Definitive Report - Report No 351, November 2008

Case No 2593 (Argentina) - Complaint date: 13-SEP-07 - Closed

Allegations: The complainant alleges acts of anti-union discrimination by the authorities in the Department of the Environment and Sustainable Development against members and representatives of the ATE, and refusal by the Department to negotiate with the ATE regarding its claims

1. 181. The present complaint is contained in a communication from the Association of State Workers (ATE) dated 13 September 2007.
2. 182. The Government sent its observations in a communication dated 15 July 2008.
3. 183. 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. 184. In its communication of 13 September 2007, the ATE states that it is presenting a complaint against the Government of Argentina for violating ILO Convention No. 87 through anti-union discrimination and reprisals by the Department of the Environment and Sustainable Development, a body subordinate to the Cabinet Office. The ATE states that the present complaint concerns the following violations: (a) the Department of the Environment and Sustainable Development has systematically violated the principle of good faith in bargaining by discriminating against one trade union organization signatory to the collective labour agreement (CLA); and (b) there have been tendencies to persecute and take reprisals against representatives of the workers of that organization.
2. 185. The complainant organization states that it has carried out trade union activities at the Department in question for a long time, even when this Department was under the authority of the Ministry for Social Development, the Ministry of Health and, as now, the Directorate of the Ministers’ Cabinet. Thus, on 26 October 2006, an electoral process took place to elect the internal board of the Department of the Environment and Sustainable Development. The mandate of this body ran from 26 October 2006 until 26 October 2008. On 2 November 2006, the ATE’s executive council for Buenos Aires notified the Department of the Environment and Sustainable Development of the results of the electoral process, with the names of the representatives elected by workers at the organization in question. The same notification was sent to the Ministry of Labour, Employment and Social Security on 13 December 2006 (No. 1.200.390).
3. 186. The ATE states that, in this context and in the face of excessive hiring of workers outside the legal mechanisms established by CLA No. 214/06 (to which the ATE is signatory), and given that this excessive hiring of short-term contract workers was being used to bypass not only salary mechanisms but also, and above all, the employment stability of public officials, the internal board of trade union representatives demanded that such workers be regularized. In this context, and given the knowledge that the employer, through its representative, had held a meeting on 20 February 2007 with the National Civil Servants’ Union (UPCN) to address matters pertaining to the CLA, the ATE sent a letter dated 27 February 2007, as follows:
   • Buenos Aires, February 2007. – In the name of and representing the National Executive Board of the Association of State Workers (ATE), we are writing to you because it has come to our attention that the ATE was excluded from participating in the meeting held on 20 February of this year under the auspices of the Department of the Environment and Sustainable Development, which involved only one of the trade union bodies eligible for the purpose. The agreement signed on 20 February implies a commitment between the Secretary of State for the Environment and Sustainable Development and only one of the sector’s representative associations, while the Department has refused to reply to our organization’s innumerable salary claims. The attitude assumed constitutes unfair practice under the terms of section 53 of the National Law on Trade Union Associations, No. 23551. In view of the above, given that the ATE is one of the representative bodies signatory to the collective labour agreement (CLA) endorsed by Decree No. 214/06, and as the conduct displayed threatens the guarantee to democratize labour relations, as well as the principle of freedom of association enshrined in our national Constitution and international treaties of constitutional rank (ILO Conventions Nos 87 and 98), we demand that such conduct ceases on pain of a complaint being raised under Acts Nos 23551 and 23592, and before the ILO Committee on Freedom of Association.
4. 187. The ATE states that, notwithstanding the above, the internal board of the ATE on 7 March 2007 presented a petition to the Department of the Environment and Sustainable Development requesting an interview in order to present the relevant trade union complaints. This request was based on individual claims and the Department therefore refused to hear the internal board’s representation. Faced with the ATE’s trade union actions, the authorities behaved in an anti-union and discriminatory manner, refusing to talk to the organization and exacting reprisals against its representatives.
5. 188. The ATE alleges that the stance taken by the State has been to order the transfer of two representatives and relieve a third one of his functions, and to discriminate against the ATE by holding meetings within the framework of CLA No. 214/06 with only one representative trade union body. In fact, the employer ordered the transfer of Ms Patricia Hebe Báez Rocha and representative Mr Matías Javier Osterc, and relieved the organization’s general delegate, Ms Alicia Rodríguez, of her functions.
6. 189. Having become aware of this subjugation, the ATE sent a letter to Dr Picolotti on 21 March 2007, as follows:
   • Buenos Aires, March 2007. – In the name of and representing the National Council of Management of the Association of State Workers, we are writing to you because it has come to our attention that changes have been ordered to the working conditions of our representative Patricia Hebe Báez Rocha, identity card No. 18.272.552, who performs her duties in the organization which you head. In that regard, as you are aware (notification from the council of management dated 2 November 2006), Ms Báez Rocha was elected on 26 October 2006 as spokesperson for this association’s internal board within the Department of the Environment and Sustainable Development and, consequently, your actions violate the legal protection established under sections 48 and 52 of Act No. 23551, section 1 of Act No. 23592, article 14bis of the Constitution, as well as international treaties and ILO Conventions Nos 87 and 98. In view of all the above, we demand that, within not more than 48 hours, you revoke the changes in working conditions of the above employee, reinstate her in her post and desist from this anti-union and persecuting attitude, on pain of the appropriate legal action, a complaint to the ILO and an action for disloyal practices. You have been duly notified.
