Definitive Report - Report No 114, 1970

Case No 576 (Argentina) - Complaint date: 05-FEB-69 - Closed

78. The Committee considered Case No. 503 at its sessions in May and November 1967, February, May and November 1968 and March 1969, when it submitted to the Governing Body the reports contained, respectively, in paragraphs 231 to 265 of its 98th Report, paragraphs 319 to 406 of its 101st Report, paragraphs 187 to 207 of its 103rd Report, paragraphs 202 to 223 of its 105th Report, paragraphs 192 to 207 of its 108th Report and paragraphs 28 to 46 of its 110th Report, all of which were approved by the Governing Body.

1. 78. The Committee considered Case No. 503 at its sessions in May and November 1967, February, May and November 1968 and March 1969, when it submitted to the Governing Body the reports contained, respectively, in paragraphs 231 to 265 of its 98th Report, paragraphs 319 to 406 of its 101st Report, paragraphs 187 to 207 of its 103rd Report, paragraphs 202 to 223 of its 105th Report, paragraphs 192 to 207 of its 108th Report and paragraphs 28 to 46 of its 110th Report, all of which were approved by the Governing Body.

A. A. The complainants' allegations

1. 79. In paragraph 46 of its 110th Report the Committee submitted its final conclusions to the Governing Body in respect of the various allegations examined, in the following terms:
2. 46. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to the detention of the trade union official, Eustaquio Tolosa, to express its satisfaction at the decision to reduce his sentence, a decision in which the Committee's conclusions were taken into account, and the fact that Mr. Tolosa has now been released;
   • (b) with regard to the allegations relating to the taking over of various trade union organisations and the suspension of their trade union status, to draw the Government's attention to the fact that, despite the time which has elapsed and the repeated requests made to it, the Government has not yet brought to an end those measures to take over unions which were still in force, and to take note of the Government's statement that it intends to keep the Committee informed, within the briefest possible period, on the return to a normal situation by the unions taken over;
   • (c) with regard to the allegations relating to interference by the authorities in the affairs of the CGT, measures directed against union leaders and members and compulsory arbitration and collective bargaining:
   • (i) to regret the failure on a number of occasions to supply the information requested on which the Committee was relying in order to formulate its conclusions on the said allegations with a full knowledge of the facts;
   • (ii) to draw the Government's attention once more to the importance of Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1945 (No. 87), which states that workers' and employers' organisations shall have the right to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, while the public authorities shall refrain from any interference which would restrict this right or impede its lawful exercise; and to the principle laid down in Article 4 of the Convention that workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority;
   • (iii) to draw the Government's attention to the fact that the right of free collective bargaining is a fundamental trade union right for all employees who are not covered by the safeguards provided by civil service regulations; and that if, as part of its stabilisation policy, the Government considers that wage rates cannot be settled freely through collective bargaining, this restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and that it should be accompanied by adequate safeguards to protect workers' living standards.
3. 80. These conclusions were transmitted to the Government, which supplied information in three communications dated 19 May, 16 September and 24 October 1969.
4. 81. In the meantime, the International Federation of Chemical and General Workers' Unions had sent a communication dated 5 February 1969 containing allegations of infringement of trade union rights in Argentina in connection with collective bargaining. The Government has not yet forwarded its observations on this complaint, which has been recorded as Case No. 576. Since the allegations relate to one of the aspects examined in Case No. 503, the Committee has decided to amalgamate the two cases and deal with them together.
5. 82. Argentina has ratified both 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).
   • Allegations relating to Measures to Take Over Various Trade Union Organisations and to Suspend Their Trade Union Status
6. 83. At its session in March 1969 the Committee referred to the allegations relating to the taking over of various trade union organisations and the suspension of their trade union status which it had examined at earlier sessions. The Committee recalled on this occasion the Act of the Argentine Revolution concerning the taking over of trade unions and the various statements by the Government to the effect that it was hastening the process of a return to normal in the trade union movement, and drew attention to the time which had elapsed since the taking over of the unions still deprived of their status and to the importance of such a return to normal if these organisations were to exercise their rights under Convention No. 87 to elect their representatives in full freedom and to organise their administration and activities.
7. 84. The Committee had before it a communication dated 15 January 1969 from the Government in which it indicated that the basis for the measures to take over trade unions was the need to promote the process of reorganisation of the unions concerned and their return to a normal situation in accordance with the aims pursued by the Government of the Argentine Revolution. The letter went on to say that all the organisations taken over had been engaging in activities outside their powers. As their voting lists were restored to normal, the Government intended to call elections and allow the unions to revert to their normal operation. The Government again stated, as it had done to the Committee on previous occasions, that these measures were not directed against the exercise of trade union rights. On the contrary, the Government hoped to count on the participation of the workers in the task of reconstructing the country. But if this participation was to be effective and fruitful, the unions must abide by the law and carry out specifically occupational activities, and their leaders must be genuinely representative. Accordingly, it was of cardinal importance that such organisations should bring their Constitutions into line with the legislation in force. The Government concluded by stating that it would keep the Committee informed, within the briefest possible period, on the return to a normal situation by the unions taken over.
8. 85. At its meeting in May 1968 the Committee had already pointed out that in some cases the Government had lifted the suspension of the status of certain unions, such as the Textile Workers' Union and the Metal Workers' Union, but it had not done so in the case of other unions which had been deprived of their status at the same time and for the same reason.
9. 86. The Government has appended to its communications of 16 September and 24 October 1969 copies of Resolutions Nos. 444 and 445 of 11 August 1969, restoring the trade union status of the Telephone and Telecommunications Workers' Union of the Republic of Argentina (FOETRA) and annulling the suspension of the trade union status of the Buenos Aires branch of that Federation, and a copy of Resolution No. 797 restoring the trade union status of the Tucumán Sugar Industry Workers' Union (FOTIA).
10. 87. In these circumstances, the Committee recommends the Governing Body to take note of the measures taken in respect of the trade union organisations mentioned in the preceding paragraph, and to urge the Government once again to lift the suspension of the trade union status and end the takeover of the unions still affected, and to keep the Committee informed in this respect.
    • Allegations relating to Collective Bargaining and Compulsory Arbitration
11. 88. At its session in November 1967 the Committee examined a number of allegations made by the Latin American Federation of Christian Trade Unions to the effect that Act No. 16936 of 1966 respecting compulsory arbitration eliminated the right to strike and the provisions of Act No. 14250 that respected collective agreements and violated the relevant international standards. The General Confederation of Labour of the Argentine Republic had mentioned the same Act in its communication. The FOETRA, for its part, had stated that by virtue of Act No. 17224 referring to private concerns, and Act No. 17131 referring to the public sector, " the joint agreements on collective bargaining have been abolished ".
