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Beyond a shadow of a doubt?
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Under the scrutiny of social sciences, public health and nursery in Argentina. She has published papers in her specialty in national and international journals. From the beginning of the 20th cen- tury numerous laws that sought to improve worker protection were sanctioned —such as the Sunday-day-of-rest law, passed in , or the labor law for women and children, in On the other hand, in , the first project for the enforcement of a Labor Code was submitted.
Nevertheless, in , after the approval of the Workplace Accident and Sickness Law law , the view regarding the labor contract as a kind of juridi- cal relation with particular features began to blossom and beca- me a breakthrough in the history of labor legislation. The ratification of the Workplace Accident and Sickness Law, which implied an important change in the legal doctrine, attempted to alleviate the effects of injuries in the workplace. This expression refers to the long journey they had to go through until attaining compensation after the accident; it was a difficult and burdensome procedure, due to the expenses the claimants had to meet while, they also had to cover the expen- ses related to their medical attention, rehabilitation and medica- tion Congreso Nacional, Legislation on workplace accidents and sickness 67 Recurring labor accidents manifested the need to reform the existing legislation.
Likewise, technological changes in fac- tory spaces, without the necessary training of factory workers or the rules concerning safety and prevention, increased the likeli- hood of workers suffering injuries or getting ill Recalde ; Armus, The passing of this law definitively ratified the notion of professional risk in force in Europe and in the labor legislations of other American countries. This implied that the employer had to legally prove that the accident had been caused by negli- gence or by the risks inherent to certain activities.
It was also stipulated that it was the State, through its agencies, which was bound to safeguard la- bor relations. Our contribution to this theme will be an analysis of the projects prior to the sanctioning of the law for workplace acci- dents, the constitutional debate and the changes that occurred after its approval, after which this legislative frame began to be put into practice up until the midth century. Parliamentary debates materialize some of the representations a given society has concerning specific phenomena.
Besides, they are privile- ged documents which assist in recovering the positions assu- med by different opposing political sectors and allow for the reconstruction of possible implicit recipients of social policies. In the projects presented in the Chamber of Deputies, national and international statistical inputs were provided which proved to be useful in the parliamentary discussion.
In order to com- plement such contributions, other kinds of documents will also be revised: In the same vein, reviewing this theme will allow for the cla- rification of how workplace accidents and professional illnesses gained ground in the political sphere during the period of time studied, by virtue of which the way to approach social issues was also developed. Studying the historical processes which pushed forth social legislation, in this case associated with wor- kplace accidents and professional illnesses, also implies exami- ning how specific and professional knowledge was developed and linked to the study of some of the problem issues which such legislation was attempting to respond.
In the words of Pierre Rosanvallon Therefore, the approval of the first Workplace Accident and Sickness Law may be seen as the realization of a set of pro- jects that preceded it, and of ideas that went beyond the natio- nal borders Ramacciotti, Every time one of the ten following projects was submitted, such precedent was revisited; it was never adecuately discussed by the parliament.
He argued of the need to enforce a workplace accident law in order to relieve the potential danger this issue could pose in Argentina, where most workers were foreign, which became an obstacle for their integration into the institutional order. We should not forget that the Republic of Argentina is a coun- try of migrants, and that Europe passes laws for countries with their own idiosyncrasy, with defined social types … but here in Argentina we should not only legislate for the natives, but for all races, for all humanity, for all men in the world who come to this laboratory of life, from where a typical ethnic type emerges, which announces the vigor, courage, intelligence and greatness of our race Congreso Nacional, In order to support the need to enact such a law, the idea of social prevention was pushed forward.
In this proposal, consisting of 14 titles and articles, the need to regulate ac- cidents at the workplace was included as it was acknowledged that neither the Civil nor the Commercial Codes were adequa- tely adapted to be able to offer the protection workers required. In this sense, it encouraged the inclusion of a higher number of workers under legislation. According to Mir- ta Lobato and J. The goal of this proposal was to regulate a practice which was already being implemented by big companies: In , two projects were submitted.
