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Workmen's Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42) - Argentina (Ratification: 1950)

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Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Review of the national list of occupational diseases. With reference to its previous observation, the Committee takes note of the comments brought forward by the Confederation of Workers of Argentina (CTA) received on 31 August 2012 indicating that the current list of occupational diseases of Act No. 24.557 is too restrictive and violates the Convention by discarding all diseases that do not meet the triple criteria of the concurrence of listed risk agents, pathological symptoms, and occupational exposure and thus obliging the worker to provide proof of the concurrence of these three factors in order to receive compensation. In comparison, the Convention sets forth a schedule by reference to the concurrence of only two factors and establishes a presumption of occupational diseases when listed diseases and toxic substances affect workers engaged in the corresponding trades, industries or processes. The Committee therefore requests the Government to review the current 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. The Government should also 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 658/96.

In addition to the above conceptual changes to the recognition of occupational diseases, the Committee once again urges the Government to take concrete measures to improve the current list on the following points:

-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 of at least ten years in regard to primary epitheliomatous cancer of the skin in accordance with the World Health Organization’s (WHO) findings which showed that skin cancers can appear already after five years of exposure; and
-make an express reference to silicosis with or without pulmonary tuberculosis, if necessary with a reservation that the silicosis must be a determining factor in the incapacity or death, as provided in the Convention.

The Committee notes the Government’s indication that the abovementioned issues will be taken into consideration in the context of the modifications and amendments to Act No. 24.557 currently being prepared for submission to Parliament. The Committee notes however that Act No. 26773, adopted in October 2012, does not address the abovementioned issues. In this context, the Committee asks the Government to indicate in its next report the measures which will allow the national legislation to be brought in conformity with the obligations under the Convention. The Committee hopes that the Government will be able to indicate substantial progress made on these issues.

The Committee further notes that the CTA refers in its comments to various decisions of the Supreme Court of Justice which have declared unconstitutional certain provisions of Act No. 24.557 regarding the procedures of recognition and compensation of occupational diseases. The Committee asks the Government to supply copies of these decisions and to explain their impact on the application of the corresponding provisions of the Convention in law and in practice.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the information, as well as the statistics, supplied by the Government in its report and wishes to draw its attention on the following points.

1. Restrictive nature of the enumeration of the pathological symptoms resulting from exposure to the corresponding substances. In conformity with the provisions of national legislation, for each risk-producing substance, the left-hand column of the list of occupational diseases in Decree No. 658/96 gives a restrictive enumeration of the pathological symptoms resulting from exposure to the corresponding substances. It also provides for an annual review whereby new infections recognized as having their origin in exposure to a risk-producing substance in the course of an occupational activity may be added to the list with the prior agreement of the Standing Advisory Committee (section 40 of Act No. 24.557). In these circumstances, the restriction is, according to the Government, purely technical, since if the causal link between the risk-producing substance, the disease and exposure during work is proven, it is possible to request the above Committee to approve the incorporation of the disease in the list, thus recognizing that it is occupational in origin. The Committee nevertheless recalls that, by listing, for each disease in the schedule, the trades, industries and processes liable to cause the disease, the Convention aims to relieve workers in the trades and industries listed from the burden of proving that they have actually been exposed to the risk of the disease in question, which in some cases can be particularly difficult. Furthermore, the Convention is deliberately worded in general terms so as to cover all occupational diseases and all poisoning resulting from exposure to the substances listed in the schedule to the Convention when they affect workers engaged in the trades, industries and processes listed in the schedule. In view of the objectives pursued by the Convention, the Committee hopes that the Government will be able to reconsider this matter and that in its next report it will be in a position to indicate the measures taken or envisaged to change the current legislation so that the pathological symptoms corresponding to the diseases in the schedule to the Convention are non-restrictive. In the meantime, the Committee asks the Government to provide information on the working of the procedure for recognition of new occupational diseases by the Standing Advisory Committee, particularly as regards the determination of the causal link between the disease, the risk-producing substance and occupational exposure.