12. 89. With regard to Act No. 16936 respecting compulsory arbitration, the Government, which had supplied the text, had explained that the Act owed its existence to the need to seek appropriate formulae to settle labour disputes that might affect vital national interests and delay the process of recovery to which the Argentine Revolution was committed. As for Act No. 17224, the Government had denied that it constituted a violation of freedom of association and stated that its purpose was to harmonise and co-ordinate the economic recovery of the country and at the same time to ensure the workers a genuine wage by means of graded increases fitting in with the dates of expiry of the various collective agreements.
13. 90. The Committee observed that the legal provisions in question appeared to raise questions that should be examined in the light of certain generally recognised principles respecting freedom of association and, in any case, in the light of that contained in Article 4 of Convention No. 98-ratified by Argentina-to the effect that " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ". The Committee, observed, however, that the provisions of Act No. 16936 were intended to remain in force only until 31 December 1967.
14. 91. In view of the fact that the observations of the Government had been expressed in general terms and concerned only part of the allegations relating to collective bargaining, the Committee postponed consideration of these allegations and requested the Government to be good enough to report on specific cases in which Act No. 16936 was applied, and also to send the text of Acts Nos. 17224 and 17131.
15. 92. With its communication of 5 February 1969, the International Federation of Chemical and General Workers' Unions, acting on behalf of its affiliated organisation, the Glass and Allied Industries Trade Union of Argentina (Sindicato Obrero de la Industria del Vidrio y Afines de la Argentina) forwarded the text of Act No. 18016 of 1968, alleging that the Government was prohibiting collective bargaining, in violation of Act No. 14250 respecting collective agreements and ILO Convention No. 98. Under the terms of Act No. 18016 a general wage increase was granted, the collective agreements in force were extended until 31 December 1969 and Acts Nos. 16936 and 17131 were ordered to remain in force until the same date.
16. 93. The Government supplied the information requested of it on 19 May 1969. According to its communication, Act No. 17244 provided for increases in the basic remuneration established by the collective agreements due to expire in 1967 and kept the agreements in force until 31 December 1968. This Act, according to the Government, formed an instrument of economic policy to supplement the other measures adopted in the field of budgets, taxation, exchange, customs and finance with a view to the urgent stopping of the inflationary spiral. Act No. 17244 was an emergency measure adopted in view of the prevailing economic situation. The Government went on to state that the Act in question had been replaced by Act No. 18016 of 24 December 1968, in order to prolong the emergency rules made necessary by the economic conditions the country was going through. The new Act maintained the temporary suspension of the system of concluding collective agreements-which would be re-established as soon as the Act expired on 31 December 1969-and provided for a general increase in wages.
17. 94. With regard to Act No. 17131 the Government states that under it a Technical Advisory Commission on Wage Policy had been set up to be responsible for the study, analysis and assessment of measures to establish a co-ordinated and harmonious wage policy with respect to the central administration, state undertakings, decentralised bodies and private public service undertakings covering the whole national territory or whose activities exceeded the boundaries of a province. Every plan for modifying the pay of the staff of the above-mentioned establishments must be submitted in advance to this Commission, which would issue the instructions to be followed with respect thereto.
18. 95. As for the application in practice of Act No. 16936 respecting compulsory arbitration, the Government stated that arbitration awards had been issued in four cases, concerning commercial employees, textile workers, tram workers and workers in the meat industry.
19. 96. The Government concluded by declaring that all these Acts are emergency measures whose sole effect had been a temporary suspension of collective bargaining in regard to the fixing of wages. It was the Government's intention to re-establish the system of Act No. 14250 respecting collective agreements as soon as economic conditions permitted. In the Government's view the legislation referred to above did not infringe either Convention No. 98 or any principle connected with freedom of association.
20. 97. Since this communication from the Government further legislative provisions in this connection have been enacted and have been brought to the Committee's knowledge. Mention may be made first of all of Decree No. 4686 of 22 August 1969 and Act No. 18337 of 4 September 1969. These texts authorise the re-negotiation of the collective agreements kept in force under Acts Nos. 17224 and 18016. The agreements re-negotiated in accordance with these provisions shall remain in force from 1 January 1970 to 31 December 1970. The negotiations must be completed within 30 days. If agreement cannot be reached, the authority may refer the matter to compulsory arbitration in accordance with the provisions of Act No. 16936, which is now to remain in force until 31 December 1970. While this Act provides that the parties may be compelled to go to arbitration where the dispute " is of such a character as to affect the economic activity, productivity, development and progress of the nation and/or the security and well-being of the community ", these terms are so broad that they give the impression that the authority can submit to arbitration practically all cases in which it has not been possible to reach agreement.
21. 98. The Committee has also taken note of the enactment of other provisions relevant to the same subject. Act No. 18337, already mentioned, provides for a certain increase in the prevailing minimum living wage, and Decree No. 4921 of 4 September 1969 does the same with respect to various family allowances. Act No. 18336 of 4 September 1969 prohibits the reflection in prices of higher costs resulting from the negotiation of new collective agreements, except in certain cases. Lastly, Decree No. 4919 of the same date provides for the setting up of a National Prices and Wages Advisory Board, tripartite in composition, and with advisory and informatory functions, which will be required to publish an annual report analysing and forecasting trends in prices and wages.
22. 99. The Government has more recently, on 10 October 1969, introduced further measures affecting collective bargaining. Acts Nos. 18396 and 18397, promulgated on that date, grant a general increase in the pay of all workers in private employment from 1 November 1969 and provide for a further increase from I March 1970, to remain in effect until 31 December 1971. The Government may readjust pay rates from 1 January 1971 if there is evidence of a decline in the value of real earnings, to be determined on the basis of the annual report to be submitted by the National Prices and Wages Advisory Board. Collective bargaining must exclude all matters pertaining to the fixing of wages. The wage increases granted must not be reflected in prices, with certain exceptions.
23. 100. The Committee observes that, according to the Government's declarations, the restrictive measures adopted in respect of collective bargaining are emergency measures and the resultant suspension of the provisions of Act No. 14250 respecting collective agreements is only temporary. From the terms of the more recent legislation it is evident that these too are temporary measures, although it is worthy of comment that the restrictions imposed on collective bargaining as far as wages are concerned are to remain in force for a prolonged period lasting until the end of 1971.
24. 101. In these circumstances, the Committee recommends the Governing Body, while taking note of the legislation enacted by the Government with respect to collective bargaining, as well as of the temporary and emergency nature this legislation is said to have, to reaffirm that the right of free collective bargaining is a fundamental trade union right for all employees who are not covered by the safeguards provided by civil service regulations. Furthermore, in view of the implications for the standard of living of the workers of the fixing of wages by the Government, by-passing the collective bargaining process, and of the Government's wage policy in general, the Committee also recommends the Governing Body to draw attention to the importance it attaches to the promotion of effective consultation and co-operation between public authorities and workers' organisations in this respect, in accordance with the principles laid down in the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), for the purpose of considering jointly matters of mutual concern with a view to arriving, to the fullest possible extent, at agreed solutions.

