Definitive Report - Report No 74, 1964

Case No 308 (Argentina) - Complaint date: 14-SEP-62 - Closed

1. 72. The complaint lodged by the International Federation of Christian Trade Unions was contained in a communication sent directly to the International Labour Office on 14 September 1962. The Argentine Government sent its observations in a note dated 22 January 1963. The Committee examined the complaint at its February 1963 meeting and decided to ask the Government for further information. The Government sent new information in notes dated 5 April and 21 May 1963. At its November 1963 meeting the Committee examined the case afresh, arriving at certain conclusions, and again decided to request the Government for further information. The Government replied by a communication dated 20 January 1964.
2. 73. 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).

74. The International Federation of Christian Trade Unions alleges that the Argentine Government has withdrawn legal personality and trade union status from three federations, namely the Federation of Salaried and Wage-Earning Postal and Telecommunications Employees, the Argentine Printing and Allied Trades Federation, and the Argentine Textile Workers' Association. The complainant adds that this decision is in flagrant contradiction with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

1. 75. In its reply dated 22 January 1963 the Government states that the complaint concerns the withdrawal of legal personality and trade union status from the following occupational associations : the Federation of Salaried and Wage-Earning Postal and Telecommunications Employees, the Argentine Printing and Allied Trades Federation, the Buenos Aires Printing and Allied Trades Federation and the Argentine Textile Workers' Association. The Government adds that legal personality and trade union status were withdrawn in resolutions issued by the Ministry of Labour and Social Security (Nos. 535/62, 530/62 and 531/62, copies of which were attached to the reply), the preamble o€ which duly gave the reasons of the competent authority for adopting the measures concerned.
2. 76. The Committee pointed out that the Government referred to four organisations, namely the three mentioned by the complainant and the Buenos Aires Printing and Allied Trades Federation, although in its reply no further reference was made to the Argentine Printing and Allied Trades Federation. The Committee therefore requested the Government to state whether at any time it withdrew legal personality and trade union status from the Argentine Printing and Allied Trades Federation. In its reply dated 21 May 1963, the Government states that legal personality and trade union status were withdrawn from the Argentine Printing and Allied Trades Federation by resolution No. 704 of 22 December 1959, since legal personality and trade union status had been granted to the Buenos Aires Printing and Allied Trades Federation as a first-grade body. Thus, the Government adds, the Argentine Printing and Allied Trades Federation became a second-grade body known as the Argentine Federation of Printing Workers, which was recognised under resolution No. 323 of 9 June 1960. The Committee noted the presence of a mistake in the original complaint in which the Argentine Printing and Allied Trades Federation was mistaken for the Buenos Aires Printing and Allied Trades Federation. Since there no longer seemed to be any problem regarding the Argentine Printing and Allied Trades Federation, which had become the Argentine Federation of Printing Workers, the Committee recommended the Governing Body to decide that this aspect of the case does not call for further examination.
3. 77. With regard to withdrawal of legal personality and trade union status from the Buenos Aires Printing and Allied Trades Federation, the Federation of Salaried and Wage-Earning Postal and Telecommunications Employees, and the Argentine Textile Workers' Association, the grounds stated in the respective resolutions are as follows in the case of the Buenos Aires Printing and Allied Trades Federation, non-compliance with a resolution of the Directorate-General of Labour Relations dated 20 August 1962 which called on strikers to resume work which had been arbitrarily suspended in an effort to obtain wage increases; in the case of the Federation of Salaried and Wage-Earning Postal and Telecommunications Employees, failure to observe a resolution of the Directorate-General of Labour Relations dated 24 August 1962 calling for an end to a strike whose only justification was "delay in the payment of wages and salaries for the month of July 1962, whereas by 22 August 1962 outstanding wages had already been paid to postmen and messengers and similar employees and steps had been taken to settle obligations to other employees, available funds permitting"; and in the case of the Argentine Textile Workers' Association, denial of the competence of the Ministry of Labour to examine its books, thus violating section 17 of Act No. 14455 concerning workers' occupational associations. The three resolutions concerned concluded that, as "the provisions issued by the competent authority in the exercise of its legal powers" had not been observed, these organisations were subject to prosecution under section 34, paragraph 2, of Act No. 14455, reading as follows:
4. 34. The Ministry of Labour and Social Security shall enforce the provisions of this Act and have authority to:
5. 1....................................................................................................................................................
6. 2. Withdraw or suspend the legal personality or trade union status of occupational associations for:
7. (a).................................................................................................................................................
8. (b) failure to comply with the regulations issued by the competent authority in the exercise of its legal powers;
9. ......................................................................................................................................................