Many of these quantitative and qualitative reports were taken into consideration as inputs for the arguments found in the projects and in their legislative debates Lobato y Suriano,; Maddalena, Among other things, he showed concern about industrial work and for the need to establish a scientific method to assess labor-related fatigue Graciano, He clearly stressed the need to think about a workplace accident law with broad jurisdiction, contemplating a system to benefit industrial workers and employees, under state supervision Congreso Nacional, Four more projects were submitted between and , and they were all based on the one submitted by Palacios, but the law was only discussed in September Two different kinds of variables may be mentioned to interpret this delay: Among the first ones it is worth noting the complex and len- gthy procedures undertaken to discuss and approve laws; the brief period of ordinary sessions May — September ; the stra- tegy of not making the quorum which could be interpreted as displaying opposition to the projects under discussion; and the enforcement of the so-called Olmedo Law , which re- gulated the expiration of projects which had not been enacted in one of its chambers during the parliamentary year or the fo- llowing one.
Among the ones associated to a particular theme, it is worth mentioning that the interest in labor accidents was also associated with the demands of socialism. The lay, libe- ral and republican nature of such a political tradition generated certain apprehension among conservative and catholic sectors, in spite of the fact that there were not substantial technical di- fferences between the broad terms of the projects submitted5. The support of catholic sectors in —represented by Deputy Arturo M.
Besides, the introduction of an insurance system allowed them to overcome the fear of socialism and anarchism. It is probable that the so-called Riachuelo catastrophe which occurred on May 23 of in gasholders belonging to the Ministry of Public Works put on the stage a situation that required the necessary attention of the public powers. An explosion caused the death of 13 workers and others were seriously injured. The funeral rites in the Buenos Aires neighbor- hood of La Boca became an important way of communicating and denouncing, before the public opinion, the fragility and poverty which the workers and their families were exposed to during their daily toil.
Private ceremonies associated with death became public events and acquired a meaningful visibility in the city. The mechanisms of contributions and solidarity set around the popular aid commissions were insuffi- cient to meet the urgent demands associated with such event, and as such, they appealed for the active intervention of the State. Consequently, through the passing of Law , the Sta- te repaired the injured and the families of the dead workers.
Compensation payments were agreed upon according to legis- lation covering navy employees. Additionally, the rule allowed the legislative power to proceed in the same manner in similar cases. The text of the project of law forewarns of a certain spirit of be- nevolence, but it is also founded, especially, on equity, and thus responds both to a concept of justice and to the collective hope of guaranteeing both the rights of capital over the exaggerated claims of labor, and the rights of labor over the tyrannies and demands of capital.
In this sense, the preventive and conciliatory nature of B.
During the debate in the Chamber of Deputies there was a discussion over some of the sensitive issues which had been mentioned from as early as the beginning of the century and many of which continued to be debated in politics throughout the 20th century. Some of them were the constitution of com- pulsory and facultative insurances, the features of compensa- tion limits, the criterion of coverage according to the type of workers, corporate, labor and State responsibilities, which wor- kplace accidents and illnesses would be covered, and how to control and fund the system. Nevertheless, the arguments made in both proposals displayed important differences.
In the same spirit, the project submitted by A. Escobar clearly enounced the fears of corporate sectors related to what was seen as excessive State intervention: Paraphrasing Pierre Rosanvallon Diametrically opposed to this argument, socialist deputy N. Dickman claimed that the compulsory insurance, given that it regulated compensation for the injured and guaranteed a com- mon fund to support it, restrained employers from declaring bankruptcy in order to avoid paying compensation; besides, it encouraged State intervention based on a social provision with more solidarity-related criteria Congreso Nacional, In spite of these opinions, the law established facultative insurance and set a maximum limit and tariff for compensation payments.
According to the physician, although the sanctioning of a legal framework contemplating work accidents had been celebrated and supported, it also reverted to a previous political discussion, which implied reflecting on the expansion of social security and achieving the approval of a law that first safeguarded against ill- ness, and then, legislated on workplace accidents, as every labor accident implied, in his understanding, an illness: We entered social insurance legislation along a path that is not the best.
So it became essential to create a body of social provision, which could organize help collectively. In order to maintain such a delicate financial balance, an individual insurance system was implemented, which was neither corporate nor compulsory, and according to which em- ployers could shift the burden of compensation to insurance companies. Such a situation legitimated a habitual practice that had been used since the beginning of the century by big compa- nies and had paved the way for the growth of private insurance companies.
