Report in which the committee requests to be kept informed of development - Report No 348, November 2007

Case No 2499 (Argentina) - Complaint date: 14-JUN-06 - Closed

Allegations: The complainant alleges that the judicial authorities of the Province of Catamarca prohibit workers in the sector from holding union meetings and that sanctions have been imposed on union officials for no valid reason

1. 185. The complaint is contained in a communication from the Union of Employees of the National Judiciary (UEJN) of 14 June 2006.
2. 186. The Government sent its observations in a communication dated 5 July 2007.
3. 187. 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 complainant’s allegations

1. 188. In its communication of 14 June 2006, the UEJN alleges that the judiciary of the Province of Catamarca in the Republic of Argentina adopts measures and hands down decisions that limit, obstruct and/or prohibit various aspects of the right to organize and freedom of association. Specifically, the UEJN states that the obstruction and curtailment of freedom of association take the following forms: (1) infringement of the right of assembly: the Supreme Court of the Province of Catamarca, through its decision No. 3966 of 20 March 2006, prohibited meetings at the workplace; and (2) persecution of trade union officials: the Supreme Court has instituted unfounded legal proceedings and handed down discriminatory decisions against founding members of the union branch in that province. Different kinds of sanctions have been applied and have even included fines imposed on union officials on the basis of fictitious events.
2. 189. The complainant adds that all these measures are adopted in a socio-economic climate marked by intense conflict brought about by delays in the payment of wages, and led to a downturn in both the private and public sectors as a result, among other factors, of the currency devaluation of January 2002. Specifically, within the judiciary, where these measures are implemented, the situation is highly conflictual because of the insufficient budget allocated to the judiciary, in addition to constant “reductions” and the inequitable management of these scarce resources. The dispute is further exacerbated by the fact that wage increases have been granted only to magistrates.
3. B. The Government’s reply
4. 190. In its communication of 5 July 2007, the Government states that, with regard to the prohibition on holding meetings during working hours in the buildings of the province’s judiciary, the measure was taken as a result of complaints made by workers from several courts that they could not carry out their judicial activity (investigations, hearings, etc.) because the noisy demonstrations inside the buildings hindered their work. The decision in question, No. 3966, was preceded by an identical document issued by the High Court of Córdoba Province in June 2004, extraordinary agreement No. 247 dated 28 May 2004, which prompted the ILO recommendation that the right to organize “shall not impair the efficient operation of the administration or service concerned”, which is why the court in this province reinstated the prohibition on holding meetings in judicial buildings; “cease holding meetings within judicial authority buildings, in accordance with the terms of the ILO recommendation, because they hinder the efficient operation of the judicial administration”.
5. 191. The Government adds that the principles of effectiveness, efficiency and uninterrupted service add a particular dimension to the organization of the justice service, because of the exclusivity of its public functions, of which it is the sole provider, and it is hence essential that they be guaranteed. Although Argentinian legislation widely recognizes workers’ right of assembly, that does not mean it accepts the right of workers to be absent from the workplace during working hours to attend meetings called by the trade union to which they belong. The recognized right of workers must be interpreted in a reasonable context and bearing in mind the significance of judicial activity, because otherwise there would be a potential risk that the whole staff could be absent from the workplace en masse at any time for the reason indicated (to attend meetings).
6. 192. The meetings held in workplaces and during working hours by employees of this judiciary were not measures of direct action or strike. The right of the employees of this Province’s state authority to strike has been adequately guaranteed. The restriction on holding assemblies in workplaces and during working hours in which they are open to the public has not been imposed to prevent measures of direct action, but only to guarantee the continuity and normal performance of judicial services, and to create suitable conditions to allow litigants and members of the public to circulate freely. Judicial operations require continuous activity (during fixed hours), because the very nature of this service guarantees all citizens the constitutional right of access to justice.
7. 193. The Government states that this type of dispute has already been examined by the Committee, giving the example of Case No. 2223 presented by the Trade Union Association of Judicial Employees of the Province of Córdoba (AGEPJ) and the Argentine Judicial Federation (FJA) concerning a high court decision in that province, and that it is on that prior case that the high court in question this time, in the Province of Catamarca, based the decision at issue in the present complaint. The Government reiterates what it said on that occasion: “the decision taken by the High Court does not violate the provisions of ILO Convention No. 87. The restriction on holding assemblies in workplaces and during working hours in which they are open to the public has not been imposed to prevent measures of direct action, but only to guarantee continuity and normal performance of essential and necessary services and to allow litigants and members of the public to circulate freely. Judicial employees do have, and are not denied, the right to meet or to attend assemblies convened by the trade union association to which they belong, but that this must take place outside the workplace and outside working hours. The Government also ratifies the constitutional powers of the High Court of Justice to regulate how its services are performed by its employees, based on the judicial doctrine of the High Court of Justice when it upheld that the relations between provincial public employees and the Government upon which they depend are governed by the various provisions of local character that make up the appropriate administrative law.”
8. 194. With regard to the alleged legal proceedings against members of the complainant organization, the Government notes that the judicial authority in the province has reported that no such proceedings exist, nor have any been initiated. The only employee who has been sanctioned is Ms Patricia Bustamante, but the sanction was imposed on her by the secretariat of the commercial tribunal and court of first instance, for strictly work-related reasons. It adds that at the time of the sanction the union was not recognized by the court, as recognition was only obtained later, so that particular employee could hardly be described as a union official.
9. 195. The Government states that there are currently no requests for meetings or assemblies, the pay rise was higher than that requested by the union, there are no proceedings against any unionized worker, and there has been no anti-union discrimination whatsoever since, at the time of the sanction, the sanctioned employee did not hold that office.

