Bill on Gender Equality and Equal Opportunities at Work

On March 12, 2018, the Executive submitted to the Argentine Congress a bill on wage parity to be treated and potentially enacted (the “Bill”). Through this initiative, the Executive proposes amendments to the Labor Contract Law No. 20,744 (the "LCL"), with respect to Title VII "Women's Work" and the leave of absence regime; and it establishes obligations on employers and unions to guarantee gender equality at work.

I. Gender Equality and Equal Opportunities at Work

Chapter I of the Bill introduces amendments to Title VII of the LCL, which is no longer called "Women's Work" and is replaced by the title "Gender equality and equal opportunities at work".

Under this new title, the Bill amends sections 172, 173, 175 and 176 of the LCL.

Section 172, which referred to the women’s capacity and the prohibition of discriminatory treatment, is modified in order to guarantee workers, whatever their gender is, equality of opportunities in all aspects of their working life, with equal rights in everything related to their access to employment, their selection and hiring, the conditions of provision of services, their development or evolution in the career within the company. Additionally, the Bill establishes the prohibition of any type of discrimination based on gender or civil status of those who work, either through individual employment contracts, collective agreements or regulations.

Section 173, which was abrogated by Law N° 24,013, is in force again under a new text that guarantees strict wage equality in accordance with the constitutional principle of equal remuneration for the same task, which must be present at the moment of signing individual employment contracts, collective agreements, regulations and any act by which wages are set or stipulated.

Section 175 that established the prohibition for the employer to ask to women employed in an establishment or other company dependency, to execute work at home, is modified in contrario sensu to establish the possibility that workers, without distinction of gender, may opt to perform work outside the establishment, to work remotely or from their home, by agreement of the parties and in accordance with the requirements established by the regulations.

Finally, section 176 is changed to revoke the prohibition of women to perform work of a painful, dangerous or unhealthy nature, leaving aside those cases in which regulations determine, for exceptional and objective reasons, the restriction or prohibition for women to perform such tasks.

Under the same Chapter I, the Bill establishes obligations on employers and unions to guarantee  respect for gender equality within the company and the organization, respectively.

Employers, on the one hand, must develop or adhere to a code of conduct regarding the measures adopted to guarantee gender equality. This code of conduct must be sent electronically to the Ministry of Labor as the enforcement authority. Unions, on the other hand, must introduce the relevant statutory amendments with the same purpose. Lastly, the signatory parties of collective bargaining agreements must adopt the pertinent conventional norms with identical purpose and forward them to the aforementioned Ministry for its consideration and approval.

II. Reconciling Work with Private Life

Chapter II of the Bill is dedicated to the reconciliation of work with family and private life. To honor this, it modifies section 158 of the LCL regarding types of leaves of absence, and section 183 about women options after maternity leave. The Bill also incorporates section 198 bis on reduced workday.

Most of the modifications that were proposed with the labor reform bill submitted last November (Labor Reform: Bill Submitted to the Argentine Congress) are introduced in section 158 of the LCL, and a new license for gender-based violence is incorporated.

According to the proposed Reform Project, the following regime of special licenses is established:

1. For birth or adoption of a child: the Bill increases the number of days of leave for men in the case of the birth of a child to fifteen (15) calendar days. The Bill introduces the case of multiple birth or adoption, in which case the license will be extended for ten (10) calendar days, both for the father and for the mother who has not conceived the child.
2. For marriage or cohabitation: the Bill maintains a ten-calendar-day leave.
3. Death of the spouse or partner: the Bill maintains a three-consecutive day leave.
4. Death of parents: the Bill reduces de leave to two (2) calendar days.
5. Death of a child: the Bill increases the number of days from three (3) to ten (10) calendar days.
6. Death of a sibling: the Bill maintains a one-day leave.
7. For adoption procedures: a license of two (2) calendar days is granted with a maximum of ten (10) days per year.
8. To undergo medically assisted reproduction techniques and procedures: a license of five (5) calendar days per year is given.
9. To sit for an exam in higher or university education: the license is maintained of two (2) consecutive days per exam, with a maximum of ten (10) days per calendar year.
10.  For particular planned reasons: a license of thirty (30) calendar days per calendar year is established without the payment of a salary. Such period will not be considered when calculating seniority in employment.
11. For gender-based violence: a new leave of absence is incorporated of up to ten (10) calendar days per calendar year. The bill defines the concept and states that: "Gender-based violence against the worker, without distinction of gender, includes any conduct, action or omission, based on an unequal power relationship, that directly or indirectly affects the worker’s life, liberty, dignity, or it’s physical, psychological, sexual, economic or patrimonial integrity, as well as the worker’s personal security. For the purposes of granting the leave of absence provided for in this subsection, the worker must certify to the employer the proof of the Sanitary, Administrative or Judicial Authority intervention.

With regard to section183 of the LCL, the Bill modifies subsection a) by including the worker’s option to return to work after maternity leave in another position or employment of the same category, with a reduction of the normal working day and her remuneration in the same proportion. This can be done in agreement with the employer and for period up to (6) months. The female worker may also take back her position in the same conditions that were in existence before her maternity leave.

Finally, under article 198 bis the Bill incorporates the possibility for workers in charge of children of up to four (4) years of age, regardless of their gender, to agree with their employer a reduction of the working day in order to take care of said minors, receiving the remuneration in proportion to the time worked.

III. Final provisions.

The Executive must issue the corresponding regulations, within one hundred and eighty days (180) as from the date the law is in force.

Finally, the same period is established so that employers, unions and signatory parties of collective bargaining agreements dictate the acts and/or send the corresponding regulatory changes to the Ministry of Labor, Employment and Social Security.