Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments of 4 August 2011 by the International Trade Union Confederation (ITUC) and those of 31 August 2010 by the Confederation of Workers of Argentina (CTA), which refer to legislative matters already raised by the Committee and which allege violations of trade union rights in practice (including the death of a demonstrator and an armed attack on the home of a trade union leader). The Committee notes the Government’s reply to these comments but observes that it contains no mention of the alleged acts of violence. The Committee draws attention to the seriousness of the allegations and requests the Government to send its observations thereon.

The Committee also notes the comments of 31 August 2011 from the General Confederation of Labour (CGT), expressing the view that the legislation is not in breach of freedom of association.

The Committee recalls that in its last observation it noted the report of the mission undertaken in May 2010, which was exploratory in nature and which addressed pending issues pertaining to the application of the Convention.

Application by the CTA for “trade union status”

The Committee has been noting in its observations since 2005 that the CTA’s application for “trade union status” (a status which confers certain exclusive rights such as the conclusion of collective agreements, protection of union officials, payment of trade union dues through deductions from wages by the employer, etc.) (filed in August 2004) is pending. On several occasions the Committee of Experts, in the same way as the Conference Committee on the Application of Standards and the Committee on Freedom of Association (in Case No. 2477), has urged the Government to secure a decision on this matter without delay. In its 2011 comments, the CTA states that the process has not advanced and that the Ministry of Labour is still undecided as regards the application for “trade union status”. The Committee notes from the report of the mission that visited the country in 2010, that draft resolutions have been submitted to the Chamber of Deputies and the Senate calling for “trade union status” to be granted to the CTA. The Committee notes that in its report the Government again indicates that there are doubts about what the law says regarding the possibility of the coexistence of trade union federations covering multiple sectors and that intervention in the proceedings by the Office of the Prosecutor General of the Ministry of Finance is being considered, and that these are complex situations in which a number of parties are involved and where, furthermore, there are many doubts as to whether the complainants’ claim is admissible, under the relevant legislation. While noting the fresh information sent by the Government, the Committee deplores the length of time that has elapsed (over seven years) without any decision from the administrative authority on the CTA’s application for “trade union status”. The Committee points out the importance of this matter and again urges the Government to ensure that an immediate decision is reached. It requests the Government to provide information on any developments in this regard.

Act on trade union associations and its implementing Decree

For many years the Committee has been referring in its comments to certain provisions of the Act on Trade Union Associations No. 23551 of 1988 and its enabling regulations issued by Decree No. 467/88, which are not in conformity with the Convention. The Committee notes that the Government reiterates the information provided in previous reports and indicates that: (1) as pointed out to the exploratory technical assistance mission undertaken in the country in 2010, the complexity of the situation is an obstacle to progress in amending the legislation since views on the need for amendment are not unanimous or convergent; (2) the ILO Mission noted this complexity and the attendant difficulties and its advice was that any reform of the legislation on trade unions – including the issue of “trade union status”, on which the Committee of Experts has also commented – must fully observe the principle of tripartism and that, in particular, in-depth tripartite consultations should be held in order to reach agreed solutions as far as possible; (3) the Mission saw that all parties, and especially the Government, were predisposed to dialogue, but unfortunately, it has not as yet been possible to consult more thoroughly because of an internal institutional dispute within the CTA, which has been ongoing since the middle of last year, so that progress along the path proposed by the ILO Mission and shared by the Government has not been possible; and (4) consequently, the Government hopes that on conclusion of this episode, which has lasted since the middle of last year, it will be able to meet the social partners in order to seek agreed solutions as far as possible with all social partners involved.

While appreciating this information, the Committee points out that the issues it has addressed in its comments are the following:

“Trade union status”

• – section 28 of the Act, under which, in order to challenge an association’s “trade unions 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 currently holding most representative status, is unduly demanding and contrary to the Convention, since in practice it stands in the way of trade unions that are merely registered being able 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” exists 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 or federation, 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, in accordance with section 28.