2. In addition, the Committee wishes to make the following remarks with regard to certain items in the schedule:

(a) In its previous comments the Committee had stressed the need to add to the item on anthrax a reference to the loading and unloading or transport of merchandise. The Government had stated, in this respect, that this reference covers the possibility of a worker coming into contact with organic remains contaminated by the anthrax bacillus and that this situation is provided for in the legislation by the final paragraph of the item on anthrax which mentions “workers who showed no symptom of the disease and, by exposure to the agent, develop certain of the clinical symptoms described”. The Committee nevertheless expresses the hope that in the annual review of the list of occupational diseases it will be possible to add the loading, unloading or transport of merchandise in general to the activities likely to cause anthrax, in order to remove any ambiguity from the legislation. In this connection, the Committee recalls that the provisions of the Convention on this point aim to establish a presumption of the occupational origin of the disease in favour of workers called upon to handle products which are so diverse in origin that it would be difficult if not impossible for them to prove that the merchandise transported was in contact with infected animals or remains of animals.

(b) The Committee also requests the Government to complete the enumeration of the diseases under the item on silica by an express reference to silicosis with or without pulmonary tuberculosis, if necessary with a reservation that the silicosis must be a determining factor in the incapacity or death, as the Convention allows.

(c) Ultimately, the Committee asks the Government to indicate whether requests for recognition of the occupational nature of diseases have been made, under the abovementioned complementary recognition mechanism, by persons suffering from epitheliomatous cancer of the skin but who have not fulfilled the condition of at least ten years of exposure established by national legislation. If so, please provide information on any decisions taken in this respect by the competent authorities.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

1. In its previous comments the Committee noted that for each risk-producing substance the left-hand column of the list of occupational diseases in Decree No. 658/96 gives a restrictive enumeration of the pathological symptoms resulting from the exposure to the substances. In reply, the Government indicates in its report that the restrictive nature of the list of pathological symptoms is of no import other than for the automatic incorporation of new pathologies, but that the law provides for an annual review whereby new infections recognized as having their origin in exposure to a risk-producing substance in the course of an occupational activity may be added to the list with the prior agreement of the Standing Advisory Committee (section 40 of Act No. 24.557). In these circumstances, the restriction is purely technical, since if the causal link between the risk-producing substance, the disease and exposure during work is proven, it is possible to request the Standing Advisory Committee to approve the incorporation of the disease in the list, thus recognizing that it is occupational in origin. While noting this information with interest, the Committee recalls that, by listing for each disease in the schedule the trades, industries and processes liable to cause the disease, the Convention aims to relieve workers in the trades and industries listed from the burden of proving that they have actually been exposed to the risk of the disease in question, which in some cases can be particularly difficult. Furthermore, the Convention is deliberately worded in general terms so as to cover all occupational diseases and all poisoning resulting from exposure to the substances listed in the schedule to the Convention when they affect workers engaged in the trades, industries and processes listed in the schedule. In view of the objectives pursued by the Convention, the Committee hopes that the Government will be able to reconsider this matter and that in its next report it will be in a position to indicate the measures taken or envisaged to change the current legislation so that the pathological symptoms corresponding to the diseases in the schedule to the Convention are non-restrictive. In the meantime, the Committee asks the Government to provide information on the working of the procedure for recognition of new occupational diseases by the Standing Advisory Committee, particularly as regards determining the causal link between the disease, the risk-producing substance and occupational exposure.

2. With regard to certain items in the schedule, the Committee draws the Government’s attention to the following points:

(a) In its previous comments the Committee stressed the need to add to the item on anthrax a reference to the loading and unloading or transport of merchandise. The Government states that this reference covers the possibility of a worker coming into contact with organic remains contaminated by the anthrax bacillus and that this situation is provided for in the legislation by the final paragraph of the item on anthrax which mentions "workers who showed no symptom of the disease and, by exposure to the agent, develop certain of the clinical symptoms described". The Committee takes note of this information. It hopes that in the annual review of the list of occupational diseases it will be possible to add the loading, unloading or transport of merchandise in general to the activities likely to cause anthrax, in order to remove any ambiguity from the legislation. In this connection, the Committee recalls that the provisions of the Convention on this point aim to establish a presumption of the occupational origin of the disease in favour of workers called upon to handle products which are so diverse in origin that it would be difficult if not impossible for them to prove that the merchandise transported was in contact with infected animals or remains of animals.

(b) In reply to the Committee’s previous comments on the item on silica, which omits silicosis with pulmonary tuberculosis, the Government indicates that tuberculosis is a complication of silicosis and the absence of this disease under the item in question does not mean that pneumoconiosis caused by silica, whether or not accompanied by tuberculosis, cannot be recognized as an occupational disease. The Committee notes this information. It considers that, to avoid all ambiguity and ensure that workers are protected in accordance with the Convention, it would be appropriate at the next annual review of the list of occupational diseases to complete the enumeration of the diseases under the item on silica by an express reference to silicosis with or without pulmonary tuberculosis, if necessary with a reservation that the silicosis must be a determining factor in the incapacity or death, as the Convention allows.

