Report in which the committee requests to be kept informed of development - Report No 344, March 2007

Case No 2458 (Argentina) - Complaint date: 30-NOV-05 - Closed

Allegations: The complainant organizations allege that during a collective dispute with the enterprises Aerolíneas Argentinas SA and Austral Líneas Aéreas Cielos del Sur SA, during the course of which a strike was called in July 2005, the labour administration authority on two occasions invoked the Mandatory Conciliation Act, suspending all direct action and ultimately the right to strike, unilaterally fixed a minimum level of service on the grounds that it regarded air transport as an essential service, and initiated summary proceedings with a view to fining the trade union organizations. The complainant organizations allege that the companies concerned took advantage of the measures adopted by the labour administration to dismiss or otherwise discipline workers for exercising their legitimate right to strike

281. The complaint is contained in communications from the Aeronautical Technical Workers’ Association (APTA) and the Association of Airline Pilots (APLA) dated 30 November and 1 December 2005.

1. 282. The Government sent its observations in a communication dated 22 August 2006.
2. 283. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 284. In their communications of 30 November and 1 December 2005, the Aeronautical Technical Workers’ Association (APTA) and the Association of Airline Pilots (APLA) state that Aerolíneas Argentinas SA and Austral Líneas Aéreas Cielos del Sur SA, which is controlled by the former, both being owned by the transnational enterprise Marsans based in Spain, have been implementing an openly repressive policy aimed at banning all trade union activity by their workers, a fact made clear by what follows. The complainants indicate that as a result of the mounting incidences of contraventions by the companies of the law and of the applicable collective agreement, as well as the relevant provisions relating to freedom of association, a collective dispute began in early 2005 and led ultimately to a strike in July of that year, when the labour administration invoked the Mandatory Conciliation Act (No. 14786), suspending all direct action for a period of 20 working days – which meant in fact a complete ban on all strike activity for almost one month.
2. 285. The complainants add that, given the impossibility of resolving the collective dispute owing to the companies’ blatant and repeated refusal to negotiate effectively and in good faith, the trade union association declared on 22 September that it would be taking legitimate trade union action including the exercise of the right to strike. Subsequently, following an immediate summons by the labour administration and express and specific measures to block the union action, an agreement was reached with the companies on a new period of talks and the suspension of the strike. As a result of this, during the new round, in this particular case of 60 days, the union representatives refrained from exercising their right to call strike action. When the 60 days had elapsed, and there appeared to be no real willingness on the part of the employers to resolve the differences between themselves and the workforce that had arisen in connection with, among other things, the continuing and marked decline in the purchasing power of wages, the APTA and APLA on 24 November ordered that trade union action continue as the only means of defending the rights of their members.
3. 286. According to the complainants, the labour administration (the Ministry of Labour, Employment and Social Security), in a manner that was manifestly arbitrary and illegal, and without any legal competence to do so, decided once again to invoke the mandatory conciliation procedure, which resulted in another suspension of strike action. The labour authority ordered the suspension of the strike under penalty of fines (Act. No. 25212) and measures to restrict trade union representation (Act No. 23551); issued an administrative order on 25 November requiring a minimum level of service to be maintained on the grounds that air transport was deemed (arbitrarily and illegally) to be an essential service; and initiated summary proceedings with a view to fining the trade unions concerned up to 8 million Argentinian pesos.
4. 287. The complainants consider that the above information suggests that the labour authority has adopted attitudes and conduct which seriously undermine rights of freedom of association by seeking to obstruct the right to strike and intimidate trade unions and workers in order to deter them from taking part in any action relating to the dispute. Since July 2005 and until the date on which the complaint was presented, that is, for a period of 120 days, the trade unions have been prevented by the recurrent interference of the labour authority from taking any appropriate union action. Instead, under penalty of serious financial sanctions and the possible withdrawal of recognition from the unions, the latter have been arbitrarily prevented by the state authorities from undertaking any union activity, which means in practice that such activity has been prohibited.
