Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Argentina

Convenio sobre la indemnización por accidentes del trabajo, 1925 (núm. 17) (Ratificación : 1950)
Convenio sobre las enfermedades profesionales (revisado), 1934 (núm. 42) (Ratificación : 1950)
Convenio sobre la seguridad social (norma mínima), 1952 (núm. 102) (Ratificación : 2016)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 17 (workmen’s compensation for accidents), 42 (workmen’s compensation for occupational diseases, revised), and 102 (minimum standards) together.

The Committee notes the Government’s first report on Convention No. 102. The Committee notes the observations of the Confederation of Workers of Argentina (CTA Workers), and of the Confederation of Workers of Argentina (CTA Autonomous), received in 2017, on the application of Conventions Nos 17 and 42. The Committee notes the observations of the General Confederation of Labour of the Argentine Republic (CGT RA) received on 31 August 2018, of the International Trade Union Confederation (ITUC), received on 1 September 2018, and of the Confederation of Workers of Argentina (CTA Workers), received on 11 September 2018, on the application of Convention No. 102.

Article 2 of Convention No. 17. Application to non-registered workers. In its previous comment, the Committee urged the Government to send its reply concerning: the manner in which the Convention is applied to workers who have not been registered by their employers; who ensures compensation to these workers and payment of medical costs in the event of occupational accidents; and what penalties are applied to employers who fail to meet the obligation to insure their workers against occupational accidents. The Committee notes with interest the indication provided by the Government in its report that, in conformity to Section 1 of Act No. 27348 of 2017, injured workers who have not been registered by their employers can initiate a procedure with the Medical Commissions for the determination of their grade of incapacity and the award of compensation and medical aid in line with Act No. 24557 of 13 September 1995 concerning occupational risks. Alternatively, they can go to court through an expedited judicial process. In case of lack of registration and insolvency of the employer, compensation is covered by a Guarantee Fund. Concerning the penalties applied to employers who fail to meet their obligation of insuring workers, the Committee notes the indication provided by the Government that, in the framework of the actions performed by the Integral Labour and Social Security Inspection System, the State together with the Provinces carry on actions and inspections aiming at detecting non-registered work and can apply sanctions and fines to employers.

Article 5 of Convention No. 17. Payment of compensation in a lump sum. In its previous comments, the Committee noted that section 2(4) of Act No. 26773 of 2012 provided that the general principle of compensation is to make a lump-sum payment, subject to any adjustments established, and requested the Government to indicate how it is ensured, in law and in practice, that the lump-sum payment is properly utilized. The Committee notes the Government’s reply in which it explains that, in addition to the lump sum provided, injured workers with a disability below 66 per cent will be provided with “professional requalification” assistance, which constitutes a benefit in kind, aiming at the reintegration of the worker in the labour market. Recalling that Article 5 of the Convention requires the compensation in case of permanent injury or death to take the form of a periodical payment, and provides that this payment can be converted into a lump sum if the competent authority is satisfied that it will be properly utilized, the Committee once again requests the Government to indicate how it is ensured, in law and in practice, that the lump-sum payment is properly utilized.

Article 9 of Convention No. 17. Free medical and surgical assistance. The Committee notes the information provided by the Government in reply to its previous request concerning the right to medical and surgical assistance free of charge.

Article 10 of Convention No. 17. Artificial limbs and surgical appliances. In its previous comments, the Committee several times requested the Government to provide information concerning a draft decision on chronic cases prepared by the Occupational Risks Supervisory Authority (SRT), requiring occupational risk insurers (ART) to conduct periodic checks on the state of artificial limbs and surgical appliances that have been supplied. The Committee notes that the Government indicates that the SRT has issued Resolution No. 180/2015 which establishes that in some chronic cases a check-up should be carried out by a medical professional specializing in Physical Medicine and Rehabilitation and by the assigned specialist professionals corresponding to the pathology, to evaluate the condition of the prosthetic, orthotic and/or technical assistance equipment delivered or the need to prescript a new one. The control should be on an annual basis. The Committee takes due note of this information.

