taken or envisaged with a view to improving the situation of homeworkers, particularly those adopted to address the effects of the crisis triggered by the COVID-19 pandemic. The Committee also requests the Government to indicate the employers’ and workers’ organizations that have been consulted regarding the formulation, application and revision of these measures. The Committee further requests the Government to continue providing information on any progress made in the adoption of the Bill amending Act No. 12713.

Articles 4(2)(c) and 7. Equality of treatment in relation to protection in the field of occupational safety and health. Application of safety and health laws and regulations to homeworkers. In its previous comments, the Committee requested the Government to indicate whether the occupational safety and health legislation provides for equal treatment between homeworkers and other wage earners, and whether it is applied taking into account the special characteristics of home work. The Committee notes the Government’s reiteration that, under section 9 of the Home Work Act (No. 12713), premises on which home work is performed must meet health and safety requirements as determined by the competent authority. The Government also refers, among other provisions, to section 22 of Decree No. 118755/42 regulating Act No. 12713, which establishes that workshop premises must comply with the relevant health and safety provisions. The Government further indicates that, under section 22 of the Decree regulating Act No. 12713, the rules on health and safety measures laid down in the general legislation on occupational health, safety and risks for other workers apply to homeworkers. Under Resolution No. 15552/2012 SRT, these rules also apply to telework. The Committee notes, however, that the Government has not provided information in its report on the manner in which the existing legislation on occupational safety and health is applied, taking due account of the special characteristics of home work. The Committee requests the Government to provide information on any measures adopted or envisaged in the area of occupational safety and health that take due account of the special characteristics of home work. The Committee also requests the Government to indicate the types of work and substances prohibited in home work, in accordance with the requirements of Article 7 of the Convention.

Article 4(2)(d). Equality of treatment in relation to remuneration. The Committee notes the approval of an agreement on 16 November 2017 by the Eighth Wage Committee for Home Work in the Footwear Industry, under which the parties agreed to grant to the workers included in the scope of application of Act No. 12713 the increases to the minimum wage agreed under Collective Labour Agreement No. 652/12 on workers from the footwear and related industries. This agreement provides for a gradual increase of 23 per cent in the minimum wage of such workers and a one-off payment not classified as remuneration of 6,000 pesos. The Committee requests the Government to continue providing updated and detailed information on the measures adopted or envisaged with a view to encouraging equality of treatment in terms of remuneration between homeworkers in the various sectors of the economy and other wage earners.

Article 4(2)(e). Equality of treatment in relation to social security protection. In reply to the Committee’s previous comments, the Government indicates that homeworkers, like workers employed in a workplace, are fully covered by the social security system (pension, health, family allowance, unemployment and risk schemes). The Government adds that, to access the benefits of the social security system, homeworkers, like other workers, must be registered and make contributions and their employers must pay the required contributions. The Committee notes, however, that the Government reports high levels of informality in the home work sector, especially in the garment and footwear sectors. With a view to addressing informality in these sectors, the Ministry of Labour and Federal Administration of Public Revenues established the Minimum Workers Indicator, as a tool to calculate the minimum workforce required to undertake an activity in a workshop on the basis of several factors such as the number of machines used and the number of garments or shoes to be produced. The Government indicates that, by targeting different actors in the production chain, it is more effectively combating labour informality and protecting the rights of employees, whether they work in factories, workshops or at home. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to guarantee in practice the access of homeworkers, under equal conditions to other workers, to the social security system, including any measures adopted to combat informality in home work. The Committee also requests the Government to provide updated statistical information, disaggregated by sex, on the number of homeworkers who are covered by the various social security schemes.

Article 4(2)(f). Equality of treatment in relation to training. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged to ensure equality of treatment between homeworkers and other wage earners in relation to training.

Article 6. Labour statistics. Article 9 and Part V of the report form. Application in practice. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged to ensure that statistics on homeworkers, disaggregated by sex and age, including those under the teleworking model, are gathered and analysed. The Committee also requests the Government to provide updated information regarding the application in practice of the Convention, including copies of court decisions in relation to the principles of the Convention and extracts from inspection reports, and to indicate the number of inspections carried out and their outcomes, including with regard to workers under the teleworking model.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the Confederation of Workers of Argentina (CTA) and the Industrial Union of Argentina (UIA) received on 30 September and 1 October 2020, respectively. The Committee requests the Government to send its reply in this regard.

