In depth
Section 179 of the Employment Contract Law provides for the duty of certain employers to provide maternity and daycare rooms for children according to the minimum number of workers to be determined by regulation.
Decree 144/2022 ("Decree"), which regulates this section, provides that in premises where 100 or more people work, regardless of hiring modalities, the employer must provide childcare spaces for children between 45 days and three years of age who are in the care of male and female workers during their respective working hours.
The Decree also provides that collective bargaining agreements may provide for the replacement of this obligation by the payment of a non-remunerative sum for the reimbursement of duly documented childcare or caregiving expenses and that, in this case, the amount to be reimbursed cannot be less than 40% of the monthly salary corresponding to the category "Assistance and care of persons" of domestic workers with departure, or the amount actually spent in the event that this is less.
In line with the Decree, the Agreement provides that employers in the commerce sector may opt for the payment of the non-remunerative sum instead of setting up childcare spaces at their premises. At the same time, the Agreement sets out the amount to be reimbursed at the minimum provided for by the Decree, i.e., 40% of the salary of the category "Assistance and care of persons" of domestic workers with departure, or the amount actually spent in the event that this is less.
The Agreement also provides that the employer may reasonably vary the way of fulfilling the obligation provided for by the Decree and that what has been agreed by the parties shall remain in force until it is amended by them.
What has been agreed on for the commerce sector can be a trend in solving a complex issue in other industries. Indeed, except in the case of telework, where the employer may also opt for the payment of a non-remunerative sum, the obligation to provide childcare spaces provided for by the Decree will be enforceable as of 23 March 2023. Failure to comply will be considered a serious labor infraction, which will expose employers to fines of 50% to 2,000% of the monthly value of the minimum wage in force at the time the infraction is detected for each affected employee.
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