Definitive Report - Report No 334, June 2004

Case No 2224 (Argentina) - Complaint date: 30-SEP-02 - Closed

Allegations: The complainant organizations allege that the administrative authority for the health sector in Misiones Province did not transfer the trade union dues of the members of the ATE to the trade union between 1994 and 1996

1. 132. The complaint is presented in a communication from the Confederation of Argentine Workers (CTA) and the Association of State Workers (ATE) dated 30 September 2002.
2. 133. The Government sent its observations in communications dated 10 September 2003 and 20 January 2004.
3. 134. 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 complainants’ allegations

1. 135. In their communication of 30 September 2002, the Confederation of Argentine Workers (CTA) and the Association of State Workers (ATE) allege that the Ministry of Public Health of Misiones Province has not deposited in the ATE account for this purpose the trade union dues of members for the January 1994 to October 1996 period. The complainant organizations add that on 23 June 1998 they lodged a judicial request before the department for common pleas of the first instance of the Supreme Court of Justice of the Nation (CSJN), with regard to this matter against the Misiones Province, claiming the amounts withheld.
2. 136. The complainant organizations add that although, in September 1999, the Supreme Court ordered the sums owing to be paid, and in June 2001 ordered the seizure of assets of the province, Misiones Province replied, on 26 June 2002, this time invoking the provincial law for the consolidation of debt in the provincial state and requesting that the seizure of assets be lifted. The complainant organizations state that the provincial law invoked by Misiones Province lays down the consolidation by the provincial state of all recognized debt after 31 March 1991 and before 1 January 2000. The Supreme Court decided to admit the petition of Misiones Province and annulled the seizure of assets.
3. 137. According to the complainant organizations, it is important to note that the sums owing to the ATE do not represent a default on consideration in any form but are deducted by the State acting as "withholding agent" in accordance with legal authorization and that this money that has been withheld (wrongfully because the deposit has not been made to the account of the payee) does not belong to Misiones Province and should have never formed part of its assets. This sum belongs to the workers who are members of the trade union organization. This implies that the provincial state, with the support of the national State through its highest judicial body, carried out an actual confiscation of assets belonging to the workers and that, in spite of the committed violation being wholly recognized (by the province itself and by the Supreme Court), the provincial state was allowed to return the sum of money that never belonged to it in the form of provincial bonds, with interest only up to December 1999, through an exceedingly lengthy administrative process.
4. 138. Finally, the complainant organizations indicate that the trade union is still feeling the repercussions of the trade union dues deducted from the workers by the provincial state and wrongfully withheld from the payee account of the ATE from January 1994 to October 1996, i.e. eight years ago; and that the trade union, which groups together the workers of the public administration, relies solely on the support of its members and that this is the money that the provincial state has decided to withhold for itself, incorporating it into its assets.

B. The Government’s reply

1. 139. In its communications of 10 September 2003 and 20 January 2004, the Government indicates that, with regard to the allegations of the supposed violation of freedom of association relating to the conduct of the Ministry of Public Health of Misiones Province as withholding agent for trade union dues, there is a final decision by the Supreme Court of Justice of the Nation in which the application for the case in question of provincial law No. 3726, through which Misiones Province adhered to Law No. 25344 on economic and financial emergency, is considered legitimate and in accordance with the law.
2. 140. The Government adds that throughout 2000 and 2001, Argentina underwent an unprecedented financial crisis that led to a situation where payment to its external creditors and to international lending organizations came to a virtual halt and it was also impossible for it to pay all its internal debts. In the framework of this unusual state of affairs, the applicable law consolidated all recognized debt after 31 March 1991 and before 1 January 2000. The consolidated debt was paid with bonds (with a redemption period and regular interest) quoted on the stock exchange and widely used to pay the debts of the State. The reason for this law was the public scale of the economic and financial emergency affecting the State and the provinces and it was applicable to all obligations payable without exception, unless explicitly laid down in the law itself. On a number of occasions the constitutionality of the emergency provisions was confirmed by the courts, as in the case mentioned.

C. The Committee’s conclusions

1. 141. The Committee notes that the complainant organizations allege that the Ministry of Public Health of Misiones Province did not transfer to the Association of State Workers (ATE) the trade union dues of its members that had been deducted between January 1994 and October 1996 and that, as a result of a decision by the highest national legal authority, the province was allowed to pay the equivalent amount of the trade union dues deducted in the form of provincial bonds, with interest only up until December 1999, through an exceedingly lengthy administrative procedure.
2. 142. The Committee notes the Government’s statement that: (1) the Supreme Court of Justice of the Nation considered the application of the provincial law, through which Misiones Province adhered to Law No. 25344 on economic and financial emergency, legitimate and in accordance with the law; (2) during 2000 and 2001, Argentina faced a financial crisis that resulted in the cessation of payments to its external creditors and to international lending organizations and in the impossibility for it to pay all its internal debts; (3) the applicable emergency law in this case consolidated all recognized debt after 31 March 1991 and before 1 January 2000; (4) the consolidated debt was paid in the form of bonds that were quoted on the stock exchange and that were widely used to pay the debts of the State; (5) the reason for this law was the public scale of the economic and financial emergency affecting the national State and the provinces, and it was applicable to all debts without exception.
3. 143. The Committee notes that the Government recognizes that the trade union dues of members of the ATE deducted by the public health authorities of Misiones Province have not been transferred to the trade union organization. The Committee understands the economic and financial difficulties that have affected the country for some years now. However, the Committee emphasizes that the trade union dues do not belong to the authorities, nor are they public funds, but rather they are an amount on deposit that the authorities may not use for any reason other than to remit to the appropriately concerned trade union organization without delay.
4. 144. The Committee also notes that it has previously examined a similar complaint presented against the Government of Argentina on the failure to transfer the trade union dues deducted by the provincial authorities [see 300th and 302nd Reports, Case No. 1744, paras. 100 and 45, respectively] and on that occasion it reminded the Government that "failure to transfer union dues to trade unions may constitute serious interference in trade union affairs" and it requested the Government "to take appropriate steps to ensure that, even if the Government of the Province of La Rioja is faced with budget difficulties, the union dues are transferred to the trade union organizations".
5. 145. In these circumstances, the Committee requests the Government to take the necessary steps without delay to ensure that the competent authorities of Misiones Province immediately transfer to the ATE, in money of legal tender, the amount of the trade union dues of its members that it wrongfully withheld between January 1994 and October 1996, with payment of the corresponding interest.

The Committee's recommendations

1. 146. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take the necessary steps without delay to ensure that the competent authorities of Misiones Province immediately transfer to the ATE, in money of legal tender, the amount of the trade union dues of its members that it wrongfully withheld between January 1994 and October 1996, with payment of the corresponding interest.