Promotion of telework. The Committee notes the adoption on 16 March 2020 of Decision 2020-207-APN-MT, which promotes telework for national public sector workers, except for essential service workers, and recommends that private enterprises operate at a minimum staffing level and adopt telework. On 16 March 2020, Decision No. 21/20 was also adopted, which provides that employers allowing employees to work from their private homes must inform their occupational risk insurer (ART) of the address where the work will be performed and the frequency of that work. That address will then be considered as a workplace under the Occupational Risk Act. In addition, the Committee notes the supplementary information provided by the Government. In particular, it notes with interest the adoption of Act No. 27555 of 30 July 2020 (hereinafter Act No. 27555) regulating telework. Section 2 of Act No. 27555 provides that contracts are considered as telework contracts “where the completion of activities, performance of work or provision of services (…) is carried out entirely or partially in the home of the worker, or in locations separate from the premises of the employer, through the use of information technologies.” Section 2 also provides that the minimum legal requirements for telework contracts shall be established by a special law, while activity-specific regulations shall be established through collective bargaining. The Committee also notes that Act No. 27555 provides that workers on a home work contract have the same rights and obligations as those working on site (section 3), including the rights to freedom of association and collective bargaining (sections 12 and 13) and protection from occupational risks (section 14). Section 3 also provides that the wages of workers engaged in telework must not be less than what they would receive for on-site work. Section 4 provides that working hours must be agreed in advance and in writing, in accordance with the legally established limits. Act No. 27555 also regulates the right to digitally disconnect (section 5), the option to amend working hours to provide care in certain cases (section 6) and the right to receive training (section 11). The Act also establishes a number of obligations for employers, such as the obligation to provide the equipment, tools and support necessary to perform the work, and to reimburse any connectivity and/or service consumption costs that workers might incur as a result of teleworking (sections 9 and 10). Lastly, Act No. 27555 provides that the transfer of workers from on-site work to telework must be voluntary and agreed in writing (section 7), and can be revoked by the worker at any time (section 8).

The Committee notes that, in its observations, the CTA emphasizes that, while Act No. 27555 includes the rights and obligations established in the Convention and in the Home Work Recommendation, 1996 (No. 184), the effective exercise of these rights is problematic in practice, since they depend on collective bargaining conducted at a later stage. In addition, the CTA maintains that the effective enforcement of the obligations is subject to subsequent regulation by the competent state bodies. Moreover, the CTA indicates that the Act considers telework as a new employment contract (section 2) and not as an arrangement or option available to the employer for organizing work under the Employment Contracts Act (Act No. 20.744). The CTA also states that including the option of working by objectives (section 4(1) of the Act) renders the right of the worker to limit working hours (section 4(2)) and to disconnect (section 5) null and void in practice. With regard to occupational safety and health, the CTA maintains that section 14 of Act No. 27555 undermines the protection of workers, as it provides that accidents that occur at work are “presumed” to be occupational, while the Occupational Risks and Accidents Act (No. 24557) currently in force provides that such accidents are “deemed” to be occupational. The Committee also notes the CTA’s indication that Act No. 27555 expressly provides for its entry into force 90 days from the eventual end date of the social, preventive and obligatory isolation period established by Emergency Decree No. 297/2020 currently in force, and that, consequently, it is impossible to determine when the Act will enter into force. The CTA emphasizes that, although the number of workers engaged in telework has increased exponentially during the pandemic, their working conditions are unknown. As the Act is not yet in force owing to the extension of the social, preventive and obligatory isolation period, employers have unilaterally established the parameters for teleworking, without any kind of public oversight. The CTA indicates that the only exception in this regard has been the signing of the “Agreement regulating telework under the COVID-19 (coronavirus) pandemic restrictions” between the judiciary of the province of Buenos Aires and the Judicial Association of Buenos Aires, which remains in force only during the social, preventive and obligatory isolation period. The CTA also maintains that there is no register of workers engaged in telework either prior to or during the pandemic, contrary to the guidance provided by Paragraph 7 of Recommendation No. 184.

