Report in which the committee requests to be kept informed of development - Report No 324, March 2001

Case No 2065 (Argentina) - Complaint date: 15-DEC-99 - Closed

Allegations: Initiating academic proceedings against a trade union official

The complaint is contained in a joint communication from the National Federation of University Teaching Staff (CONADU) and the Riojan Association of University Teaching Staff (ARDU) dated December 1999. The Government replied in a communication dated 4 December 2000.

1. 118. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 119. In their communication of December 1999, the National Federation of University Teaching Staff (CONADU) and the Riojan Association of University Teaching Staff (ARDU) from the province of La Rioja allege anti-union practices, trade union persecution and the violation of national and international protective standards by the National Executive Power and the authorities of the National University of La Rioja (UNLaR). More specifically, the complainants allege that on 26 February 1999 the Board of Governors of the UNLaR ordered that an academic proceeding be initiated against the teacher Estela Cruz de García in her capacity as trade union representative (Secretary General of ARDU) on the grounds of the exercise of her trade union representation work; it was also decided to order CONADU to rectify alleged statements made concerning the university authorities. The UNLaR based this decision on an article that appeared in the local daily newspaper El Independiente on 17 February 1999, and in which “… in view of the virtual non-existence at the UNLaR of teaching staff who belong to CONADU and ARDU, we have observed the persistence of a campaign to discredit and undermine this university by the teacher Estela Cruz de García, in terms that go beyond the healthy principles of democratic coexistence and the exercise of rights”.
2. 120. According to the complainants, initiating academic proceedings, an administrative procedure intended to remove the trade union representative on the grounds of her trade union activities, solely on the basis of the above quotation, clearly constitutes a violation of the guarantees that protect trade union activities and the stability of the delegate in question. Also, the academic proceedings stipulated in the resolution were initiated without any type of notification or right to defence. CONADU was not notified of the order contained in article 3 of the administrative act.
3. 121. The complainants emphasize that the resolution issued by the Board of Directors of the UNLaR is based on a newspaper publication. From the records it does not appear that the administrative and employing authority has checked the source of the information or the veracity of its content. Neither CONADU or the teacher Ms. Cruz were ever required to ratify or rectify the information, thus damaging the guarantee of defence and making the act voidable as it lacks cause and foundation de facto and de jure. Also, the basis for the discriminatory resolution is in short that “… we have observed the persistence of a campaign to discredit and undermine this university by the teacher Estela Cruz de García …”, but at no time has the content of that campaign been clearly established. It is in fact nothing more than the regular exercise of the rights which Ms. Cruz is entitled to in her capacity as trade union representative. Under the National Constitution (article 14bis), “Union representatives shall have the necessary guarantees to perform their union tasks and to ensure the stability of their employment”. This stipulation is operative as it is directly established by the Constitution and is not conditional on any regulation.

