Legislation on labor of women and minors in Argentina

Unit IV:

Women's Work

Legal provisions

Article 172: the woman may enter into any kind of employment contract, and may not be enshrined by collective labor agreements, or authorized regulations, any type of discrimination in employment based on sex or marital status of the same, although the latter is alter in the course of the employment relationship.

In the collective agreements or wage rates that are drawn up, full observance of the principle of equal pay for work of equal value shall be guaranteed.

Article 32: minors from the age of eighteen (18) and married women, without the authorization of the husband, may enter into an employment contract.

Article 17: this law prohibits any type of discrimination between workers on grounds of sex, race, nationality, religious, political, union or age

Article 81: the employer must give all workers equal treatment in identity of situations. It will be considered that there is unequal treatment when there are arbitrary discriminations based on reasons of sex, religion or race, but not when the different treatment responds to principles of common good, such as the one that is based on the greater efficiency, diligence or contraction to their tasks by the worker

Article 173: Article repealed by Article 26 of Law No. 24,013 (Employment Law) prohibits the work of women at night hours stipulated from 8pm. Until 6:00 a.m.

Article 174: women who work in the morning and in the afternoon will have a two (2) hour break at noon, except that due to the extension of the working day to which the worker is subjected, the characteristics of the tasks that carry out, the damages that the interruption of work could cause to the beneficiaries themselves or to the general interest, the adoption of continuous schedules will be authorized, with the suppression or reduction of said rest period.

Article 175: it is forbidden to entrust the execution of work at home to women employed in any premises or other dependency of the company.

Article 176: it is prohibited to employ women in jobs that are painful, dangerous or unhealthy.

The regulation will determine the industries covered by this prohibition.

The provisions of article 195 shall govern with respect to the employment of women.

The public body determines unhealthy jobs.

Fundamentals

The rules contained in the LCT refer to:

• Working conditions.

• Maternity leave

Working conditions

In order to preserve the psycho-physical health of the employee, the norm contains a series of provisions, in order to ensure working conditions that allow her to fulfill her duties for her home and especially with her children.

As in the case of men, the majority is established at 18 years of age and their full capacity (whatever their marital status) to conclude a work contract and act in court.

The law prohibits discrimination on the basis of sex or marital status.

Regarding the working day, it is not allowed to carry out work at night hours, for which purpose it is considered as such that between eight o'clock and six the next day, except for exceptions.

The employer cannot entrust the execution of work at home to women employed in any premises or other dependency of the company.

There is no impediment for women to carry out tasks during overtime within the limits and conditions established by law.

Maternity leave

It is prohibited to carry out tasks in a dependency relationship during the pre and postpartum period that the law sets at 45 days for each of them. The woman can choose to have days transferred from the previous period to the later period, up to a maximum of 15 days.

Preterm birth does not reduce the 90-day license period, in which case the previous period not enjoyed is accumulated to postpartum.

Maternity protection

Article 177: the work of female personnel is prohibited during the forty-five (45) days prior to childbirth and up to forty-five (45) days after it.

However, the interested party may choose to have her leave prior to delivery reduced, which in such case may not be less than thirty (30) days; the remainder of the total leave period will be accumulated to the postpartum rest period. In the event of preterm birth, the entire period of leave that was not enjoyed before delivery will be accumulated to the subsequent rest, in order to complete the ninety (90) days.

The worker must reliably communicate her pregnancy to the employer with presentation of a medical certificate stating the presumed date of delivery, or require its verification by the employer. The worker will retain her job during the indicated periods, and will enjoy the allowances conferred by the social security systems that will guarantee her the receipt of a sum equal to the remuneration that corresponds to the period of legal leave, all in accordance with the requirements and other requirements that the respective regulations provide.

Guarantee every woman, during pregnancy, the right to job stability. It shall have the character of an acquired right from the moment the worker makes the notification referred to in the preceding paragraph.

In case of remaining absent from work for a longer time, as a result of illness that according to medical certification owes its origin to pregnancy or childbirth and incapacitates her to resume it after those deadlines, the woman will be entitled to the benefits provided for in article 208 of this law.

Article 178: it is presumed, unless proven otherwise, that the dismissal of the working woman is due to maternity or pregnancy reasons when it is ordered within a period of seven and a half (7 1/2) months before or after the date of delivery., as long as the woman has fulfilled her obligation to notify and certify the fact of the pregnancy as well as, where appropriate, the birth. Under such conditions, it will give rise to the payment of compensation equal to that provided for in article 182 of this law.

Article 179º: every nursing mother worker may have two (2) half-hour breaks to breastfeed her child during the working day, and for a period not exceeding one year after the date of birth, except that for medical reasons it is necessary for the mother to breastfeed her child for a longer period of time.

In establishments where the minimum number of workers determined by regulation provides services, the employer must set up maternity wards and nurseries for children up to the age and under the conditions that are established from time to time.

