Report in which the committee requests to be kept informed of development - Report No 335, November 2004

Case No 2283 (Argentina) - Complaint date: 30-JUN-03 - Closed

Allegations: Dismissal of trade union officers and suspension of a worker after notifying the enterprise of the establishment of a trade union and the holding of a strike demanding reinstatement of the deputy secretary-general and payment of a wage increase ordered by the Executive Branch

209. The complaint is contained in a communication from the Confederation of Argentine Workers (CTA) and the Commercial Workers’ Trade Union of Jujuy Province (Si.Tra.M.) of June 2003.

1. 210. The Government sent its observations in a communication dated 9 March 2004.
2. 211. 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. 212. In their communication of June 2003, the Confederation of Argentine Workers (CTA) and the Commercial Workers’ Trade Union of Jujuy Province (Si.Tra.M.) state that the reason for the complaint was sanctions and dismissals ordered by the Alberdi S.A. (COMODIN Supermarkets) enterprise against its employees and members of Si.Tra.M. after the employer was notified of the establishment of a trade union and of the list of members of the executive committee, and after the workers who were members of the trade union participated in a strike called by the union.
2. 213. The complainant organizations point out that Si.Tra.M. is a first-level trade union currently undergoing registration with the Ministry of Labour, Employment and Social Security in a procedure initiated on 23 April 2003, covering the entire territory of Jujuy Province, and affiliated to the Confederation of Argentine Workers (CTA). They state further that on 3 May 2003 the secretary-general of Si.Tra.M. notified the Alberdi S.A. (COMODIN Supermarkets) enterprise by post of the establishment of the trade union affiliated to the CTA and of the complete list of members of its executive committee. The complainant organizations allege that on the next day following the communication, the enterprise dismissed Mr. Ricardo Rolando Gramajo, deputy secretary-general of Si.Tra.M., in violation of his trade union immunity and in an obvious anti-union move.
3. 214. The complainants add that from that point on the Alberdi S.A. enterprise engaged in an open collective dispute with the trade union, and hence Si.Tra.M. voted unanimously in an assembly in favour of launching an action plan to fight for reinstatement of their dismissed founding member and compliance by the enterprise with the wage increase ordered for all private sector workers by the national Executive Branch through Decrees Nos. 1273/02, 2641/02 and 905/03. The workers had been owed this wage increase since July 2002, i.e. for nearly 12 months. On 4 June 2003, in accordance with Act No. 14,786 on compulsory conciliation and arbitration, Si.Tra.M. sent an official communication both to the Provincial Labour Directorate of Jujuy Province and to the local administration of the Ministry of Labour informing them of the union’s decision to take industrial action on 9 June 2003 and requesting that the State intervene in the conflict in accordance with the abovementioned Act by officially summoning the parties to a conciliation hearing. Neither the Jujuy Provincial Labour Directorate nor the Ministry of Labour, Employment and Social Security took any action whatsoever, displaying indifference to the trade union’s demands (on 30 April 2003, Si.Tra.M. had informed the Provincial Labour Directorate of Jujuy Province, in a note presented by its secretary-general, of the establishment of the trade union and the list of the members of its executive committee, enclosing a copy of the document indicating that the registration procedure had been initiated with the Ministry of Labour, Employment and Social Security, and hence the provincial administrative authority was not unaware of the existence of the trade union when it requested intervention in the dispute).
4. 215. The complainants point out that on 9 June 2003 the members of Si.Tra.M. held the strike as had been decided and notified. On the following day the employer sent a letter dismissing Mr. Andrés Ricardo Guanuco, organizing secretary of Si.Tra.M., alleging that he had distributed Si.Tra.M. leaflets and participated in the strike, such acts being considered as “activities unrelated to the enterprise and not authorized by it”. On the same day Mr. Ezequiel Eduardo López, second substitute committee member of Si.Tra.M., was suspended, citing identical grounds as those invoked in the case of Mr. Guanuco. Mr. Diego Ramiro Yonar, a Si.Tra.M. member, was also dismissed for distributing trade union leaflets and participating in the strike.
5. 216. The complainant organizations emphasize that, in their view, this constitutes a real violation of freedom of association by the Alberdi S.A. enterprise and by the State, which failed to guarantee the provisions of Conventions Nos. 87 and 98 through its national legislation, given that workers are being penalized for participating in direct action. The dismissal of these trade unionists vitiates the right to organize laid down in Article 2 of Convention No. 87.
6. 217. The complainants point out that Argentinean legislation – in principle – only protects representatives of trade union associations which have the status of a legally recognized trade union (trade union status). In principle, a broad interpretation of section 47 of Act No. 23,551 on trade union associations could include protection of founding members of trade unions in the process of registration (as in the case of Si.Tra.M.) or representatives of trade unions that are “merely registered”; however, the prevailing doctrine and national case law construe this provision as not including these cases, alleging that the Act provides expressly for protection of trade union representatives (of organizations with trade union status) and thus it should be understood that the legislation was intended to exclude organizations that were merely registered or in the process of registration.
