Report in which the committee requests to be kept informed of development - Report No 346, June 2007

Case No 2485 (Argentina) - Complaint date: 30-APR-06 - Closed

Allegations: The complainant organization alleges excessive delays and obstacles to its registration as a trade union organization, as well as acts of anti-trade union discrimination against its general secretary

247. This complaint is contained in a communication of the Union of Self-Convened State Workers (SITEA), of April 2006.

1. 248. The Government sent its observations in a communication of January 2007.
2. 249. 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. 250. In its communication of April 2006, SITEA alleges that, on 22 March 2004, it applied to be registered as a trade union organization that, at the time of submission of the complaint, the registration in question had still not been effected and that the administrative delays violate the principles of freedom of association.
2. 251. The complainant organization also alleges that the Government of the Province of Mendoza took advantage of the delay in the trade union organization registration process to alter the employment conditions of the union’s general secretary, specifically in regard to levels of remuneration, following a decision not to allow him to work overtime. The complainant organization adds that the victim lodged a legal appeal for protection of constitutional trade union rights (amparo sindical), demanding that the anti-trade union behaviour cease. This was rejected by the Third Labour Court of Mendoza Province on the grounds that the individual in question was not covered by the regulations governing the protection of trade union leaders from dismissal. An extraordinary appeal against this ruling was lodged with the High Court of Justice of Mendoza Province.
3. B. The Government’s reply
4. 252. In its communication of January 2007, the Government states the following, regarding the allegation concerning the delay affecting the registration of SITEA as a trade union organization: (1) the application for registration of SITEA as a trade union organization was received on 22 March 2004; and (2) from the time of its receipt until November 2006, the application was the subject of various observations made by the National Directorate of Trade Union Associations in the light of Act No. 23551 and Regulating Decree No. 467/88, which govern the formation and organization of trade unions in the Argentine Republic. The following observations were made: (a) the Statutes and the name adopted (given that private, as well as public, employees are covered), presumed the inclusion of retired persons and elderly pensioners. This was unfounded because, under articles 25, 21 and 22 of the Labour Contracts Act, members of trade union organizations must be in a dependent relationship; (b) some of the members do not belong to the integrated retirement and pensions system or belong to the provincial system; and (c) there was no compliance with the quota of female employees required by Decree No. 514/03.
5. 253. The Government states that the said observations were submitted and rectified by the complainant organization during 2004, 2005 and 2006. The draft document permitting the entity’s application for registration as a trade union organization to go forward was approved on 10 December 2006 and is currently awaiting the Minister’s signature. The process of trade union registration of the complainant organization, through the Ministry of Labour as the administrative labour authority, is proceeding normally. There has been no delay in granting registration, which will soon be effective in accordance with the outline of the procedure previously set out.
6. 254. As to the alleged acts of anti-trade union discrimination against the general secretary of the complainant organization, the Government states that, irrespective of the judicial examination of the question of trade union immunity, it should be taken into consideration that the State has not sought, at either the national or the provincial level, to undermine the status of the trade union leader. Nor has the provincial state authority done anything to prejudice the activities of the trade union leader being established, given that overtime does not constitute part of normal and regular remuneration, but is linked to a specific increase in workload and if no such increase has occurred then there is no reason for the State to pay overtime. None of the rights enshrined in the statutes of the public employees of Mendoza Province (Act No. 560 and amendments) has been infringed. This Act guarantees the following, in Chapter IV, under the heading of Rights: “Staff members have the right: (a) to protection against dismissal; (b) to fair remuneration; (c) to payments, benefits and compensation; (d) to commendations and bonuses; (e) to equal career opportunities; (f) to training; (g) to leave, exemptions and allowances; (h) to organize; (i) to social assistance (for employees and their families); (j) to transfers and exchanges; (k) to lodge appeals; (l) to reinstatement; (m) to resign from their posts; (n) to continue in their posts and to receive benefits upon retirement or resignation; (o) to insurance (covering employees and their families).”
7. 255. The Government stresses that at no time has the complainant objected to the nature of his post and yet the curious argument has been put forward that his overtime cannot be cut because it would prejudice his activities as a trade union leader and that, in this instance, the State has committed an act of discrimination which violates Conventions Nos 87 and 98. The Government states that Mr Víctor Hugo Dagfal has not been transferred, that his remuneration has not been reduced, and that no acts have been committed that would, under any circumstances, disrupt his trade union activities.
8. 256. The Government states that, in accordance with Decrees Nos 1706/88, 1898/89 and 1103/93, the Ministry of Finance of the province has the power to authorize overtime in the interests of serving the public at the General Income Tax Directorate of the province and must lay down the duration of the overtime and the number of staff needed to cover it, while the Director of the Tax Directorate is responsible for deciding which staff shall be on duty during the periods in question. The said Decrees also lay down that staff called on to work a double shift shall be repaid the additional costs incurred. As a result, and to meet customer service requirements for the number of clients and for economic and financial reasons (the need to step up tax collection activity), the tax collection body introduced an evening shift of three hours a day as an extraordinary measure. It should be pointed out that the selection and designation of staff to work overtime are not regulated, but depend on the discretion of the Director of the General Income Tax Directorate, based on service and internal organizational requirements, as well as the equal rights of all staff members in the distribution of overtime.
9. 257. The Government stresses that the measure challenged did not constitute an illegal alteration of working conditions, but that the authority was exercising its duty to assign the personnel under its control. The fact that the individual in question is a public employee working at the General Income Tax Directorate means that he cannot claim ignorance of the system, nor can he point to non-existent implications, or charges based on mere statements or inference, or indeed claim that the authority is flouting the rules of the General Income Tax Directorate. The Government states that an extraordinary appeal has indeed been lodged against the ruling rejecting the appeal for protection of constitutional rights based on trade union protection and is currently being examined by the High Court of Mendoza Province (Case No. 86573, entitled “Dagfal Víctor Hugo”; Case No. 33465, entitled “Dagfal Víctor Hugo versus Mendoza Province, appeal for the protection of constitutional rights, for annulment and inconsistency”). Finally, the Government stresses that this case has been treated in the same way as any other, regardless of the fact that the individual concerned is a trade union leader. Overtime was paid because the increase in workload made it necessary. Had there not been an increase in the workload, overtime would not have been paid, as to do so would have meant that the State was squandering public funds.

