In the appealed ruling, Chamber I of the Federal Administrative Litigation Chamber had condemned the PEN in 2017 to “exercise the regulatory power provided for in article 99, paragraph 2 of the National Constitution.”
The lawsuit was based on Article 179 of Law 20,744 (Labor Contract) -of 1974- which provides that “in establishments where the minimum number of workers determined by regulation provides services, the employer must set up maternity wards and nurseries for children up to the age and under the conditions established “.
The National State – when Macri ruled – questioned whether the expedited procedure of the amparo was used to regulate the law promulgated in September 1974.
The Court held that “the lack of regulation by the Executive Branch leads in practice to deprive this provision of legal effects and, therefore, relegates compliance with the obligation.”
He added that “there is then an omission of public authority in the face of a clear legislative mandate that requires regulation and that has been ignored for an unreasonable time, in frank violation of the duty established in Article 99, paragraph 2, of the National Constitution.” .
The highest court considered that “the provisions of Article 103 bis of Law 20744, which provides as” social benefits “the reimbursements of” daycare and / or maternity ward expenses used by workers with children up to six years of age when the company will not have those facilities. “
He added that “the omission does not replace the existence of collective labor agreements that contemplate, under different modalities, the availability of these services in companies” because, “as it is a private right derived from the labor contract law itself, it does not it may be conditioned to the exercise of collective autonomy “.
Due to these and other considerations, the Court, although it accepted to process the extraordinary appeal, “in the face of the unjustifiable omission of regulating a law that expressly imposes the duty” to do so, decided “to order the Executive Power to remedy this omission within a reasonable period of time.” .
The ruling signed today in digital form by the five members of the court: President Horacio Rosatti and Ministers Carlos Rosenkrantz, Elena Highton, Juan Carlos Maqueda and Ricardo Lorenzetti was unanimous, but the last two did so on their own grounds.