Definitive Report - Report No 307, June 1997

Case No 1872 (Argentina) - Complaint date: 28-FEB-96 - Closed

Allegations: Refusal of trade union personality

1. 45. The complaint in this case is contained in a communication from the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) of February 1996. The Government sent its observations in a communication dated 15 May 1997.
2. 46. 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. The complainant's allegations

1. 47. In its communication of February 1996, the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) explained that it was set up in 1983 by the workers of the National Institute of Social Services for Pensioners and Retired Workers (PAMI) (according to the complainant, a non-state entity governed by public law), and that it has been requesting recognition for purposes of, inter alia, collective bargaining, since 1985 with no success. The complainant describes in detail the administrative and judicial formalities it has completed since 1985. In particular it states that in 1991 the Ministry refused UTI's request for recognition, pointing to the existence of two other trade unions that were recognized in UTI's sphere of activity. Nevertheless, in February 1992 the judicial authorities expressed the opinion that "the legal nature of the PAMI Institute is an obstacle to its workers being represented by the trade union organizations mentioned in the resolution of the Ministry of Labour and Social Security (UPCN and ATE)". The complainant declares that subsequently, in November 1992, the Ministry of Labour and Social Security stipulated that UTI should be granted recognition, and that in November 1993 the judicial authorities indicated that the Ministry of Labour and Social Security should hand down a decision on its request for recognition. In addition, the complainant states that in May 1994 the Inspection Department of the Ministry of Labour and Social Security observed that of a total of 11,449 workers at the Institute, 4,437 were members of the complainant, 1,848 of UPCN and 873 of ATE, and that in November 1994 the Legal Technical Department of the National Directorate of Trade Union Associations ruled that UTI should be granted recognition. The complainant points out that the Ministry of Labour has not yet prepared a resolution in this connection and that as UTI still has not been recognized, the workers of the PAMI Institute have no collective agreement and no social security provisions of their own. (The complainant annexes copies of the administrative and judicial resolutions to its complaint.)

B. The Government's reply

1. 48. In its communication dated 15 May 1997, the Government annexes a resolution of the Ministry of Labour and Social Security dated 15 May 1997 concerning the allegations presented by the complainant relating to the refusal to grant recognition to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) for the purposes of, inter alia, collective bargaining. The resolution in question provides in particular the following:
   • ... that the petitioner, the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) has been registered as a trade union association since 25 September 1984 and groups together civil servants who belong to the National Institute of Social Services for Pensioners and Retired Workers. It is therefore an enterprise trade union.
   • That, according to the Report of the Department responsible for the registration of trade union entities, the State Workers' Association (ATE) does not represent the staff of the Institute in question.
   • That, as regards the Union of State Employees of the Nation (UPCN), this entity has been granted recognition (No. 95) by virtue of Resolution ST and P No. 34/48.
   • That, by virtue of Resolution MT and SS No. 725 of 3 September 1993, the text of article 1 of the statutes which sets out the geographical area and the persons falling within the scope of this union, has been approved.
   • That, subsequently, Resolution MT and SS No. 1028 dated 19 December 1996 approved the text of the new statutes and affirmed that "the Union will continue to be recognized for the same geographical area and persons covered ..."
   • That this union comprises any other body and centralized or decentralized public entity whether it is a state entity or not at the national, provincial and/or municipal levels. The granting of recognition to this organization covers the staff of the Institute in question.
   • That, in analysing the characteristics of the trade union entities in question, and in order to decide on the request to grant recognition for purposes of, inter alia, collective bargaining to the enterprise trade union, it would be appropriate to take into consideration section 29 of Act No. 23551 which stipulates that: "A trade union at the enterprise level may be granted recognition only when another base-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered."
   • That, in analysing the annexed documentation, the reasons given in the file and the specific characteristics of the employer, it follows that the Union of State Employees of the Nation (UPCN) covers, as regards geographical area and persons covered by its recognition, the workers of the National Institute of Social Services for Pensioners and Retired Workers. Consequently, and very clearly, it would not be appropriate to accede to the request for recognition presented by the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) given that it is a general provision of the Act and not an arbitrary decision by the authorities which prevents the recognition of this entity. Consequently, the Ministry of Labour and Social Security rejects the request for recognition presented by the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI)

