Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2014. The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2013 (and the Government’s reply thereon of 31 August 2014), and the observations of the Confederation of Workers of Argentina (CTA Autonomous), received on 31 August and 24 October 2014 (and the Government’s reply thereon), those of the General Confederation of Labour of the Argentine Republic (CGT RA), received on 1 September 2014, and of the Confederation of Workers of Argentina (CTA Workers), received on 5 August 2014. The Committee notes the Government’s reply to the observations of the ITUC and the CTA Autonomous, relating to alleged violations of trade union rights in a number of specific cases.

The Committee notes the Government’s reply to the observations made by the CTA Autonomous and the ITUC relating to the imprisonment and dismissal of trade unionists and the favourable treatment of “pro-government” organizations in social dialogue, and the Government’s indications that several of these issues have been submitted to the judicial authorities. The Committee requests the Government to provide information on the outcome of the relevant judicial procedures.

The Committee notes the Government’s indication that between January and October 2013, trade union status, “personería gremial” (a status which confers certain exclusive rights, such as that of concluding collective agreements, the special protection of union leaders, the collection of trade union dues through deductions from wages by the employer, etc.) was granted to 298 organizations and 682 trade unions were registered. The Committee notes the general information provided by the Government, indicating a significant development in trade union activities (the official approval of 1,699 collective agreements and accords in 2013), covering 4,304,000 workers. These agreements and accords were concluded at the branch and enterprise level.

Articles 2 and following of the Convention. Autonomy of trade unions and the principle of non-interference of the State. The Committee recalls that for many years its comments have referred to the following provisions of Act No. 23551 of 1988 on trade union associations (LAS) and of the corresponding implementing Decree No. 467/88, which are not in conformity with the Convention:

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 that currently has the 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 have to show that they have different interests from the existing trade union or federation, and that the latter’s status must not cover the workers concerned.

Benefits deriving from trade union status

• -section 38 of the Act on trade union associations, under which the check-off of trade union dues is allowed only for associations with trade union status, and not for those that are merely registered; and 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 notes the decisions of the Supreme Court of Justice and other national and provincial courts which have declared unconstitutional various sections of the above legislation, especially regarding issues concerning trade union status. The Committee regrets that the Government merely states that these decisions are limited in scope to the cases in question. The Committee emphasizes that these rulings are consistent with the comments it had addressed to the Government and therefore urges the latter to draw consequences from these judicial decisions with a view to bringing the legislation into conformity with the Convention.

In this regard, the CGT RA emphasized previously that, with regard to the comments of the Committee, the social partners are faced with a significant challenge in light of the rulings of the Supreme Court of Justice on freedom of association, in which it found that several sections addressed by the Committee were unconstitutional (in particular on issues relating to trade union status). The CGT RA indicates, however, that freedom of association is guaranteed under national law, and that around 1,000 new trade unions have been registered between 2003 and 2013.

The CTA Workers and the CTA Autonomous emphasize in their respective observations that, despite the inconsistencies between the legislation and the provisions of the Convention, the Government has still not submitted any draft law or legislative initiative to the Congress, and has not created any tripartite forums for the reform of the legislation. They add that this has occurred despite the technical assistance provided by the ILO and the fact that the Supreme Court of Justice of the Nation has found, in various rulings, that sections 28, 29, 30 and 38, and (in 2013) section 31(a) of the LAS are unconstitutional.

The Committee notes the Government’s indications that, given the significance of Act No. 23551, any initiative or observation on a legislative provision governing the activities of occupational associations, which enables them to be developed and enjoy adequate social, cultural and political relevance, depends on the interaction among all parties in the industrial relations system (State, employers and workers). The reason for this is that the reform involves a political commitment on the part of the stakeholders in the system, which reflected the agreements that the State is seeking, in accordance with the considerations of the ILO technical assistance mission in May 2010 on the importance that should be given to social dialogue in the search for agreement on the reform. The Government indicates that the country has an industrial relations system which, despite the amendments which need to be made and which seem appropriate given the changing times, is of an inclusive nature and provides a fundamental tool for improving terms and conditions of employment.

The Committee recalls that the Government previously stated that it was continuing to seek tripartite social dialogue so that progress could be made in achieving the necessary consensus for greater consistency with the comments of the ILO supervisory system. The Committee notes that the Government has not provided information on new initiatives for tripartite dialogue with a view to making progress in this respect and it firmly urges the Government to take the necessary measures, without delay and following tripartite discussion of the pending issues with all of the social partners, to bring the Act on trade union associations and the corresponding implementing Decree into full conformity with the Convention. The Committee requests the Government to provide information in its next report on the specific results achieved in this regard, in the light of its comments and the decision of the Supreme Court of Justice of the Nation on the unconstitutionality of certain provisions of the LAS.

The Committee regrets the legal action taken at provincial level against the Secretary of Labour (legal action reported by the Government) for the alleged abuse of authority, on the grounds that the latter had told a Governor, in relation to a labour dispute, that the Conventions on freedom of association should be applied extensively in order to increase the involvement of all the interested parties. The Committee considers that the action of the Secretary of Labour is in line with the obligations of the State with regard to the ILO, and that it should not result in legal action.

Articles 2 and 5. Rights of federations and confederations. The Committee recalls that since 2005 it has been noting in its comments that the response is pending to the application for trade union status made by the CTA in August 2004. The Committee notes the indication of the CTA Autonomous that there has been progress in this regard, as a decision by the National Secretariat of Labour formalized the division of the traditional CTA into two new organizations: CTA Autonomous and CTA Workers which retain their legal status to represent all workers in the country in their capacity as third-level trade union organizations. The Committee notes that, according to the decision in question, the CTA Workers will be registered as No. 2027 (registration without the exclusive rights of organizations with trade union status), and that the CTA Autonomous is submitting a similar request for legal registration to the Ministry of Labour. The Committee notes the Government’s indication that the problems that existed required complex agreements between the parties, and that efforts have been made to ensure that the issue was addressed objectively. According to the Government, it was the unions involved that did not push forward the respective procedures due to differences within the unions. The Committee observes the Government’s confirmation that reciprocal recognition of the two associations was eventually achieved through an agreement formalized with the authorities of the Ministry of Labour. The Committee notes this information and hopes that the procedure initiated as a result of the request by CTA Autonomous for trade union registration will be concluded in the very near future, and requests the Government to provide information in this respect.

[The Government is asked to reply in detail to the present comments in 2015.]