7. B. The Government’s reply
8. 218. In its communication dated 9 March 2004, the Government states that the Commercial Workers’ Trade Union of Jujuy Province (Si.Tra.M.) did not, at the time at which the events occurred, have the status of a legally recognized trade union association. The organization in question applied for registration as a trade union on 23 April 2003 and the labour administration authority had requested it to carry out certain formalities laid down in national regulations which had not been completed. To date, they had not yet complied with the request and hence the application for registration was still pending.
9. 219. The Government points out that Mr. Gramajo’s dismissal by the Alberdi S.A. enterprise on 4 May 2003 and the dismissals of Mr. Guanuco and Mr. Yonar, allegedly for having taken part in a strike, according to the complainant organization, occurred before Si.Tra.M. had obtained registration as a trade union. Notwithstanding the above, even in these cases national legislation provides for adequate remedies against anti-union practices and acts of discrimination motivated by the exercise of the right to freedom of association and/or the worker’s trade union stance. Regarding the case at issue, it should be mentioned that section 47 of Act No. 23,551 on trade union associations allows any worker or trade union association to initiate expeditious proceedings with the competent courts to put a stop to any anti-union practice. The scope of this section and the protection it affords are not restricted to members, delegates or officers of workers’ organizations with trade union status; such action may be taken by any worker or by a trade union association which is merely registered or which has legal status.
10. 220. The Government adds that it should be noted in particular that the active subject of such action is “any worker or trade union association”. This section and the protection it affords are not restricted to members, delegates or officers, etc.; any worker or group of workers may take such action to seek effective remedy. Moreover, since no distinction is made between trade union associations, such action may be taken either by an association with trade union status or by one without such status; by a first-, second- or third-level trade union or even by a group of trade union associations. The object of the action is to protect the regular exercise of the right to freedom of association. Accordingly, case law has indicated that a broad interpretation should be given to the right to freedom of association, given that the provisions contained in Act No. 23,551 are not stand-alone provisions, but are derived from article 14bis of the national Constitution. Taken together with the provisions of Chapter XIII of the Act on trade union associations, sections 53 ff on unfair labour practices, this section affords the possibility of putting a stop to any act by the employer which impairs, obstructs or disrupts any of the rights laid down in the Act, through special expeditious court proceedings. It should be noted that the unfair labour practices specified in section 53 include reprisals against workers for taking part in legitimate trade union action or other trade union activities; dismissal, suspension or changing the terms and conditions of employment with the aim of preventing or hindering the exercise of the rights referred to in the Act, and discrimination of any kind motivated by the exercise of the trade union rights protected by its provisions. Moreover, it is pointed out that a complaint against unfair labour practices may be filed not only by the trade union association but also by the victim, and provision is made for fines to be imposed on employers guilty of such conduct.
11. 221. The Government adds that these legal provisions are supplemented by those contained in Act No. 23,592 on acts of discrimination, which provides for measures against persons who arbitrarily prevent the full exercise of the fundamental rights and guarantees recognized in the Constitution and in article 42 thereof, as amended in 1994. Read in combination, the abovementioned constitutional provisions, sections 47 and 53 of Act No. 23,551, and Act No. 23,592 afford adequate protection for all workers in the exercise of their trade union activity and, among others, prevent their dismissal, suspension or arbitrary change in their terms and conditions of employment motivated by such activity. According to the Government, in the light of the above, there can be no doubt that Argentinian law affords protection to all workers, whether or not they are members of a trade union, with or without trade union status.
12. 222. Lastly, the Government states that, in this case, the workers allegedly affected are legally empowered to seek legal protection from the judiciary branch through expeditious proceedings, as mentioned above, to ensure that the employer, in the event of having committed anti-union and discriminatory acts, ceases such practices and reinstates the workers dismissed on such grounds. In the Government’s view, it is clear that, contrary to the complainants’ allegations, Argentinian legislation affords all the mechanisms and legal guarantees necessary to protect freedom of association.

