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

Case No 2515 (Argentina) - Complaint date: 06-AUG-06 - Closed

Allegations: The complainant alleges obstruction and discrimination in the procedure for obtaining trade union status

201. The complaint is presented in a communication from the National Federation of University Teachers, Researchers and Creators (Historic Federation of Teachers) dated August 2006.

1. 202. The Government submitted its observations in communications dated 10 and 31 October 2007.
2. 203. 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. 204. In its communication of August 2006, the Historic Federation of Teachers alleges that on 16 December 2003 it applied to the Ministry of Labour for trade union status, in pursuance of the requirements for obtaining such status which are set forth under article 14bis of the National Constitution and Act No. 23551. The requirements, observations and requests formulated by the Ministry of Labour were duly complied with. The application for trade union status was brought before the Ministry’s National Directorate of Trade Union Associations (DNAS) in file No. 1081645/2003 and, in April 2006, the relevant legal departments ruled in favour of granting the requested status. Although the requirements set forth in the Act have been met, the administration has not gone on to issue its approval. Section 26 of Act No. 23551 states that “once the requirements have been met, the administrative labour authority shall take a decision within 90 days”. To date, no reply to the specific request has been received through any form of administrative act, be it formal or verbal. In the light of the above and given the delay in granting the requested status, the complainant believes that the Government of Argentina is in breach of certain provisions of the ILO Conventions, the National Constitution (article 14bis) and Act No. 23551 (on trade union organizations).
2. 205. The complainant also states that although the events described would in themselves be sufficient reason to lodge the complaint, it is necessary to describe the context of this state omission, which encompasses concrete acts of trade union discrimination and violations of trade union freedom and autonomy by the Government. Two other second-level trade union bodies represent the interests of teachers in national universities: the National Federation of University Teaching Staff (CONADU) and the Federation of University Teachers (FEDUN). The latter, FEDUN, was formed recently following a split with CONADU. The complainant alleges that although the Historic Federation of Teachers has fulfilled identical legal requirements to those met by FEDUN, the latter obtained trade union status within a period of exactly six months after being registered as a trade union, while the complainant has not yet received administrative approval to that effect. According to the complainant, this anomaly, which has previously occurred in identical procedures, constitutes unequal treatment before identical requirements and is a primary example of the Ministry of Labour’s unlimited discretion in the exercise of the powers conferred upon it as the authority responsible for implementing Act No. 23551.
3. 206. The complainant adds that a series of administrative acts, including actions and omissions by the Ministries of Labour and Education, constitute serious instances of trade union discrimination, of which the failure to grant the trade union status requested is merely one example. In this respect, the complainant cites the following acts of discrimination against it: (1) on 22 June 2005, the Ministry of Education initiated negotiations with a view to addressing wage-related issues concerning teachers and researchers in national universities. FEDUN, which was not yet registered as a trade union, was called on to participate, whereas the Historic Federation of Teachers was not; (2) a wage agreement was concluded between the Ministry of Education, the National Inter-University Council, as representative of the employers, and FEDUN, an association without trade union or legal status. The Historic Federation of Teachers was excluded from this agreement, even though the provisions it contains will apply to the entire sector (the agreement concluded has been approved by the Ministry of Labour); (3) the payment of a so-called “solidarity fee” was established in favour of the signatory trade union. At a hearing before the Ministry of Labour, the Ministry of Education undertook to pay this fee. The so-called “solidarity fee” forms part of the wage amount established in a wage agreement, which is paid by the employer and the trade union. The payment promised by the Ministry of Education constitutes an unlawful subsidy and an unfair practice; (4) FEDUN was registered as a trade union under resolution No. 782 of 26 September 2005, following the abovementioned events. FEDUN subsequently applied for trade union status in file No. 1146126/2005 (DNAS). On 23 March 2006, FEDUN was granted trade union status by the Ministry of Labour under resolution No. 256/2006; (5) it should be noted that by the time the complaint was lodged, almost three years had elapsed since the Historic Federation of Teachers had first applied for trade union status, and that it had already taken three years for the organization to become registered as a trade union. FEDUN was registered as a trade union within a period of three months and was granted trade union status before the end of the six-month time limit specified by law; (6) the Historic Federation of Teachers comprises 20 first-level trade union associations from all over the country, while FEDUN is made up of only five.
4. 207. The complainant notes that the present case concerns an allegation of flagrant violation of the principles set forth in the ILO Conventions, the National Constitution and national legislation, and that illegal, discretionary and discriminatory conduct of the kind described in this case has been commonplace in the activities of the Ministries of Labour and Education since at least the year 2000; the present case must accordingly be resolved and the State’s anti-trade union conduct must cease. The Government’s discriminatory conduct interferes directly with the internal activities of the Federation and is in violation of its rights deriving from federative autonomy and autonomy of action. The Argentinean Government’s acts clearly favour one trade union body to the detriment of the Historic Federation of Teachers. Also called into question, once again, is the system of representative monopoly of the Argentinean trade union model, provided for under Act No. 23551, this time from the point of view of the very broad discretion exercised by successive governments when granting trade union status. In fact, the complex mechanism provided for under Argentinean legislation for granting trade union status to a trade union association is not only inconsistent with Convention No. 87, but has a negative impact, in all cases, on workers’ associations and the exercise of their freedom of association rights. Such a system also allows Governments to make discretional use of the procedure and turn a right of workers and trade unions into a political privilege. The present case of discrimination has also been made possible by the specific legal mechanism’s lack of transparency.
5. B. The Government’s reply
6. 208. In its communication of 10 October 2007, the Government indicates that, according to the information record of the Ministry of Labour, Employment and Social Security, file No. 1-2015.1.081.645/2005 is with the director of the Ministry’s cabinet, demonstrating that the authorities at the highest level have tasked themselves with achieving a definitive and satisfactory resolution to the issue lying at the heart of the present complaint. In its communication of 31 October 2007, the Government indicates that contrary to the allegations, the complainant organization participated in meetings in which matters relative to the salaries of the professors and researchers of national universities were discussed.

