Report in which the committee requests to be kept informed of development - Report No 307, June 1997

Case No 1899 (Argentina) - Complaint date: 31-AUG-96 - Closed

Allegations: Restrictions on the right to strike, unilateral termination of collective agreements and withholding of trade union dues

1. 70. The complaint in this case is contained in a communication from the Union of Education Workers of Río Negro (UNTER) of August 1996. The Government sent its observations in a communication dated 15 April 1997.
2. 71. 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. 72. In its communication of August 1996, the Union of Education Workers of Río Negro (UNTER) objects to Resolution No. 203/96, issued on 14 February 1996 by the Río Negro Provincial Education Council, concerning the recruitment of teachers to replace striking staff, and Decrees Nos. 222/96 and 329/96 issued by the Executive of Río Negro province, regulating direct action by employees of the provincial public administration, decentralized bodies and autonomous bodies of the provincial Executive. The complainant states that the regulations at issue cannot be interpreted without taking into account the situation in law and in practice of provincial public employees, and that of education workers in particular. The complainant adds that public sector workers in Río Negro do not receive their salaries in due time and in the prescribed form, that there are delays in payment of up to six months, in addition to which they suffer the consequences of structural adjustment programmes, which have affected teachers as follows: teaching hours have been cut, over 1,500 teachers have lost their jobs, grades have been eliminated and schools closed, etc.
2. 73. Specifically, the Resolution and Decrees at issue contain the following provisions:
   • Resolution No. 203/96 of the Provincial Education Council
   • CONSIDERING the possibility of direct action being taken by decision of teaching staff, and WHEREAS the continuity of educational services must be ensured; a political decision has been taken to recruit persons wishing to provide teaching services to replace those who may take part in the direct action; there are a large number of persons with professional and equivalent qualifications who are able to take on teaching hours and/or grades; in order to fill posts which would otherwise be unattended it is necessary to recruit persons voluntarily expressing the wish to work in the education sector: THE PROVINCIAL EDUCATION COUNCIL HEREBY RESOLVES THE FOLLOWING:
   • Section 1. The registration of volunteers to provide teaching services in each regional department shall be authorized.
   • Section 2. The following may register as volunteers: retired teachers, persons with professional and equivalent qualifications who shall be appointed to fill teaching posts in accordance with the basic principles laid down in the present resolution ...
   • Decree No. 222/96
   • THE GOVERNOR OF THE PROVINCE OF RIO NEGRO HEREBY DECREES THAT:
   • Section 1. The direct action which may be taken by employees of the public administration, decentralized bodies and autonomous bodies of the provincial Executive shall be governed by the provisions of the present Decree.
   • Section 2. The decision to take direct action shall be adopted by the executive bodies of recognized trade union organizations, in accordance with the procedure laid down in the by-laws of each trade union organization. Where there is no provision to this effect in the by-laws, the measure shall be approved by the provincial executive of the trade union.
   • Section 3. A trade union organization that has decided to take direct action shall, with at least three days' notice, formally communicate this decision to the provincial Undersecretariat for Labour, which shall verify compliance with the provisions laid down in section 2 of this Decree. In the notification made to the Undersecretariat for Labour, the trade union organization shall communicate the nature and/or form of the action envisaged, its duration, the sectors of the public administration affected, the reason, the trade union body which took the decision and a certified copy of the record of such decision.
   • Section 4. Within 24 hours of receiving the communication referred to in the preceding section, the Undersecretariat for Labour may decide to hold the necessary hearings to examine the reasons for the direct action. Where the Undersecretariat for Labour decides to hold hearings, attendance shall be mandatory for those persons who have been formally notified.