C. The Committee’s conclusions

1. 196. The Committee observes that, in the present case, the complainant alleges that the judiciary of the Province of Catamarca is infringing the workers’ right of assembly by prohibiting, through decision No. 3966 of 20 March 2006, the organization of meetings at the workplace, and that the Supreme Court of the province has instituted unfounded legal proceedings and handed down discriminatory decisions against founding members of the UEJN branch by imposing sanctions and fines on union officials on the basis of unconfirmed events.
2. 197. With regard to the alleged infringement of the workers’ right of assembly, by prohibiting the organization of meetings at the workplace, the Committee notes the Government’s statement that: (1) the measure was taken as a result of complaints made by workers from several courts that they could not carry out their judicial activity (investigations, hearings, etc.) because the noisy demonstrations inside the buildings hindered their work; (2) the principles of effectiveness, efficiency and uninterrupted service add a particular dimension to the organization of the justice service, because of the exclusivity of its public functions, of which it is the sole provider, and hence it is essential that they be guaranteed; (3) although Argentinian legislation widely recognizes workers’ right of assembly, that does not mean it accepts the right of workers to be absent from the workplace during working hours to attend meetings called by the trade union to which they belong; (4) the restriction on holding assemblies in workplaces and during working hours in which they are open to the public has not been imposed to prevent measures of direct action, but only to guarantee the continuity and normal performance of judicial services, and to create suitable conditions to allow litigants and members of the public to circulate freely; (5) judicial operations require continuous activity (during fixed hours), because the very nature of this service guarantees all citizens their constitutional right of access to justice; and (6) this type of dispute has already been examined by the Committee and it is on that prior case that the High Court in the Province of Catamarca based the decision at issue in the present complaint.
3. 198. The Committee observes that it has already examined similar allegations concerning judicial employees in Argentina, and accordingly refers to the conclusions formulated on that occasion, as follows [see 332nd Report, Case No. 2223, para. 246]:
4. The Committee recalls that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and that it is for employers and workers’ organizations to agree on the modalities for exercising this right. The Committee further recalls that the Labour Relations (Public Service) Convention, 1978 (No. 151) – ratified by Argentina – lays down in Article 6 that “such facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work” and that “the granting of such facilities shall not impair the efficient operation of the administration or service concerned”. In these circumstances, the Committee requests the Government to invite the parties to negotiate with a view to achieving agreement on the modalities for the exercise of the right to hold meetings, including the place for such meetings, as well as on the granting of facilities provided for under Article 6 of Convention No. 151.
5. The Committee requests the Government to keep it informed of developments in this regard.
6. 199. With regard to the allegations that the Supreme Court of the province has instituted unfounded legal proceedings and handed down discriminatory decisions against founding members of the UEJN branch by imposing sanctions and fines on union officials on the basis of unconfirmed events, the Committee notes the Government’s statement that: (1) no legal proceedings have been taken against members of the founding committee of the UEJN; (2) the only employee who has been sanctioned is Ms Patricia Bustamante but, at the time of the sanction the union was not recognized by the court, as recognition was only obtained later, so that particular employee could hardly be described as a union official. In that regard, while the complainant indicates that the Supreme Court as employer adopted sanctions against the founders of the trade union (which was in the process of being established), given that it has not provided any further details (names, union office, dates, etc.) pertaining to these allegations, the Committee will not proceed with their examination.

The Committee's recommendations

1. 200. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Recalling that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and that Article 6 of the Labour Relations (Public Service) Convention, 1978 (No. 151) – ratified by Argentina – lays down that “such facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently both during and outside their hours of work” and that the granting of such facilities shall not impair the efficient operation of the administration or service concerned, the Committee requests the Government to invite the parties to negotiate with a view to achieving agreement on the modalities for the exercise of the right to hold meetings, including the place for such meetings, as well as on the granting of facilities provided for under Convention No. 151. The Committee requests the Government to keep it informed in this regard.