The Argentine Supreme Court of Justice ordered the National Executive to set the conditions to require companies to provide nurseries and day care centers for their employee’s children. The Court's decision was issued on October 21, 2021 provisional remedy docketed as “Etcheverry, Juan Bautista et al. vs. Argentina re. provisional remedy Law 16,986.”
The obligation of employers to provide nurseries and day care centers is already provided for in Section 179 of Labor Contract Law No. 20,744. However, under the Law, the National Executive has a duty to regulate the conditions for this obligation to be operative, including the minimum number of employees for the law to apply and the age of the children who qualify for day care. That regulation was never issued; thus, actions demanding the service can’t be brought before the courts.
As from this ruling, the Argentine Ministry of Labor, Employment and Social Security has ninety (90) days to issue the regulation, determine compliance conditions and set a deadline for companies to implement the measure.
The Court clarified that reimbursements for nursery and/or day care expenses provided for in Section 103 bis of the Labor Contract Law does not replace the obligation to provide these centers. On the contrary, it deemed reasonable the interpretation of Division I of the Federal Administrative Court of Appeals, which held that the compensation was aimed at employers who would be exempted from providing nurseries and day care centers once the regulation was issued.
Similarly, the Court highlighted that collective bargaining agreements with provisions on day care in no way replace the government’s duty to regulate.
Lastly, the Court added that day care regulation is a gateway to real equality of opportunity and treatment of women in the workplace. It stressed the need to overcome gender stereotypes in the interpretation of Section 179 so that its regulation considers the number of people working in the company without distinction of gender, as the Labor Contract Law did. The ruling is in line with international treaties that protect the family as an essential element of society, the sons and daughters of those who work, and the female employees to whom international treaties aim to assure the right to work and to progress in their jobs without care responsibilities limiting their possibilities.
It remains, then, for the Labor Ministry to issue a regulation defining the criteria and conditions for companies to provide nurseries and daycare centers. For the time being, it is not possible to require companies to comply with this duty.