   • Section 5. Any direct action taken by workers, whether as a single individual, group of individuals or collectively, which has not been formally decided by the trade union concerned in accordance with section 2 of the present Decree shall entail the applicable disciplinary sanctions under the regulations in force for provincial public employees, as well as the termination of temporary contracts or those of substitute or temporary teachers. Likewise, following disciplinary proceedings, such sanctions shall be applied to persons carrying out direct action called by the trade union organization of which they are members, without the latter having complied with the procedure laid down in this Decree.
   • Section 6. Where workers fail to carry out all or part of their service, by reason of direct action, whether such action has been formally decided upon or not, and whether or not they are present at the workplace, and where thauthorities of the central public administration bodies, autonomous bodies or decentralized bodies of the provincial state, in order to carry out their tasks, and consequently could not engage in the work assigned to them, they shall not be paid any remuneration.
   • Section 7. Non-compliance by the trade union organizations covered by the provisions of this Decree shall result in the case being referred to the Ministry of Labour and Social Security of the Nation, with a request to order the suspension of the trade union's registration or legal personality.
   • Section 8. The Ministry of the Interior, Labour and Social Affairs shall be the competent authority to apply the provisions of this Decree and may issue the necessary supplementary regulations to ensure that it is implemented in the best possible manner.
   • Decree No. 329/96
   • CONSIDERING Decree No. 222/96; and WHEREAS section 5 thereof, referring to the legal consequences of non-compliance with the obligations laid down in it, omitted to mention that the first effect is the declaration that the direct action ordered contrary to the provisions of the above-mentioned Decree shall be declared illegal, which the body responsible for the implementation of the Decree is empowered to do, THE GOVERNOR OF THE PROVINCE OF RIO NEGRO HEREBY DECREES THAT:
   • Section 1. Section 5 of Decree No. 222 of 28 February 1996 shall be amended to read as follows: "Section 5. Any direct action taken by workers, whether as a single individual, group of individuals or collectively, which has not been formally decided by the trade union concerned in accordance with section 2 of the present Decree shall entail, in addition to the action being declared illegal, the applicable disciplinary sanctions under the regulations in force for provincial public employees, as well as the termination of temporary contracts or those of substitute or temporary teachers. Likewise, following disciplinary proceedings, such sanctions shall be applied to persons carrying out direct action called by the trade union organization of which they are members, without the latter having complied with the procedure laid down in this Decree."
3. 74. The complainant states further that on 6 June 1996 the provincial Undersecretariat for Labour informed UNTER of a notification received from the Provincial Education Council (CPE) in which the employer denounced all the collective agreements that had been signed and approved, the reasons given being that the agreements that had been approved failed to stipulate the term of the agreement; changes in circumstances; and the fact that the collegiate body had not endorsed the agreements. The complainant adds that after denouncing the agreements, the CPE issued resolutions concerning the conditions of work of teachers for which provision had been made in the collective agreements (substantial changes in hours of work, elimination of the monthly time off granted to delegates to attend trade union meetings, authorization to hire teachers under fixed-term and part-time contracts, suspension of payment of remuneration for trade union leave, etc.).
4. 75. Lastly, the complainant alleges that the government of Río Negro province deducts a percentage of wages corresponding to the union dues of UNTER members, but does not transfer it to the trade union's account, and that only part of the dues for the month of February 1996 have been paid over.