5. 288. The complainant organizations add that in addition to the temporary restriction on the right to strike, there has also been an attempt to impose restrictions through the arbitrary and illegal decision to define air transport as an essential service, imposing a minimum service of 50 per cent of all domestic flights and 75 per cent of international flights. Under the terms of current legislation (section 24 of Act No. 25877), the labour authority has no authority to extend the concept of “essential service” established in the same Act; that is the exclusive prerogative of an “independent commission” acting in accordance with the relevant regulation. The Executive had 90 days to issue the appropriate regulation (section 24 in fine of Act No. 25877), which must be consistent with “the principles of the International Labour Organization”. Despite this provision, which invokes the principles established by the ILO’s supervisory bodies with regard to the right to strike, the Government has failed to issue the appropriate regulation and, by invoking an obsolete provision (Decree No. 843/00), continues to grant itself prerogatives which it does not legally have by extending the concept of essential service, although that is not envisaged in this case by the terms of section 24 of Act No. 25877.
6. 289. The complainants allege that, quite apart from the persistent and arbitrary refusal to negotiate a solution to the collective dispute, the companies concerned have been disrupting the union’s activities in order to take advantage of the labour authority’s arbitrary action to discipline and dismiss workers for exercising their legitimate right to strike. Following the labour authority’s actions, the companies began a public campaign of intimidation against the unions and a private campaign against individual workers represented by APTA and APLA.
7. 290. According to the complainants, the companies, citing National Labour Relations Department (DNRT) Order No. 148/05, began notifying workers unilaterally and illegally that they were required to turn up for work or face sanctions. In this way, simply because workers represented by APTA and APLA were exercising their right to strike, the company attempted to disrupt that action by imposing minimum levels of service. Nevertheless, following the intimidation, the companies announced numerous dismissals on the grounds that the minimum service established by DNRT Order No. 148/05 had not been maintained, with the ultimate aim of prohibiting all strike action, whatever the purpose. The companies have thus discriminated against workers for participating in union actions, in some cases even dismissing workers for exercising the right to strike, and have applied pressure that is illegal by virtue of its anti-union and discriminatory character by dismissing or suspending workers, whether or not they are members of the unions. It has in this way blatantly violated the principle of freedom of association enshrined in Act No. 23551 concerning trade union associations and in article 14bis of the National Constitution, as well as in ILO Conventions Nos. 87 and 98.
8. B. The Government’s reply
9. 291. In its communication of 22 August 2006, the Government recalls that the complainant organizations base their action on the fact that Aerolíneas Argentinas SA and Austral Líneas Aéreas Cielos del Sur SA (controlled by the former), both of which are owned by the transnational enterprise Marsans based in Spain, had disrupted the unions’ direct action. The Government’s understanding is that it is being made responsible for allowing arbitrary application of Act No. 14786, which was invoked by the companies in order to discipline and dismiss workers for exercising their lawful right to strike. It is claimed that the companies, citing the DNRT Order No. 148/05, began notifying workers that they were required to work or be subject to disciplinary sanctions, and invoked the minimum service recognized by the labour authority in another DNRT Order No. 145/05. The complainants allege that the companies have applied unlawful, anti-union, discriminatory pressure through dismissals and suspensions of workers, both union members and non-members. The complaint alleges violations of Act No. 23551 concerning trade union associations, section 14bis of the national Constitution, ILO Conventions Nos. 87 and 98, and section 53 (concerning unfair practices) of Act No. 23551.
10. 292. The Government’s understanding is that the complainants are alleging the arbitrary application by the Government of Act No. 14786, including a call for mandatory conciliation; suspension by decree of the strike; arbitrary fines (Act No. 25212); incorrect application of national and international provisions in setting minimum levels of service (Decree No. 147/05) on the grounds that air transport is considered an essential service; and lastly, as a consequence of this, imposition of an arbitrary fine on the trade union through summary proceedings.
11. 293. The Government maintains that the documentation that has been submitted indicates that there are two disputes. The first began in May 2005, when four consecutive strikes took place at the instigation of the unions (on 8 and 9 May, 5 August and 22 September 2005). The second related to the strike of 24 November 2005. Lastly, on 2 December 2005, an agreement was signed between the parties, and was approved by the labour authority on 15 December. The Association of Airline Pilots (APLA) lodged an amparo (protection of constitutional rights) appeal against the minimum services fixed in the last dispute. The court of first instance rejected the amparo appeal and that ruling was itself referred to a higher court.
