Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Protection of Wages Convention, 1949 (No. 95) - Argentina (Ratification: 1956)

1. The Committee notes that, during its current session, some information, sent by fax, was received from the Government in reply to its previous observation. This was in addition to the information earlier supplied by the Government in reply to the question of the practical application of the Convention in the maritime sector, raised in the comments made by the Union of United Maritime Workers (SOMU), concerning a fishing and deep-freezing company. The Committee notes the Government's indication that, following the conclusion of a collective agreement, in the majority of the enterprises in the said sector, the problems of payment of wages have been resolved. The Government also states that the payment of a part of wages is still made only after finishing each catch (marea) as the definitive calculation is not possible before the end of the operation. The Committee requests the Government to continue to include information on the maritime sector and in particular the fishing subsector, when providing information on the practical application of the Convention.

2. Settlement of the debts of the State. The Committee noted in an earlier observation, Decree No. 1639/93 of 4 August 1993, which was intended to speed up the procedures for the settlement of debts of the State, including wage arrears owed to workers in the public service, up to 1 April 1991 which were consolidated under the terms of Act No. 23982 and recognized by the courts. It noted the indication of the Government that the application of this Decree had been accelerated and that the market value of the coupon (BOCON), which is used also for settling wage arrears, is higher than the nominal value. The Committee notes that, according to the Government, the situation has become normal and that there remains only some procedures to settle the debts caused by miscalculations. Once the procedures have been finished and when the debts are recognized, they are paid by BOCON. The Committee requests the Government to continue to supply information on the progress made in this matter as regards the settlement of the wage arrears owed to workers in the public service.

3. Deferred payment of wages. In its earlier observations, the Committee noted the comments made by the Confederation of Educational Workers (CTERA) and the Union of Educational Workers of Rio Negro, concerning the deferred payment of wages which are due. The Committee noted the Government's statement that in a large part of the provinces, the situation of wage payment in the public sector was slowly normalizing, as a consequence of measures taken by local administration to improve its financial situation, that in general the situations of deferred payment had been decreasing and that no new complaints in this regard had been registered.

The Committee notes the information supplied by the Government at the last minute, according to which the situation of wage payment by local public administration has become normal except for some delays noticed in the province of Jujuy. It requests the Government to continue to supply information on the situation of wage payment in the provinces, and any measures taken to ensure the regular payment of wages in accordance with Article 12(1) of the Convention.

4. The Committee notes that, since its previous session, certain workers' organizations have sent in new observations concerning the application of the Convention, viz.: (i) the Association of the Teachers of Santa Cruz (ADSC), in their communication dated 2 April 1998, mentions the system of allowance connected with attendance ("bonificación por presentismo"); (ii) the Union of Press Workers of Buenos Aires (UTPBA) refers to Convention No. 95 among others in their communication dated 16 June 1998 regarding the Government's plan to repeal special legislation on journalists. The Committee notes the UTPBA's reference to clandestine labour and the assimilation to autonomous entrepreneur, and requests the Government to refer to Article 2 of the Convention on the scope of the Convention. The Committee notes that the Government is preparing its comments on the observations made by these organizations. It hopes that they will be communicated in due course so as to be examined at its next session.

5. In the absence of information from the Government in reply to the following questions raised in the previous observation, the Committee is obliged to repeat it as follows:

Benefits to improve the nutrition of workers and their families. The Committee earlier noted Decrees Nos. 1477/89 and 1478/89 respecting benefits to improve the nutrition of the worker and his family, as well as Decree No. 333/93 enumerating the benefits that do not have the character of remuneration. It pointed out that these "benefits", however they are termed (bonuses, supplementary benefits, etc.), constituted components of remuneration in the sense of Article 1 of the Convention, and requested the Government to ensure that these benefits should be subject to the measures set out in Articles 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 16 of the Convention. In the previous observation, the Committee noted that Decree No. 1477/89 was repealed by virtue of Decree No. 773/96 of 15 July 1996, which refers in the preambular part to the comments by the ILO supervisory bodies. The Committee notes from the information supplied by the Government, that by virtue of section 6 of Act No. 24,700 of 25 September 1996, the above-mentioned Decree No. 773/96 was repealed and that section 103bis of the Act on Labour Contract, as amended by the same Act, establishes a concept of "social benefits" of "non-remunerative" character with a view to improving the quality of life of the employee and the family, which includes the food coupons and food baskets up to the value of 20 per cent of the gross remuneration for workers covered by collective agreements and 10 per cent for others. The Committee notes with regret that this new legislation brings the situation back to that of discrepancy with the requirements of the Convention mentioned at the beginning. It notes the Government's explanation that the repealed Decree No. 773/96 was causing disadvantages to workers because employers stopped to grant such benefits as soon as they were considered part of wages, as this resulted in the increase of employer's contributions and thus the labour cost. The Committee draws the Government's attention to the distinction between the protection that the Convention affords as regards wages and the question of calculating social security or other contributions. As regards the latter, the Committee points out that the definition or scope of wage as the basis for calculation of social contributions is outside the scope of this Convention. It requests the Government to re-examine the matter and to take all necessary measures to protect the payment of all components of remuneration as defined by Article 1, including benefits in the form of food or related coupons, as set out in Articles 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 16 of the Convention. Application in practice. The Committee hopes that the Government will continue to provide information on the application of the Convention in practice and measures taken to ensure it, in accordance with Article 16 of the Convention, including information on any difficulties encountered.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future and communicate the relevant information in due time.

[The Government is asked to report in detail in 1999.]