Report in which the committee requests to be kept informed of development - Report No 336, March 2005

Case No 2369 (Argentina) - Complaint date: 01-JUN-04 - Closed

Allegations: The complainant organizations allege the violation of the right to strike of state employees of the Province of Buenos Aires as a result of the imposition of a compulsory conciliation procedure

1. 194. The complaint is contained in a communication from the Association of State Workers (ATE) and the Confederation of Argentine Workers (CTA) dated 1 June 2004.
2. 195. The Government sent its observations in a communication dated 1 September 2004.
3. 196. 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. 197. In its communication of 1 June 2004, the Confederation of Argentine Workers (CTA) and the Association of State Workers (ATE) objected to the decision of the Ministry of Labour of the Province of Buenos Aires to impose a compulsory conciliation procedure in the context of a collective dispute and the approval of this procedure by the National Ministry of Labour.
2. 198. The complainants indicate that article 14bis of the Constitution of Argentina guarantees trade unions the right to strike as a fundamental right. The Province of Buenos Aires quoted the Constituent Convention of 1994 with respect to the reform of the Provincial Constitution which, inter alia, sanctioned section 39 stating that work is a right and a social duty: “The Province recognizes the right to organize and the right of freedom of association, collective agreements, the right to strike and the guarantees of immunity for trade union representatives” and the Province guarantees public employees the right to negotiate their conditions of work and the settlement of collective disputes between the Province and public employees through an impartial body determined by law. Any act or contract which contravenes the guarantees recognized in the present subsection shall be deemed null and void.
3. 199. The complainant organizations allege that, despite the provisions relating to formal protection of the right to strike, the Province of Buenos Aires, via its Undersecretary for Labour, summoned the abovementioned primary trade unions to compulsory conciliation, thus directly curtailing the right to strike, with the Undersecretary in the role of conciliator between the parties to the dispute, despite being an official of the provincial government, which is one of the parties to the dispute. The complainants indicate that Decision No. 1509 states as follows:
   • In view of the dispute between the provincial executive authority of the central public administration and self-governing entities within its ambit and the employees thereof represented by the officially established representative trade union organizations of the sector and whereas: … The Undersecretary for Labour of the Province of Buenos Aires resolves: Article 1: To investigate the situation defined as a collective labour dispute by opening the compulsory conciliation procedure between the provincial executive authority of the central public administration and self-governing entities within its ambit and the employees thereof represented by the officially established representative trade unions …; Article 2: To instruct the trade union organizations to refrain from adopting any measure that might directly or indirectly modify the functioning and/or provision of services under their responsibility and to revert to the normal and habitual performance of their duties for the period of the compulsory conciliation procedure …
4. 200. According to the complainants, the abovementioned decision of the Undersecretary for Labour of the Province of Buenos Aires prescribed compulsory conciliation with respect to the pay claim submitted by the complainant organizations. The complainants consider that if the state employer itself can prescribe as it sees fit the suspension of legitimate measures of direct action available to its dependent workers, the exercise of trade union rights, particularly the right to strike, becomes impossible in practice.
5. 201. The complainants state that tension arose in the Province of Buenos Aires from the claim for a wage increase, which had been frozen for nearly ten years, from May 2004, as a direct consequence of the national Government’s decision to award a pay increase to its employees. The complainants point out that, from the start of the dispute until the unlawful call for compulsory conciliation, the parties to the dispute held specific talks on the issue in which the provincial government proposed guidelines for wage increases. These guidelines were rejected by all participants in the negotiations and for this reason alone compulsory conciliation was imposed on the parties, in clear violation of ILO standards.
6. 202. The complainants state that the trade union rejected the call to compulsory conciliation and expressed a series of objections. None of these was taken into account; on the contrary, the Province, committing further procedural irregularities, issued a new writ on 23 June, with a very short deadline, containing the threat of financial penalties, clearly seeking to obstruct the complainants’ legitimate right of defence.
7. 203. Finally, the complainants emphasize that, without resolving the substance of any of the submissions made, the Province of Buenos Aires evaded the proper jurisdiction for settling the dispute and took the matter to the National Ministry of Labour, Employment and Social Security. The National Ministry of Labour acknowledged the Province’s action and issued Decision No. 166, which ends as follows: “… The Association of State Workers, the Single Union of Education Workers and the Federation of Education Workers of Buenos Aires are hereby required to comply with the rulings of the provincial labour authority having competence in the dispute with the Government of the Province of Buenos Aires, with due regard for the provisions of Act No. 23551 on trade unions.” According to the complainants, this pronouncement is riddled with errors purely from the legal point of view. Despite the fact that it is not a judicial body, the National Ministry of Labour is concerning itself with constitutional matters. Even more serious is the fact that it is thereby interfering in the internal affairs of a federal State, the Province of Buenos Aires. Moreover, without having any authority to do so, it is determining the competence of the Ministry of Labour of the Province of Buenos Aires, even though this arrogated authority expressly violates local constitutional provisions, at the same time violating the Constitution of the Nation, inasmuch as article 75(23) thereof acknowledges ILO Conventions Nos. 87 and 151.