C. The Committee’s conclusions

1. 209. The Committee notes that in the present case the Historic Federation of Teachers alleges that on 16 December 2003 it applied to the Ministry of Labour for trade union status and that, despite it having fulfilled the requirements set forth by law, the administration has not taken a decision in this respect (the complainant alleges discriminatory treatment by the authorities in relation to another federation in the sector which obtained trade union status in less than six months and which was even called on to bargain collectively before receiving that status). The complainant also objects to Act No. 23551 on trade union associations, in respect of the requirements for granting trade union status.
2. 210. The Committee notes that the Government indicates in a general manner that, as concerns the complaint, file No. 1-2015.1.081.645/2005 is with the director of the Ministry’s cabinet, demonstrating that the authorities at the highest level have tasked themselves with achieving a definitive and satisfactory resolution to the issue lying at the heart of the present complaint.
3. 211. The Committee notes with concern that, for a number of years, it has had to examine cases relating to Argentina concerning allegations of excessive delays – between three and four years – in the processing of applications for trade union status [see, for example, 307th Report, Case No. 1872, paras. 45–54; 309th Report, Case No. 1924, paras. 45–55; 338th Report, Case No. 2302, paras. 346–358, and 346th Report, Case No. 2477, paras. 209–246]. The Committee recalls that as early as 1997 it urged the Government “to take the necessary measures to ensure that in the future, when an organization requests registration or the granting of recognition, the competent administrative authorities return their decisions without unjustified delay” [see 307th Report, op. cit., para. 54].
4. 212. In this respect, the Committee notes that, in the present case, four years have elapsed since the Historic Federation of Teachers applied for trade union status and that, bearing in mind the significant benefits enjoyed by organizations which have been granted such status, it is clear that the length of time that has elapsed is likely to have been detrimental to the complainant in the exercising of its activities – indeed, the complainant alleges that another federation (FEDUN) in the sector was called on to negotiate a wage agreement. In these circumstances, the Committee strongly urges the Government to register without delay the application for trade union status submitted almost four years ago by the Historic Federation of Teachers and to keep it informed in this respect. As regards the discriminatory treatment suffered by the Historic Federation of Teachers on account that the Government decided to call only on FEDUN (which at the time did not have trade union status) to negotiate a wage agreement, the Committee takes note of the Government’s indication that contrary to the allegation, the Historic Federation of Teachers participated in meetings in which matters relative to the salaries of the professors and researchers of national universities were discussed.
5. 213. As regards the allegations of broad discretion and discrimination exercised by the authorities when processing applications for trade union status, the Committee notes with concern that according to the information provided by the complainant, the trade union organization FEDUN was granted trade union status within the time frame specified under the legislation, i.e. six months, while in the case of the Historic Federation of Teachers almost four years have elapsed without the authority having taken any decision in this respect. More specifically, as regards the disputed requirements on the granting of trade union status, set forth in Act No. 23551 on trade union organizations, the Committee recalls that the Committee of Experts on the Application of Conventions and Recommendations has been commenting on this matter for many years now. In this respect, in its 2006 observation it refers to section 28 of the Act, under which, in order to challenge an association’s trade union status, the petitioning association must have a “considerably larger” membership, and section 21 of implementing Decree No. 467/88, which qualifies the term “considerably larger” by laying down that the association claiming trade union status should have at least 10 per cent more dues-paying members than the organization which currently holds the status. In this regard, the Committee of Experts expressed the following opinion [see Report III (Part 1A), p. 40 of the English version]:
6. The Committee points out that a “considerably larger” membership amounting to 10 per cent more members than the union holding most representative status is too high a requirement and is contrary to the Convention. In practice, it stands in the way of trade unions that are merely registered and that wish to claim trade union status.
7. Like the Committee of Experts, the Committee asks the Government to take, in consultation with representatives of workers’ and employers’ organizations, the necessary steps to amend the legislative provisions in question.

The Committee's recommendations

1. 214. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee strongly urges the Government to register without delay the application for trade union status – submitted almost four years ago – by the Historic Federation of Teachers and to keep it informed in this respect.
   • (b) The Committee asks the Government to take, in consultation with representatives of workers’ and employers’ organizations the necessary steps to amend section 28 of the Act, under which, in order to challenge another association’s trade union status, the petitioning association must have a “considerably larger” membership, and section 21 of implementing Decree No. 467/88, which qualifies the term “considerably larger” by laying down that the association claiming trade union status should have at least 10 per cent more dues-paying members than the organization which currently holds the status.