B. The Government’s reply

1. 122. In its communication of 4 December 2000, the Government refers to the observations made by the UNLaR, which declares that it is absolutely foolhardy and incomprehensible, as well as being legally indefensible, to accuse an autonomous and autarchic institution of persecuting a trade union official, or of engaging in anti-union practices simply because it initiates academic proceedings against a teacher in the framework of the most absolute legality and institutional legitimacy. In this respect, provision is made for academic proceedings both in the statutes of the university (articles 54 to 61 inclusive) and in the Higher Education Act No. 24521 (article 57), in coinciding and coordinated terms. Furthermore, the statutes of the UNLaR, which are attached, make provisions for both the composition of the academic tribunal, which corresponds to the provisions of the Higher Education Act (article 54), the guarantee of the right to defence (article 60), the obligation to give reasons for the pronouncement (article 61, first part) and the possibility of appealing the decision adopted before the university assembly (article 61 in fine). Likewise, while the academic proceedings were initiated on the basis of the Board of Directors resolution No. 317/99 referred to in the complaint, they were certainly not based solely on the sentence quoted by the complainants (“… in view of the virtual non-existence at the UNLaR of teaching staff who belong to CONADU and ARDU, we have observed the persistence of a campaign to discredit and undermine this university by the teacher Estela Cruz de García, in terms that go beyond the healthy principles of democratic coexistence and the exercise of rights …”), but on the manifest existence of a campaign to discredit the university which, in the words of the pronouncement made by the Board of Governors of the university, “goes beyond the healthy principles of democratic coexistence and the exercise of rights”. Lastly, and as shown below, the grounds motivating this decision were not restricted and did not only comprise only one newspaper article. This is clear from the content of Board of Governors resolution No. 317/99 and also from other facts expressly invoked that can be cited as follows:
   • … this decision by the trade union entity, on the basis of the report by Ms. Estela Cruz de García, a member of ARDU, demonstrates a complete ignorance of the standards that regulate the Argentine university system, and in particular those that regulate this university; they seek to question and challenge the decisions legitimately adopted by the collegiate bodies of the UNLaR, which are comprised of representatives of the university bodies. The UNLaR community defined an institutional project and the person chosen to present it won over 75 per cent of the vote by members of the university assembly in July 1998, which demonstrates the absolute collective conviction which endorses the decisions of its governing bodies. The UNLaR has clearly and consistently formulated its educational policy to “ensure increasing levels of quality and excellence” (article 4(d) of Act No. 24521) “to intensify the process of democratization in higher education to contribute to the equitable distribution of knowledge and to ensure equal opportunities” (article 4(d) of Act No. 24521), in the framework of the true transformation that society and the world demand of institutions of higher education …
2. 123. Furthermore, the initiation of academic proceedings cannot in any way be taken to signify the restriction or infringement of freedom of association, nor opposition to the trade union leadership, even if it is not covered by an “indemnity bill” or by special protection under the applicable national or international legislation. The fact remains that any teacher can be questioned about ethical/disciplinary matters in accordance with the provisions of the Higher Education Act No. 24521 (article 57) which reads as follows: “The statutes will provide for the establishment of a university tribunal which will have the function of hearing academic proceedings and deciding on any ethical/disciplinary matters in which teaching staff are involved. It will be constituted of emeritus or consultant professors, or by teaching staff who have won their positions in open competitions and who have over ten years experience in university teaching”. It goes without saying that the ethical/disciplinary matters relating to teaching staff must be dealt with by a specific academic tribunal constituted in compliance with the corresponding statutory provision (article 59(c) and (d) of the UNLaR statutes). An overview of legislation does not reveal any injury or damage associated with the initiation of academic proceedings against a teacher who happens to exercise a trade union function. Furthermore, the academic proceedings initiated, as well as complying fully with prevailing legislation, do not constitute any type of persecution, and certainly not an anticipated sentence, since specific regulations stipulate that they must be decided by a tribunal comprised of peers or colleagues of the actual defendant and it must be possible to appeal the decision, where appropriate.
3. 124. It should also be pointed out that the current stage of the proceedings, in accordance with the provisions governing them, and as specified in an attached document, far from signifies an inquisitorial procedure or a prejudgement of the conduct of Ms. Estela Cruz de García. Nevertheless, there has not yet been any response regarding the report submitted to El Independiente, and once this is done, the article published by this newspaper on 13 February 1999 will either be substantiated or not. This, together with the other proceedings, will show whether the academic tribunal is justified or not in approving the academic proceedings requested of the tribunal by the Board of Governors, in accordance with the provisions of article 54 of the statutes of the UNLaR.
4. 125. Without prejudice to the fact that article 60 of the statutes of this organization expressly determines that: “In all instances the right of defence of the accused will be duly ensured”, it must also be stated that from the time she took up the position of Secretary General of ARDU, Ms. Estela Cruz de García generated a campaign of ongoing slander against the university and its authorities, announcing non-existent and unfounded institutional situations that were never corroborated. By way of example, an article in El Independiente dated 11 December 1998 reports, on this “record” (a different article to that mentioned in the Board of Governors’ resolution). The matter denounced on that occasion is false, as also proved to be false – according to a judicial decision – alleged improper salary deduction which could have been detrimental to Ms. Cruz de García. Her claim was rejected by the federal judge of La Rioja (a certified photocopy of the decision is attached). In this same context mention should be made, as it is linked to the same slander, of the formal request made by the rector of the university of Ms. Estela Cruz de García and of the members of the executive committee of ARDU, dated 19 May 1999, to confirm, or otherwise, the remarks deemed by him to be slanderous and offensive, contained in another article in the newspaper El Independiente, dated 18 May 1999, and published on page 3 under the title “ARDU denounces the UNLaR”, a photocopy of which is attached. There was no response to this request. The Government also attaches five other articles published in the same newspaper (the only one in circulation in the provincial capital), containing further false and slanderous accounts.
5. 126. In these circumstances, as the academic proceedings initiated against the teacher have not been concluded, nor, as stated by CONADU in its complaint, was there any notification of the Board of Governors resolution No. 317/99, CONADU cannot consider itself to have been wronged by the third provision of that decision ordering it to ratify or rectify its statement (it had declared the rector of the university to be “persona non grata”). Nevertheless, the newspaper version has not yet been confirmed. The UNLaR was not notified (and thus this is not contained in the complaint submitted to the ILO) of the application for annulment of the Board of Governors resolution No. 317/99, allegedly requested by CONADU.
6. 127. The main proof of the lack of anti-union practices or violations of standards governing the exercise of the collective rights of teachers at the UNLaR can be seen in the entirely normal manner in which the joint academic commission is conducting its business, as demonstrated by recent attached minutes of meetings, and the corresponding decisions taken by the university authorities. This should have been honourably recognized by CONADU since it is fully aware of this matter. However, the unjustified omission by the trade union member of the joint commission in no way detracts from the institutional will of this organization to recognize systematically the collective and individual rights of its workers.