With the incorporation of the legal idea of profes- sional risk, the field of compensable accidents broadened, and the new goal became repairing a varied range of professional ail- ments and illnesses. The economic parameters would be pro- portional to the wage, determined by a fee and payable through an administrative procedure; the higher the salary, the higher the compensation. Nevertheless, there was a limit on compen- sation and it was set down as three thousand pesos a year Con- greso Nacional, However, the salary limit was arbitrary, as it did not consider the percentage of the family economy such an amount would cover or the fluctuations of the cost of the basic family basket.
In this way, broad social inequities were reproduced, and deep wage gaps preserved. A value was assigned to the body through subjective criteria, which did not always correspond to the effective practices of people Amilla- no, So, how did funding work? Through an income system: This institution in- vested in national securities and paid the recipients monthly. Criticism appeared quickly as the monthly payments made by the Fund were not enough to live on.
For this rea- son on July 25 of , another decree was adopted according to which compensation would be received in installments, that is, for the period of ten years. Some insurance companies, by playing a series of tricks, did not meet their obligations towards injured workers: Besides, the intervention of multiple insurance companies made the scenario of legal ac- tions and compensation over injuries more complex.
As the lawyer Eduardo Maglione president of the National Department of Labor in claimed in regard to the labor laws, the one that was most obeyed was the labor accident law, as it also favored the interests of insurance compa- nies Rubinzal, Following in the footsteps of the insurance companies, employers also resorted to diverse tricks in order to avoid pa- ying economic compensation: In the cham- ber of deputies, C. In this case, international technical certification was used to protect employers. The social catholic A.
Consequently, it was impossible for most workers to thereafter claim compensation for a labor accident. Such an extreme example helped him to justify that only those accidents or diseases produced by the performance of labor would obtain compensation. Has this accident been produced within the scope of work or not? In order to check or repair any given motor, especially those ope- rating at great speed, it is prescribed to wait until it stops running.
If the worker does any repair or revision while the motor is still running and an accidentoccurs, there is clear recklessness and by breaking the basic rules of foresight, the worker would be guilty, and his employer should not be held liable Congreso Nacional, Contrary to these positions, N. We do not want workers who mutilate themselves at work to be excluded, under the pretext that they have not been included in legal classifications; neither do we want a law that requires the double circumstance of being at the workplace and performing work in order for an accident to attain legal recognition.
We want an accident law in which its national jurisdiction is clearly and explicitly stated Congreso Nacional, His approach was not taken into consideration and A.
There were some exceptions related to the political context which were considered at the judicial head- quarters. According to this im- portant labor lawyer, the due diligence a worker pays to his tasks and to accident prevention during his first days of work dissipa- tes with the passing of time, worries disappear and carelessness derives from the usual work routine.
That is, workers could break the rules or work habits; nevertheless, the employer could not argue that this was an element that should exempt him from liability. If a worker, for example, is reckless when erecting a scaffold, this is not to be considered 6 Law concerning Labor Accidents interpreted by the Federal Ca- pital Courts since its enforcement until In some judicial sentences, the nature of work and the de- termination of subjective elements such as profession and age were taken into consideration Riva, The worker was 56 years old and had spent twenty years working in a specialized activity.
In these cases, the reeducation and rehabilitation of the injured worker was proposed to ensure that they could take on other tasks. Back then, according to this medical argument, the momentum towards social reforms was legitimated by the fear of social con- flict and delinquency Ariosto, It thus acknowledged pneumoconiosis, lung nico- tinism, anthracnose, and siderosis; lead, mercury, cupper and arsenic poisoning; ammonia related ophthalmia; carbon disulfi- de, hydrocarbon and phosphorus poisoning; anthrax, dermato- sis, hookworm disease and brucellosis.
Law on Working Days declared that any activity involving stale air, and either gas or toxic dust emissions were unhealthy. Confirma- tion of such conditions would result in a 6 hour long working day instead of 8 hours long, without a wage cut. The cases of workers with bubonic plague and anthrax gave way to juridi- cal presentations. Neither of the two diseases was counted as a professional disease, and both were regular illnesses within the milling and meat processing industries, respectively.