12. 294. As regards the mandatory conciliation procedure (Act No. 14786), the Government states that in the dispute in question, the labour authority acted in response to requests from the companies. The action (case file 1125633/05) started with a complaint by the company dated 26 July against the members of the APTA Executive Committee for their part in a demonstration in front of the company premises at Ezeiza and Aeroparque aimed at bringing about a work stoppage, without knowing the reasons for the claims being made. This is attested by notarial certificate No. 102, which indicates the unions’ demands in connection with the action and how this took place. This resulted in Ministry Order No. 83, of the same date, by which the provisions of Act No. 14786 are extended to cover the parties so that no objection can be made to intervention by the Ministry of Labour.
13. 295. The Government states that, with that measure, which in accordance with section 2 of Act No. 14786 suspended direct action for a period of 20 days, a series of developments took place, leading ultimately to further union direct action and an agreement being reached on 23 September 2006. This included provisions for non-remunerative payments and an undertaking by the company to grant employees long-term contracts. The union suspended the direct action and the employer agreed not to take disciplinary action against those involved. Everything was implemented at the Ministry of Labour through a conciliation order. The dispute thus ended with the conclusion of the agreement, according to which a fixed sum was to be paid out on a non-remunerative basis and the workers given long-term contracts, and with the subsequent approval of the agreement by the Ministry of Labour through ministry resolution No. 99 of 28 September 2005. It is thus clear that the State intervened only once and at the request of the parties, since the agreement was approved at their request; the dispute was thus effectively settled by the parties themselves. The dispute ended because the parties had defined the object of the dispute in terms of a non-remunerative payment and a reclassification of the employees, allowing the other disputed points to be dealt with through negotiation, which should begin in not more than 60 days, according to the agreement of 23 September 2005. There is nothing to suggest that the talks would fail, as might be inferred from the fourth clause of the agreement, and which might have led to a renewal of the dispute; nothing of the kind was reported to the Ministry of Labour. The actions taken by the Ministry of Labour have been entirely in accordance with international principles.
14. 296. The Government adds that the new intervention by the State in the dispute through resolution 143/05 is justified, given that negotiations had been broken off, as opposed to what happened before, when both parties sought official approval for an agreement. The new order for mandatory conciliation under the terms of DNRT resolutions Nos. 142 and 143 is entirely justified because it was a response to the fact that the unions had abandoned negotiations, which led to the strike of 24 November, and is in line with the ILO’s recommendations. Consequently the measure was applied in accordance with the principles of immediacy and timeliness with a view to achieving a consensual and peaceful settlement. The Government indicates that the airport where the union action took place has the country’s greatest concentration of domestic air traffic, the action was repeated throughout the year, and the average minimum internal flight in Argentina is 500 km.
15. 297. With regard to the implementation of sanctions in accordance with Act No. 25212, they are not linked to the union’s direct action but with the violation of the agreed period of social peace declared by the conciliation authority, and in accordance also with the principles of the ILO. The Ministry of Labour acted in accordance with international principles, since the sanctions provided for in DNRT resolutions Nos. 142 and 143 are based on intervention by the State calling for mandatory conciliation in a manner entirely consistent with the international standards to which we have referred. At any event, it had to be emphasized that the case made by the complainants ceased to have any object once the proposal was accepted, and the attitude of the unions fully justified the action of the Ministry of Labour through the National Department for Conflict Resolution.
16. 298. As regards the allegation concerning the establishment of minimum and essential services, the Government states that in the context of the dispute, there was a period of “promoting reconciliation” but this did not produce any positive result, and that as regards the move to extend the definition of essential service to cover air transport, the size of Argentina and its difficulties of communication and infrastructure need to be borne in mind. Lastly, the Government states that in March 2006, Decree No. 272/2006 was approved, implementing the third paragraph of section 24 of the law which incorporated a number of ILO recommendations. Under the terms of the Decree, the commission that had been proposed would be called the “Guarantees Commission” and would advise the Executive on matters arising from the definition “essential services”, and gather information from the regulatory bodies of the services concerned. It is emphasized that this body can be consulted by the Ministry of Labour either acting at the request of the parties or on its own initiative. It will be made up of five persons of acknowledged technical, professional or academic expertise in labour relations, labour law or constitutional law.