C. The Committee's conclusions

1. 49. The Committee observes that the allegations relate to the fact that the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) has been refused the recognition it has been requesting since 1985 (only trade union organizations which are recognized have, inter alia, the right to collective bargaining and to the administration of social security benefits, i.e. the administration of medical insurance and other social benefits for workers).
2. 50. The Committee observers that the resolution of the Ministry of Labour and Social Security dated 15 May 1997 states that (1) the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI) - the complainant - groups together civil servants who belong to the National Institute of Social Services for Pensioners and Retired Workers and that it is therefore a trade union at the enterprise level; (2) in 1996, the Ministry of Labour and Social Security approved the text of the new statutes of the Union of State Employees of the Nation (UPCN) which has been granted recognition for purposes of, inter alia, collective bargaining. These statutes, which set out the geographical area and the persons falling within the scope of this union, provide in particular that this union encompasses workers "of any other body and centralized or decentralized public entity whether it is a state entity or not at the national, provincial and/or municipal levels ..."; (3) section 29 of the Act on trade union associations stipulates that "a trade union at the enterprise level may be granted recognition only when another base-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered"; and (4) the UPCN includes, as regards geographical area and persons covered by its recognition, the staff of the National Institute of Social Services for Pensioners and Retired Workers, reason for which recognition was not granted to UTI.
3. 51. The Committee notes that the documentation annexed to the complaint shows that (i) in 1992 the Ministry of Labour and Social Security indicated that recognition should be granted to UTI; (ii) in November 1993 the judicial authorities stipulated that the national Ministry of Labour should hand down a decision on the application for recognition; (iii) in May 1994 the Inspection Department of the Ministry of Labour and Social Security observed that of the Institute's 11,449 workers, 4,437 were members of UTI (almost 40 per cent of the total), 1,848 of UPC and 873 of ATE; and (iv) the Legal Technical Department of the National Directorate of Trade Union Associations stated that recognition should be granted to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers.
4. 52. This being the case, and taking into account all the administrative resolutions and judicial rulings pertaining to the granting of recognition to the complainant as well as the fact that this organization is clearly the most representative one, which is not refuted by the Government, the Committee urges the Government to take the necessary steps to grant recognition immediately to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI), enabling it to negotiate collectively and exercise the other rights enjoyed by the most representative organizations. In this respect, observing that up to now recognition has been refused by virtue of section 29 of Act No. 23551 on trade union associations, the Committee must draw the Government's attention to the fact that, to the extent that this provision prevents the most representative trade union organizations in an enterprise from bargaining at the enterprise level, it is incompatible with the principles of freedom of association and collective bargaining. Consequently, the Committee further requests the Government to take the necessary measures to ensure that this provision of Act No. 23551 is amended. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
5. 53. Lastly, the Committee deplores the excessive length of time - more than 11 years - allowed to elapse before deciding whether or not to grant recognition to a trade union organization. Furthermore, it observes with concern that this is not the first time that it is examining complaints against the Government of Argentina in which there are allegations of excessive delays and red tape in the processing of the registration of a trade union organization or the granting of recognition (see 274th Report, Cases Nos. 1455, 1456, 1496 and 1515, para. 9; 286th Report, Case No. 1551, para. 57; and 306th Report, Case No. 1777, para. 15). Given this situation, the Committee urges the Government to take measures to ensure that in future, when requests are made for the registration of an organization or the granting of recognition, the competent administrative authorities decide on the matter without unjustified delay.

The Committee's recommendations

1. 54. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to take measures to ensure that recognition is granted immediately to the Workers' Union of the National Institute of Social Services for Pensioners and Retired Workers (UTI).
   • (b) The Committee urges the Government to take the necessary measures to ensure that in future, when an organization requests registration or the granting of recognition, the competent administrative authorities return their decisions without unjustified delay.
   • (c) The Committee requests the Government to take the necessary measures to ensure that section 29 of the Act on trade union associations is amended. It draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.