Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee takes note of the Government’s report. It also notes the comments by the Central of Argentine Workers (CTA) dated December 2006 and 30 August 2007, those by the International Trade Union Confederation (ITUC) dated 28 August 2007 and those of the General Confederation of Labour of Argentina (CGT) dated 4 September 2007, which refer to matters the Committee has already raised. The Committee notes with concern that in its communication of August 2007, transmitted to the Government on 21 September 2007, the CTA refers to computer theft in trade union headquarters and in the offices of the CTA’s legal advisor, raids on the home of a CTA official and the CTA headquarters in Buenos Aires, and assaults on demonstrators – as a result of which one worker died and several were injured – in the provinces of Neuquén, Salta, Santa Cruz and the Autonomous City of Buenos Aires. The Committee observes that no observations from the Government have been received on these comments. Therefore, the Committee asks the Government to undertake the necessary investigations to clarify the facts and punish the guilty parties. The Committee further notes the comments of 4 June 2007 by the Federation of the Professional Staff of the Government of the Autonomous City of Buenos Aires. Lastly, it takes note of the Government’s reply to the CTA’s comments of December 2006.

The Committee also notes the discussion that took place in the Conference Committee on the Application of Standards in June 2007, and in particular the Conference Committee’s conclusions: (1) urging the Government to reply to the CTA’s application for trade union status, and (2) requesting the Government, with all the social partners and the assistance of the ILO, to elaborate draft legislation for the full application of the Convention, taking into account all the comments of the Committee of Experts. The Committee notes the information from the Government that following the conclusions of the Conference Committee, it is implementing various measures for the purpose of seeking alternative solutions with the participation of the various players concerned, that in October 2007 a meeting was held with representatives of workers (CGT and CTA) and the employers and that, in its opinion, the outcome was satisfactory and there will be further meetings to pursue the said objectives.

The CTA’s application for trade union status

In its previous observation, the Committee noted that the CTA’s application for trade union “status” was pending and had been awaiting a decision since 2004. It urged the Government to take a decision on the matter without delay. In its comments, the CTA states that there has not as yet been any decision on its application.

The Committee notes that the Government once again indicates that the file is still active and formalities are ongoing without any delays except for the time spent waiting for submissions, which is unavoidable in so complex a case. The Government also indicates that: (a) it has observed every aspect of the principle of freedom of association and complied with the procedure laid down in the legislation – including the participation of the trade union associations entitled to take part in the proceedings, and the complainant expressly accepted this legislation by filing its application for trade union status under Act No. 23551 and its implementing decree; (b) in administrative proceedings in which first-, second- and third-level organizations are involved in an adversarial process, the fact of complying with procedure and ensuring that all concerned have their say necessarily implies a period of time commensurate with the case itself; (c) in the discussions prior to the adoption of Convention No. 87, freedom of opinion and right to defence as part of a whole complex of fundamental standards on human rights was one of the main subjects addressed, and it is not a matter of delaying proceedings but of giving all parties the opportunity to express their views and to put their case on the basis of their legitimate interests; (d) the ILO has accepted the system of representativeness and acknowledges comparison of representativeness as a means of determining trade union status; and (e) the CGT’s interests as well as those of the CTA must be taken into account in a complex situation that calls for discussion and indeed implies comparing the representativeness of first-, second- and third-level organizations, and given the number of unions in Argentina with trade union status, this takes time and means examining how matters have evolved. There is no delay on the part of the administration, but a rational use of administrative resources in proceedings in which interests are disputed.

The Committee once again notes with regret that despite the length of time that has elapsed – more than three years – the administrative authority has not come to a decision on the CTA’s application for trade union status. In these circumstances, the Committee urges the Government to ensure that a decision is reached without delay, and to keep the Committee informed.

Act on Trade Union Associations and its implementing decree

For many years the Committee has referred in its comments to certain provisions of the Act on Trade Union Associations (No. 23551) of 1988 and the decree regulating it (No. 467/88). The Committee notes the Government’s statement that: (1) the provisions of the Act draw on the best principles of social justice, since account was taken of the interpretations in the ILO of the scope of the concept of freedom of association, and the technical assistance from the Office in 1984; and (2) there are currently more than 2,800 first-, second- and third-level trade union organizations in Argentina; and that there is one trade union organization for every 3,500 wage workers, which clearly indicates that freedom of association is not only a right but is widely and fully exercised. The Committee observes that the Government’s only response regarding the specific provisions addressed by the Committee is a general repetition of its past observations. Taking account of the last observations of the Government, the Committee is bound to reiterate its comments on the following provisions:

Trade union status

–      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 requirement of 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 indicates, in respect of section 29, that enterprise trade unions exist and function freely. They exercise the rights granted to them by law; as concerns section 30, the Government indicates that this provision had put an end to a flagrant violation of freedom of association, comprised of a “de facto” law prohibiting the presence, in a trade union, of officials and members lacking this 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.

Benefits which derive from trade union status

–      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, the Committee considers that 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 or trade unions enjoy the general protection established under section 47 and may commence an action “in amparo” in case of violation of their freedom of association rights guaranteed by law. The law contains no restrictions respecting this matter. 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 points out that it has been making these comments for many years and that although the Government has received technical assistance from the ILO on several occasions, the necessary measures to make the requested changes have not been taken. The Committee accordingly once again requests the Government to take steps to amend all the provision referred to in order to bring them fully into conformity with the Convention. It trusts that it will be able to note tangible progress in the very near future.

Determination of minimum services

In its previous observation, the Committee noted that the CTA had referred to Decree No. 272/2006 regulating section 24 of Act No. 25877 on collective labour disputes, and that specifically, it objected that by virtue of section 2(b) of the Decree, the Guarantees Commission, which establishes minimum services, and which comprises representatives of employers’ and workers’ organizations as well as independent members, may act only in an advisory capacity since the final decision as to essential minimum services lies with the Ministry of Labour when “the parties have come to no agreement” or “when the agreements are inadequate”. The Committee requested the Government to provide information on the application in practice of the new provision, and more specifically information on the number of instances in which the administrative authority has changed the terms of the Guarantees Commission’s opinion regarding minimum services.

The Committee notes that information sent by the Government on section 2(b) of Decree No. 272/2006 to the effect that: (1) this provision must be analysed in conjunction with the rest of the regulations, since section 10 of the Decree establishes that “if the parties fail to meet the obligations laid down in sections 7, 8 and 9 of this Decree within the time limits prescribed thereby, or if the minimum services agreed by the parties are inadequate, the implementing authority, in consultation with the Guarantees Commission, shall establish the minimum services that are essential to ensure performance of the service, the number of workers to be assigned for their provision, the work schedules and the assignment of functions and equipment, while endeavouring to safeguard both the right to strike and the rights of the users affected”; (2) section 24 of Act No. 25877 empowers the Guarantees Commission to determine as essential only services that are not provided for in the law, and it is inappropriate in legal terms to extend the Commission’s authority by regulation beyond assigning to it supplementary and consultative duties as provided, and (3) the authority ultimately assigned to the Ministry of Labour, Employment and Social Security cannot be described as unilateral and discretionary since section 10 and section 2(b) of the regulatory decree state that the implementing authority shall consult the Guarantees Commission on the establishment of minimum services, and the Ministry’s discretion is expressly limited by a requirement to “safeguard both the right to strike and the rights of the users affected”.

The Committee requests the Government to send information on the cases in which the Guarantees Commission has intervened regarding minimum services and in particular the number of instances in which the administrative authority has changed the terms of the Commission’s opinion.