Article 2 of Convention No. 42. Review of the national list of occupational diseases. In its previous comment, the Committee requested the Government to review the list of occupational diseases in accordance with the Convention’s aim of relieving workers in the trades and industries listed from the burden of proving that they actually have been exposed to the risk of the disease in question. It also requested the Government to change from restrictive to indicative the enumeration of the pathological symptoms resulting from exposure to the corresponding substances given in the left hand column of the list of occupational diseases in Decree No. 658/96. In addition, the Committee urged the Government to take concrete measures to include the addition of the loading, unloading or transport of merchandise in general to the activities likely to cause anthrax; decrease the requirement of exposure for primary epitheliomatous cancer of the skin to 5 years in accordance with the findings of the World Health Organization (WHO); and make an express reference to silicosis with or without pulmonary tuberculosis. The Committee notes the reply by the Government that Decree No. 658 of 1996 lists a wide range of diseases considered as occupational diseases, on which the Jurisdictional Medical Commissions have to certify a direct causal link with the work. In addition, section 2 of Decree No. 1278 of 2000 provides that the Central Medical Commission can acknowledge other diseases as having occupational origin, on a case-by-case basis, when the worker or his/her rightful beneficiaries present a petition aimed at demonstrating the direct causal link between the disease and the work performed. While noting the specific tasks of the Central Medical Commission, the Committee hopes that the Government will be able to indicate the measures taken to bring the national list of occupational diseases into full conformity with this Article of the Convention, concerning: (i) reconsidering the enumeration of the pathological symptoms related to the occupational disease; (ii) adding the loading, unloading or transport of merchandise in general to the activities likely to cause anthrax; (iii) the decrease of years of exposure required in cases of primary epitheliomatous cancer of the skin to 5 years, in accordance with the findings of the WHO; and (iv) the express reference to silicosis in the national list of occupational diseases.

Application in practice of Conventions Nos 17 and 42. Assessment of work related injury by Medical Commissions. The Committee notes that the CTA Workers in its observations alleges that Act. No. 27348 of 2017, which sets out the competence of the Medical Commissions created by section 51 of Act No. 24241 of 1993, is unconstitutional, and it refers to decisions of the National Supreme Court of Justice in this regard. More specifically, the CTA Workers indicate that these administrative organs take mandatory decisions on the occupational origin of accidents or of diseases, and on the degree of incapacity and amount of compensation to be paid to injured workers or their survivors, and that this mandatory preliminary procedure prevents access to justice. The CTA Autonomous, for its part, alleges that Medical Commissions have been attributed competences that go beyond their mandate, and indicates that when injured workers appeal the decision of the Medical Commission before the court the payment of compensation is suspended. As a result, according to the CTA Autonomous, injured workers often feel compelled to accept a lesser compensation than what they consider they should be entitled to. The Committee requests the Government to provide statistical information concerning the number of claims denied by the Medical Commissions, out of the total number of claims treated. The Committee also requests the Government to indicate how Medical Commissions operate in practice and how the State ensures that their decisions are taken in a manner that guarantees due compensation to victims of occupational accidents and diseases. Furthermore, the Committee requests the Government to provide information on the number of cases in which the decision of the medical commission was revised or overturned following an appeal before the court of the initial decision by injured workers.

