The coordination of family care tasks and employment in Argentina

Tuesday 27 September 2022

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Enrique M Stile
Marval, O’Farrell y Mairal, Buenos Aires
ems@marval.com

Camila Figueroa Vinassa
Marval, O’Farrell y Mairal, Buenos Aires
cfv@marval.com

National authorities in Argentina are implementing various measures to reconcile family responsibilities with work. The aim of these measures is to accomplish genuine equality of opportunity in the workplace without gender distinction and to reverse gaps in rights to access social security. In practice, the measures are to assure the right to work and to progress and access retirement without care responsibilities limiting career possibilities.

Among these measures is Decree 144/2022, which orders employers with 100 or more workers – employees or and outsourced – working in their premises to provide nurseries and day care centres for workers’ children aged between 45 days and three years old.

Similarly, Decree 475/2021 enables biological women with children and other persons of childbearing capacity to request that the time they dedicate to childcare is regarded as time of service for retirement purposes.

Domestic and caring tasks, which have usually been considered female roles, require an enormous number of hours and, although they are essential for the development of societies, have traditionally been invisible. In this context, the Argentine National Executive has been implementing different policies aimed at redistributing care and removing inequalities from the traditional distribution of tasks.

In order to reduce the burden for those who carry out care tasks limiting their possibilities of personal and professional development, the National Executive has ordered employers who meet certain criteria to provide nurseries and day care. Although said obligation was already set out in the 1975 Labour Contract Law, its regulation has never been implemented. Consequently, actions demanding such services could not be enforced by the courts.

However, last year, the Supreme Court of Justice ordered the National Executive to issue the relevant regulation, in a ruling issued on 21 October 2021, in the case Etcheverry, Juan Bautista and others v National State re preliminary injunction Law, 16,986.

As a result, the National Executive issued Decree 144/2022, establishing that employers with more than 100 workers must offer nurseries and day care centres for children aged between 45 days and three years within a one-year period of 23 March 2023. Employers may outsource the implementation of day care centres or implement them together with other employers.

The Decree foresees two cases in which companies could pay personnel a non-remunerative sum as reimbursement of expenses instead of offering day care centres – provided they comply with certain requirements: when this is agreed through collective bargaining agreements; or when the person teleworks from home.

The regulation does not regulate non-unionised employees or people who telework. Consequently, many employers are considering taking the risk of implementing the payment of the non-remunerative amount even in cases not included in the legal exemptions. An argument these organisations may try to use in their favour is that they are still complying with the purpose of the measures, to reconcile family and work responsibilities.

Similarly, in an attempt to reverse gaps in access to social security for those traditionally in charge of care tasks, the National Executive issued Decree 475/2021 through which maternity, adoption, paid and unpaid leave for maternity may be calculated as time in service for the purpose of retirement.

According to the Decree, biological women with children and other persons of childbearing capacity may accumulate: a year of service for each child born alive; and two years of service for each adopted child. In addition, they may accumulate an extra year of service for each disabled child and two extra years if they have received child-benefit welfare for at least 12 months. The order also provides that paid and unpaid leave for maternity may count as time worked.

The Ministry of Labour clarified that the recognition of services may be requested by more than one woman and/or pregnant person for the same child born alive or adopted.

The measures outlined above reveal the clear intention of national authorities to work towards a more egalitarian society. Through these measures, Argentina is seeking to reverse and overcome traditional inequalities experienced by those who bear care task responsibilities.

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