Definitive Report - Report No 59, 1962

Case No 258 (Argentina) - Complaint date: 25-MAR-61 - Closed

1. 38. In a communication dated 25 March 1961 addressed directly to the I.L.O the S.O.I.M.A submitted a complaint concerning alleged violations of freedom of association in Argentina. In a subsequent letter dated 15 May 1961 the complainants forwarded additional information in support of their complaint.
2. 39. At its 28th Session (May 1961), the Committee, not having received the observations requested from the Government, decided to postpone its examination of the case until its next meeting. The Government was informed of this decision by a letter dated 23 June 1961.
3. 40. The Government forwarded its observations in a letter dated 11 September 1961.
4. 41. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 42. The complainants allege that the S.O.I.M.A, which was established on 27 September 1959 by workers in the stocking industry who had formerly belonged to the Association of Textile Workers (A.O.T.), applied to the Ministry of Labour and Social Security on 2 March 1960 for trade status " which is essential in order to be able to act officially on behalf of the membership in dealings with the Government and the employers ". The complainants added that, in Government Order No. 757 dated 27 October 1960 (a copy of which they appended), the Ministry of Labour refused to grant the status requested by the S.O.I.M.A.
2. 43. In explanation of this refusal of trade status, Order No. 757 states " according to the information contained on page 62 the applicant organisation has 420 dues-paying members whereas the Association of Textile Workers of Argentina, as indicated on page 51, has 4,800 dues-paying members in the stocking industry in the federal capital and 1,200 in the rest of the country-a number which suffices in itself to invalidate the applicant's case " and adds " in the circumstances and in view of the statement on page 72 that there are 7,500 workers in that branch the applicant organisation cannot in any way be considered as representative ". It would appear that, in assessing the membership of the S.O.I.M.A in accordance with section 19 of Act No. 14455 respecting industrial associations of employees I which runs as follows: " Where an association with trade status already exists, such status shall not be granted to another association for the same activity unless the number of members paying contributions to the latter over a continuous period of at least six months immediately prior to its application was greater than the number of members belonging to the association already granted such status ", a comparison had been made between the number of dues-paying members of the S.O.I.M.A. (the complainants argue that this number does not correspond with the facts) and the number of dues-paying members of the A.O.T which covered the same industry and already possessed trade status.
3. 44. The complainants also allege that the Court of Appeal annulled the trade status which the Ministry of Labour had in fact granted to another union " for the sane reasons which led the Ministry of Labour to refuse; t to ours " and they attach a cutting on the subject taken from La Prensa dated 4 May 1961.
4. 45. In its reply dated 11 September 1961 the Government states that, according to official returns, the S.O.I.M.A has only 7,500 members whereas the A.O.T has a member-, ship of 150,000. The Government adds that the S.O.I.M.A is therefore in no way a representative trade union and that under section 18 of Act No. 14455 trade status must be granted to the union with a membership of 150,000, i.e. the majority of workers employed in the industry, and not to a union with only 7,500 members.
5. 46. The Government gives the following explanations on this point. Act No. 14455 " lays down a procedure for the granting of trade status to the union considered to be the most representative of the activity, occupation or undertaking concerned, with a view to making possible the performance of the major functions of trade unionism, including the conclusion of collective labour agreements covering all persons involved. The system adopted is a majority system, the objectivity of which will dispose of any doubts which may arise regarding the use of discretional powers in the granting of trade status for the above-mentioned purposes. There can be no doubt that the most representative organisation is that which acts most effectively in advancing the workers' interests and it is only logical that in a system like ours, in which there may be more than one trade union for a particular branch, occupation or undertaking and under which the workers in each activity or occupation can organise as many trade unions as they like, the right to conclude collective agreements should be granted exclusively to the most representative union."

B. B. The Committee's conclusions

1. 47. The Committee observes that, while Order No. 757 refusing trade status to the S.O.I.M.A compared, for the purpose of assessing numerical size, the number of dues paying members of the S.O.I.M.A with the number of dues-paying members of the A.O.T in the stocking industry, the Government's reply dated 11 September 1961 not only uses figures for both unions which are different from those mentioned in Order No. 757, but appears to compare the number of dues-paying members in the S.O.I.M.A with the total membership of the A.O.T.
2. 48. On several occasions, and particularly during discussion on the draft of the Right to Organise and Collective Bargaining Convention, the Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the I.L.O states the concept of " most representative " organisations.
3. 49. Thus, the mere fact that the law of a country draws a distinction between the most representative trade union organisations and other trade union organisations is not in itself a matter for criticism, provided that such distinction does not accord to the most representative organisation privileges extending beyond the privilege of priority, on the ground of its having the largest membership, in representation for such purposes as collective bargaining or consultation by governments or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organisations not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes, as provided for in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Argentina.
4. 50. The Committee has emphasised the great importance it attaches to the use of objective and predetermined criteria in deciding, under a system such as that existing in Argentina, which are the most representative trade unions, i.e. those entitled to trade status, and it recalled in another case involving Argentina, after a careful study of the law, that " the independence of occupational organisations in relation to the public authorities might be compromised if the legislator or the executive power can effect a discrimination between the various organisations concerned which is not based on objective criteria and even more so where-as will be seen to be the case subsequently when the Argentine Act is analysed the consequences of the distinction between the different organisations are to reserve to certain organisations a monopoly both in respect of the determination of conditions of employment (collective bargaining, etc.) and in respect of the representation and defence of the interests of the workers in relation to the public authorities ".
5. 51. The Committee, in examining the case referred to in the previous paragraph, especially section 20 of Act No. 14455, which states that a union possessing trade status forfeits it as soon as it ceases to be sufficiently representative and adds that " account shall be taken of the number of its members, its trade union activity and its contribution to the defence and protection of occupational interests ", considered that the imprecise nature of the terms of this section might permit of abuse when the decision is taken by the Government whether or not to permit a particular trade union to retain its status.
6. 52. The Committee also took the view that, from the strictly trade union point of view, the functions allotted to the unions without trade status were extremely limited and recalled the definition given in Article 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Argentina, of the term " organisation ", i.e. " any organisation of workers or of employers for furthering and defending the interests of workers or of employers ".
7. 53. In view of the statutory distinction between organisations possessing trade status and ordinary trade unions, which implies that the latter are unable to defend their members' interests, the Committee considered that organisations without trade status do not have the right to organise in freedom their administration and activities and to formulate their programmes. " Further, in view of the limited functions which are assigned to these organisations, it may be wondered whether the distinction does not infringe the generally recognised principle that workers shall have the right to establish and join organisations of their own choosing-a principle which is embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)."

The Committee's recommendations

1. 54. In these circumstances the Committee recommends the Governing Body:
   • (a) to draw the Government's attention once more to the fact that the privileged status accorded to organisations having trade status considerably curtails the means of action of organisations without such status and may indirectly operate against the freedom of the workers to join organisations of their own choosing, and to the desirability of reconsidering, in view of this fact, the distinction made between associations with trade status and other trade union organisations;
   • (b) to draw the Government's attention to the importance which the Governing Body attaches to the principle that the determination of the most representative trade union should always be based on objective and pre-established criteria so that no union can accuse the Government of partiality in the matter.
     • Geneva, 17 November 1961. (Signed) Roberto AGO, Chairman.