Buenos Aires Province: Joint Health and Safety Committees in Company

Buenos Aires Province Law No. 14,408, published in the Official Gazette on December 12, 2012 created Mixed Committees on Health, Hygiene and Security in Employment (hereinafter CMSHSE).

While Buenos Aires Province requires the committees for companies with 50 or more workers, the regulation stipulates that an employer with 10 to 40 workers must have a Worker-Delegate for Health, Hygiene and Security. This Worker-Delegate will be elected and have functions and powers identical to the committees.

The CMSHSEs are new in Argentine labor legislation. According to the law, they are bipartisan agencies and their main objectives are to: 

1. safeguard workers’ health and lives;
2. ensure compliance with legal and contractual norms for workplace health, hygiene and safety;
3. make recommendations for better regulation application;
4. participate in the training, administration and compliance of  workplace health, hygiene, and security plans, programs and special projects;
5. encourage an environment of cooperation between workers and employers to promote health, avoid accidents at work, reduce and minimize workplace accidents, achieve better work conditions and compensation for workplace accidents,  and report issues to the relevant authorities for corrections and sanctioning, etc.

The CMSHSEs will be comprised equally of employer and worker representatives. They will have a President and Secretary, each with four-year terms. In case of non-agreement, the regulation provides that decisions will be made by drawing lots. The President and Secretary should dictate internal regulation, and should meet at least once a month with the sole purpose of considering subjects related to workplace health and safety. Their decisions have absolute authority over the employer and workers and are resolved by a simple majority of members and voters present, or in the case of a tie, they are resolved by the administrative authority.

Article 5 of the regulation considers employer conduct directed at impeding or obstructing agreement with the CMSHSEs or noncompliance with the law and the legal infractions and sanctions punishable by fine, for such activities. This system does not modify or alter other independently-administered regulations on employment law, workplace risks, hygiene, or safety.

However, Provincial Decree Number 801’s (October 7, 2014) objective is to determine the mode and conditions for the CMSHSEs’ formation. This Decree also outlines certain criteria related to exceptions, the company’s representation, and sets minimum standards in terms of the role of parities roles, integration, internal rules, and obligations. In Annex I the Decree stipulates procedural aspects, the most important of which are:

1. The CMSHSEs shall be created within 120 days of the Decree’s publication, by agreement between the unions and the employer. Since the Decree was published in the Official Bulletin on December 31, 2014, it came into force on April 30, 2015.
2. The Provincial Ministry of Labor will maintain a Registry of the CMSHSEs, with the objective of operating a database related to their existence, structure, and authorities’ terms of office. Such information will be published on this public authority’s webpage.
3. The Decree explains that companies within Buenos Aires Province shall establish a CMSHSE even if the employer’s real, social, or fiscal domicile is outside Buenos Aires Province.
4. The number of workers required to create CMSHSEs is established, referring to those related to the same employer, or place of provision of services, whether or not services are provided in rotating shifts or under other, distinct, contractual relationships.
5. The Provincial Ministry of Labor is empowered to require CMSHSE establishment in places of work not exceeding the Law’s minimum number of workers when the health and security conditions of certain activities so requires, and/or when the accident rate record exceeds the Superintendent for Work Risks’ statistics for the activity.  Furthermore, there will be an exception allowing for CMSHSEs’ creation in certain enumerated hypothetical situations. 
6. The CMSHSE shall be notified of performance of inspections, technical evaluations and/or technical audits, as well as of their findings, and recommendations related to work conditions and environment, by the Application Authority, the Labor Risks Insurer and the employers’ Medical, Legal, Health and Hygiene Services.
7. The workers’ representatives in the CMSHSEs will stay in their positions until their role as staff delegate expires under The National Law of Union Associations No. 23,551, unless they are re-elected. 
8. Internally the CMSHSEs shall regulate, at a minimum: a) Members’ Rights and Obligations; b) Number and Type of sessions; c) The Presidents’ and Secretaries’ Duties and Powers; d) special majorities or consensus of parties when recommendations involve changes to the company’s organization or establishment specifically related to work safety and hygiene.  

One of the most important parts of this regulation is the provision in Article 8 of the Annex. This establishes that within a period provided in Article 1 the employers and the union organizations may suggest that the other party, within a minimum of five (5) days, designate its representatives, and that together they form committees.  It also establishes that if that period lapses without a response from the union, employers are not responsible for offenses referred to in the law such as employers´ omissions and previously reported breaches.