Definitive Report - Report No 300, November 1995

Case No 1741 (Argentina) - Complaint date: 10-NOV-93 - Closed

Allegations: Lack of recognition of a trade union executive

1. 39. The complaint is contained in communications from the World Confederation of Labour (WCL) dated 10 and 16 November 1993. The Government sent its observations in communications dated 11 and 13 May 1994.
2. 40. Argentina has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).
3. 41. At its November 1994 Session, the Committee postponed the examination of this case and requested the complainant organization to send certain comments (see 295th Report, para. 6). The Government sent additional information in communications dated 1 November 1994 and 10 July 1995. The WCL sent its comments in a communication dated 25 April 1995.

A. The complainant's allegations

1. 42. The World Confederation of Labour (WCL) alleges in its communications dated 10 and 16 November 1993 that systematic violations of Act No. 23551 on trade union associations have been taking place at the National Mint. The WCL specifies that the National Mint enterprise banned elections which were due to be held on 19 December 1991 to name the delegates' executive of the Association of State Employees (ATE), and that it is still refusing to receive the current delegates' executive, despite the fact that it was elected over a year ago by 98 per cent of the members.
2. 43. Lastly, the WCL alleges that the workers affiliated to the ATE are penalized with arbitrary dismissals and suspensions for minor mistakes and that there has been a disproportionate increase in the number of security staff in order simply to monitor workers. The complainant organization annexes to its complaint a request for information addressed by the National House of Deputies to the Chairman of the National Mint in which it states, among other things, that "this is an intolerable situation for the workers employed by the enterprise; the general management adopts arbitrary positions, there is trade union persecution, reprisals are taken against the staff and there are operating problems (...). This honourable House must therefore intervene as compliance with the basic human rights (industrial and trade union rights among others) of the enterprise's employees, who through their work with the currency defend national sovereignty, is under threat". "At the National Mint there is an absolute and total lack of protection, as demonstrated by the fact that it is impossible to move around the enterprise without identification papers, (...) by the installation of unnecessary numbers of cameras to monitor workers' movements (...) by unfair practices contrary to the ethics of occupational relations, etc." The WCL also refers to a series of other unfair practices and violations of workers' rights which are unrelated to freedom of association, and which are thus not reproduced in this report.

B. The Government's reply

1. 44. In its communication of 11 May 1994, the Government points out, as regards the refusal by the authorities of the National Mint to recognize the delegates' executive of the Association of State Employees (ATE), that the National Civil Servants' Union (UPCN) has traditionally acted as the majority trade union in the National Mint and has elected delegates who represent the entire staff. Furthermore, the National Mint collectively negotiated wage increases with the UPCN, which were endorsed by the Ministry of Labour. The Government emphasizes that Act No. 23551 on trade union associations establishes the principle of unity of trade union representation and establishes the number of delegates according to the number of staff employed.
2. 45. The Government adds that on 6 December 1991, the ATE called elections for the delegates' executive in the National Mint while an executive consisting of members of the UPCN had already been set up in the proportion stipulated by law (in this case, ten delegates). Since the UPCN traditionally represented the workers in this state enterprise and the ATE appeared later, it was necessary for the ATE to request that the National Directorate of Trade Union Associations carry out a procedure for trade union recognition (to determine which of the two associations would represent the rights of the workers). This procedure gave rise to Case No. 907.737/1991, which is still pending; until the case is resolved the previous situation should be maintained.
3. 46. In addition, the Government continues, the National Mint filed a complaint with the administrative authorities requesting that they pronounce these elections as illegal on the basis of the above-mentioned considerations and because the UPCN had more members than the ATE. At the same time, a second-instance appeals court ruled, in a case brought before it by the ATE, that the National Mint was not responsible for any unfair practices.
4. 47. The Government concludes by indicating that there were no violations of freedom of association and that this is a case where the trade union representation must be determined (as two unions are vying for the same representation) and that, when the time comes and this question is resolved, the National Mint will be obliged to recognize the most representative trade union.
5. 48. Lastly, in its communication of 13 May 1994, the Government states that given the nature of the articles manufactured at the National Mint the services of a security company are necessary to stop any criminal activities taking place and that the current number of cameras corresponds to security requirements. In addition, the Government sent its observations on the allegations concerning the violations of workers' rights which are unrelated to freedom of association, and which are therefore not reproduced in this report.