7. 190. To the transfer and persecution of ATE representatives can be added the discriminatory attitude shown by holding meetings with only one of the trade union bodies in the sector signatory to the CLA, despite repeated requests from the complainant that a solution be found to the problems of workers existing in the Department of the Environment and Sustainable Development. The ATE alleges that, on 20 July 2007, the State, as the employer, held a meeting with the UPCN, without even inviting the ATE, in order to move forward on the requests that the ATE had previously made, and also on matters relating to the CLA, to which both trade union organizations are signatory. Consequently, on 25 July 2007 a letter was sent to the Department of the Environment and Sustainable Development as follows:
   • Buenos Aires, July 2007. – In the name of and representing the National Council of Management of the Association of State Workers (ATE), we are writing to you because it has come to our attention that our organization was excluded from participating in the meeting held on 20 July 2007 under the auspices of the Department of the Environment and Sustainable Development, which involved only one of the trade union bodies eligible for the purpose. In fact, the document signed on 20 July shows an agreement between the Department and one trade union concerning matters relating to working conditions and CLA No. 214/06 at the Department, while our organization has been refused replies to the innumerable labour-related requests it has made. The attitude assumed constitutes unfair practice under the terms of section 53 of the National Law on Trade Union Associations, No. 23551 and is one more piece of behaviour that demonstrates the discrimination occurring against our organization within the Department. In view of the above, given that the ATE is one of the signatory representative bodies to the CLA endorsed by Decree No. 214/06, and as the conduct you have displayed threatens the guarantee to democratize labour relations, as well as the principle of freedom of association enshrined in our national Constitution and international treaties of constitutional rank (ILO Conventions Nos 87 and 98), we demand that you cease such conduct on pain of a complaint being raised under Acts Nos 23551 and 23592, and before the ILO Committee on Freedom of Association.
8. 191. The ATE states, however, that not only has the Department remained silent in the face of this request, but on 6 August 2007 another meeting was held with the UPCN behind the ATE’s back. In summary, the Argentine State, through the Department of the Environment and Sustainable Development, has systematically violated the fundamental collective and trade union rights of workers. The attitude taken by the Department of the Environment and Sustainable Development can be seen from various angles, but taken together they show clear anti-union activity because the employer is the same in all cases. First, there have been reprisals against workers’ representatives for participating in trade union action and defending the rights of their peers, that is to say, discrimination on the grounds of participation in a trade union. Second, the employer has adopted a reluctant attitude towards bargaining and has violated collective labour principles, which constitutes discrimination and bad faith in bargaining.
9. 192. According to the ATE, workers and representatives who complained that staff were being hired outside the legal mechanisms of the CLA and that the stability of employment of civil servants was being violated, were persecuted, being subjected to transfers, being relieved of duties, and being subjected to non-payment of salaries, discrimination and violence in the workplace, among other irregularities in the Department.
10. 193. Three representatives of the ATE internal board, Ms Báez Rocha, Mr Osterc and Ms Rodríguez, have suffered the consequences of pursuing trade union activities in the form of being transferred or relieved of their duties despite enjoying trade union immunity. It should be noted, with respect to Ms Báez Rocha, that a reinstatement action was brought (“Báez Rocha, Patricia Hebe v. Department of the Environment and Sustainable Development, complaints, summary proceedings”) which resulted in a reinstatement ruling and an acknowledgement that the Department had violated current trade union laws and that there had been unlawful practices in the process of hiring the staff concerned. Nevertheless, the Department of the Environment and Sustainable Development continued to persecute and mistreat the other representatives (and the union in general) and to relieve them of their duties.
11. 194. The complainant organization alleges bad faith in bargaining on the part of the Department of the Environment and Sustainable Development, which has systematically refused to negotiate with the ATE regarding complaints and the actual circumstances of workers in the organization. Thus, on 20 February 2007, it held a meeting with representatives of only the UPCN, evidence of this being the letter sent by the ATE on 27 February 2007. Regardless of the request sent, after exacting reprisals against ATE representatives, the Department again met with the UPCN to address matters relating to the sectoral CLA, signing an agreement on 20 July 2007. In the face of these new acts of discrimination, the ATE sent a letter on 25 July 2007 requesting that the Department refrain from negotiating with only one of the parties as this constituted discrimination. The Department of the Environment and Sustainable Development, ignoring the ATE’s request, met again with the UPCN on 6 August 2007.
12. 195. The ATE states that this attitude is contrary to the principle of good faith in bargaining established in Act No. 24185 concerning collective labour agreements between the national civil service and its employees, section 9 of which states: “The parties shall be obliged to bargain in good faith. This principle places upon the parties the following rights and obligations … (b) to hold meetings that may be necessary in appropriate locations and with appropriate frequency and regularity … (e) to make efforts to reach agreements that take into account the diverse circumstances involved.” It is the understanding of the ATE that the actions of the administration in refusing to bargain collectively within the Department of the Environment and Sustainable Development and in taking decisions unilaterally constitute an unfair practice which is reflected not only in its refusal to bargain collectively with a trade union association eligible to do so, but also in its delaying tactics which have the effect of obstructing the bargaining process; in that respect the conduct of the State, as the employer, in the bargaining process shows a clear attitude of bad faith contrary to the spirit of the domestic and international legislation mentioned above.

