Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

Articles 1 and 12 of the Convention. Definition of the term “wages” and regular payment of wages. The Committee notes the Government’s reply to the comments of the Confederation of Workers of Argentina (CTA), dated 21 October 2009, concerning section 103bis of Act No. 20.477 on labour contracts and Decree No. 1347/03 of 12 December 2003. The CTA, and the Federation of Professionals of the Government of the Autonomous City of Buenos Aires, indicated that under section 103bis, referred to above, certain benefits in kind, classified as “social benefits”, are not considered to form part of the wage. Furthermore, Decree No. 1347/03 provides for a wage rise which is not classified as remuneration.

With regard to section 103bis of Act No. 20/477, the Committee notes that clauses (b) and (c) were repealed by Act No. 26.341 of 12 December 2007 and that, under section 3 of the latter Act, certain benefits enumerated in section 103bis have acquired the nature of remuneration. It further notes the Government’s indication that the benefits enumerated in the current version of section 103bis, although they are paid in the context of a professional relationship, are not related to the work performed or the service provided by the worker and are considered to be social security benefits intended to improve the living standards of workers and their dependants. The Committee also notes the ruling of the Supreme Court of Justice of 1 September 2009 which, based among other factors on the comments made by the Committee for many years, indicated that: (i) section 103bis(c), repealed during the course of the procedure, is unconstitutional; and (ii) that food vouchers are part of wages.

With regard to Decree No. 1347/03, the Committee notes the adoption of Decree No. 2005/2004 of 29 December 2004 which provides: (i) that the wage increase envisaged by Decree No. 1347/03 has acquired the nature of remuneration (section 6); and (ii) a new wage increase which is not classified as remuneration (section 1).

The Committee takes this opportunity to recall that, as indicated by the ILO Governing Body in 1997 when examining a representation on the “desalarization” policy pursued by a member State, the fact that a wage benefit, however it is termed, does not enter into the definition of wages contained in the national legislation, does not ipso facto constitute a violation of the Convention, provided that the remuneration or earnings due, payable under a contract of employment by an employer to a worker, whatever term is used, are covered by the provisions of Articles 3 to 15 of the Convention. With reference to paragraph 47 of its General Survey of 2003 on the protection of wages, the Committee therefore requests the Government to indicate the measures taken to ensure that any allowance which is of a non-wage nature under the national legislation is, in application of the Convention, covered by the protection afforded by national laws and regulations concerning wages.

Finally, the Committee notes that the Government has not provided any further information on the other points raised in its previous comments, namely: (i) the progress made in the negotiations to resolve the dispute between the Ministry of Health of the Government of Buenos Aires and the Federation of Professional Employees of the Government of the autonomous city of Buenos Aires; (ii) the situation with regard to the Bill to amend sections 120 and 147 of the Act on labour contracts on the elements of wages which cannot be attached; (iii) any changes in the situation concerning the payment of wages in the form of locally issued vouchers; and (iv) the current situation regarding wage arrears and other difficulties in the regular payment of wages which may persist in certain sectors or provinces. The Committee therefore requests the Government to provide detailed information on these points.