Definitive Report - Report No 335, November 2004

Case No 2312 (Argentina) - Complaint date: 11-NOV-03 - Closed

Allegations: The complainant challenges the decision of the administrative authority to refuse to grant it official trade union status despite the fact that it is the most representative trade union in the enterprise

248. The complaint is contained in a communication from the Lockheed Aircraft Argentina S.A. Workers’ Union (SITLA) dated 11 November 2003. The Congress of Argentine Workers (CTA) supported the complaint in a communication dated 12 November 2003.

1. 249. The Government sent its observations in a communication dated 28 April 2004.
2. 250. 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 complainant’s allegations

1. 251. In its communication of 11 November 2003, the Lockheed Aircraft Argentina S.A. Workers’ Union (SITLA) contests Decision No. 70 of 7 July 2003 of the Ministry of Labour, Employment and Social Security, in which it rejected the complainant’s application for trade union status under the terms of Act No. 23551. The complainant states that it is an organization that is “merely registered”, and operates in that capacity within the company Lockheed Aircraft Argentina S.A. It also maintains that it is by a considerable margin the majority entity at the company. Members pay membership dues directly, without any system of wage deductions by the company.
2. 252. The complainant states that it applied for official status as the trade union representing the largest number of workers at the company, and that in a decision of 7 July 2003 this was refused on the grounds that there were other trade union organizations that have official trade union status (section 29 of the Act respecting trade unions (LAS)). The complainant recalls that trade union status gives the organization concerned the following exclusive rights: (a) the right to sign collective labour agreements (section 31(a) of LAS); (b) the right to initiate and run social initiatives (section 1(a), Act No. 23660); (c) employment stability for trade union representatives (sections 48 and 52 of LAS); (d) payment of trade union membership dues through direct deductions (section 38 of LAS); (e) exemption from payment of taxes and other levies (section 49); and (f) the right to elect staff delegates, as bodies that are “merely registered” can do this only on a substitute basis (section 41). This means that trade union organizations that are “merely registered” are restricted to a subordinate role and a somewhat nebulous existence compared to those with official status. All these rights are denied SITLA by current law and by the refusal of the Ministry of Labour which is the subject of the complaint.
3. 253. Lastly, the complainant states that section 29 of the Act respecting trade unions violates the ILO’s freedom of association Conventions, constitutes a blatant attempt to impede the establishment of a trade union body, and prevents workers from exercising the right to freedom of association.
4. B. The Government’s reply
5. 254. In its communication of 8 April 2004, the Government indicates that SITLA is “merely registered” and operates in that capacity at the Lockheed Aircraft Argentina S.A. It was registered in accordance with Ministry of Labour Decision No. 282/97. The Government also states that SITLA applied for official trade union status on the grounds that it had the largest number of members among workers employed at the undertaking. In a decision dated 7 July 2003, trade union status was denied in accordance with section 29 of Act No. 23551 respecting trade unions, according to which such status may be granted to an enterprise trade union only if there is no first-level trade union association in the field, activity or category in question. The events leading up to the case have shown that the petitioning association is an enterprise union, and that its field of activity and its membership are already covered by trade union associations that have official trade union status (the Government cites the following: Association of Private Air Transport Staff; Association of Airline Pilots; Association of Airline Flight Engineers; Association of Civilian Staff in the Argentinian Navy, Buenos Aires Province; Association of National Armed Forces Civilian Staff; San Lorenzo Trade Union of National Armed Forces Civilian Staff; Association of Professional and Technical Civilian Staff at Area Material Córdoba; Association of Higher and Professional Staff of Commercial Air Companies; Association of Protection and Safety Technicians and Employees in Air Transport; Argentinian Association of Airlines; Association of Aviation Staff; and the Trade Union of Employees of the Altos Hornos Zapla Military Manufacturing Enterprise).
6. 255. As regards the complainant’s allegation concerning section 29 of Act No. 23551, the Government states that with regard to freedom of association as a human right, what matters is not the particular conditions for granting official trade union status, but whether or not the fundamental freedoms are safeguarded in the country in question. These fundamental freedoms are indisputably safeguarded in Argentina. According to the Government, the trade union system in Argentina is governed by the following institutional principles: (1) there are no restrictions on the right to set up workers’ associations or on the ability of the latter to obtain official status. Proof of this is the existence of 2,776 trade unions, among many “registered” and “most representative” unions; (2) there is no restriction on the establishment of trade unions or federations, no obstacles to international affiliation, no obligation to be affiliated to a confederation, in a prevailing climate of total political pluralism; (3) there are no obstacles to free and democratic internal