Interim Report - Report No 335, November 2004

Case No 2302 (Argentina) - Complaint date: 29-SEP-03 - Closed

Allegations: The complainant alleges obstruction and delays in the procedure for registering a trade union and obtaining trade union status, as well as dismissals and suspensions of trade union officials and members

228. The complaint is contained in a communication dated 29 September 2003 from the Trade Union of “Puntanos” Judicial Employees (SIJUPU). The latter sent in new allegations in communications dated 4 December 2003, 28 February, 11 March and 6 August 2004.

1. 229. The Government sent its observations in a communication dated 23 June 2004.
2. 230. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 231. In its communication of 29 September 2003, the Trade Union of “Puntanos” Judicial Employees (SIJUPU) states that it lodged an application (file No. 1-227-79288/01, 2001) with the national administrative authority for registration and official trade union status. The National Department for Trade Union Associations (DNAS) requested certain changes and made certain observations with regard to the SIJUPU application; the requisite changes were duly made within the time allowed, but the DNAS nevertheless used delaying tactics in order to avoid registering the union. In its communication of 4 December 2003, the SIJUPU states that on 9 October 2003, the authorities finally registered the union (Ministry of Labour, Employment and Social Security Decision No. 241). The complainant adds that following trade union petitions, the Higher Court of San Luis Province (STJSL) questioned the legitimacy of the SIJUPU and indicated that it was obliged to approve official trade union status, which has enabled it to make changes to the Statutes concerning Judicial Employees without any trade union consultation.
2. 232. In its communications of 4 December 2003, 28 February and 11 March 2004, the complainant also alleges that during a campaign of discrimination against its officials and members, the STJSL initially applied the following sanctions: preventive suspension for a period of 15 days in the case of Juan Manuel González, deputy general secretary, and of union members Vilma Fuentes de Ochoa and Susana Muñoz; preventive sanctions in the case of Fredy López Camacho, general secretary, Rubén Magallanes, social action secretary, and Gladis Abdón, records secretary; and a summons to give evidence in the case of Mario Becerra, trade union secretary, and Silvia Zavala, a member. In a subsequent communication the complainant stated that the STJSL decided to extend the suspension of Juan Manuel González, Vilma Fuentes de Ochoa and Susana Muñoz.
3. 233. Lastly, the complainant alleges that after a period of suspension of 55 working days, the STJSL (Ruling No. 46-04 of 10 March 2004) applied the sanction of dismissal (cesantía) against Vilma Fuentes de Ochoa and Susana Muñoz, and the sanction of permanent expulsion (exoneración) against Juan Manuel González.
4. 234. In its communication of 6 August 2004, the complainant organization alleges that the STJSL discusses trade union issues with various groups and individuals, disregarding the fact that the SIJUPU is the most representative organization, all of which violates trade union rights and the national legislation. The complainant organization alleges in particular that, on 4 August 2004, the STJSL invited to a bargaining table the Union Association of Court Employees (an unregistered association that has no trade union status), another group that falsely assumes trade union responsibilities, as well as the SIJUPU, to discuss pending issues which were already under discussion with the latter. The complainant organization indicates that it has challenged the lack of representativity, on both legal and trade union grounds, of that Association and that group, and that it has requested their exclusion.
