Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the reply from the Government to the observations from the International Trade Union Confederation (ITUC), dated 4 August 2011, and from the Confederation of Workers of Argentina (CTA), dated 31 August 2010, and in particular that: (1) in connection with the killing of a demonstrator from the railway industry, the judicial authority has brought charges against various persons in relation to this occurrence; and (2) concerning the allegation of an armed attack on the home of a trade union leader in the province of Jujuy in 2011, the Government reported in the framework of a case currently being examined by the Committee on Freedom of Association than an investigation had already been initiated. The Committee also notes the Government’s statement that: (1) since 2003 it has adopted a policy of constantly strengthening the principles of freedom of association, and mechanisms for social dialogue have been reinforced; (2) between January 2011 and October 2012 “trade union status” was granted in 298 cases and trade union registration was issued in 682 cases; and (3) since 2004 collective bargaining has experienced continuous dynamics of its own, with close linkage with the prevailing model for strengthening the internal market, and this is combined with constant growth in minimum living wages, the determination of which is also the result of dialogue between representatives of workers and employers (the Government sends statistics on collective bargaining and wages, which will be analysed in the context of the examination of the application of the respective Conventions).

The Committee also notes the comments from the ITUC dated 31 August 2012 and from the CTA dated 31 August and 7 September 2012 referring to legislative issues already raised by the Committee (according to the CTA, the Government has not promoted any amendments to the current regulations applicable to trade unions and has not endorsed any of the drafts brought before the National Congress by legislators from various parliamentary groups), and also referring to allegations of violations of trade union rights in practice (some of the allegations are being examined by the Committee on Freedom of Association). The Committee notes the Government’s statement that the disputes reported in various companies have been settled.

Furthermore, the Committee notes the comments from the General Confederation of Labour (CGT), dated 10 September 2012, stating that the Act on trade union associations: (1) establishes sufficient guarantees to give full effect to Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ensuring the full participation of all trade union organizations; and (2) ensures a minimum social protection floor established by workers’ organizations having trade union status, as a result of which workers and their organizations enjoy better conditions of work.

Application by the CTA for “trade union status”

The Committee has been noting in its observations since 2005 that the application made by the CTA in August 2004 for “trade union status” (a status which confers certain exclusive rights such as the conclusion of collective agreements, protection of union officers, receipt of trade union dues through deductions from wages by the employer, etc.) is pending. On several occasions, the Committee, 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 comments made in 2012, the CTA affirms that the authorities have still not taken a decision on the application for “trade union status”. The Committee notes the Government’s indication in its report that it is not simply a question of supporting or launching an initiative, as asserted by a number of trade union organizations, or to state that in relation to this matter theories concerning confederations exercising a single activity might be applied, in view of the fact that the legal situation of the CTA has to be analysed and incorporated into the system of Act No. 23551 in line with the applicable legislation and case law. While noting the new information from the Government, the Committee strongly requests that the Government will soon take a decision in this regard. The Committee requests the Government to provide information on this matter.

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 implementing regulations issued by Decree No. 467/88, which are not in conformity with the Convention. The Committee notes the Government’s statement that: (1) it is worth noting that the constant developments in the Government’s policies (referred to above) strengthening the principles of freedom of association have never been mentioned by the Committee; (2) the Government has maintained this trend even at times of crisis, in the context of an economic and social policy based on the principles of the Global Jobs Pact; (3) the supervisory system also has the obligation to highlight progress and good practices in countries since it has the role of collaborating with the State in solving problems; (4) even though the supervisory bodies are empowered to examine how the State applies the Convention, it must be borne in mind that the form taken by such application may differ according to the States concerned, and these forms are certainly related to the specific political, social and cultural features of each country; (5) the development of social and institutional policies by the Government reflects broad participation in social and labour-related matters by the players concerned and demonstrates unequivocal intent on the part of the State, which must also be taken into account when issuing an opinion on the system of labour relations; (6) if the real situation is taken into account, it does not appear appropriate to use terms such as “urge”, as if it was simply a matter of time for the Government to tackle and resolve problems linked to the trade union history of the country from which a labour relations model has emerged, when the State has given evidence of the importance that it attaches to labour issues in general and to its relationship with the social partners in particular; (7) in other words, to go beyond what the Argentine State has achieved in recent years depends on social and cultural processes resulting in a convergence of interests of all protagonists in the same direction, which are able to reinforce the work initiated by the State through the institutional measures referred to above; (8) the technical assistance mission which visited the country in 2010 considered that the required social dialogue implied a substantial political agreement which the Government was seeking but which was facing difficulties both in terms of direction and in the demands based on legislative differences and certain hostile realities within the social partners’ own context, which hampered identification of a specific position on subjects on the agenda covering any issues raised by the ILO supervisory bodies with regard to the application of the Conventions; (9) despite these difficulties, the Government continues in the quest for committed tripartite social dialogue so that, without abandoning aspirations for greater social justice as identified by the Government’s policies, progress can be made towards the consensus needed to achieve greater compatibility with the observations made within the ILO supervisory system; and (10) accordingly, a tripartite working group has been established on 17 October 2012 with a view to establishing an agenda covering the subjects suggested by the technical assistance mission, in order to examine and determine possible means of action so as to improve conformity with the comments of the ILO supervisory bodies.

The Committee welcomes this information. As regards the Government’s statement that the Committee has not mentioned the positive developments with regard to freedom of association and collective bargaining, the Committee points out that it has included the case of Argentina among the cases of progress on several occasions in recent years (with respect to Convention No. 87 in 2001, 2010 and 2011; and with respect to Convention No. 98 in 2005). Nevertheless, the Committee wishes to point out that a number of problems persist and that at least one trade union federation refers to them each year.

The Committee recalls that the outstanding legislative issues are as follows:

“Trade union status”

• -section 28 of the Act on trade union associations, 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 has pointed out that the 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 has considered 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 has pointed 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 has therefore considered that this provision may adversely affect and unduly discriminate 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.

In its previous observations the Committee noted that the Supreme Court of Justice of the Nation and other national courts had declared some sections of the Act on trade union associations, which are the subject of comments by the Committee, to be unconstitutional. The Committee observes that the CTA refers to rulings by the courts of first and second instance which declared sections 28, 29 and 30 of the Act on trade union associations, which were commented on by the Committee, to be unconstitutional. The Committee notes the Government’s statement in its report that the rulings of the Supreme Court – apart from being applicable to specific cases – reflect the trend of strengthening the principles of freedom of association and that it also cannot be overlooked that these outcomes have contributed to the Government’s policy with the reinforcement of social dialogue and the parameters for “labour citizenship”. The Government also declares that the rulings issued by the Supreme Court have not called into question the model of uniqueness advocated by Act No. 23551.

The Committee welcomes that the rulings handed down by the Supreme Court of Justice of the Nation and other national and provincial courts aim at solving some of the pending issues in conformity with the Convention. The Committee welcomes the establishment of the tripartite working group referred to by the Government and trusts that it will take the abovementioned rulings into account.

While noting the progress mentioned by the Government with regard to collective bargaining and wages, which the Committee welcomes, it firmly hopes that, further to tripartite examination of the pending issues with all the social partners, the necessary steps will be taken to bring the Act on trade union associations and its implementing decree into full conformity with the Convention. The Committee requests the Government to provide information in its next report on any measures taken in this respect.