Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Argentina (Ratification: 1960)

The Committee notes the Government’s report. The Committee also notes the comments made by the Central of Argentine Workers (CTA) and requests the Government to send its observations on these comments in its next report.

The Committee recalls that its comments relate to certain provisions of Act No. 23551 of 1988 respecting trade union associations and implementing Decree No. 467/88. More specifically:

-  section 28 of the Act requires a petitioning association, in order to contest the trade union status of an association, to have a "considerably higher" number of members; and section 21 of implementing Decree No. 467/88 qualifies the term "considerably higher" by laying down that the association claiming trade union status should have at least 10 per cent more dues-paying members than the organization which currently has that status;

-  section 29 of the Act provides that a "trade union at the enterprise level may be granted trade union status only when another first-level association and/or trade union does not already operate within the geographical area or the activity or category concerned";

-  section 30 imposes excessive conditions (existence of a difference of interests justifying separate representation and the lack of representation of the workers concerned under the status of the existing association or trade union) for granting trade union status to unions representing a trade, occupation or category;

-  section 38 of the Act only permits associations with trade union status, and not associations that are merely registered, to benefit from the check-off of trade union dues; and

-  sections 48 and 52 of the Act provide that only the representatives of associations which have been granted trade union status may benefit from special trade union protection (fuero sindical).

The Committee notes the Government’s indication that: (1) it is making gradual progress with a process of generating the political and institutional conditions that will make it possible to achieve further compliance with the comments of the Committee of Experts based on consensus with the social partners, given that the current legal system is the result of a situation affected by historical, socio-economic and political factors and that the amendment of the legal provisions therefore requires a change in the balance of these factors, with the outcome affecting the rights guaranteed therein; (2) the implementation of specific measures has to be encouraged so that trade union organizations benefit from the necessary facilities to guarantee effectively the right of workers to freedom of choice and, in this respect, the proposal is intended to make progress in the legislation in strengthening the organizations established under section 23 of Act No. 23551 respecting trade union associations, by optimizing the protection of trade union delegates of such organizations (extending the scope of protection provided under Act No. 23542 to combat discrimination), strengthening the economic capacities of such organizations by providing for the employer to check off trade union dues and reducing the percentage referred to in section 28 of the Act respecting trade union associations; (3) the viability of the relevant legislative amendments and their subsequent sustainability require not only the political will of the Government, but also the achievement of a sufficient level of consensus between trade union organizations so that the collective interest can be maintained; and (4) contacts between the various trade union federations are being promoted and established to facilitate an agreement to simplify the task of the State in the adoption of the reforms, by incorporating the results of negotiations in the legislation and backing up the consensus solutions resulting from dialogue with the political force for their immediate implementation through a sufficient level of agreement between trade union organizations.

In this connection, the Committee observes with concern that for many years it has been referring to the above provisions of the legislation which raise serious problems of compliance with the Convention. The Committee hopes that the dialogue with the social partners, the beginning of which has been announced by the Government, will be reflected in the near future in the amendment of the legislative provisions upon which it has been commenting. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.