C. The Committee’s conclusions

1. 128. The Committee observes that the complainants allege that the lodging of academic proceedings against the teacher Estela Cruz de García, Secretary-General of ARDU, was an anti-union measure as it was motivated by the exercise of her tasks in the area of trade union representation; they also criticize the order addressed to the trade union organization CONADU to rectify alleged decisions or statements relating to the authorities of the UNLaR. The complainants maintain that these measures do not respect the right of defence, that they are based on a newspaper article (17 February 1999), and that the source of the information has not been confirmed; they mention a campaign to discredit the university being pursued by the teacher in question but do not specify the details of that campaign.
2. 129. The Committee notes that in its reply the Government refers to observations made by the UNLaR whereby: (1) it denies that the lodging of the academic proceedings was an anti-union measure as the statements, and behaviour of the trade union official teacher that led to them, went beyond the healthy principles of democratic coexistence and the exercise of rights; (2) it stresses that the procedure is being conducted by an academic tribunal comprised of teachers and that there are the appropriate guarantees of the right of defence and there is the possibility to appeal; (3) legislation provides that academic proceedings can be initiated for matters of an ethical/disciplinary nature; (4) the current status of the proceedings far from signifies an inquisitorial procedure; (5) in addition to her statements contained in the press article dated 17 February 1999, the trade union official teacher conducted a campaign of ongoing slander against the university, inventing non-existent and unfounded institutional situations, denouncing false facts, including alleged improper deductions of her wages which she complained about in 1998, allegations that were also shown to be false (the judicial authority rejected an action in this connection given that it was a matter of an administrative rather than a criminal nature); the university provides the text of this decision and several press articles; (6) Ms. Cruz de García has yet to confirm or not her statements to the newspaper, only then will the academic tribunal be in a position to determine whether there is a legal basis for the academic proceedings requested by the Board of Governors of the university; (7) the teaching authorities asked that the statements contained in the press article of 17 February 1999 be rectified owing to their defamatory, slanderous and damaging nature.
3. 130. The Committee observes that in the article published in El Independiente on 17 February 1999 (provided by the Government), the trade union official Ms. Estela Cruz de García states that the teachers of the UNLaR did not receive their 1998 pay increase, warns of the possible immediate suspension their participation in exams as a trade union measure and notes that the trade union is examining how to proceed in respect of the improper wage deductions; this article announces that the trade union organization, CONADU, declared the rector of the university to be persona non grata. In the view of the Committee, such statements do not go beyond the normal limits of the right to expression of trade union organizations. The Committee notes that the initiation of academic proceedings by way of a resolution of the Board of Governors of the university was based not only on the statements made in this press article but also on “the persistence of a campaign to discredit and undermine this university by the teacher Estela Cruz de García, in terms that go beyond the healthy principles of democratic coexistence and the exercise of rights” (resolution of the Board of Governors of the UNLaR dated 26 February 1999). The Committee observes that in this resolution, as the complainant indicates, no details are given of the substance of the campaign nor – apart from the press article dated 17 February 1999 – is any reference made to other press articles or to decisions or facts mentioned in the written reply of the university to this Committee. This being the case, the Committee recalls the principle that “the right to express opinions through the press or otherwise is an essential aspect of trade union rights” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 153], and hopes that the proceedings initiated will guarantee due process and that the conclusions of the investigations will take fully into account the principles of freedom of association

The Committee's recommendations

1. 131. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • As concerns the proceedings initiated against the trade union official Estela Cruz de García, the Committee hopes that these proceedings will guarantee due process and that the conclusions of the investigation will take fully into account the principles of freedom of association