organization, with autonomy from the Government and from employers; (4) suspension and closure of trade unions by administrative decision is prohibited; (5) there is no absence of legal protection from anti-union harassment of delegates and activists – section 47 of Act No. 23551 expressly states that any worker who is obstructed in the normal exercise of freedom of association may apply to the courts to order an immediate cessation of such anti-union behaviour; (6) in Argentina, all possible types of trade unions coexist: activity-related, trade and enterprise – this is evident from the 573 works unions protected by law, some of them involved in relevant public activity; and (7) contrary to what has been alleged regarding heavy-handed state interference, the current “map” of coverage by different trade unions with official status was determined by the workers. If that were not the case, the current overlaps in representation in the private sector, which results in extensive trade union coverage, would be inexplicable.
7. 256. According to the Government, the Argentinian trade union system, which was developed through the struggle of the workers’ movement, was chosen by the workers and enshrined in the law currently in force, which is consistent with the spirit and the letter of Convention No. 87. Accordingly, the principle of the “most representative trade union” is defined in accordance with international practice. The ILO – which has also recognized this principle – was a pioneer in this area when it had to decide the form of representation in its own bodies. In Argentinian law, registered trade union organizations – like the complainant – have the legal capacity to pursue their specific objective, which is to defend the interests of workers. In this regard, Act No. 23551 provides that workers can: petition the Government and employers; represent their members’ interests; draw up in full freedom their own statutes and elect their representatives; draw up their programme of action and organize their administration; adopt direct action measures; promote improvements to legislation; bargain collectively, where there is no more representative organization; and enjoy employment stability for candidates in union elections and take action to combat unfair practices by employers.
8. 257. The Government indicates that the concept of “most representative trade union” arises from an overriding practical requirement: that of reconciling the principle of freedom of association with the need to consolidate workers’ representation in order to make it more effective and for other reasons to do with the difficulties posed by overlapping or divided representation of workers. This system in Argentina is therefore based on a trade-off between the principle of freedom of association, which requires a respect for trade union pluralism, and better protection for workers’ collective interests, which by its very nature demands unity of action. Proliferation of enterprise trade unions is not encouraged, but nor is any attempt made to restrict the existence or recognition of such organizations.
9. 258. In the light of this, the Government states that the issue of trade unions at the level of enterprise, occupation, trade or category must, under Argentinian law, be addressed in the light of section 10 of Act No. 23551, according to which: “Workers’ trade union associations shall be defined as those constituted by: (a) workers engaged in the same activity or in related activities; (b) workers engaged in the same trade, occupation or category, even if they carry out different activities; (c) workers employed at a single enterprise.” This provision gives effect to Article 2 of Convention No. 87, in that it enables workers to establish organizations of their choosing based on the following types: (a) vertical unions, covering workers from a single branch, industry or economic activity; (b) horizontal trade unions, covering workers in a single trade or occupation, even if they work in different branches or sectors; and (c) enterprise trade unions. It is thus clear, in the Government’s view, that Argentinian law provides for the existence of both enterprise trade unions and trade or occupational unions.
10. 259. The Government states that sections 29 and 30 of the Act respecting trade unions do not restrict the right of workers to form and join organizations of their own choosing, as required by Convention No. 87. Enterprise trade unions can exist and freely exercise the rights accorded under the law to all “merely registered” organizations, and can obtain official union status if, in the area, activity or category in question, there is not already a first-level trade union organization. Trade unions representing particular trades, occupations or categories have identical rights, as they can have official status where an existing union or association with such status represents different interests and the workers are not covered by the existing union.
11. 260. The Government adds that under section 30 of the Act respecting trade unions, “where the workers’ trade union association with official union status takes the form of an activity-related union or association, and the petitioning association has adopted the form of a trade, occupational or category trade union, official trade union status can be granted if there are different trade union interests such as to justify separate representation”. It is thus important to keep in mind the fact that different groups within a given workforce may have different interests, which may give rise to different trade union associations. The Government considers that in the light of the above, it can be concluded that Argentinian law allows enterprise trade unions like the complainant organization to exist and to enjoy the same official trade union status.