C. The Committee’s conclusions

1. 258. The Committee notes that, in the present case, the complainant organization objects to administrative delays affecting the registration as a trade union organization of SITEA, which applied for registration on 22 March 2004. It further alleges that the Government of Mendoza Province took advantage of this delay to alter the employment conditions of the general secretary of SITEA, (more specifically, those relating to levels of remuneration following a decision to deny the general secretary of SITEA the opportunity to work overtime).
2. 259. As to the alleged delay in the registration of SITEA as a trade union organization, the Committee notes the Government’s statement to the effect that: (1) the application for the registration of SITEA as a trade union organization was received on 22 March 2004, (2) from the time of its receipt until November 2006, the application was the subject of various observations made by the National Directorate of Trade Union Associations in the light of Act No. 23551 and Regulating Decree No. 467/88 which govern the formation and organization of trade unions in the Argentine Republic. The following observations were made: (a) the statutes and the name adopted (given that private, as well as public employees are covered) presumed the inclusion of retired persons and old-age pensioners. This was unfounded because, under articles 25, 21 and 22 of the Labour Contracts Act, members of trade union organizations must be in a dependent relationship; (b) some of the members do not belong to the integrated retirement and pensions system or belong to the provincial system, and (c) there was not compliance with the quota of female employees required under Decree No. 514/03;(3) the said observations were submitted and rectified by the organization during 2004, 2005 and 2006. The draft document permitting the entity’s application for registration as a trade union to go forward was approved on 10 December 2006 and is currently awaiting the Minister’s signature; (4) the process of trade union registration of the complainant organization, through the Ministry of Labour as the administrative labour authority, is proceeding normally. There has been no delay in granting registration, which will soon be effective.
3. 260. The Committee expresses regret at the fact that it should take over three years to register a trade union organization. The Committee expects that SITEA will be registered as a trade union organization in the near future (given that the Government states that the issues raised in the observations made by the administrative authority have already been addressed and the draft resolution approving the application for trade union registration is currently awaiting the Minister’s signature).
4. 261. With regard to the allegation that the authorities of Mendoza Province took advantage of the delay in the registration of SITEA as a trade union organization to alter the employment conditions of the general secretary of SITEA (more specifically, those relating to levels of remuneration following a decision to deny the general secretary of SITEA the opportunity to work overtime), the Committee notes the Government’s statement that: (1) overtime is not covered by normal and regular remuneration, but is linked to an increase in workload and that, if no such increase has occurred, then the State is not obliged to pay overtime; (2) none of the rights guaranteed by the statutes of public employees of Mendoza Province have been infringed; (3) Mr Víctor Hugo Dagfal has not been transferred and his level of remuneration has not been reduced. Furthermore, no action has been taken that could, under any circumstances, disrupt his trade union activities; (4) the selection and assignment of staff to work overtime are not regulated, but depend on the discretion of the Director of the General Income Tax Directorate, based on service and internal organizational requirements, as well as the equal rights of all staff members in the distribution of overtime; and (5) an extraordinary appeal has indeed been lodged against the ruling rejecting the appeal for protection of constitutional rights based on trade union protection and is currently being examined by the High Court of Mendoza Province.
5. 262. In this respect, given the information available, the Committee considers that it is not in a position to determine whether the decision not to allow the general secretary of SITEA to work overtime was based on his trade union activities. The Committee therefore requests the Government to keep it informed of any ruling issued by the High Court of Justice of Mendoza Province with regard to the extraordinary appeal lodged by the general secretary of SITEA.

The Committee's recommendations

1. 263. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that it has taken over three years to register a trade union organization and expects that SITEA will be registered as a trade union organization in the very near future, given that the Government states that the issues raised in the observations made by the administrative authority have already been addressed and the draft resolution allowing the application request for trade union registration to proceed is currently awaiting the Minister’s signature.
   • (b) The Committee requests the Government to keep it informed of any ruling issued by the High Court of Justice of Mendoza Province with regard to the extraordinary appeal lodged by the general secretary of SITEA.