C. The Committee’s conclusions

1. 299. The Committee notes that in the present case the complainant organizations allege that in the context of a collective dispute at Aerolíneas Argentinas SA and Austral Líneas Aéreas Cielos del Sur SA, during which a strike was called in July 2005, the labour administrative authority on two occasions applied the Mandatory Conciliation Act to suspend all direct action, resulting in the suspension of the right to strike; unilaterally imposed a minimum level of service on the grounds that it considered air transport to be an essential service; and initiated summary proceedings with a view to fining the trade unions involved. The complainant organizations allege in this regard that the companies, taking advantage of the measures adopted by the labour administrative authority, dismissed or disciplined workers for exercising their legitimate right to strike.
2. 300. In this regard, the Committee notes with satisfaction that, according to the Government’s information, the companies and the trade unions reached an agreement (approved by the administrative authority) in December 2005. That agreement provided for, among other things, the immediate reinstatement of all the workers dismissed in connection with the dispute and the non-application of disciplinary measures, and a commitment to establish an agenda setting out priorities with a view to an examination of all the issues of concern to the parties (the Government provides a copy of the agreement in question). Under these circumstances the Committee will not pursue its examination of these allegations.
3. 301. Nevertheless, the Committee notes that the allegations relate to two issues which have arisen in connection with the intervention of the administrative authority in the dispute, and on which the Committee has already expressed an opinion in previous cases relating to Argentina. Specifically, these issues are the call for the parties to the dispute to enter into mandatory conciliation, and the unilateral imposition by the administrative authority of minimum levels of service.
4. 302. As regards the call for mandatory conciliation, the Committee recalls that it would be desirable to entrust the decision of opening the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute [see the Committee’s 336th Report, Case No. 2369, para. 212; 338th Report, Case No. 2377, para. 403; and 342nd Report, Case No. 2420, para. 221].
5. 303. As regards the imposition by the administrative authority of a minimum service on the grounds that a given activity is deemed to be essential, the Committee takes note of the Government’s information that: (1) in 2006, Decree No. 272/2006 implementing the third paragraph of section 24 of Act No. 25877 was approved; this established a Guarantees Commission to advise on matters brought before it by the Executive in relation to the definition of essential service; and (2) the Guarantees Commission can be convened by the Ministry of Labour acting at the request of the parties in a collective dispute or on its own initiative, and will be made up of five members of recognized technical, professional or academic expertise in labour relations, labour law or constitutional law. In this regard, the Committee refers to its earlier conclusions in relation to the system for establishing minimum levels of service, in which it raised questions relating to the functioning of the system in practice:
6. The Committee is of the opinion that the new system represents an improvement over the previous one, in that the Guarantees Commission advising the administrative authority includes representatives of workers’ and employers’ organizations, as well as other independent members. Nevertheless, the final decision on the fixing of minimum services still rests with the administrative authority. Under these circumstances, the Committee requests the Government to provide information on the practical application of the new provision and specifically, to supply information on the number of cases in which the administrative authority has modified the terms of rulings on minimum services issued by the Guarantees Commission [see 343rd Report, Case No. 2377, para. 18].
7. Moreover, the Committee requests the Government to provide information on the composition of the Guarantees Commission and to indicate in particular whether it includes representatives of the social partners.

The Committee's recommendations

1. 304. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Reminding the Government of the principles referred to in the conclusions, the Committee once again requests the Government to provide information on the composition of the Guarantees Commission and to indicate in particular whether it includes representatives of the social partners.