10. The three above-mentioned resolutions suspended the legal personality and trade union status which had been previously granted to the organisation in question.
11. 78. The Government also states in its reply that the facts on which the complaint was based did not in any way entail violation of the principles laid down in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), since, as pointed out previously, the withdrawal of legal personality and trade union status merely involved the suspension of a specific right whereas the association as such continued to enjoy all its normal rights. The Government adds that section 37 of Act No. 14455 grants the organisations concerned the right to appeal to the National Chamber of Appeals in Labour Matters and that all three of these organisations exercised that right. Finally, the Government declares that the National Chamber of Appeals in Labour Matters handed down a decision (copy of which was forwarded) reversing the resolution affecting the Buenos Aires Printing and Allied Trades Federation; that a similar decision was handed down in the case of the Federation of Salaried and Wage-Earning Postal and Telecommunications Employees, and that, in the case of the Argentine Textile Workers' Association, the appeal is still pending judgment and that the verdict will be communicated to the Committee as soon as it is handed down.
12. 79. The Committee, although it recognised that under Argentine labour laws-as stated by the Government-the withdrawal of legal personality and trade union status from an organisation does not entail its dissolution, recalled that in previous cases concerning Argentina it had stated that " from the strictly trade union point of view... the role assigned to these organisations (without legal status) is extremely limited" and that, "in view of the statutory distinction between organisations having trade union status and ordinary trade unions, it would seem that organisations which do not have trade union status do not have the right to organise in freedom their administration and activities and to formulate their programmes ".
13. 80. The Committee observed that in the present case the allegations submitted by the complainants as well as the Government's reply and the text of Act No. 14455 concerning workers' occupational associations fail to show clearly whether the withdrawal of legal personality and trade union status became effective as soon as resolutions Nos. 535/62, 530/62 and 531/62 were issued, and these rights were not restored, in the case of the Buenos Aires Printing and Allied Trades Federation and the Federation of Salaried and Wage-Earning Postal and Telecommunications Employees, until the National Chamber of Appeals in Labour Matters had reversed these resolutions, or whether the legal personality and trade union status of these organisations were maintained during the period between the date on which the administrative resolutions withdrawing legal personality and trade union status were issued and the date on which the court decision reversing these resolutions was handed down, or whether they were restored only after the date on which these organisations lodged their appeal. In these circumstances the Committee decided to request the Argentine Government for additional information regarding this aspect of the case and the situation respecting the appeal lodged by the Argentine Textile Workers' Association.
14. 81. By its note of 5 April 1963 the Government sent a copy of resolution No. 106 of 5 March 1963 in which it decided to restore the legal personality and trade union status of the Argentine Textile Workers' Association. In its communication of 21 May 1963 the Government sent copies of resolutions Nos. 530 and 535 withdrawing the legal personality and trade union status of the Buenos Aires Printing and Allied Trades Federation and the Federation of Salaried and Wage-Earning Postal and Telecommunications Employees. The Committee observed that the Government had failed to reply to the question regarding the immediate practical effects of the resolutions withdrawing legal personality and trade union status from those unions.
15. 82. In view of the fact that Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), provides that " workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority ", the Committee again requested the Government to state whether withdrawal of legal personality and trade union status from the Buenos Aires Printing and Allied Trades Federation, the Federation of Salaried and Wage-Earning Postal and Telecommunications Employees and the Argentine Textile Workers' Association became effective as soon as the respective resolutions were issued and whether such personality and status were restored to these organisations only when the National Chamber of Appeals in Labour Matters gave its decision, or when subsequent resolutions were issued restoring such personality and status, or whether these organisations retained their legal personality and trade union status at all times.
16. 83. In its communication dated 20 January 1964 the Government refers to its earlier statements on this question, explaining in particular that since the administrative resolutions concerned are issued by the Ministry of Labour and Social Security in exercise of its legal powers-as the authority responsible for application of the provision contained in Act No. 14455 concerning suspension and withdrawal of legal personality and trade union status-this implies their practical application and consequently the impossibility on the part of the organisations concerned to exercise the rights conferred on occupational associations with legal personality and trade union status. The Government goes on to point out that, in accordance with section 37 of Act No. 14455, organisations with legal personality and trade union status have the right to appeal to the National Chamber of Appeals in Labour Matters against resolutions concerning the suspension or withdrawal of legal personality and trade union status issued by administrative authority. The said Chamber has the final say concerning the validity of any such decision, confirming it or reversing it, as in the case of the occupational associations which are the subject of the present complaint.