B. The Government’s reply

1. 204. In its communication of 1 September 2004, the Government states that it is important to remember that launching a conciliation procedure allows the administrative authority to mediate between the conflicting interests and positions, helping to find a peaceful solution to the dispute, with the key contribution being made by the parties concerned. In addition, the conciliation procedure provides a forum for taking stock and bridging differences, with the parties themselves exercising their autonomy and making reciprocal concessions, thereby reaching an agreement which in principle settles the underlying differences. A procedure of this kind should not entail submission to measures which restrict the freedom of negotiation of the parties involved.
2. 205. The Government adds that in Decision No. 1509/04, to which the complainant organizations objected, the nature of the activity affected was assessed, the situation was defined as a collective dispute and consequently compulsory conciliation was prescribed, applying the principles of procedural immediacy and appropriateness, in accordance with the provisions of Chapter III of Act No. 10149. Subjecting the exercise of the right to strike to a time limit cannot be faulted where the duration of the compulsory conciliation process is reasonable and does not entail de facto neutralization of established guarantees. Consequently, the Undersecretariat of the Ministry of Labour of the Province of Buenos Aires, in accordance with section 20 of Act No. 10149 and given the lack of any agreement or solution in the dispute between the provincial executive authority and its employees and within its own competence, ordered that the dispute should be subjected to compulsory conciliation for the purpose of reaching a peaceful agreement on the issue.
3. 206. The Government states that it should be emphasized that the intervention by the Undersecretariat was extended by the period stipulated in section 28 of Act No. 10149, i.e. 15 days. Indeed, the Association of State Workers (ATE) was notified of Decision No. 1509/04 of 16 June 2004 ordering the opening of compulsory conciliation proceedings. Moreover, the dispute in question came to an end with the acceptance of the offer from the provincial executive authority on 6 July 2004, as can be seen from memo No. 364 sent to the Governor of the Province of Buenos Aires signed by the ATE General Secretary. The Government adds that the conciliation procedure in question is not definitive, nor is it the context in which substantive decisions are taken; as stated above, it is merely a channel of negotiation in which social peace – temporarily – prevails. In other words, it was compulsory for the trade unions to participate in the conciliation procedure (which took place over an extremely limited period of time, as already stated), but they were in no way obliged to accept any proposed solution.
4. 207. As regards the intervention by the National Ministry of Labour, Employment and Social Security to which the complainants objected, the Government indicates that on 24 June 2004 the Ministry issued Decision No. 166/2004 requiring the ATE to comply with the provisions laid down by the competent provincial labour authority in the dispute with the Government of the Province of Buenos Aires, in accordance with the provisions of Act No. 23551. The fourth whereas of the above Decision is particularly important inasmuch as it states:
   • Whereas in these circumstances it should be noted that this Ministerial Office has recognized in Agreement No. 21 of 28 September 2000 between the National Labour Secretariat and the Labour Secretariat of the Province of Buenos Aires that, in accordance with the regulations in force of the Constitution of the Nation and the Constitution of the Province of Buenos Aires, the National and Provincial Ministries’ Acts and Act No. 25212 ratifying the Federal Labour Pact and its provincial equivalent No. 12415, the Government of the Province of Buenos Aires, via its Labour Secretariat, is competent not only to negotiate collectively with the trade union representatives of its own public employees and conclude the relevant collective labour agreements but also to hear and intervene in any labour disputes which arise in its territory.
   • According to the Government, it is therefore erroneous to maintain that the National Ministry of Labour is not competent to intervene in the dispute, inasmuch as its participation abides strictly by the provisions of Act No. 23551, for which the National Ministry of Labour is the implementing authority.
5. 208. Finally, the Government indicates that the complainants’ request that “anti-union” action should be ordered to cease and that the summons to compulsory conciliation issued by the executive authority of the Province of Buenos Aires should be declared null and void, becomes academic since, as stated above, the dispute in question came to an end with the offer proposed by the provincial executive authority on 6 July 2004 being accepted by the trade unions, thereby fully validating the role played by the Ministry of Labour of the Province of Buenos Aires.