C. The Committee’s conclusions

1. 261. The Committee notes the allegation made by the Lockheed Aircraft Argentina S.A. Workers’ Union (SITLA) that, although it covers most of the workers employed at Lockheed Argentina, the administrative authority rejected its application for official trade union status (which confers certain exclusive rights such as signing collective agreements, protection of union officials, payment of trade union dues via deductions from wages by the employer, the right to undertake and manage social initiatives, etc.), in accordance with section 39 of the Act respecting trade unions. According to the complainant, this provision is not consistent with the freedom of association Conventions.
2. 262. The Committee notes the Government’s statements to the effect that: (1) the application by SITLA for official trade union status was rejected on the grounds that, under the terms of section 29 of the Act respecting trade unions, such status may be granted to an enterprise union only if there is no first-level trade union already operating for the area, activity or category in question; (2) the field of activity and workers in question are already covered by existing trade union associations with official status; (3) the Argentinian trade union system is consistent with both the letter and the spirit of Convention No. 87, and the principle of “most representative trade union” that has been adopted is in line with the international practices recognized by the ILO; (4) in Argentina, this system of “most representative trade union” is based on a trade-off between the principle of freedom of association, which demands respect for trade union pluralism, and better protection of collective workers’ interests, which by its very nature demands unity of action; (5) those trade union organizations that are “merely registered” and do not have official union status are able to pursue their particular objective (petition the Government and employers, represent the interests of their members, draw up their own statutes in full freedom and elect their representatives, draw up a programme of action and organize their administration, adopt direct action measures, promote improvements to legislation, bargain collectively where there is no more representative organization, enjoy employment stability for candidates in elections and take action to combat unfair practices by employers); and (6) Argentinian law provides for the existence of enterprise trade unions and trade or occupational unions, and sections 29 and 30 of the Act respecting trade unions do not restrict the right of workers to establish organizations of their own choosing. Lastly, the Committee notes the Government’s statement to the effect that there are no restrictions on the right to establish workers’ associations or on the right of such organizations to acquire official status; there are no restrictions on the right to found trade unions or federations, no obstacles in the way of international affiliation, and no obligation to be affiliated to a confederation; there are no obstacles to free and democratic internal organization; suspension and closure of trade unions by administrative decision are prohibited; and there is no absence of legal protection against anti-union harassment of trade union delegates and members (section 47 of the Act respecting trade unions).
3. 263. The Committee notes, first, that the Government does not deny the claim made by the complainant SITLA to be the most representative organization at the Lockheed undertaking. The Committee notes that, even if it is the most representative trade union organization, under the terms of section 29 of the Act respecting trade unions, SITLA does not enjoy the rights associated with official trade union status (in particular, the right to collective bargaining, special protection for its officials, deductions of trade union membership dues, and the right to run social initiatives), because, as the Government indicates, there are already other trade union organizations with official status in the area and activity in question.
4. 264. In this regard, the Committee notes that, when the Committee of Experts on the Application of Conventions and Recommendations examined in 2003 the application of Convention No. 87 by Argentina, it considered that this provision impeded the possibility of an enterprise union acquiring trade union status, even if it has demonstrated that it is the most representative, if there is already a trade union with trade union status representing the activity in the field concerned.
5. 265. In this context, the Committee recalls that when it examined another similar case relating to Argentina, in which a trade union organization sought trade union status on the grounds that it was the most representative organization, it stated that: “observing that up to now recognition has been refused by virtue of section 29 of Act No. 23551 on trade unions, the Committee must draw the Government’s attention to the fact that, to the extent that this provision prevents the most representative trade union organizations in an enterprise from bargaining at the enterprise level, it is incompatible with the principles of freedom of association and collective bargaining. Consequently, the Committee further requests the Government to take the necessary measures to ensure that this provision of Act No. 23551 is amended” [see 307th Report, Case No. 1872, para. 52].
6. 266. Under these circumstances, the Committee requests the Government to take the necessary measures to amend section 29 of the Act respecting trade unions and ensure that SITLA can freely exercise the rights enshrined in the freedom of association and collective bargaining Conventions (Nos. 87 and 98), ratified by Argentina.

The Committee's recommendations

1. 267. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Given that, under the terms of section 29 of the Act respecting trade unions, the most representative trade union organization at the enterprise level – the Lockheed Aircraft Argentina S.A. Workers’ Union (SITLA) – does not enjoy, inter alia, the right to collective bargaining because there is already a branch union at the workplace with official status, the Committee considers that this provision is not consistent with Article 2 of Convention No. 87, and requests the Government to take the necessary steps to amend the provision in question.
   • (b) The Committee requests the Government to ensure that SITLA can freely exercise the rights enshrined in the freedom of association and collective bargaining Conventions (Nos. 87 and 98), ratified by Argentina.
   • (c) The Committee notes that the legislative provision in this case has already been commented upon by the Committee of Experts on the Application of Conventions and Recommendations.