B. B. The Committee's conclusions

1. 84. Although the Government did not reply fully to the request for information, the Committee gathers from its reply that as soon as the administrative resolutions withdrawing legal personality and trade union status from the organisations concerned were issued, the said measures and their consequences for trade union rights of these organisations became immediately effective. In practice, the organisations in question only appear to have recovered the rights conferred by Act No. 14455 upon occupational associations with legal personality and trade union status after these resolutions had been reversed by a court decision or when the Ministry of Labour and Social Security had issued fresh resolutions restoring legal personality and trade union status to the union concerned.
2. 85. In view of the foregoing, and bearing in mind the powers conferred by the above Act on occupational associations with legal personality and trade union status, the Committee considers that the possibility under Argentine legislation of the adoption with immediate effect of such measures as the suspension or dissolution of a workers' organisation by administrative authority constitutes a violation of the provisions of Article 4 of Convention No. 87. In matters of this kind the Committee must look beyond the form of the action taken to its substantial nature and effect. While the organisations in question may not have been formally suspended or dissolved, the action taken in respect of them is tantamount to suspension or dissolution in its practical effect. The Convention as a guarantee of a fundamental freedom is concerned not only with words but also with realities, and the Committee must therefore look beyond the form to the substance.
3. 86. As the Committee has already had occasion to emphasise in the past, where suspension measures are issued by administrative authority, there may be a danger that they will appear to be arbitrary, even though they are issued only temporarily or for a limited time as a preliminary to subsequent court action. Accordingly, the Committee considers that for the satisfactory application of the principle contained in Article 4 of Convention No. 87, it is not sufficient for legislation to grant the right of appeal against suspension or dissolution decisions issued by administrative authority, but such decisions should not come into effect until the statutory period has expired, without an appeal being lodged, or until they have been confirmed by a court verdict.
4. 87. As already pointed out in connection with the refusal to register a trade union, and in accordance with the observations made by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, the Committee would emphasise that if the administrative authority has a discretionary right to register or cancel the registration of a trade union, the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; in effect this does not alter the nature of the powers conferred on the administrative authorities, and the judges hearing such an appeal would only be able to ensure that the legislation had been correctly applied. Accordingly, the Committee must emphasise the importance which it attaches to judges being able to obtain information concerning the background of a case, to enable them to decide whether or not the provisions on which the administrative measures appealed against are based constitute a violation of the rights accorded to occupational organisations by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee's recommendations

1. 88. In these circumstances the Committee recommends the Governing Body:
   • (a) to draw the attention of the Argentine Government to the importance which it attaches to the principle contained in Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Argentina, which stipulates that workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority;
   • (b) to request the Argentine Government to examine the possibility of amending the provisions of its legislation in the light of the two preceding paragraphs;
   • (c) to bring these conclusions to the notice of the Committee of Experts on the Application of Conventions and Recommendations.