5. B. The Government’s reply
6. 235. In a communication of 23 June 2004, the Government states that, through Ministry of Labour Decision No. 241 of 9 October 2003 and Decision No. 22 of 14 January 2004, the labour authorities agreed to register the union as it had requested. At no time did the SIJUPU take any steps to seek official trade union status within the meaning of section 25 of Act No. 23551 respecting trade union associations.
7. 236. As regards the allegations concerning sanctions against the SIJUPU officials and members, the Government states that, contrary to the claims made by the complainant, there is no record in the relevant files of any sanctions against Mario Becerra, Silvia Zavala, Rubén Magallanes, Gladis Abdón or Fredy López Camacho.
8. 237. With regard to Juan Manuel González, Vilma Fuentes de Ochoa and Susana Muñoz, the Government states that on 31 October 2003, the investigating judge of the Criminal and Correctional Division No. 2 in San Luis Province where González, Ochoa and Muñoz worked referred a report to the higher court concerning a police matter in which these employees are thought to have been involved and following which it ordered a preliminary inquiry on the grounds that the conduct of those involved merited administrative sanction. The San Luis Higher Court, in Ruling No. 262-STJSL-SA-03 of 19 November 2003, ordered an administrative inquiry into the actions of the employees concerned with a view to ascertaining whether or not offences had been committed. This resulted in Decision No. 46-STJSL-04 of 10 March 2004, which ordered the dismissal (cesantía) of Fuentes de Ochoa and Muñoz and the permanent expulsion (exoneración) of González, for their involvement in the following contraventions: (a) failure to observe the duty of confidentiality in cases in which they were involved or of which they had knowledge; (b) becoming involved in cases relating to third parties in which they were not officially involved; (c) commission of acts such as to undermine authority, decorum and respect for their superiors. The Government claims that the inquiry procedure provided for a right of defence for the individuals involved, and the Decision referred to has been contested by the employees concerned through review procedures which have not yet been completed.
9. 238. The Government states that, following an application for protection of constitutional rights (amparo), made in accordance with section 47 of Act No. 23551 respecting trade union associations by Juan Manuel González of the SIJUPU, who was dismissed following the inquiry, a ruling was handed down on 5 May 2004 ordering his reinstatement and payment of the arrears of wages owed to him for the period of his exclusion.
10. 239. The Government indicates, lastly, that in the light of the above, there has been no infringement of freedom of association, as the complainant has been registered as a trade union and the employees who were dismissed owed their dismissal to their conduct as noted in the administrative procedures, not to their membership of the SIJUPU; in the case of González, deputy secretary of the SIJUPU, the question has become pointless, as a judicial ruling has already been given ordering his reinstatement and payment of his wage arrears.

