Definitive Report - Report No 329, November 2002

Case No 2157 (Argentina) - Complaint date: 14-SEP-01 - Closed

Allegations: The complainant organizations allege a violation of the right to strike of education workers by virtue of the promulgation of ministerial resolutions; they also allege a failure to deduct trade union dues and the denial of trade union leave in the sector.

1. 185. The complaints are set out in the communications from the Latin American Federation of Workers in Education and Culture (FLATEC) dated 10 and 25 September 2001 and from the Confederation of Education Workers of Argentina (CTERA) dated 14 September 2001. The FLATEC subsequently provided additional information in the communications dated 8 November 2001, 5 March, 1 May and 10 June 2002. The CTERA submitted new allegations and additional information in the communications of 2 and 30 October 2001. The Government sent its observations in the communication dated 14 August 2002.
2. 186. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 187. In their communications of 10, 14 and 25 September, 30 October and 8 November 2001, and 5 March and 1 May 2002, the Latin American Federation of Workers in Education and Culture (FLATEC) and the Confederation of Education Workers of Argentina (CTERA) state that the Ministry of Labour, Employment and Social Security violated the right to strike of education workers by promoting resolution No. 480/2001, which qualified state and private education as essential services during the period of compulsory schooling, and resolved to incorporate the action that could be taken in said field into the standards of Executive Decree No. 843/2000 concerning strikes in essential services (FLATEC sent a copy of the rulings of first and second instance which declared the Decree and the aforementioned ministerial resolution unconstitutional).
2. 188. In its communication of 30 October 2002, the CTERA contests resolution No. 632/2001 of 3 October issued by the Ministry of Labour which, based on the stipulations of said resolution No. 480/01, provided that the action to be carried out by the aforementioned organization on 4 October 2001 should be integrated into the standards of Decree No. 843/00 concerning strikes in essential services.
3. 189. Lastly, in its communication dated 2 October 2002, the CTERA alleges that: (1) the administrative authority of the province of La Rioja has not deducted trade union dues from teachers affiliated to the Association of Teachers and Professors of La Rioja (AMP) since May 1999; and (2) on 1 July 1999, the Secretariat of Educational Development of the Ministry of Education and Culture of the province of La Rioja decided to suspend the granting of trade union leave (granted by resolution No. 196 of 20 April 1987) and/or secondments requested by the AMP until said organization duly demonstrated that it had been granted legal trade union status by the Ministry of Labour.

B. The Government’s reply

1. 190. In its communication of 14 August 2002, the Government states with regard to the allegations concerning resolution No. 480/01 of the Ministry of Labour, Employment and Social Security and Executive Decree No. 843/01 that the Argentine Trade Union of Private Tutors (SADOP) filed an action for amparo (enforcement of constitutional rights) before the courts requesting a precautionary measure to prevent the Decree and aforementioned resolution from being enforced. The Government adds that the judicial authorities approved said action and ordered the Ministry of Labour to abstain from applying said standard to the trade union organization SADOP and the education workers it represents.

C. The Committee’s conclusions

1. 191. The Committee observes that in this case the complainant organizations contest resolutions (Nos. 480/01 and 632/01) of the Ministry of Labour, Employment and Social Security which include the sector of education in the essential services regulated by Executive Decree No. 843/00. In this regard, the Committee notes that the Government states that the judicial authority declared that resolution No. 480/01 was unconstitutional when qualifying the sector of education as an essential service. Furthermore, the Committee observes that contested resolution No. 632/2001 was based on resolution No. 480/01, which, as already pointed out, was declared unconstitutional. The Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and that the education sector does not constitute an essential service in the strict sense of the term [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 526 and 545].
2. 192. As regards the allegations, according to which: (1) the administrative authority of the province of La Rioja has not deducted trade union dues from teachers affiliated to the Association of Teachers and Professors of La Rioja (AMP) since May 1999; and (2) on 1 July 1999 the Secretariat of Educational Development of the Ministry of Education and Culture of the province of La Rioja decided to suspend the granting of trade union leave (granted by resolution No. 196 of 20 April 1987) and/or secondments requested by the AMP until said organization duly demonstrated that it had been granted legal trade union status by the Ministry of Labour, the Committee notes with regret that the Government has not sent its observations; the Committee requests the Government to take measures to conduct an investigation into the alleged events and, if these allegations and their anti-union nature prove to be true, to take the necessary measures to restore the deduction of trade union dues and guarantee the enjoyment of trade union leave.

The Committee's recommendations

1. 193. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Regretting that the Government has not sent its observations, the Committee requests it to take measures to conduct an investigation into the allegations concerning the failure to deduct trade union dues from AMP members and the denial of trade union leave to AMP officials and, if these allegations and their anti-union nature prove to be true, to take the necessary measures to restore the deduction of trade union dues and guarantee the enjoyment of trade union leave.