The Committee notes the UIA’s statement that the brevity of the legislative process by which Act No. 27555 was adopted did not allow for an effective social dialogue process to be held. The UIA indicates that, in the discussions held during the adoption process, the employer organizations expressed deep concern over various provisions of the Act that were difficult to apply in practice and that, moreover, were contrary to international labour standards. In this regard, the UIA indicates that Act No. 27555 does not establish an objective criterion for determining when remote work is considered as a contract performed under teleworking arrangements and when it is considered as work occasionally performed remotely, which is excluded from the regime of home work under the Convention. Furthermore, the UIA is opposed to the prohibition in Act No. 27555 against contacting workers outside of working hours (section 5(2) of the Act), and the obligation of the employer to have a system in place that prevents communication with workers outside of their working hours (section 4(2)). Lastly, the UIA refers to section 17(1) of Act No. 27555, which provides that in the case of transnational remote work, the national law applicable to the work contract is either that of the country where the work is performed or that of the country where the employer is domiciled, depending on which is more favourable to the worker. The UIA also refers to section 17(2) of the Act, which provides that collective agreements (concluded under section 2 of Act No. 27555) should establish a maximum number for these contracts. In this regard, it considers that cases in which Argentine law would not apply would contradict the territoriality principle established in the Employment Contracts Act (Act No. 20.744) and create a situation of legal uncertainty that could undermine compliance with international agreements. The Committee requests the Government to send detailed and updated information on the application in practice of Act No. 27555 of 30 July 2020, including the date of its entry into force, and updated statistical information on the number of workers that have begun to telework, disaggregated by age, sex and sector, and on the number of collective agreements concluded under section 2 of the Act. The Committee also requests the Government to send information on the manner in which the right to limit working hours and to disconnect is ensured. Recalling also that telework can be a useful means of enabling access to employment for individuals who sometimes face greater obstacles in this regard (such as young people, women, persons with disabilities and older people), the Committee requests the Government to provide information on the impact of Act No. 27555 on the employment of such individuals.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 3. National policy. In reply to the Committee’s previous comments, the Government indicates that there has been no progress in the approval of the Bill amending Act No. 12713 of 29 September 1941 on Home Work (Act No. 12713) and the Telework Bill. The Committee requests the Government to provide detailed and updated information on the measures taken or envisaged with a view to improving the situation of homeworkers. The Committee also requests the Government to indicate the employers’ and workers’ organizations that have been consulted regarding the formulation, application and revision of these measures. The Committee further requests the Government to continue providing information on any progress made in the adoption of the Bill amending Act No. 12713 and the Telework Bill.

Articles 4(2)(c) and 7. Equality of treatment in relation to protection in the field of occupational safety and health. Application of safety and health laws and regulations to homeworkers. In its previous comments, the Committee requested the Government to indicate whether the occupational safety and health legislation provides for equal treatment between homeworkers and other wage earners, and whether it is applied taking into account the special characteristics of home work. The Committee notes the Government’s reiteration that, under section 9 of the Home Work Act (No. 12713), premises on which home work is performed must meet health and safety requirements as determined by the competent authority. The Government also refers, among other provisions, to section 22 of Decree No. 118755/42 regulating Act No. 12713, which establishes that workshop premises must comply with the relevant health and safety provisions. The Government further indicates that, under section 22 of the Decree regulating Act No. 12713, the rules on health and safety measures laid down in the general legislation on occupational health, safety and risks for other workers apply to homeworkers. Under Resolution No. 15552/2012 SRT, these rules also apply to telework. The Committee notes, however, that the Government has not provided information in its report on the manner in which the existing legislation on occupational safety and health is applied, taking due account of the special characteristics of home work. The Committee requests the Government to provide information on any measures adopted or envisaged in the area of occupational safety and health that take due account of the special characteristics of home work. The Committee also requests the Government to indicate the types of work and substances prohibited in home work, in accordance with the requirements of Article 7 of the Convention.

Article 4(2)(d). Equality of treatment in relation to remuneration. The Committee notes with interest the approval of an agreement on 16 November 2017 by the Eighth Wage Committee for Home Work in the Footwear Industry, under which the parties agreed to grant to the workers included in the scope of application of Act No. 12713 the increases to the minimum wage agreed under Collective Labour Agreement No. 652/12 on workers from the footwear and related industries. This agreement provides for a gradual increase of 23 per cent in the minimum wage of such workers and a one-off payment not classified as remuneration of 6,000 pesos. The Committee requests the Government to continue providing updated and detailed information on the measures adopted or envisaged with a view to encouraging equality of treatment in terms of remuneration between homeworkers in the various sectors of the economy and other wage earners.