Article 65(10), in conjunction with Article 71(3), of Convention No. 102. Adjustment of pensions in payment. The Committee notes the observations of the ITUC, the CGT RA and the CTA Workers on the modification of the indexation formula of long-term social security benefits and of child and family allowances introduced by Act No. 27426 of 2017. The CGT RA points out that, while the previous indexation formula was based for equal parts on the variation in the contributions paid to the National Social Security Administration (ANSES) and on the changes in the level of wages (the greater between the average taxable remuneration index of workers in stable employment, RIPTE and general level of the National Consumer Price Index prepared by the National Institute of Statistics and Censuses), the new formula is based on the inflation, which is weighted in at 70 per cent, and the RIPTE, weighted in at 30 per cent. The CTA Workers alleges that, because of this change in the pension formula, the total expenditure for pensions has had in 2018 an estimated decrease between 6.5 billion and 7.5 billion Argentine pesos (ARS) with respect to the total expenditure calculated through the previous formula. The Committee recalls that, according to Article 65(10) of the Convention, the rates of periodical payments in respect of old age, employment injury (except in case of incapacity for work), invalidity and death of breadwinner, must be reviewed following substantial changes in the general level of earnings where these result from substantial changes in the cost of living. In this connection, the Committee recalls that, in its 2011 General Survey, Social security and the rule of law, paragraphs 477–485, it considered that, whichever method is used for adjustments in the level of benefits, the purchasing power of pensions should be maintained, and that this can be done both by adjusting pensions to substantial changes in the cost of living, and raising the standard of living of pensioners by adjusting pensions to substantial changes in the general level of earnings. The Committee also draws attention to Article 71(3) of the Convention, which establishes the State’s responsibility to ensure that the necessary actuarial studies and calculations concerning the financial equilibrium of social security funds are made periodically and, in any event, prior to any change in benefits. In light of the above, the Committee requests the Government to explain how the new pension indexation method will ensure that the purchasing power of pensions in payment is maintained despite changes in the formula, and to provide information on variations in the level of wages and in the consumer price index over the next reporting period. The Committee also requests the Government to provide any available information – actuarial studies or other – on the projected impact of such changes in the indexation formula on the financial sustainability of pension funds.

Article 71 of Convention No. 102. Collective financing and general responsibility of the State for the due provision of benefits. The Committee notes the indication provided by the Government that Act No. 27430 of 2017 introduced a deduction for employers from the average employees’ salaries on which monthly contributions are paid. The Committee observes that according to Resolution No. 3 of 2018 of the Social Security Secretariat, read in conjunction with Article 173(c) of Act No. 27430 of 2017, the amount of this deduction corresponds in 2019 to about ARS7,000, and will be increasing until 2022. The Committee notes the allegations made by the CTA Workers, according to which this will result in less resources for the ANSES and particularly for pensions, taking into account the current situation where the sustainability of the pension system is threatened by the high external debt of the country. The Committee recalls that Article 71(2) of the Convention provides that the total of the insurance contributions borne by the employees protected shall not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their spouses and children, and observes that the above-mentioned deductions in the amount of contributions paid by employers entail a proportional increase of the employees’ share of contributions. The Committee further recalls that, as set out in Article 71(3), the member State must take all measures required to ensure the due provision of the benefits provided in compliance with the Convention, and must ensure that the necessary actuarial studies and calculations concerning financial equilibrium are made prior to any change in benefits, the rate of insurance contributions, or the taxes allocated to covering the contingencies in question. Considering current changes in the legislation concerning employers’ contributions, the Committee requests the Government to provide statistical information on the total of insurance contributions borne by the employees protected for each of the accepted Parts of the Convention, calculated as percentage of the total resources allocated to the protection of employees, their spouses and their children. The Committee further requests the Government to indicate whether the impact of the employers’ contributions deduction has been assessed prior to its implementation to ensure that the sustainability of social insurance funds is maintained despite the decrease in funding resulting from such measure, and to provide any actuarial study carried out in this respect.

The Committee has been informed that, based on the recommendations of the Standards Review Mechanism Tripartite Working Group, the Governing Body has decided that member States for which Conventions Nos 17 and 42 are in force should be encouraged to ratify the more recent Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121) or accept the obligations in Part VI of the Social Security (Minimum Standards) Convention, 1952 (No. 102) (see GB.328/LILS/2/1). Conventions Nos 121 and 102 (Part VI) reflect the more modern approach to employment injury benefits. The Committee therefore encourages the Government to follow up the Governing Body’s decision at its 328th Session (October–November 2016) approving the recommendations of the SRM tripartite working group and to consider ratifying Convention No. 121 or accepting the obligations in Part VI of Convention No. 102 as the most up-to-date instruments in this subject area.