C. The Committee’s conclusions

1. 209. The Committee observes that the complainant organizations in the present case allege that in the context of a pay claim, there has been a violation of the right to strike of state employees of the Province of Buenos Aires, guaranteed in the National Constitution and in the Constitution of the Province of Buenos Aires. Specifically, the complainant organizations object to: (1) Decision No. 1509/04 of 16 June 2004, whereby the Undersecretary for Labour of the Province of Buenos Aires ordered the opening of a compulsory conciliation procedure between the provincial executive authority of the central public administration and the employees thereof represented by the trade unions, and instructed the trade unions to refrain from adopting any measure that might directly or indirectly modify the functioning and/or provision of services under their responsibility and to revert to the normal and habitual performance of their duties for the period of the compulsory conciliation procedure; and (2) Decision No. 166/2004 of the National Ministry of Labour, instructing, to the same effect as Decision No. 1509/04, the Association of State Workers (ATE), the Single Union of Education Workers and the Federation of Education Workers of Buenos Aires to comply with the rulings of the provincial labour authority having competence in the dispute with the Government of the Province of Buenos Aires.
2. 210. The Committee notes that the Government indicates that: (1) given the lack of any agreement or solution in the dispute between the provincial executive authority and its employees and within that authority’s competence, it was ordered that the dispute should be subjected to compulsory conciliation for the purpose of reaching a peaceful agreement on the issue; (2) the conciliation procedure objected to does not make decisions on substantive matters but is merely a channel of negotiation in which social peace temporarily prevails; (3) the conciliation procedure was extended for the period specified in law – i.e. 15 days – and, although it was compulsory for the trade unions to participate in the conciliation procedure, they were in no way obliged to accept any solution proposed therein; (4) the intervention by the National Ministry of Labour, Employment and Social Security through Decision No. 166/2004 abides strictly by the provisions of Act No. 23551 on trade unions; and (5) the dispute in question was resolved with the acceptance by the trade unions of the offer made by the provincial executive authority on 6 July 2004.
3. 211. In this respect the Committee notes with satisfaction that the complainant organizations and the authorities of the Province of Buenos Aires reached an agreement which put an end to the dispute in question.
4. 212. The Committee observes that the present case concerns the public administration of a province and that the decision to open the conciliation procedure was adopted by the Undersecretary for Labour of the Province of Buenos Aires. The Committee recalls that “legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration is not compulsory and does not, in practice, prevent the calling of the strike” [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, para. 500]. In these particular circumstances, the Committee emphasizes that it would be desirable to entrust the decision of opening the conciliation procedure to an organ which is independent of the parties to the dispute and requests the Government to bring its law and practice into line with Conventions Nos. 87 and 98. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 213. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In the particular circumstances of this case, the Committee emphasizes that it would be desirable to entrust the decision of opening the conciliation procedure to an organ which is independent of the parties to the dispute and requests the Government to bring its law and practice into line with Conventions Nos. 87 and 98.
   • (b) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.