B. The Government's reply

1. 76. In its communication dated 15 April 1997 the Government states that provincial Decrees Nos. 203/96 and 222/96 do not involve any violation of the constitutional right to strike or of the international Conventions on freedom of association. These regulations are a part of the legislative framework governing the right to strike in the provincial administration of Río Negro which only lays down the following prior conciliation procedure: (a) a decision to take direct action must be adopted by the executives of recognized trade unions, in accordance with their by-laws; (b) the trade union shall send formal notification, with at least three days' notice, to the provincial Undersecretariat for Labour; and (c) within 24 hours of receiving such notification the above-mentioned Undersecretariat may decide to hold hearings to examine the reasons for taking the direct action. The Government adds that where the direct action was not formally decided by a legally recognized trade union in accordance with its by-laws or, where there is no such provision in its by-laws, with the approval of the provincial executive of the trade union, the legal consequence shall be that the direct action shall be declared illegal and applicable disciplinary sanctions under the regulations governing provincial public employees shall be adopted. This is a simple case of failure to provide services that is not protected by the right to strike and that entails the applicable sanctions, which shall not be applied in the case of direct action taken in accordance with the law. The Government states that it is clear from the above and from a close examination of the provincial Decrees at issue that the latter simply regulate the right to strike and cannot be deemed to restrict this right. The rights and guarantees laid down in the national Constitution must be exercised in accordance with the laws regulating the exercise thereof, which is what the above-mentioned provisions do.
2. 77. The Government states that Resolution No. 203/96 of the Provincial Education Council is intended to guarantee the constitutional right to education in the event of a teachers' strike for an unspecified period or prolonged duration and, contrary to the statement made by UNTER, does not involve any change in the conditions of recruitment of teachers, since persons holding posts in accordance with the regulations are not removed from their posts, but replaced while they take part in a strike until they resume their activity. The Government emphasizes that this measure cannot in any way be considered as an unfair practice under Act No. 23551, since it is not clear of what the reprisal, change in working conditions or discriminatory treatment consists. Moreover, this resolution was not challenged at the appropriate time when it was submitted through the proper administrative and legal channels and, according to the government of the Río Negro province, has not been applied to date.
3. 78. Concerning the allegation regarding the Río Negro province's handling of teachers' collective agreements, the Government adds that "denunciation" is a form of termination of agreements. The Government states that there has been a change in the social and economic situation throughout the country, and in Río Negro province in particular, since the collective agreement was approved, amounting to a change of circumstances which, in accordance with the doctrine, constitutes grounds for terminating an agreement. The Government points out that since the Provincial Education Council, a state agency which is a member of a collegiate body, is a party to the agreement, in order for it to sign the agreement the endorsement of the collegiate body is required, unless authority has expressly been delegated, which was not the case. This was the ruling handed down by the Second District Labour Court of Río Negro province, the competent court in this case, which declared null and void the act performed by the president of the Provincial Education Council without the endorsement of the collegiate body. Lastly, the Government states that many provinces are now beset by major financial crises which have prevented them from regularly meeting their commitments under the obligations they have assumed, and that in this emergency context and in view of the impossibility of meeting all its financial commitments on time, Río Negro province had established a payments schedule giving priority to public sector remuneration, including teachers' salaries, which are paid at regular intervals (monthly).

