11 months have elapsed since the regulation (Dto. 144/22) made it mandatory for companies to incorporate day care centers in their facilities, however such measure becomes legally enforceable from March 23, 2023.
The question at this stage of the game is to know If the facilities are ready or if possible alternatives have already been considered. For this reason, we bring up the main points that the regulation sets out for its compliance:
Compulsory companies
Establishments where 100 or more people provide tasks must offer nurseries and maternity rooms for the sons and daughters of the staff. The regulation does not refer to the “company” but to the “establishment”. According to the definition offered by the aforementioned law (20,744), “establishment” is the technical or execution unit intended to achieve the purposes of the company
Therefore, when determining whether or not an organization is required to comply, it should count the number of people working in each establishment and only in those in which 100 or more people provide tasks must offer care spaces.
An organization must offer care spaces only in those establishments in which 100 or more people provide tasks.
One point consulted is whether the oil service companies that have payrolls of more than 100, due to their dispersed activity in the field, are obliged. According to this last definition of establishment, it would not correspond, however, it would be necessary to see if a regulatory adaptation arises due to the nature of the activity.
To compute the number of 100 capitas, All people who work in the establishment are consideredand regardless of the type of contract, if they are direct or subcontracted employees dependent on other companies, monotributistas, etc.
Conditions
Care spaces must accommodate boys and girls between 45 days and 3 years old during the working day of the person who works. That is, space for care should be guaranteed during the hours that the person is available to the employer. In order to access the nursery or maternity ward, minors must be in charge of the person who works.
Location
Regarding their location, the LCT established that nurseries and maternity rooms should be located in the workplace. However, the regulation authorized two additional alternatives: (i) implement care spaces consortium between companies that are within a radius of 2 km away, and (ii) outsource these spaces as long as they comply with the legal conditions.
Option. refund
Instead of offering care spaces, companies may pay staff a non-remunerative sum of money as reimbursement of expenses. The assumptions provided for in the regulation are (i) when this is agreed by collective bargaining agreement or (ii) when the person teleworks and is attached to the establishment.
Expenses must be duly documentedeither through a voucher issued by an authorized institution or the receipt of salaries of the personnel that is under the category of assistance and care of people.
Instead of offering care spaces, companies may pay staff a non-remunerative sum of money as reimbursement of expenses.
A union that gave notice is Comercio (SEC), since in its last wage agreement (01/18/23) it refreshed the measure by indicating that The companies must provide the childcare service or they may also offer a non-remunerative sum of not less than 40% of the salary of private homes personal care category.
Finally, we remember that failure to comply with the obligation will be considered a very serious labor infraction under the terms of Law 25212 that ratifies the Federal Labor Pact, implying the payment of fines for each worker affected.
Failure to comply with the obligation will be considered a very serious labor infraction involving the payment of fines for each worker affected.
By Cr. Gonzalo Gutiérrez (CHINNI, SELEME, BUGNER AND ASOC.)
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