Courts allowed compensations when it was possible to prove a direct relation with the scope of work. Ten years after its implementation, labor legislation suffe- red diverse changes, both administrative and conceptual. After , pathological di- sorders generated by radioactivity and epitheliomata emerged from handling tar, pitch, bitumen, paraffin wax and mineral oils were included. In the Province of Buenos Aires aniline poisoning, caisson7 disease, lung emphysema, lumbago and tuberculosis were also admitted. The latter, after the re- form, was included in the professional injury list as long as 7 Bell shaped work tools used in underwater works.
Legislation on workplace accidents and sickness 85 the relation between the work atmosphere and the start of the disease were proven. The aim of this modification was to solve this problem in those cases in which the aforementioned proof was produced Armus, With regard to cardiac disorders, positions changed throu- ghout the discussions. In the s, some verdicts denied the causal link between work and heart diseases; nevertheless, me- dical experts emphasized the importance of keeping heart di- seases under both public and private tutelage, considering the disability they produce and the resulting inability to undertake tasks Bosco, Around , Law incorporated the principles em- braced by the International Labor Organization into the legis- lation.
There were two main points: The argument was that agriculture was not a dangerous activity and that pharmaceutical and medical at- tention was not easy to find during the campaign Riva, In the same line, hydati- dosis was considered either a professional or a rural disease in labor accident policies. Given that hydatidosis was considered a public danger, the State had to protect those who suffered from it, either temporarily or permanently. Nevertheless, draw- backs emerged regarding which employer was responsible for the payment of compensation, as it was the usual thing to have workers move from one field to the other to undertake certain tasks.
In relation to the second inclusion in the legislation, a broad range of questions and hesitations, which had already been present when the law was debated in , reappeared. The rule enshrined the principle of proving the relation between place and accident: Conflicting verdicts were found at the Second Civil Chamber.
On July 24, , this Chamber claimed that risk on the street was com- mon to everybody; therefore, it was not compensable. After being fired, her husband had an accident, bumping into something, after which he died. A different case, involving a worker from a moving firm who, after unloading a truck, got off the car, fell and was left with a foot disability, received better luck. The employer, in order to avoid payment of the compensation, claimed that the worker had got off the truck to drink a beer and not to water the horses, as he had argued. As we had anticipated, alcoholism was an argument commonly used by companies to avoid paying compensations.
Eight years after the aforementioned cases, changes were in- troduced in judicial verdicts regarding labor accidents that had occurred outside working hours. On April 22 of , a ver- dict from the First Civil Chamber claimed that accidents were compensable if the injured person was on his way to work. It is probable that the increase of traffic in urban areas, in the light of the modernization of the automobile fleet, will bring about an ac- knowledgement of the danger implied by the journey between the house and the workplace.
Such uncertainties were reme- died in the reform, when traffic accidents were included. Likewise, accidents would be compensa- ted if they happened due to the dangers inherent in accessing the workplace, such as crossing railroads, rivers or bridges. Legal prescription boos- ted the emergence of an institutional framework—both within the private and the public spheres- which, while expanding, ge- nerated conflicts over who had more attributions and resources to get involved in such labor relations.
Such a scenario became more complex by the midth century, due to ideas suppor- ting the creation of social security systems that were based on principles of citizenship rather than only on the wage relation. Next, we will check how these arguments, which covered the whole western world after the Second World War, blended with each local political process. The scope of social security During the post- Second World War period, proposals re- lated to social security systems reach public arenas both at na- tional and international levels. That is, the protection of people should be ruled by principles of social solidarity, and not by self-help systems, mutual aid or private companies.
Legislation on workplace accidents and sickness 89 Two countries from the whole of Latin America worked as references in the Argentinean discussions: Chi- le was regarded as a pioneer throughout the Americas in the en- forcement of laws intended to protect periods of disability and disease. In Peru, the s represented the most active pe- riod in terms of the implementation of social policies involving, mainly, the areas of health and education.
Framed in these international debates, both in the Labor and Provision Secretariat and in the Public Health Secretariat , technical and political discussions revolved around the constitution of Social Insu- rance. The ideal aim was universalizing social and sanitation assistance among the working class population, which implied not only an economic provision after the injury, but the im- provement and broadening of medical-social assistance and the incentive to reeducation strategies among injured people.