C. The complainant's comments and new information from the Government

• The complainant's comments
  49. 49 In its communication dated 25 April 1995, the WCL states that the fact that the National Mint state enterprise and the Ministry of Labour may have recognized another trade union organization as being more representative is no legal basis not to recognize the representativeness of another organization, the Association of State Employees, which has trade union and legal capacity at the national level, and a considerable number of whose members work at the National Mint.
• New information from the Government
  50. 50 In its communication dated 1 November 1994, the Government indicates that in the administrative proceedings brought by the Ministry of Labour concerning trade union recognition, it was decided that the most representative body within the National Mint is the National Civil Servants' Union (UPCN). (The Government annexes to its reply a copy of the ministerial decision which shows that on 26 May 1994 the UPCN had 78 members, whilst the ATE had 79 members, but that on 30 May of the same year 24 ATE members had resigned and that therefore when the judgement was handed down the ATE had 55 contributing members and the UPCN had 78.)
  51. 51 The Government attaches to its communication of 10 July 1995, a note from the Director-General of the National Mint which was addressed to the Ministry of Labour before the administrative decision which resolved the issue of trade union recognition, and which referred, amongst others, to the dispute which arose because the ATE called elections for delegates' posts in the National Mint while these posts had already been filled by members of the UPCN. In addition, the Director-General of the National Mint stated that he was suspending the ATE's participation in the negotiation committee for the negotiation of the collective agreement until the Ministry of Labour had found a solution to the issue of trade union recognition.

D. The Committee's conclusions

1. 52. The Committee observes that in this case the complainant organization alleges that the National Mint has refused to recognize the delegates' executive of the ATE, which was elected in 1992 by more than 98 per cent of its members (in addition, in 1991 the election of this executive was banned), that its management has refused to receive the delegates' executive, and that various anti-union acts have been perpetrated against the members of the ATE. The Committee notes that, according to the information sent by the Government, since 1991 an executive has existed composed of members of another trade union organization (the UPCN) which represented the workers, and that because of the legal principle of unity of trade union representation the ATE in 1991 had to request a "procedure for trade union recognition" to be carried out by the authorities to determine which of the two organizations should represent the rights of the workers.
2. 53. The Committee notes the Government's statement that in respect of the "procedure for trade union recognition" to determine which of the two trade union organizations active in the National Mint is the most representative, the Ministry of Labour has determined that the UPCN is the most representative body and that a ministerial decision exists to that effect.
3. 54. The Committee observes with concern that the administrative decision concerning trade union recognition was delayed from 1991 to 1994. In addition, it notes that the Government has not sent its observations on the allegations relating to sanctions (arbitrary dismissals and suspensions) imposed on ATE members nor to the refusal by the management of the National Mint to receive the ATE's delegates' executive. Noting the marked decrease in ATE members during the period in which the administrative procedure for trade union recognition was carried out (from 79 to 55 as a result of the resignation of 24 worker members) and in view of the pressure prevailing in the enterprise during that period (the National House of Deputies considered it necessary to address a request for information to the National Mint), for the Committee there is persuasive evidence that acts of anti-union discrimination have been directed against workers belonging to the ATE.
4. 55. The Committee reminds the Government that "it is not necessarily incompatible with the Convention to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit. This is the case, however, only if a number of safeguards are provided that include the following: (a) certification to be made by an independent body; (b) the representative organization to be chosen by a majority vote of the employees in the unit concerned; and (c) the right of an organization which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period" (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 237). The Committee also wishes to call the Government's attention to the fact that "the granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited and that minority organizations should be permitted to carry out their activities and at least to have the right to speak on behalf of their members and to represent them" (see 259th Report, Case No. 1385 (New Zealand), para. 545).
5. 56. The Committee therefore requests the Government to take the necessary measures to permit the ATE trade union at the National Mint to exercise its activities freely (particularly to be allowed access to management), and to be able to call elections to freely elect its executive members. The Committee also requests that, after a reasonable period, the trade union organization which considers itself the injured party be enabled to request a new procedure to determine, under the supervision of an independent body, which organization is the most representative. The Committee emphasizes that the authorities should take the necessary measures so that this procedure results rapidly in a decision.

The Committee's recommendations

1. 57. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Reminding the Government that the granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited and that minority organizations should be permitted to carry out their activities and at least to have the right to speak on behalf of their members and to represent them, the Committee requests the Government to take the necessary measures to allow the ATE trade union at the National Mint to exercise its activities freely, and to be able to call elections to freely elect its executive members.
   • (b) The Committee requests that, after a reasonable period, the trade union organization which considers itself the injured party be enabled to request a new procedure to determine, under the supervision of an independent body, the most representative organization. The authorities should take the necessary measures so that this procedure result rapidly in a decision.