B. The Government’s reply

1. 196. In its communication of 15 July 2008, the Government denies that the administration has persecuted and exacted reprisals against workers’ representatives of the complainant organization. The Government states, with regard to Ms Báez Rocha, that she initiated legal action, as recounted in “Báez Rocha, Patricia Hebe v. Department of the Environment and Sustainable Development, complaints, summary proceedings” (judicial proceedings No. 111713/2007), and also applied for interim measures of protection (Case No. 10130/07, “Báez Rocha, Patricia Hebe v. Department of the Environment and Sustainable Development, constitutional protection”), citing the fact that her working conditions had been altered, and claiming protection under sections 40, 48 and 50 of Trade Union Act No. 23551. Rulings have been given in both cases. The Government states, furthermore, that a legal ruling exists which was given after the case had been heard, in accordance with the procedure established in law. During the case, the plaintiff was represented by the ATE’s own lawyers, exercising the rights accorded to her in law. As a result, the Government considers it unreasonable and without basis in fact or in law to present a complaint to the ILO, given that the national legal system has already dealt with the case.
2. 197. With regard to Mr Osterc and Ms Rodríguez, the Government states that they have never been transferred or relieved of their duties. This is confirmed by the service certificates presented by their superiors in charge of the areas for which they were hired, and by the contracts they signed. Neither their contracts nor their services were interrupted throughout 2007 and the same situation has continued this year.
3. 198. The Government adds that it is important to highlight the open channel of communication that has always existed between the ATE and the human resources unit of the Department of the Environment and Sustainable Development. The Department’s human resources unit has always dealt with all formal and informal requests made to the administration to deal with all aspects considered important, even those which were not within the competence of the Department, which were referred to the relevant departments, for example national parity with regard to salary increases and moving staff onto permanent contracts. The Department has not maintained silence in the face of the ATE’s requests, as can been seen from the reply sent to the ATE in a letter dated 9 March 2007, in which the Department denied that it had engaged in unfair practice or infringed the principles of freedom of association. The same letter also made it clear that various meetings had been held with the organization in question at which the Department responded to all concerns raised.