C. The Committee's conclusions

1. 79. The Committee notes that in this case the complainant objects to a Resolution issued by the Education Council of Río Negro province providing for the possibility of recruiting teachers to replace striking staff and to Decrees issued by the Executive of Río Negro province governing the exercise of the right to strike of employees in the provincial public administration, decentralized bodies and autonomous bodies of the provincial Executive. The complainant alleges further that the employer - the Education Council of Río Negro province - denounced or unilaterally terminated the collective agreements for teachers in the public sector and that the trade union dues deducted from the wages of members of the UNTER trade union by the government of Río Negro province had not been paid to the trade union.
2. 80. Concerning Resolution No. 203/96 of the Education Council of Río Negro province, challenged by the complainant, which authorizes the recruitment of teachers in the public sector to replace striking staff, the Committee notes that the Government states that (i) it is intended to guarantee the constitutional right to education in the event of a teachers' strike for an indefinite period or prolonged duration; (ii) it does not involve a change in the conditions of recruitment of teachers, since those holding posts in accordance with regulations are not removed, but are replaced while they take part in a strike until they resume their activity; (iii) this cannot be considered as an unfair practice under Act No. 23551 respecting trade union associations; (iv) it was not challenged at the appropriate time when it was submitted through the proper administrative and legal channels; and (v) it had not been applied to date.
3. 81. In this respect, the Committee observes that the legal framework governing strikes in Argentina provides for the possibility of imposing a minimum service in the event of a strike in the education sector (Decree No. 2184/90, section 1) which is in conformity with the principles of freedom of association. However, the Committee notes that Resolution No. 203/96 adds to this possibility of imposing a minimum service that of temporarily replacing strikers with other workers. In this respect, the Committee emphasizes that "the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 570). The Committee accordingly requests the Government to take the necessary steps to repeal Resolution No. 203/96 issued by the Education Council of Río Negro province.
4. 82. As regards Decrees Nos. 222/96 and 329/96 issued by the Executive of Río Negro province, the Committee observes that they essentially provide for a prior conciliation procedure and non-payment of salaries during a strike.
5. 83. The Committee observes that these provisions of the Decrees at issue do not violate the principles of freedom of association (see Digest, op. cit., paras. 500, 502 and 588). None the less, the Committee observes that in cases in which a strike in the public service was not decided in conformity with the provisions of the Decrees, it may be declared illegal by the Ministry of the Interior, Labour and Social Affairs, and that sanctions may be applied, such as termination of the employment relationship or suspension of registration of a trade union or of its legal personality. In this respect, the Committee recalls that it has already had occasion to examine a complaint against the Government of Argentina concerning the power of the Ministry of Labour to declare strikes illegal (see 292nd Report, Case No. 1679 (Argentina), para. 95). The Committee accordingly reiterates its previous conclusions to the effect that "the final decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute" (see Digest, op. cit., para. 523). In these circumstances, the Committee requests the Government to take steps to amend the Decrees in question so that it is not the Government itself which decides on the legality or illegality of a strike in the public service, but the judicial authorities or an independent body.
6. 84. As regards the allegation concerning the denunciation (and hence termination) of the collective agreements in force in the education sector of Río Negro province, the Committee observes that these measures were taken unilaterally and by decision of the President of the Education Council of Río Negro province (CEP), without being endorsed by the CEP, which was challenged by the judicial authority. The Committee notes that the Government justifies these measures stating that there has been a change in the social and economic reality throughout the country and in the Río Negro province in particular since the collective agreements came into force (a change in circumstances as grounds for termination of the agreements). In this respect, the Committee recalls that "the suspension or derogation by decree - without the agreement of the parties - of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98. If the Government wishes the clauses of a collective agreement to be brought into line with the economic policy of the country, it should attempt to persuade the parties to take account voluntarily of such considerations" (see Digest, op. cit., para. 876). The Committee observes that in this case the administrative authority did not act by decree, but simply notified the parties of the denunciation of the collective agreements in force, which has a comparable effect. In these circumstances, while it deplores the fact that the President of the CEP did not respect the agreements freely entered into by the parties and that there has been no attempt to persuade the complainant organization to take account of economic changes that have occurred, the Committee requests the Government to ensure that the Education Council of Río Negro province (CEP) respects the collective agreements that have been concluded and avails itself of legal procedures if it wishes to renegotia
7. 85. As regards the allegation concerning the failure to pay the UNTER trade union the dues deducted from the salaries of its affiliates since the month of February 1996 by the government of Río Negro province, the Committee regrets that the Government has not communicated its observations on this matter. In this respect, the Committee observes that national legislation (Act No. 23551, section 38, subsection 1) lays down an obligation to deduct trade union dues for trade union organizations with legal personality (the most representative organizations). In these circumstances, recalling that non-payment of trade union dues can result in serious financial difficulties for trade union organizations, the Committee requests the Government to ensure that the government of Río Negro province pay without delay to the UNTER trade union organization the union dues of its members which have been withheld since February 1996 and to keep it informed of developments in this respect.
8. 86. Lastly, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

The Committee's recommendations

1. 87. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary steps to repeal Resolution No. 203/96, issued by the Education Council of Río Negro province, allowing workers to be hired during a teachers' strike.
   • (b) Recalling that the final decision concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute, the Committee requests the Government to take steps to amend Decrees Nos. 222/96 and 329/96 issued by the Executive of Río Negro province so that it is not the Government itself which decides on the legality or illegality of a strike in the public service, but the judicial authorities or an independent body.
   • (c) As regards the allegation concerning the denunciation (and hence termination) of the collective agreements in force in the education sector of Río Negro province by unilateral decision of the President of the Education Council of Río Negro province (CEP), the Committee requests the Government to ensure that the CEP respect the collective agreements that have been concluded and avail itself of the legal procedures if it wishes to renegotiate such agreements.
   • (d) The Committee requests the Government to ensure that the government of Río Negro province pay without delay to the UNTER trade union organization the union dues paid by its members which have been withheld since February 1996 and to keep it informed of developments in this respect.
   • (e) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.