Article 4(2)(e). Equality of treatment in relation to social security protection. In reply to the Committee’s previous comments, the Government indicates that homeworkers, like workers employed in a workplace, are fully covered by the social security system (pension, health, family allowance, unemployment and risk schemes). The Government adds that, to access the benefits of the social security system, homeworkers, like other workers, must be registered and make contributions and their employers must pay the required contributions. The Committee notes, however, that the Government reports high levels of informality in the home work sector, especially in the garment and footwear sectors. With a view to addressing informality in these sectors, the Ministry of Labour and Federal Administration of Public Revenues established the Minimum Workers Indicator, as a tool to calculate the minimum workforce required to undertake an activity in a workshop on the basis of several factors such as the number of machines used and the number of garments or shoes to be produced. The Government indicates that, by targeting different actors in the production chain, it is more effectively combating labour informality and protecting the rights of employees, whether they work in factories, workshops or at home. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to guarantee in practice the access of homeworkers, under equal conditions to other workers, to the social security system, including any measures adopted to combat informality in home work. The Committee also requests the Government to provide updated statistical information, disaggregated by sex, on the number of homeworkers who are covered by the various social security schemes.

Article 4(2)(f). Equality of treatment in relation to training. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged to ensure equality of treatment between homeworkers and other wage earners in relation to training.

Article 6. Labour statistics. Article 9 and Part V of the report form. Application in practice. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged to ensure that statistics on homeworkers, disaggregated by sex and age, are gathered and analysed. The Committee also requests the Government to provide updated information regarding the application in practice of the Convention, including copies of court decisions in relation to the principles of the Convention and extracts from inspection reports, and to indicate the number of inspections carried out and their outcomes.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2014.

Repetition

Article 3. National policy. In its previous comment, the Committee noted the Government’s indication that its policy to improve the conditions of work of homeworkers was based on ongoing controls and inspections of employers, foremen and intermediaries who hire homeworkers, and that the Bill amending the Home Work Act (No. 12713) of 29 September 1941, which was under examination, will make it possible to update the existing legal provisions. It also noted the Government’s reference to the Telework Bill. The Committee notes the Government’s indication in its last report that the draft reform of the Home Work Act has not been adopted for the time being. The Committee requests the Government to keep it informed of any progress made on the adoption of the drafts legislation referred to above.

Articles 4(2)(c) and 7. Equality of treatment in relation to protection in the field of occupational safety and health. Application of safety and health laws and regulations to homeworkers. In its previous comment, the Committee noted that, under section 9 of the Home Work Act (No. 12713), the premises in which the work is done must meet health and safety conditions as determined by the competent authority. The Committee requests the Government to state whether the occupational safety and health legislation provides for equal treatment for homeworkers and other wage earners, and whether this is applied taking into account the special characteristics of home work, in accordance with the abovementioned provisions of the Convention.

Article 4(2)(e) and (f). Equality of treatment in relation to social security protection and access to training. In its previous comment, the Committee noted the Government’s reference to the Telework Bill in relation to equal treatment for employees in the workplace and homeworkers in terms of social security coverage and access to training. The Committee requests the Government to provide information on the measures taken or contemplated to give effect to these provisions of the Convention.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 3. National policy. In its previous comment, the Committee noted the Government’s indication that its policy to improve the conditions of work of homeworkers was based on ongoing controls and inspections of employers, foremen and intermediaries who hire homeworkers, and that the Bill amending the Home Work Act (No. 12713) of 29 September 1941, which was under examination, will make it possible to update the existing legal provisions. It also noted the Government’s reference to the Telework Bill. The Committee notes the Government’s indication in its last report that the draft reform of the Home Work Act has not been adopted for the time being. The Committee requests the Government to keep it informed of any progress made on the adoption of the drafts legislation referred to above.

Articles 4(2)(c) and 7. Equality of treatment in relation to protection in the field of occupational safety and health. Application of safety and health laws and regulations to homeworkers. In its previous comment, the Committee noted that, under section 9 of the Home Work Act (No. 12713), the premises in which the work is done must meet health and safety conditions as determined by the competent authority. The Committee requests the Government to state whether the occupational safety and health legislation provides for equal treatment for homeworkers and other wage earners, and whether this is applied taking into account the special characteristics of home work, in accordance with the abovementioned provisions of the Convention.

Article 4(2)(e) and (f). Equality of treatment in relation to social security protection and access to training. In its previous comment, the Committee noted the Government’s reference to the Telework Bill in relation to equal treatment for employees in the workplace and homeworkers in terms of social security coverage and access to training. The Committee requests the Government to provide information on the measures taken or contemplated to give effect to these provisions of the Convention.