Benefits deriving from “trade union status”

• – section 38 of the Act, under which the check-off of trade union dues is allowed only for associations with “trade union status”, and not for associations that are merely registered. The Committee points out that, as emphasized by the Supreme Court of Justice of the Nation, “most representative” status should not imply, for the union that obtains it, privileges other than priority of representation in collective bargaining, in consultations with the authorities and in the appointment of delegates to international bodies. The Committee therefore considers that this provision adversely affects and discriminates unduly against organizations that are merely registered;
• – sections 48 and 52 of the Act which 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.

Court rulings

In its previous observations the Committee noted that the Supreme Court of Justice of the Nation found, in a number of different rulings, that sections 41(a) and 52 of the Act on Trade Union Associations to be unconstitutional, and that Chamber IV of the National Labour Appeal Court found section 29 of the same Act to be unconstitutional. The Committee notes with interest the final ruling of Chamber II of the National Labour Appeal Court in the case Ministry of Labour v. Association of Airline Pilots, finding section 29 of the Act on Trade Union Associations to be unconstitutional, and the ruling by the Supreme Court of Justice of the Province of Buenos Aires in the case Sandes, Hugo Raúl v. Subpga SA relating to compensation for dismissal, finding sections 48 and 52 of the Act on Trade Union Associations to be unconstitutional on the ground that they infringe the principle of freedom of association, enshrined in the Constitution.

The Committee notes that in its report the Government states that: (1) under the Constitution, any finding, even by the Supreme Court of Justice, that some rule (for example a provision of a law) is unconstitutional, applies solely to the specific instance or court case in which it was handed down, and on no account implies the repeal or invalidity of the rule itself, which will remain fully in force for as long as it is not repealed or amended either by the Legislature or by the Executive, whichever of the two is competent to do so; (2) in this way the system ensures observance of the principle of the separation of powers, so that the Judiciary does not impinge on the authority that the National Constitution confers on the other powers; (3) the two cases on which the Court ruled have no bearing on the observations made to the Argentine trade union system, because in the public administration – which is where both situations arose, it is established by Ministry of Labour, Employment and Social Security Resolution No. 255 that “trade union status” granted to representative associations in the public sector shall not replace pre-existing “trade union status” held by other associations.

The Committee welcomes the fact that the rulings handed down by the Supreme Court of Justice of the Nation and other national and provincial courts contribute to overcoming a significant part of the problems pending and trusts that they will be taken into account in the tripartite dialogue process that the Government plans to pursue. As it did in its previous observation, the Committee points out that it has been making comments for many years without any specific measures being taken to make the amendments requested. The Committee reminds the Government that the Conference Committee on the Application of Standards asked the Government in 2007, together with all the social partners and with technical assistance from the ILO, to draft a bill to give full effect to the Convention. It firmly requests the Government, following a tripartite examination of the report of the Mission that visited the country in 2010 and taking account of the court rulings declaring unconstitutional a number of provisions of the Act on Trade Union Associations No. 23551, to take the necessary steps to bring the legislation into line with the Convention, and trusts that in its next report the Government will provide information on progress made in this respect.

Determination of minimum services

In its previous comments, the Committee noted that the CTA had referred to Decree No. 272/2006 issued under section 24 of Act No. 25877 on collective labour disputes, objecting specifically to the fact that, under section 2(b) of the Decree, the Guarantees Commission, which includes representation of workers’ and employers’ organizations and of other independent persons for the determination of minimum services, may act only in an advisory capacity, since the final decision on the determination of necessary minimum services lies with the Ministry of Labour where “the parties have not come to an agreement” or “when the agreements are inadequate”. The Committee noted in this connection Decree No. 362 of the National Executive Authority, establishing the Guarantees Commission and appointing its members (with representatives of the Argentine Industrial Union, the Argentine Federation of Law Societies, the National Inter-University Council, the Confederation of Workers of Argentina, the General Confederation of Labour of the Republic of Argentina and the Executive authority), and asked the Government to provide information on cases – in the period covered by the report – in which the Guarantees Commission has intervened regarding minimum services and whether the administrative authority has followed its recommendations in practice. The Committee notes that the Government states in this connection that the Guarantees Commission has intervened on two occasions: (1) in a collective dispute in the province of Mendoza involving the Association of Health Professionals of Mendoza; and (2) in a collective dispute in the province of Tierra del Fuego involving the Association of State Workers. The Committee takes note of this information.

[The Government is asked to reply in detail to the present comments in 2012.]