The Committee's recommendations

1. 102. In these circumstances, with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) as regards the allegations relating to measures to take over various trade union organisations and to suspend their trade union status:
   • (i) to take note of the measures taken to restore the trade union status of the Telephone and Telecommunications Workers' Union of the Republic of Argentina (FOETRA) and the Tucumán Sugar Industry Workers' Union (FOTIA) and annulling the suspension of the trade union status of the Buenos Aires branch of that Federation;
   • (ii) to urge the Government once again to lift the suspension of the trade union status and end the takeover of the unions still affected, and to keep the Committee informed in this respect;
   • (b) as regards the allegations relating to collective bargaining and compulsory arbitration:
   • (i) while taking note of the legislation enacted by the Government with respect to collective bargaining, as well as the temporary and emergency nature this legislation is said to have, to reaffirm that the right of free collective bargaining is a fundamental trade union right for all employees who are not covered by the safeguards provided by civil service regulations;
   • (ii) in view of the implications for the standard of living of the workers of the fixing of wages by the Government, by-passing the collective bargaining process, and of the Government's wage policy in general, to draw attention to the importance it attaches to the promotion of effective consultation and co-operation between public authorities and workers' and employers' organisations in this respect, in accordance with the principles laid down in the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), for the purpose of considering jointly matters of mutual concern with a view to arriving, to the fullest possible extent, at agreed solutions.