Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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 reply to the comments of 2006 and 2007 by the Central of Argentine Workers (CTA), those of 2007 by the International Trade Union Confederation (ITUC) and to comments made in 2007 by the Federation of Employees of the Government of the Autonomous City of Buenos Aires. It also takes note of the comments of 31 August 2008 and 31 August 2009 by the CTA and the comments of 26 August 2009 by the ITUC, which refer largely to legislative matters already highlighted by the Committee. It observes that in particular the CTA’s comments refer as well to numerous allegations of violations of trade union rights. It notes the Government’s statement that it has already commented on some of the CTA’s allegations in the context of a number of cases examined by the Committee on Freedom of Association, and that: (1) most of the issues raised concern the protection of trade union representatives against acts of persecution and unfair practices; (2) such practices are outside the competence of the administrative authority, with the ordinary courts having sole jurisdiction in such matters; (3) in registering communications from trade unions, the National Directorate of Trade Union Associations enters only an administrative file number and, since no such numbers are indicated in the comments, it is impossible to identify the incidents referred to; and (4) information has been requested from the regional delegations, and for some of its allegations the CTA should be asked to specify the incidents and the administrative and/or judicial proceedings. The Committee observes that the trade union organization for the most part refers only briefly to the alleged violations and that the list of cases is fairly long. The Committee invites the Government to take the necessary steps to set up a working group with the CTA in order to examine the issues raised, other than those dealt with in cases that have been, or are being, heard by the Committee on Freedom of Association.

Application by the CTA for trade union status

The Committee points out that since 2005 it has been noting in its observations that the CTA’s application for trade union status (filed in August 2004) is pending. On several occasions the Committee, like the Conference Committee on the Application of Standards and the Committee on Freedom of Association, has urged the Government to secure a decision on this matter without delay. In its comments of 2009, the CTA affirms that there has so far been no decision on its application for trade union status. The Committee notes that the Government states in its report that: (1) the file is active and formalities are ongoing without any delays; (2) the Government is complying with the procedure laid down in the legislation and the competent authority has consistently followed the proceedings and guarantees observance of the rights laid down in the National Constitution and ILO Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); (3) in proceedings involving first-, second- and third-level organizations that have conflicting subjective rights, 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; (4) it must also be remembered that Argentina is a country with much trade union activity and many trade unions; and (5) formalities are still moving forward with the receipt and analysis of submissions from the first-level unions that belong to the federations making up the Central of Argentine Workers (CTA), and the receipt of submissions from unions belonging to second-level associations affiliated to the General Confederation of Labour (CGT) in order to verify, in the context of the ongoing comparison of representativeness, the number of dues-paying members in each of the first-level organizations; since 5 February 2009, the file has been under examination by the Ministry of Labour’s Directorate General of Legal Affairs. While noting the Government’s information regarding the reasons for the delay, the Committee once again regrets the length of time that has elapsed – more than five years – without any decision from the administrative authority on the CTA’s application for trade union status. In these circumstances, given the adverse effects of this situation for the CTA, the Committee again urges the Government to ensure that a decision is reached without delay and to provide information on any developments in this regard.

Ruling by the Supreme Court of Justice of Argentina

The Committee notes the ruling of 11 November 2008 by the Supreme Court of Justice of Argentina in Association of State Workers v. the Ministry of Labour regarding Act on Trade Union Associations No. 23551 of 1998, in which the Court found that section 41(a) of Act No. 23551 breaches the right to freedom of association provided for both in article 14bis of the National Constitution and in provisions based on international law, in that it requires “the staff representatives” and the members of “works committees and similar bodies” provided for in section 40 of Act No. 23551 to be members of “the corresponding association with trade union status and to be elected in a ballot called by the latter”. The Court found that this restriction undermines the freedom of association not only of the workers taken individually since it forces them, albeit indirectly, to join the association with trade union status despite the existence of another union which is merely registered, but also that of associations which are merely registered by preventing them from carrying on their activities in pursuit of one of the most fundamental aspects and purposes of their existence. The ruling states that the restriction goes well beyond the established bounds within which the award of an exclusive entitlement to the most representative unions might be warranted. The Committee observes that the ruling endeavours to avoid discrimination between trade unions. In these circumstances, it requests the Government to indicate whether section 41(a) of Act No. 23551 has been officially repealed or amended.