C. The Committee’s conclusions

1. 199. The Committee observes that, in the present case, the complainant alleges that, after the internal board of ATE representatives began to submit complaints of excessive hiring of short-term contract workers by the Department of the Environment and Sustainable Development without respecting the legal mechanisms established by the collective labour agreement, the authorities responsible for that Department: (1) held meetings with the UPCN to address matters relating to the collective agreement without inviting the ATE or responding to its salary claims, although the ATE is party to the collective agreement endorsed by Decree No. 214/06; and (2) decided, as part of a campaign of reprisals and persecution, to transfer trade union representatives Ms Patricia Hebe Báez Rocha (who won a legal action for reinstatement) and Mr Matías Javier Osterc, and to relieve trade union representative Ms Alicia Rodríguez of her duties.
2. 200. With regard to the allegations of anti-union discrimination against three ATE leaders (transfer and subsequent reinstatement of Ms Báez Rocha, transfer of Mr Osterc and decision to relieve Ms Rodríguez of her duties), the Committee takes note of the Government’s statements to the effect that: (1) in the case of trade union leader Ms Báez Rocha, the judicial authorities issued a ruling ordering her reinstatement to similar duties to those she had been performing or, failing that, to other duties compatible with her new situation, with payment of wages due; and (2) contrary to the complainant’s allegations, Mr Osterc and Ms Rodríguez have never been transferred or relieved of their duties and neither their contracts nor their services were interrupted at any point during 2007 or, so far, in 2008. In these circumstances, the Committee will not proceed with the examination of these allegations.
3. 201. With regard to the allegation that the authorities in the Department of the Environment and Sustainable Development held meetings with the UPCN – even signing an agreement on 20 July 2007 – to address matters relating to the collective agreement, without inviting the ATE or responding to its salary claims, although the ATE is party to the collective agreement endorsed by Decree No. 214/06, the Committee takes note of the Government’s statements to the effect that: (1) it is important to highlight the open channel of communication that has always existed between the ATE and the human resources unit of the Department of the Environment and Sustainable Development; (2) the Department’s human resources unit has always dealt with all formal and informal requests made to the administration to deal with all aspects considered important, even those which were not within the competence of the Department, which were then referred to the relevant departments, for example national parity with regard to salary increases and moving staff onto permanent contracts; and (3) the Department has not maintained silence in the face of the ATE’s requests, as can be seen from the reply sent to the ATE in a letter dated 9 March 2007, in which the Department denied that it engaged in any unfair practice or infringed the principles of freedom of association.
4. 202. In this regard, the Committee observes that, although the Government states that there is an open channel of communication with the ATE and that it has on numerous occasions met with representatives of the organization to discuss all matters considered important, it neither responds to nor denies the specific allegations that it has excluded the ATE from meetings which it held with the UPCN to address matters relating to the collective agreement in force, to which the ATE is signatory. In these circumstances, observing that the ATE has trade union personality (recognition as one of the most representative organizations which, among other benefits, grants it the right to bargain collectively) and is signatory to the collective labour agreement, in relation to which the authorities of the Department of the Environment and Sustainable Development held meetings with the UPCN (which also has trade union personality), the Committee requests the Government to ensure that the ATE is not subject to discrimination when meetings are held concerning the collective agreement in force to which ATE is party.

The Committee's recommendations

1. 203. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Observing that the ATE has trade union personality (recognition as one of the most representative organizations which, among other benefits, grants it the right to bargain collectively) and is signatory to the collective labour agreement, in relation to which the authorities of the Department of the Environment and Sustainable Development held meetings with the UPCN (which also has trade union personality), the Committee requests the Government to ensure that the ATE is not subject to discrimination when meetings are held concerning the collective agreement in force to which the ATE is party.