C. The Committee’s conclusions

1. 240. The Committee notes that in the present case, the complainant SIJUPU alleges obstacles and delays (of more than two years) in the procedure for registering a trade union which, among other things, it is claimed, has allowed the Higher Court of San Luis to amend the Statutes concerning Judicial Employees without consulting the trade union, and to apply sanctions (in some cases dismissals) against the union’s officials and members. According to the SIJUPU, the administrative authorities have still not accorded it official trade union status.
2. 241. As regards the alleged obstacles and delays in registering the SIJUPU, the Committee notes the Government’s statement to the effect that the Ministry of Labour, Employment and Social Security in its Decision No. 241 of 9 October 2003 and the Decision of 14 January 2004 registered the union as requested. The Committee notes that registration took place after the complaint had been presented to the ILO, and that the Government does not refer to the obstacles and delays in the proceedings which had lasted for two years and, according to the complainant, harmed labour relations with the employer body (the Higher Court of San Luis Province). Under these circumstances, the Committee requests the Government to take the measures needed to ensure that in future, the trade union registration procedure complies with the time allowed under the Act respecting trade union associations (not more than 90 days). At the same time the Committee expects that the court will consult the SIJUPU if it proposes to adopt measures that affect the interests of its members.
3. 242. As regards the alleged application by the SIJUPU for official trade union status (which confers on the most representative organization the right, inter alia, to bargain collectively; the complainant claims that this was requested at the same time as the application for registration), the Committee notes the Government’s information according to which the SIJUPU at no time made any formal application for official trade union status. In this regard, the Committee requests the Government, in the event that the SIJUPU applies for official trade union status and is shown to be the most representative organization, to grant it official status without delay. The Committee recalls in this respect that the most representative organization should be determined on the basis of objective and pre-established criteria.
4. 243. As regards the dismissal (exoneración) of Juan Manuel González, deputy general secretary of the SIJUPU, and the dismissal (cesantía) of Vilma Fuentes de Ochoa and Susana Muñoz, after a period of suspension of 55 days, the Committee notes the Government’s information according to which: (1) one judge informed the court of a police matter in which the employees in question were said to be involved; (2) the court decided to open an administrative inquiry with a view to determining whether or not administrative offences had been committed; (3) as a result of this, it was decided to impose the sanctions in question because the individuals concerned had failed to observe the duty of confidentiality, had failed to apologize and interfered in matters that had come to their knowledge; and had interfered in the affairs of third parties and committed acts that undermined authority, decorum and respect for their superiors; (4) during the proceedings, the workers’ right to a defence was respected. The union members Vilma Fuentes de Ochoa and Susana Muñoz applied for a review of the decision to apply sanctions, and this is still pending; and (5) as a result of an amparo application in accordance with section 47 of the Act respecting trade union associations, on 5 May 2004 an order was given for the reinstatement of Juan Manuel González and payment of arrears of wages owed to him for the period of his exclusion.
5. 244. Under these circumstances, the Committee requests the Government to: (1) ensure that Juan Manuel González has been reinstated and received payment of his wage arrears, as ordered by the court, and keep it informed in this regard; and (2) report on the results of the appeal for review lodged by Vilma Fuentes de Ochoa and Susana Muñoz, members of SIJUPU, regarding their dismissals.
6. 245. As regards the alleged preventive sanctions against Fredy López Camacho, general secretary, Rubén Magallanes, social action secretary, Gladis Abdón, records secretary, and the summons to give evidence sent to Mario Becerra, secretary, and Silvia Zavala, a union member, the Committee notes the Government’s denial that any sanctions were applied against the persons in question and its information according to which there is no record of this in any of the relevant personal files, and notes that the complainant has not communicated the dates on which sanctions are supposed to have been applied or any documented evidence to corroborate the allegations. In this respect, the Committee requests the complainant to send additional information concerning these allegations (nature of the sanctions and dates on which the sanctions were imposed, supporting documentation, etc.).
7. 246. Finally, as regards the allegations concerning the violation of trade union rights and of the national legislation by the STJSL, which purported to discuss trade union issues with various groups and individuals, disregarding the fact that the SIJUPU, according to the complainant, is the most representative organization, the Committee requests the Government to provide it rapidly with its observations.

The Committee's recommendations

1. 247. In the light of its foregoing interim conclusions, the Committee invites the Government to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures to ensure that in future the trade union registration procedure complies with the time limits provided for under legislation (not more than 90 days).
   • (b) The Committee expects that the Higher Court of San Luis Province will consult the Trade Union of “Puntanos” Judicial Employees (SIJUPU) when it considers measures that affect the interests of its members.
   • (c) The Committee requests the Government, in the event that the SIJUPU seeks official trade union status and is shown to be the most representative organization, to grant official status without delay.
   • (d) The Committee requests the Government to: (1) ensure that Juan Manuel González has been reinstated at his post and received payment of his wage arrears as ordered by the court, and keep it informed in this regard; and (2) report on the results of the appeal for review lodged by Vilma Fuentes de Ochoa and Susana Muñoz, members of SIJUPU, regarding their dismissals.
   • (e) As regards the alleged preventive sanctions against Fredy López Camacho, general secretary, Rubén Magallanes, social action secretary, Gladis Abdón, records secretary, and the summons to give evidence sent to Mario Becerra, secretary, and Silvia Zavala, a union member, the Committee requests the complainant to send additional information in this respect (nature of the sanctions and date on which they were imposed, supporting documentation, etc.).
   • (f) As regards the allegations concerning the violation of trade union rights and of the national legislation by the STJSL, which purported to discuss trade union issues with various groups and individuals, disregarding the fact that the SIJUPU, according to the complainant, is the most representative organization, the Committee requests the Government to provide it rapidly with its observations.