The Government regulated the section of a law that obliges companies with more than 100 employees to have day care centers

Following a ruling by the Supreme Court of Justice last year, the Government regulated the section of a law requiring companies to have day care centers for children between 45 days and three years of age.

In October 2021, the highest court upheld the judgment of Chamber I of the National Chamber of Appeals in Federal Administrative Litigation, ordering the Executive Branch to regulate article 179 of the Employment Contract Act passed in 1974. Thus, 48 years later, this Wednesday the regulations were published in the Official Gazette.

Indeed, President Alberto Fernández signed Decree 144/2022, which established: “In workplaces where 100 people or more work, regardless of the contracting modalities, care spaces must be provided for children aged between 45 days and 3 years of age, which are in charge of the male and female workers during the respective working day”.

It was clarified that for the purposes of calculating the number of persons working in the establishment, “both those dependent on the main establishment, as well as those and those dependent on other enterprises, shall be taken into account as long as they serve in the main establishment”.

The regulation specifies that employers whose establishments are located within the same industrial park, “or at a distance of less than two kilometers from each other”, may provide for “the implementation of care spaces in a consortial manner within the aforementioned radius”. In addition, they will be able to “outsource the implementation of care spaces”.

As an option, the Executive Branch established that Collective Labour Agreements may provide for the replacement of the obligation to have spaces for children “by the payment of a non-remunerative monetary sum, for the reimbursement of duly documented childcare or childcare costs”.

“Expenses shall be considered to be duly documented when they emanate from an institution authorized by the national authority or local authority, as appropriate, or when they arise from work of assistance, accompaniment and care of persons registered under the Special Employment Contract Scheme for House Staff Individuals”, it was clarified in the regulations.

The amount to be reimbursed as payment for childcare or non-therapeutic care work of persons may not be less than a sum equivalent to 40 per cent of the monthly salary corresponding to the category “Assistance and Care of Persons” of Staff withdrawing from the regime provided for in Law No. 26,844, or the amount actually spent in case it is less.

In Part-Time Employment Contracts, the amount to be reinstated will be proportional to that corresponding to a full-time worker.

In addition to the signing of Alberto Fernández, the decree includes the headings of the Chief of Staff, Juan Manzur; the Minister of Labour, Claudio Moroni; and the head of the Ministry of Women, Gender and Diversity, Elizabeth Gómez Alcorta.

After the regulation, companies will be required to comply with the regulations after a period of one year in order to make the appropriate adjustments and arrangements for the fulfilment of the obligation.

Otherwise, “a very serious labour offence will be considered within the scope of the National Jurisdiction in accordance with article 4 of Annex II of Act No. 25,212, which ratifies the Federal Labour Pact,” the Government warned.

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