Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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 Trade Union Confederation (ITUC) and the Federation of Energy Workers of the Argentine Republic (FeTERA), both received on 31 August 2016; of the Confederation of Workers of Argentina (CTA Autonomous), received on 1 September 2016; of the General Confederation of Labour of the Argentine Republic (CGT RA), received on 2 September 2016; and the Confederation of Workers of Argentina (CTA Workers), received on 6 September 2016. The Committee requests the Government to provide its comments in this respect. The Committee also notes the Government’s replies to the ITUC’s and the CTA Autonomous’s previous observations. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2016, which are of a general nature.

Articles 2, 3 and 6 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: (i) section 28 of the LAS 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 providing 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; (ii) section 29 of the LAS, 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 (iii) section 30 of the LAS 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, and that the latter’s status must not cover the workers concerned.
• -Benefits deriving from trade union status: (i) section 38 of the LAS, 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 (ii) sections 48 and 52 of the LAS, which give special protection (trade union immunity) only to representatives of organizations that have trade union status.

In its previous comments, after noting the decisions of the Supreme Court of Justice and of other national and provincial courts which found various sections of the above legislation unconstitutional, particularly with regard to trade union status and protection, the Committee urged the Government to draw all the consequences of these judicial decisions, with the aim of bringing the legislation into conformity with the Convention. The Committee also noted that the Government had reported on a number of legislative initiatives to reform the LAS. The Committee notes that the latest observations of the FeTERA, the CTA Autonomous and the CTA Workers indicate that no progress has been made in this regard and continue to insist on the need to amend the LAS. Furthermore, the Committee notes the Government’s indication that the new administration has taken note of its comments and hopes to set a common agenda with the social partners to address the issues raised, and has planned to establish a tripartite dialogue round table on productivity which will cover issues relating to the ILO’s comments.

The Committee notes with concern the delay in bringing the legislation into conformity with the Convention, despite the many years that have passed, the repeated requests for amendments and the technical assistance provided by the Office on several occasions. The Committee once again urges the Government to take the necessary measures, without delay, and following tripartite examination of the pending issues with all of the social partners, to bring the LAS and the corresponding implementing Decree into full conformity with the Convention.

Article 3. Interference by the administrative authorities in trade union election processes. The Committee notes that the ITUC and the CTA Autonomous once again report interference by the Government in trade union elections, referring to the Committee on Freedom of Association’s conclusions on this matter. Noting with concern that these allegations have been the subject of cases before the Committee on Freedom of Association (in particular, Cases Nos 2865 and 2979), the Committee once again requests the Government to provide its comments in this regard and trusts that the issue of non-interference of the administrative authorities in trade union elections will be part of the tripartite review carried out to amend the LAS.

Application in practice. The Committee recalls that, in their previous observations, the ITUC and the CTA Autonomous reported unjustified delays in the administrative procedure to register a trade union or obtain trade union status. The Committee notes that in one of its replies to the ITUC’s observations, the Government provided general information on these procedures, referring to certain factors unrelated to the decisions of the public authorities which may generate delays (with regard to trade union registration, in particular where trade unions do not meet any of the specifics in the LAS or, with regard to trade union status, the lodging of appeals by the parties concerned).

The Committee notes that the latest observations of the ITUC, the CTA Autonomous and the FeTERA once again allege that even though ten and 16 years have passed since the initial requests of the CTA Autonomous and the FeTERA respectively, the trade union status requested for these two organizations has not been recognized. (The CTA Workers, questioning information provided by the Government in 2015, reiterates that it indeed has a request for recognition of trade union status pending. In that respect, the Committee notes that, in its latest report, the Government specifically cites the trade union status of the CTA Workers as one of the issues addressed in the ILO’s comments to be addressed by the future tripartite dialogue round table). The Committee notes that the ITUC refers in its observations to other specific examples of delays of several years in the procedures and that the CTA Autonomous also alleges unjustified delays in registering trade unions.

Lastly, the Committee notes the Government’s indication in its latest communication that it is working on the comments relating to the management of the Directorate of Trade Unions, and plans to analyse the reasons that prevent the processing of requests in a timely manner.

Recalling that the allegations of undue delays have been the subject of several cases before the Committee on Freedom of Association (for example, Cases Nos 1872, 2302, 2515 and 2870), and referring to the recommendations of the latter in this regard, the Committee requests the Government to take all the necessary measures to avoid unjustified delays in the procedures to register a trade union or obtain trade union status, and to report on progress made in reducing such delays.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2018.]