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

The Committee notes the Government’s first report on the application of the Convention and wishes to draw its attention to the following points.

Article 1(b) and (c) of the Convention. Definition. The Committee notes that Act No. 12.713 of 1941 concerning home work does not contain any strict definition of the term employer. It notes that, according to the Government’s indications, the employer produces or sells the goods and places orders for work with workers, foremen or intermediaries; the intermediary places orders for the production of the goods with foremen and homeworkers; and the foreman receives the raw materials from the employer or intermediary and orders the homeworkers under his supervision to produce the goods (finished products). The Committee notes that a draft law is under consideration for the modification of Act No. 12.713 of 1941. The Committee encourages the Government to include specific provisions defining the abovementioned terms when it draws up the new Act on home work.

Article 3. National policy. The Committee notes the Government’s indication that its policy to improve conditions of work for homeworkers is based on ongoing controls and inspections of employers, foremen and intermediaries who recruit homeworkers, and notes that the draft Act amending Act No. 12.713 currently under examination will enable the existing legal provisions to be modernized. It also notes the Government’s references to the draft Act on telework and the various planned programmes and projects, especially the pilot programme for the monitoring and promotion of telework in private enterprises (PROPET). The Committee requests the Government to send a copy of any new legislative text, once it has been adopted. With regard to the PROPET programme, the Committee requests the Government to supply further details on this subject, particularly as regards the impact of the programme on the conditions of work of homeworkers using new information and communication technologies, or any other information concerning projects that are in progress or planned.

Article 4, paragraph 2(c). Equality of treatment in relation to protection in the field of occupational safety and health. The Committee notes that, under section 9 of Act No. 12.713 concerning home work, the premises in which the work is done must meet health and safety conditions as determined by the competent authority. The Committee requests the Government to state whether specific safety and health standards have been determined by the authorities responsible for home work and, if so, to send a copy of any relevant legislative text.

Article 4, paragraph 2(e). Equality of treatment in relation to statutory social security protection. The Committee notes the Government’s reference to the draft Act concerning telework. It notes that no legislative or regulatory provision in force refers to equality of treatment between employees at the workplace and homeworkers as regards statutory social security protection. The Committee requests the Government to indicate the measures taken or contemplated to give effect to this Article of the Convention.

Article 4, paragraph 2(f). Equality of treatment in relation to access to training. The Committee notes the Government’s reference to the draft Act concerning telework on this point and also to the various projects concerning the training of workers, namely the “Youth training and employment” project, the “Teleworking skills” project and the “Competence certification” project. However, it notes that there is no legislative or regulatory provision in force which makes explicit reference to equality of treatment between employees at the workplace and homeworkers as regards their access to training. The Committee therefore requests the Government to indicate the measures taken or contemplated to give effect to this Article of the Convention.

Article 4, paragraph 2(h). Equality of treatment in relation to maternity protection. The Committee notes the reference made by the Government to maternity protection and in particular to sections 177–179 and 182 of Act No. 20.744 concerning employment contracts. However, apart from the provisions relating to maternity protection, the Government also refers to section 175 of Act No. 20.744 which prohibits women workers employed in company premises or outbuildings from being requested to perform work at home. The Committee observes that this provision has little relevance to maternity protection and therefore requests the Government to provide clarification on this matter.

Article 5. Application of the Convention by means of laws and regulations. The Committee requests the Government to supply a copy of Decree No. 118.755 of 1942 issuing implementing regulations for Act No. 12.713 of 1941 concerning home work, since the Decree has not been made available to the Office.

Article 6. Inclusion of home work in labour statistics. The Committee notes the statistics supplied by the Government relating to telework, estimating the number of teleworkers at 590,000. It recalls that telework represents only one type of home work and therefore requests the Government to indicate the measures taken or contemplated to include all homeworkers in labour statistics.

Article 7. Application of safety and health laws and regulations to homeworkers. The Committee requests the Government to indicate whether laws or regulations have been adopted establishing the conditions in which certain types of work and the use of certain substances may, for safety and health reasons, be prohibited for the purposes of home work, as prescribed by this Article of the Convention.

Part V of the report form. Application in practice. The Committee requests the Government to provide a general description of the manner in which the Convention is applied in practice and to state the manner in which the legal provisions relating to home work are enforced, as these are by definition difficult to monitor. The Government is also requested to send extracts from reports of the inspection services and, if possible, information on the number and nature of infringements reported.