Rights and obligations of the parties

See art. 177

Consequences of its breach: Indemnification

Article 182: in the event of non-compliance with this prohibition, the employer will pay compensation equivalent to one year of remuneration, which will be accumulated to that established in Article 245.

• Concordances with LCT: arts.178 (presumption of dismissal due to pregnancy); 180 (nullity of clauses); 181 (presumption of dismissal due to marriage); 242 (termination of the contract for just cause) and 245 (severance pay for dismissal without just cause)

• Bond: dismissal due to marriage

• Jurisprudence

Article 245: in cases of dismissal ordered by the employer without just cause, with or without prior notice, the employer must pay the worker compensation equivalent to one (1) month's salary for each year of service or fraction greater than three (3)) months, based on the best normal and usual monthly remuneration received during the last year or during the time of service provision, if this is less.

Said base may not exceed the equivalent of three (3) times the monthly amount of the sum resulting from the average of all the remunerations provided for in the collective bargaining agreement applicable to the worker at the time of dismissal for the legal or conventional working day, excluding antiquity. The ministry of labor and social security will be responsible for setting and publishing the corresponding amount together with the salary scales of each collective bargaining agreement.

For those workers not covered by collective bargaining agreements, the limit established in the preceding paragraph will be the one that corresponds to the activity agreement applicable to the establishment where they provide service or to the most favorable agreement, in the event that there is more than one.

For those workers paid on commission or with variable remuneration, the agreement of the activity to which they belong or the one that applies in the company or establishment where they provide services will be applicable, if this is more favorable.

The amount of this compensation in no case may be less than two (2) months of salary calculated based on the system of the first paragraph.

Presumptions

Of the state of leave. Different situations

Option for women

Article 183: the working woman who, in force in the employment relationship, has a child and continues to reside in the country, may choose between the following situations:

a) To continue their work in the company in the same conditions in which they had been doing it.

b) Rescind their employment contract, receiving the compensation for time of services that is assigned by this subsection, or the greater benefits that arise from the professional statutes or collective labor agreements.

In such case, the compensation will be equivalent to twenty-five percent (25%) of the worker's remuneration, calculated based on the average set in Article 245 for each year of service, which may not exceed a minimum living wage per one year of service or fraction greater than three (3) months.

c) Stay on leave of absence, for a period not less than 3 months, nor more than six (6) months.

A leave of absence is considered to be the one voluntarily assumed by the working woman that allows her to return to the tasks that she performed in the company at the time of delivery, within the established deadlines.

The working woman who, being on leave of absence, formalizes a new employment contract with another employer, will be fully deprived of the power to reintegrate.

The provisions of paragraphs b) and c) of this article are applicable to the mother in the justified case of caring for a sick minor child in her charge, with the scope and limitations established by the regulations.

• Concordances with LCT: articles 184 (re-entry of the worker) and 185 (minimum seniority required)

• Notification: models (communications from the worker to the employer)

Re-entry

Article 184: the re-entry of working women on leave of absence must occur at the end of the period for which they choose.

The employer may order it:

a) In charge of the same category he had at the time of delivery or the child's illness

b) In a higher or lower position or job than that indicated in agreement with the working woman

If it is not admitted, it will be compensated as if it were unjustified dismissal, unless the employer demonstrates the impossibility of reinstating it, in which case the compensation will be limited to that provided for in Article 183, subsection b), final paragraph.

The periods of leave of absence will not be counted as time of service.

• Concordances with LCT: art. 183 (different situations. Option in favor of women)

Seniority requirement

Article 185º: to enjoy the rights of Article 183º, sections b) and c), of this law, the worker must have been at the company for at least one (1) year.

• Concordances with LCT: art. 183 (different situations. Option in favor of women)

Cup option

Article 186: if the woman does not return to her job after the expiration of the leave periods provided for in article 177, and does not notify her employer within forty-eight (48) hours prior to the end of the same, that It takes advantage of the leave of absence, it will be understood that it opts for the perception of the compensation established in article 183, paragraph b), final paragraph.

The right granted to working women by virtue of the above provisions does not undermine the rights that correspond to the same by application of other norms.

• Concordances with LCT: arts. 177 (prohibition to work between pre and postpartum) and 183 (different situations. Option in favor of women)

Child labor

Legal provisions

Article 187º: minors of either sex, over fourteen (14) years old and under eighteen (18) may enter into all kinds of employment contracts, under the conditions provided in articles 32 and following of this law. The regulations, collective bargaining agreements or salary tables that are drawn up, will guarantee the minor worker equal pay, when he or she performs working hours or performs tasks typical of older workers.

The learning and professional guidance regime applicable to minors from fourteen (14) to eighteen (18) years old will be governed by the respective provisions in force, or that are dictated for that purpose.