(c) In its previous comments the Committee stressed that the requirement of exposure of at least ten years in regard to primary epitheliomatous cancer of the skin was particularly long in that skin cancers can appear after five years of exposure. The Government indicates in this connection in its report that in reconsidering this matter it would be particularly useful to know the medical basis for the Committee’s comments. The Committee recalls that, according to the World Health Organization (WHO), skin cancers usually take five to 50 years to develop, and may occur even after the cessation of the exposure. It refers in this connection to the publication Early detection of occupational diseases, WHO, Geneva, 1986, pages 194-197.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

1. With reference to the comments it makes in its observation, the Committee notes the adoption of Decree No. 658/96 which contains a list of occupational diseases identifying the various risk-producing substances and listing for each of them the activities likely to involve exposure to them. It notes that for each risk-producing substance the left column of the list contains an enumeration, which is exhaustive, of the pathological symptoms resulting from exposure to these substances. In fact, under section 6(2) of the Act, diseases which are not included in the list of occupational diseases cannot give rise to compensation. The Committee recalls that, on this point, the Convention is worded in general terms and covers all occupational diseases as well as poisoning produced by the substances included in the table annexed to the Convention, when they occur in respect of workers employed in the trades, industries and processes mentioned. The Committee would be grateful if the Government would indicate the measures taken or envisaged to delete, in regard to the diseases set out in the table annexed to the Convention, any reference to the exhaustive nature of the enumeration of pathological symptoms such as results from the national list of occupational diseases.

2. Furthermore, on the question of certain special headings in the list, the Committee hopes that during the annual review of the list, pursuant to section 6(2) of the Act, the Government will take into account the following comments in order to ensure full application of the Convention.

(a) In the table relating to anthrax, the Committee notes that the list of activities which may give rise to exposure to the risk does not refer, as does the Convention, to "loading and unloading or transport of merchandise".

(b) The table relating to silicocis does not mention silicocis with pulmonary tuberculosis.

(c) Finally, in regard to primary epitheliomatous cancer of the skin, the Committee notes that exposure of at least ten years is required. Bearing in mind medical knowledge on the subject, such length of exposure seems particularly long in that skin cancers may appear after five years of exposure. The Committee requests the Government to re-examine the matter.

The Committee hopes that the Government's next report will contain information on the measures taken or envisaged in order to give full effect to the provisions of the Convention on the points mentioned.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

With reference to its previous comments, the Committee notes the adoption of Act No. 24.557 of 1995 on occupational risks, repealing Act No. 24.028 of 1991 and its implementing regulation. It notes with satisfaction that under section 6 of the 1995 Act, the diseases included in the list of occupational diseases which is formulated and revised annually by the executive authority are considered to be occupational diseases. In this respect, the Committee notes the adoption of Decree No. 658/96 which contains a list of occupational diseases identifying the various risk-producing substances and setting forth for each of them the activities likely to involve exposure to them. The Committee wishes also to draw the Government's attention to certain points which it raises in a request addressed directly to the Government.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. In its observation of 1994, the Committee noted a communication from the Congress of Argentinian Workers (CTA) alleging that the system introduced by Act No. 24028 on the compensation of industrial injuries and its implementing Decree No. 1792/92 reduced the level of protection provided for workers too far. The CTA stated in particular that the responsibility of the employer is presumed only in the case of an accident but that there is not legal presumption of the employer's responsibility when an injury results from a disease the origin or aggravation of which is attributed to work.

2. The Committee notes the comments - sent with the Government's report, received in January 1995 - made by the General Confederation of Labour of the Argentine Republic (CGT), referring to certain difficulties with the application of the Convention. According to the CGT, the legislation in force: (a) does not presume the employer's responsibility in the event of occupational diseases, even where they are considered to be strictly work-incurred ("profesionales"), i.e. caused solely by a risk factor present in the place of work; (b) establishes that in assessing incapacity in the case of occupational diseases with more than one cause a "quota" attributable to work will be determined, which is medically impossible; (c) fails to take into account, in establishing time-limits for the certification of the disease, the fact that certain occupational diseases are latent for a long period before taking effect, which means in practice that compensation cannot be claimed. The CGT indicates that the possibility of a radical reform of the legislation is being studied and adds that the Framework Agreement on Employment, Productivity and Social Equity includes an item on the preparation of a bill on protection against occupational risks.