In two relevant institutional changes took place which affected the field of labor accidents. Those cases which could not be handled administratively entered the scope of the Labor Courts; in this way Labor Justice was separated from civil law Stagnaro, A long-hoped-for step towards the constitu- tion of the social security project was taken when the Natio- nal Social Provision Institute INPS was created, under the domain of the Labor and Provision Secretariat, as it intended to cover both individual and family risks in a broader sense than the one conveyed in previous social laws.
Its aim was unifying the range of funds existing at that moment, among which re- tirement, maternity and labor accidents stood out because of their volume. Controls made by ICMP included a clinical examination, research on allergies, radio-photography, dental examination, and thought was also given to include the realization of several studies related to a range of regional pa- thologies.
Utopia for preventive medicine consisted in conserving health and, in the future, eradicating other diseases. Looking for the potential illness and curing it could avoid the irreversible: The future hospital would be built in the industrial district of Nueva Pompeya, to facilitate worker access, and it would focus on those suffering from labor accidents, as well as on research related to profes- sional diseases. An optimistic outline by phases was proposed, starting with public officers and then moving on to the student population and, further on down the line, reaching the most distant areas through mobile equipment Silva, Legislation on workplace accidents and sickness 91 Therefore, ICMP, as it supposedly realized the ideal of pre- ventive medicine, had both a social prevention of illness and the rehabilitation of the ill and an economic goal.
In this plan, it was made explicit that: If the number of people disabled by chronic diseases continues to rise, the retirement funds will not be capable of continuing to fund such disabled people who live, consume and yet do not produce. Given its technical improvement, medicine can extend the life of disabled people for many years. Funds bear the social burden for longer than expected. The way to avoid the deficit of the funds and the loss of working bodies is to struggle against and to prevent early disability Carrillo, The amount of tests performed was far from ideal.
One of the goals of the Analytical Public Health Plan — was the performance of about 1. So, if consideration is given to the periodical testing of the working population which was actually performed between and , the picture clearly benefitted the Federal Capital, where In the interior of the country, where tests were undertaken by means of mobile equipment, Even though the amount of studies decrea- sed in Buenos Aires, the drop was not as abrupt.
The restraints imposed by the lack of speciali- zed technical personnel needed to perform the sanitation con- trols should not beundermined; between and , only 98 undergraduate physicians specialized in Labor Medicine at the Technical Improvement Institute of the sanitation agency, out of a total of who pursued other specializations.
The project of achieving broader social security coverage was dashed by Law of Labor Accident and Ma- ternity Funds, which had been under the control of the INPS agency, recovered their organic and functional autonomy, their legal capacityand their administrative and financial autonomy. In practice, the ideal of a universal social security system was stressed by the strength that the union movement had attained, in terms of its capacity for political interlocution and interven- tion.
After the s, some unions started opening their own hospitals, focusing attention for their members and their fami- lies. One example of this is the Railroad Hospital, created in , funded with sectoral contributions, and also supported by State funding Belmartino, Even though the building of special assistance centers for pathologies found in the world of labor was not done —as it had been in the union experiences in Chile or Lima- both hos- pitals became an ideal to reach; the idea that it was the State which should propose guidelines for sanitation policies, depar- ting from the building and funding of hospitals and educational institutions, and from disease prevention, remained engraved in the popular imaginar as it had never been beforehand.
Conclusions If 13 years passed between the first project submitted and the final approval of the first Labor Accident law, the parlia- mentary discussion and the subsequent reform required a fur- ther seventy-six years. Contrary to what happened with many issues, the arrival of democracy in Argentina in did not activate political debate; therefore, the cases were regulated by rules debated and enforced in the first decades of the 20th cen- tury, with some modifications and extensions. Both in the and reforms, effort was made to preserve the model desig- ned in ,as the most important change was limiting objecti- ve and price liability for work-related damages, but the option remained for the worker to resort to common law if common reparation was insufficient.
Due to this situation, labor acci- dent situations and professional diseases still ended up in court, which led to long lasting paperwork, loaded with administrative procedures and with several instances of bureaucratic media- tion. Until , in spite of the two existing modifications to the law, the existence of a priced scheme for compensation loss prevailed, and the option for the victim to take legal action, usually during a long period of time, was kept.