Act on Trade Union Associations and its implementing decree

The Committee points out that it has been referring for many years in its comments to certain provisions of Act on Trade Union Associations No. 23551 and its enabling regulations issued by Decree No. 467/88. The Committee takes note of the Government’s response to the CTA’s comments on legislative issues, and of the report, in which it refers to statements it has made in the past, namely: (1) the existing legal framework and national practice show that freedom of association is fully in force in the country; (2) that 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; (3) that there are currently more than 2,900 first-, second- and third-level trade union associations (more than 2,820 are first-level organizations, of which 1,396 have trade union status; there are 101 federations, 83 of which have trade union status and 16 third-level associations of which seven have trade union status), i.e. one trade union organization for every 3,500 wage workers, which demonstrates that freedom of association is not only a right but is also widely and fully exercised. With regard to the specific provisions addressed by the Committee, the Government reiterates its past observations. The Government also states that pursuant to Resolution No. 502 of 1 July 2005 issued by the Ministry of Labour, Employment and Social Security, a group of experts on labour relations was set up to write a report identifying the main problems faced by the system of labour relations in Argentina. On the matter of Act No. 23551, while recognizing the need to amend some of its provisions, the group of experts found generally that the Act contains a set of precepts regarding the protection of freedom of association in connection with acts by employers and the State that are to be regarded as appropriate and sufficient. The group further indicated that any change seeking to follow the guidelines of the Committee of Experts should be approached with caution and common sense to avoid introducing into the system of labour relations new factors that further complicate its functioning. The Government states that the Ministry of Labour, Employment and Social Security has decided to continue to work with the social partners in working out the necessary agreements to ensure that any changes proposed in the trade union system of Argentina are truly effective.

In these circumstances, while noting the Government’s observations and welcoming the initiative to create a group of experts, the Committee is bound to reiterate its previous 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 implementing Decree No. 467/88, which qualifies the term “considerably larger” by laying down that the association claiming trade union status must have at least 10 per cent more dues-paying members than the organization which currently holds the 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 unduly high and is contrary to the Convention. In practice, this requirement 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 no other organization with trade union status existing in the geographical area, occupation or category; 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 considers that the requirements that unions representing enterprises, trades or categories have to meet in order to obtain trade union status are unduly demanding, and in practice restrict their access to trade union status, giving 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 points out that, as the Supreme Court of Justice emphasized in the abovementioned ruling, the “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 this provision adversely affects and discriminates unduly against organizations that are merely registered.

–           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 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, by virtue of the principle set out in the previous paragraph. The Committee requests the Government to indicate whether the ruling of 11 November 2008 handed down by the Supreme Court of Justice has any implications for the application of these provisions.

The Committee points out that it has been making these comments for many years. It recalls that the Conference Committee on the Application of Standards asked the Government in 2007 to join forces with the social partners in order to formulate, with ILO assistance, draft legislation to give full effect to the Convention. It notes with regret that no steps have been taken in this regard. The Committee urges the Government to adopt the necessary measures without delay to secure the legislative amendments requested, and asks the Government to provide information in its next report in this regard.

Determination of minimum services

In its previous observation, the Committee noted that the CTA 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 cases in which the Guarantees Commission has intervened regarding minimum services 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 furthermore observes that in its comments of 2009 the CTA states that the Guarantees Commission has not been formed and does not intervene in disputes, and that responsibility for defining minimum service lies with the Ministry of Labour. The Committee notes the Government’s statement that when the Guarantees Commission intervenes regarding minimum services, it will so inform the Committee. The Government also indicates that there is always access to a judicial body, which means that determination of minimum services can be carried out and the rights of workers can be properly protected in observance of the safeguards laid down in the Constitution. Observing the Government’s indication in its report that the Guarantees Commission has not been formed or convened, the Committee emphasizes that it is important that the statutory institutions responsible for the settlement of collective disputes should function effectively. The Committee accordingly asks the Government to ensure without delay that the abovementioned Commission is put into operation, and to provide information in this regard in its next report.

Finally, the Committee takes note of a recent communication from the Government in which it requests the technical assistance of the Office in the treatment of the different issues raised by the supervisory bodies concerning the legislation. The Committee appreciates this initiative and hopes that this technical assistance will take place next year.

[The Government is asked to report in detail in 2010.]