3. The Committee notes the Government's report which contains a memorandum from the National Occupational Safety and Health Department of the Ministry of Labour and Social Security. Concerning the points raised previously by the Committee, it states that Argentine legislation and case-law - which derive from the application of Act No. 9668 of 1915, amended several times - was much broader in concept than the list provided for in the Convention. The Government states that Act No. 24028 of December 1991, which is currently in force, establishes that the employer is not presumed responsible for occupational diseases, and that this is a serious technical and conceptual mistake. It explains that occupational diseases and work-incurred diseases ("profesionales") are not the same thing. Occupational diseases include work-incurred diseases and other diseases linked to work, but work is not their sole cause. Work-incurred diseases are caused solely by risk factors present at the place of work, and therefore warrant the presumption of the employer's responsibility. The Committee notes that the Government accordingly acknowledges the pertinence of its comments. With regard to the other two points raised by the CGT, the memorandum from the National Occupational Safety and Health Department indicates that the time-limits established in the legislation in force prevent persons suffering from occupational diseases which do not appear until long after their first exposure to the harmful agent from claiming their compensation, and that the provision establishing that a quota attributable to work shall be determined for diseases with more than one cause is scientifically unsound.

4. The Committee reiterates its observation of 1994 to the effect that by ratifying the Convention the Government undertook, in accordance with Article 2, to consider as occupational diseases those diseases and poisonings produced by the substances set forth in the Schedule appended to the Convention, when such diseases or such poisonings affect workers engaged in the trades, industries or processes placed opposite in the said Schedule. So that the worker does not have to prove that the cause of his disease was occupational - which in some cases can be particularly difficult - the Convention established the system of a double list setting out the diseases in one column and the activities which may cause them in a column opposite. Since both the Government and the CGT refer to tripartite consultations and a study under way with a view to the adoption of new standards in this area, the Committee is bound to hope that the Government will take the necessary measures to bring national law and practice into harmony with the Convention in the very near future.

The Committee suggests that the Government may wish to seek technical assistance from the Office.

[The Government is asked to report in detail in 1996.]

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information supplied by the Government in its report. It also notes the new Act No. 24028 of 5 December 1991, which repeals Act No. 9688 of 1915, as amended, as well as Decree No. 1792 of 1992, which issues regulations under Act No. 24028.

Furthermore, the Committee notes the communication concerning the application of this Convention from the Congress of Argentinian Workers (CTA), dated 7 June 1993, a copy of which was forwarded to the Government for its observations on 29 June 1993. The CTA alleges in particular that Act No. 24028 respecting the compensation of industrial injuries substantially decreases the level of protection provided for workers. CTA states that the responsibility of the employer is presumed only in the case of an industrial accident, but that there is no legal assumption of the responsibility of the employer when an injury results from a disease the origin or aggravation of which is attributable to work; in such cases, the victim has to prove the harmful agent, the disabling sequelae, the causal link and the existence of the fault on the part of the employer.

The Committee notes that the Government's report does not contain a reply to the CTA's communication. However, it notes that although, by virtue of section 2(2) of Act No. 24028 of 1991, the employer's responsibility is presumed in the event of an industrial accident, this provision explicitly provides that the responsibility of the employer shall not be presumed with regard to diseases the origin or aggravation of which are attributable to work. The Committee wishes to recall in this respect that by ratifying the Convention the Government undertook, in accordance with Article 2, to consider as occupational diseases those diseases and poisonings produced by the substances set forth in the Schedule appended to the Convention, when such diseases or such poisonings affect workers engaged in the trades, industries or processes placed opposite in the said Schedule. It is precisely in order to avoid the worker having to prove the occupational origin of the disease, which can be particularly difficult in certain circumstances, that the Convention established this system of a double list setting out the diseases and the activities which may cause them. The Committee also recalls that Decree No. 4389/73 of 1973, issued under Act No. 9688 of 11 June 1915, which has now been repealed, had been adopted to respond to this requirement of the Convention.

In these conditions, the Committee hopes that the Government's next report will contain detailed information in reply to the communication from the Congress of Argentinian Workers, and that it will indicate the measures which have been taken or are envisaged to give full effect to the Convention.

[The Government is asked to report in detail for the period ending 30 June 1994.]