2023-05-13 07:19:56
Article 179 of Law 20,744 on the Labor Contract (LCT) referring to maternity rooms and nurseries that employers must ensure for their employees with minor children was dormant for almost five decades until, following a long course, the Supreme Court de la Nación put an end to the litigation. In October 2021, the Highest Court resolved the case Etcheverry, Juan Bautista et al. c/EN s/ amparo law 16,986, which requested the regulation of the article. There, for the first time in its history and unanimously declared unconstitutionality due to regulatory omission.
The amparo was drafted within the framework of the work carried out by the students and professors of the Legal Clinic of the Austral University, and was presented by Juan Bautista Etcheverry and Ximena Liggerini as workers with minor children under their care. Although in the first instance the claim of the plaintiffs was not accepted, in 2017 Chamber I of the National Chamber of Appeals in Federal Administrative Litigation ordered the Executive Branch to regulate the article within a period of 90 business days. This decision was confirmed by the Supreme Court in October 2021 by resolving the appeal filed by the national State through an extraordinary appeal.
With a few days delay, through Decree 144/2022, the Executive Branch finally regulated article 179 of the LCT establishing, among other things, that in establishments where one hundred or more people perform tasks, regardless of the type of contract, the Employers must provide care spaces for children between 45 days and 3 years of age who are under the care of their workers during the respective work day. For the purposes of calculating the number of people who work in each establishment, both the dependents of the main establishment and those dependent on other companies will be taken into account, as long as they provide services in the main establishment. Each jurisdiction will exercise its police power for the purposes of qualifications and conditions.
This adds another workload for some employers, while many other workers will be able to enjoy the benefits granted by law. Beyond the opinion that the implementation of this new public policy may arouse, the truth is that from this leading case our Republic has been strengthened.
The power granted to the President by the National Constitution –in article 99 inc. 2 – to regulate the laws issued by Congress is not discretionary, but is mandatory when required by the text or purpose of the law. Regulatory decrees are administrative acts of general scope, but of a legislative nature and, therefore, subordinate to the law.
According to what was resolved by the Supreme Court, the regulatory omission is configured when the Executive Power does not comply with said obligation within a reasonable time, making some legal clause illusory and the effective enjoyment of a right that has been deferred until its regulation.
Currently, in the face of unconstitutionality due to regulatory omission, there is no other procedural remedy than amparo, and often it is not clear how long the Executive Power can take to regulate a law. Instead of waiting for some individual to have to prosecute their claim, it would be convenient for Congress to have greater control of the laws it enacts.
For this purpose, within the framework of the final work of the Master of Laws (LL.M.) a bill has been prepared that contains a legal regime for the regulation of the laws of the Nation. This has served as a contribution for a group of national deputies to present project No. 1215-D-2023 a few days ago in the National Congress.
We are convinced of the need to bring the academic world closer to the political sphere and of the importance of working to improve the culture of legality in our country. A tiny grain of sand for the improvement of our institutions.
*Professor and researcher of Constitutional Law at the Universidad Austral.
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