Law , called Labor Risk Law, passed in , was fra- med by neoliberal reforms, whose main focus was the re-arti- culation of relations between State, market and social protec- tion, which led to the progressive weakening of social welfare policies. From the beginning of until the crisis, the main feature of social policy was the privatization of social se- curity, the territorial decentralization of health and education services administered by provincial governments, and the pro- liferation of actions aimed at poverty reduction Repetto, The latter were con- sidered liable for claims associated with work activity, regardless of their guilt, and such liability became the obligation to pay an insurance premium.
Such a premium was calculated throu- gh an actuarial mathematical formula establishing the risk of working in a given economic activity, and not the priced per injury or per professional disease scheme, which is why the ali- quot was not the same for every employer. In this way, the statistical methods and their mathematical formalizations were interweaved, more than in any other moment in history, with the core of social policies, but the statistical approach on social issues was questioned by another model which placed more importance on personal behavior. In order to face risk at the workplace, companies hired insurance policies with private operators, the Labor Risk Insurers ART , whose financial re- gulation was under the responsibility of the Labor Risk Super- intendence.
Workers obtained, after administrative procedures, medical provisions, monetary compensation, and, in the case of death, funeral expenses. Once the compensation was obtained from the ARTs, they still had the option of resorting to legal action. A social protection matrix was developed, its main feature was that the State recovered, progressively, control over social secu- rity management, thus hoping for a broader universalization. The new law intended to limit legal action to solve labor conflicts and, therefore, those who chose the admi- nistrative way could not then pick the legal avenue.
The inten- tion was to reduce the number of claims placed before courts, as well as a pushing forth a more timely collection of compen- sation, as a 15 day period was granted, from the moment of the accident, for the worker to collect the corresponding compen- sation. To keep economic compensation up to date, a biannual updating method of compensation limits was established.
The th anniversary of the ratification of the first labor accident law in Argentina invites us to reflect upon the question of how a given society creates the mechanisms needed to ward off social misfortune and achieves more solidarity-based social protection systems. The solutions, in their general outlines, included the creation of collective mechanisms for social protection and rehabilita- tion, and the support of mechanisms led by a commercial logic. The goal of a universal social security system —of which labor accidents and professional diseases are only an aspect-, has been a political target from the early 20th century and was embraced by a broad range of political actors.
Paraphrasing Robert Castel , even though we will never be certain of being free from danger, we will gain the chance to reside in a less unfair and more humane world. Salud, tuberculosis y cultura en Buenos Aires, Legislation on workplace accidents and sickness 97 Castel, Robert. The Allure of Labor. Workers, Race, and the Making of the Peruvian State. Intelectuales en la izquierda en la Argentina, Lobato, Mirta Zaida and Suriano, Juan. Las instituciones laborales en la Argentina , Buenos Aires: Mordeglia, Miguel andFrancone, Mario. Las primeras leyes obreras. Transnational dialogues between specialist and institutional knowledge in occupational accident legislation, first half of the twentieth Century.
La salud de los trabajadores en Buenos Aires. This blind woman lived in France in the eighteenth century and, despite her disability, managed to teach herself to read using cut out letters that she could feel rather than see. Victor Dixon points out that although the play is set in , de Salignac in fact died in In El teatro de Buero Vallejo: Victor Dixon and David Johnston, pp.
Liverpool, Liverpool University Press in Spanish. The play premiered in November , a time of considerable political unrest in Spain — there had been student and worker strikes earlier that year and a state of emergency declared in Madrid in May. This background has led some scholars to consider how the themes in the play relate to the socio-political context in which it was written.
Other studies have focused on the symbolism of the blindness in the play. Some critics and academics consider the epilogue to be an unnecessary and overly worthy addition. Others argue that the epilogue is an effective tool for distancing spectators from the action and thus engaging their critical judgement as to what they have seen see Dixon for a summary of the debate. Primer Acto, 38, December. El concierto de San Ovidio: El concierto de San Ovidio. El concierto de San Ovidio; El tragaluz, 3rd edn, ed. Obras selectas , eds. Mariano de Paco and Virtudes Serrano. El concierto de San Ovidio, 21st edn, ed.
David George and John London, pp. Cardiff, University of Wales Press. Contemporary Literary Analyses from Structuralism to Postmodernism , pp.