Article 32: minors from the age of eighteen (18) and married women, without the authorization of the husband, may enter into an employment contract.

Those over fourteen (14) and under eighteen (18), who with the knowledge of their parents or guardians live independently of them, enjoy the same capacity.

Article 33: minors, from the age of fourteen (14), are empowered to be in labor lawsuit in actions related to the contract or employment relationship and to be represented by agents through the instrument granted in the manner provided by local laws, with the promiscuous intervention of the public prosecutor.

Article 34: minors from eighteen (18) years of age have the free administration and disposal of the product of the work they perform, governed by this law, and of the goods of any type that they acquire with it, being for this purpose enabled to the granting of all the acts that are required for the acquisition, modification or transmission of rights over them.

Article 35: minors emancipated by marriage will have full working capacity.

Article 36: for the purposes of the conclusion of the employment contract, acts of legal persons shall be deemed to be those of their legal representatives or of those who, without being so, appear as authorized to do so.

Article 188: the employer, when hiring workers of either sex, under the age of eighteen (18), must require from them or their legal representatives, a medical certificate that proves their aptitude for work, and submit them to the examinations periodic doctors that foresee the respective regulations.

Article 189º: employers are prohibited from employing minors under fourteen (14) years of age in any type of activity, whether or not it is for profit.

This prohibition will not reach, when authorized by the pupil ministry, those minors employed in companies in which only members of the same family work and provided that they are not harmful, damaging or dangerous occupations.

Neither may minors over the age indicated who, included in school age, have not completed their compulsory education, unless expressly authorized by the pupil ministry, when the work of the minor is considered essential for the subsistence of the minor or of their direct relatives, provided that the minimum required school instruction is satisfactorily completed.

Article 190: minors from fourteen (14) to eighteen (18) years old may not be employed in any type of task for more than six (6) hours a day or thirty-six (36) weekly, without prejudice to the unequal distribution of hours. working days.

The working hours of minors over sixteen (16) years old, with prior authorization from the administrative authority, may be extended to eight (8) hours a day or forty-eight (48) weekly.

Minors of either sex may not be employed in night work, understanding as such the interval between twenty (20) and six (6) hours the next day. In the cases of manufacturing establishments that carry out tasks in three daily shifts that cover twenty-four (24) hours a day, the period of absolute prohibition regarding the employment of minors will be governed by this title and the provisions of Article 173, last part of this law, but only for male minors over sixteen (16) years of age

Article 191: in relation to minors under eighteen (18) years of either sex, who work in the morning and afternoon hours, the provisions of Articles 174, 175 and 176 of this law shall govern.

Article 192: the employer within thirty (30) days of the occupation of a minor between the ages of 14 and 16, must manage the opening of a savings account in the national savings and insurance fund. Said entity will grant them the proper treatment of special savings accounts.

The respective documentation will remain in the power and custody of the employer while the minor works under his / her orders, and must be returned to him or her parents or guardians upon termination of the employment contract, or when the minor reaches sixteen (16) years of age.

Article 193: the employer must deposit ten (10) percent of the corresponding remuneration in the minor's account, within three (3) days following payment, an amount that will be deducted from it.

The employer must prove to the administrative authority, the minor or their legal representatives, the timely compliance with the provisions of this article.

Article 194: minors of either sex will enjoy a minimum period of annual leave, not less than fifteen (15) days, under the conditions set forth in title v of this law.

Article 195º: for the purposes of the responsibilities and compensation provided for in labor legislation, in the event of work accidents or illness of a minor, if it is proven to be the cause of any of the tasks prohibited in this regard, or carried out under conditions that mean infringement of its requirements, the accident or illness will be considered as a result of the fault of the employer, without admitting evidence to the contrary.

If the accident or illness is due to the fact that the minor is circumstantially in a workplace where his presence is illegal or prohibited, without the employer's knowledge, the latter may prove his fault.

Fundamentals

The law establishes a series of provisions in order to preserve the psycho-physical and moral health and even the patrimony of those who, not having reached the majority

Of working age, they perform tasks in directed work.

Those who, having not been emancipated by marriage, have not reached 18 years of age are considered as such.

From the age of 14, when with the knowledge of their parents or guardians they live independently of them, they have the ability to enter into all kinds of employment contracts and exercise them.

Minors under 14 years of age cannot work unless they have authorization from the pupil ministry and it is work carried out in companies in which only members of the same family work and as long as it is not harmful, harmful or dangerous occupations.

Those over 14 years of age can be hired if:

a) They have a physical fitness certificate that proves their work aptitude.

b) If they have completed their mandatory instruction.

Instead they cannot be hired:

• In the case of tasks performed at night.

• In arduous, dangerous or unhealthy tasks.

• Nor can said minors be entrusted to carry out tasks at home by the employer.

Provided by UCh RR.HH. portal for HR students www.uch.edu.ar/rrhh

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