By María Verónica Nolazco, Professor and researcher of Constitutional Law, PhD candidate in Law at the Universidad Austral
Article 179 of Law 20.744 on Employment Contracts (LCT), concerning the maternity rooms and nurseries that employers must provide for their employees with minor children, lay dormant for almost five decades until, after a long legal process, the Supreme Court brought the litigation to an end. In October 2021, the Supreme Court resolved the case of Etcheverry, Juan Bautista et al. v. EN re: amparo (protection) under Law 16.986, which sought the regulation of the article. for the first time in its history, and unanimously, it declared the unconstitutionality due to regulatory omission.
The injunction was drafted within the framework of the work carried out by the students and professors of the Legal Clinic of the Universidad Austral The lawsuit was filed by Juan Bautista Etcheverry and Ximena Liggerini, in their capacity as workers with minor children in their care. Although the plaintiffs' claim was initially rejected, in 2017, Chamber I of the National Court of Appeals for Federal Administrative Litigation ordered the Executive Branch to regulate the article within 90 business days. This decision was upheld by the Supreme Court in October 2021 when it resolved the appeal filed by the National Government via extraordinary appeal.
After a few days' delay, through Decree 144/2022, the Executive Branch finally regulated Article 179 of the Labor Contract Law (LCT), establishing, among other things, that in establishments where 100 or more people work, regardless of the type of contract, employers must provide childcare facilities for children between 45 days and 3 years old who are under the care of their employees during the workday. For the purpose of calculating the number of people working in each establishment, both employees of the main establishment and those employed by other companies will be taken into account, provided they provide services at the main establishment.
According to the provisions of the regulatory decree, the obligation will be enforceable from March 23, 2023, and each jurisdiction will exercise its police power for the purposes of authorizations and conditions.
On the other hand, the regulations allow for the joint implementation of childcare facilities for establishments located within the same industrial park or less than two kilometers apart. Subcontracting is also permitted, provided the childcare facility is located within two kilometers of the establishment. Finally, collective bargaining agreements may establish a non-wage reimbursement, either for hiring a childcare provider or for paying a caregiver. In both cases, this reimbursement must be reflected on the employee's payslip.
This adds another workload for some employers, while many other workers will be able to enjoy the benefit granted to them by law. Regardless of the opinions that the implementation of this new public policy may generate, the fact remains that our Republic has been strengthened by this leading case.
The power granted to the President by the National Constitution in Article 99, paragraph 2, to regulate the laws enacted by Congress is not discretionary, but rather mandatory when required by the text or purpose of the law itself. According to the Supreme Court's ruling, regulatory omission occurs when the Executive Branch fails to fulfill this obligation within a reasonable time, rendering a legal clause illusory and preventing the effective enjoyment of a right that has been deferred until its regulation.
However, a number of laws remain in force whose regulations are needed for them to be fully operational. To cite a few examples at the national level, there is Law 27.553 on Electronic Prescriptions and Law 27.678 on Palliative Care. Instead of waiting for individuals to resort to legal action, it would be advisable for Congress to exercise greater oversight of the laws it enacts. Consideration could be given to establishing a public registry of existing laws whose regulations are pending, which could be managed by the Permanent Bicameral Commission.
The proper functioning of our institutional system requires both the fulfillment of the constitutional obligations by the Executive Branch, and the necessary exercise of the control function by Congress and the Judiciary.
The implementation of regulatory decree 144/2022 is the result of judicial review and a positive example of the functioning of reciprocal controls between branches of government to achieve a better culture of legality and a true rule of law.
