Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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 discussion that took place in the Conference Committee on the Application of Standards in June 2005, and the report of the mission conducted in August 2005. It also notes the cases concerning application of this Convention examined by the Committee on Freedom of Association.

For many years, the Committee has been commenting on certain provisions of Act No. 23551 of 1988 on trade union associations and its regulatory Decree No. 467/88. The Committee refers in particular to:

1. Trade union status (personería gremial)

-  section 28 of the Act, under which, in order to challenge an association’s trade union status, the petitioning association must have a "considerably larger" membership; and section 21 of the implementing Decree No. 467/88, which qualifies the term "considerably larger" 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 holds the status. According to the Government, the legislation does not offend against the principles laid down in the Convention, since a registered trade union need only be more representative in order to claim status. The Committee points out that a "considerably larger" membership amounting to 10 per cent more members than the union holding most representative status is too high a requirement and is contrary to the Convention. In practice, it stands in the way of trade unions that are merely registered and that wish to claim trade union status;

-  section 29 of the Act, under which an enterprise trade union may be granted trade union status only when another first-level organization does not already operate in the geographical area, activity or category concerned; and section 30 of the Act, under which, in order to be eligible for trade union status, unions representing a trade, occupation or category must show that they have different interests from the existing trade union and the latter’s status must not cover the workers’ concerned. The Committee notes that the Government repeats its earlier comments indicating that in Argentina there are 180 unions representing categories, trades and/or enterprises, 85 of which have trade union status. The Committee nonetheless reiterates that the requirements that unions representing enterprises, trades or categories have to meet in order to obtain trade union status are excessive, and in practice restrict their access to trade union status and give preferential treatment to existing organizations even where unions representing enterprises, trades or categories of workers are more representative, according to section 28.

2. Benefits which derive from trade union status (personería gremial)

-  section 38 of the Act, under which check-off of trade union dues is allowed only for associations with trade union status, and not associations that are merely registered. The Committee notes that, according to the Government, most first-level trade union associations are members of federations which have trade union status, so the first-level unions receive the trade union dues of their members through the federation, which receives them from the employer, who deducts them directly. The Government adds that there is nothing to prevent organizations which are merely registered from arranging with the employer to have the dues deducted directly from the workers’ wages. The Committee reminds the Government that for unions that obtain it, "most representative" status should not imply privileges other than priority of representation in collective bargaining, in consultations with the authorities and in the appointment of delegates to international bodies. Consequently, such discrimination against organizations that are merely registered cannot be justified;

-  sections 48 and 52 of the Act give special protection (trade union immunity) only to representatives of organizations that have trade union status. The Committee notes that, according to the Government, all workers’ representatives enjoy general protection under section 47. As to the special protection granted in section 52, the Government indicates that by virtue of section 50, this extends to workers standing for representative office, in whatever capacity. The Committee nevertheless considers that sections 48 and 52 provide preferential treatment for representatives of organizations with trade union status in the event of acts of anti-union discrimination, and that this exceeds the privileges that may be granted to the most representative organizations, as noted in the previous paragraph.

The Committee notes that as a result of the conclusions of the Conference Committee, a mission took place in Argentina in August 2005. The Committee notes that the Government indicated to the mission it had conducted informal consultations with the trade unions concerned with a view to achieving progress on possible amendments to the legislation, and the Government expressed its commitment to international labour principles and standards. The Committee also notes the statistics sent with the Government’s report which show that there is a large number of trade unions and a membership rate of 40 per cent taking account only of first-level associations, and 65 per cent if second-level associations are counted.

The Committee observes, however, that it has been making the same comments for many years, but - as the mission conducted in August 2005 also pointed out - there has been no tangible progress in terms of eliminating discrimination against organizations that are merely registered in all areas other than collective bargaining, consultation with the authorities and the appointment of delegates to international bodies.

In these circumstances, the Committee urges the Government to take steps to amend all the provisions referred to above in order to bring them into conformity with the Convention.

In its previous observation, the Committee took note of the observations sent by the Central of Argentine Workers (CTA) and the International Confederation of Free Trade Unions (ICFTU) referring in general terms to matters pertaining to the legislation that the Committee has been raising for years.

Lastly, the Committee notes the recent observations sent by the CTA and requests the Government to respond to them in its next report. The Committee notes that the Minister of Labour informed the abovementioned mission that the CTA’s application for trade union status is being processed, and that the CTA participates in the main national and international forums and bodies. The Committee requests the Government to report on the outcome of the CTA’s application for trade union status.

The Committee raises other matters in a request addressed directly to the Government.