C. The Committee’s conclusions

1. 223. The Committee observes that the complainant organizations allege that, after having notified the Alberdi S.A. (COMODIN Supermarkets) enterprise on 3 May 2003 of the establishment of the Commercial Workers’ Trade Union of Jujuy Province (Si.Tra.M.), Mr. Ricardo Rolando Gramajo, deputy secretary-general, was dismissed on 4 May 2004. They allege further that, after the holding of a strike demanding reinstatement of the dismissed trade union officer and payment of a wage increase ordered by the Executive Branch in July 2002, the enterprise in question dismissed Mr. Andrés Ricardo Guanuco, organizing secretary, and Mr. Diego Ramiro Yonar, a trade union member, and suspended Mr. Ezequiel Eduardo López, second substitute committee member.
2. 224. In this respect, the Committee observes that the Government states that: (1) Si.Tra.M. did not, at the time at which the events occurred, have the status of a legally recognized trade union association; (2) the acts which are the subject of the complaint occurred before Si.Tra.M. had obtained registration as a trade union; notwithstanding the above, even in these cases national legislation provides for adequate remedies against anti-union practices and acts of discrimination motivated by the exercise of the right to freedom of association and/or the worker’s trade union stance; (3) in particular, section 47 of Act No. 23,551 on trade union associations allows any worker or trade union association to initiate expeditious proceedings with the competent courts to put a stop to any anti-union practice; (4) the scope of this section and the protection it affords are not restricted to members, delegates or officers of trade unions with trade union status; action may be taken by any worker or by a trade union association which is merely registered or has legal status; (5) taken together with the provisions of Chapter XIII of the Act on trade union associations, sections 53 ff on unfair labour practices, this section affords the possibility of putting a stop to any act by the employer which impairs, obstructs or disrupts the exercise of any of the rights provided for in the Act, through special expeditious proceedings. It should be noted that the unfair labour practices specified in section 53 include reprisals against workers for taking part in legitimate trade union action or other trade union activities; dismissal, suspension or changing terms and conditions of employment of employees with the aim of preventing or hindering the exercise of the rights referred to in the Act, and discrimination of any kind motivated by the exercise of the trade union rights protected by the Act; (6) these legal provisions are supplemented by those of Act No. 23,592 on acts of discrimination, which provides for measures against persons who arbitrarily prevent the full exercise of the fundamental rights and guarantees recognized in the national Constitution and in section 42 thereof, as amended in 1994; and (7) there can be no doubt that Argentinian law affords protection to all workers, whether or not they are members of a trade union, with or without trade union status.
3. 225. Firstly, the Committee observes that the Government: (1) does not deny the allegations concerning the dismissal of officers and one member (Mr. Ricardo Rolando Gramajo, deputy secretary-general, Mr. Andrés Ricardo Guanuco, organizing secretary, and Mr. Diego Ramiro Yonar) and the suspension of one officer (Mr. Ezequiel Eduardo López, second substitute committee member) of a trade union being established in the Alberdi S.A. (COMODIN Supermarkets) enterprise, neither does it deny the circumstances in which they are alleged to have occurred (after notifying the establishment of the Si.Tra.M. trade union and after the holding of a legitimate strike, of which the employer was notified); and (2) points out that the legislation contains provisions and remedies – including expeditious proceedings – which provide protection against acts of anti-union discrimination. The Committee requests the Government to keep it informed of the outcome of any judicial action initiated by the trade unionists in question and expects that, if the dismissals and suspension of these trade unionists are found to be anti-union in nature, they will be reinstated in their posts without loss of wages and without delay and, if reinstatement is not possible, that they will be adequately compensated. The Committee recalls in general that “no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present”, that “the necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish”, and that “the dismissal of workers because of a legitimate strike constitutes discrimination in employment” [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, paras. 690, 703 and 704].
4. 226. Furthermore, the Committee notes from the statement of the complainant organizations that the dismissals result in a denial of their right to organize. The Committee notes that the Government points out that, at the time at which the facts alleged in the complaint occurred, Si.Tra.M. did not have legal recognition as a trade union association and that the labour administration authority had requested it to carry out certain formalities laid down in national regulations and that, since this had not yet been done, the application for registration as a trade union was still pending. In this respect, the Committee firmly expects that, as soon as the Si.Tra.M. trade union has complied with the necessary legal requirements, the administrative authority will grant it trade union registration as it requested. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 227. 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 keep it informed of the outcome of any judicial action initiated by the dismissed or suspended trade unionists mentioned in the complaint in the Alberdi S.A. (COMODIN Supermarkets) enterprise and expects that, if the dismissals and suspension of these trade unionists are found to be anti-union in nature, they will be reinstated without loss of pay and without delay and, if reinstatement is not possible, that they will be adequately compensated.
   • (b) The Committee firmly expects that, as soon as the Si.Tra.M. trade union organization has complied with the necessary legal requirements, the administrative authority will grant it trade union registration as it requested. The Committee requests the Government to keep it informed in this respect.