Definitive Report - Report No 355, November 2009

Case No 2659 (Argentina) - Complaint date: 31-JUL-08 - Closed

Allegation: The complainant alleges that the authorities of the Ministry of Health of the Province of Mendoza unilaterally set at 100 per cent the minimum services to be provided during a strike being held in the health sector

1. 219. The present complaint is contained in a communication from the Association of State Workers (ATE) of July 2008.
2. 220. The Government sent its observations in a communication dated May 2009.
3. 221. 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. 222. In its communication of July 2008, the ATE states that it is making its present complaint against the Government on account of the excessive restriction placed on, and prohibition of, the strike by the Ministry of Health of the Province of Mendoza and by the Fourth Family Court of that province. The complainant points out that: the Argentine State ratified Convention No. 87 in 1960; the Constitution in its article 14bis guarantees the right to strike as a fundamental right of trade unions; the second paragraph of article 75, subsection 22, accords constitutional status to a series of international human rights treaties, including the 1966 United Nations Covenants, thereby granting the same status to Convention No. 87; and the Covenant on Economic, Social and Cultural rights further specifies that States parties undertake to ensure the right to strike. Despite this, according to the complainant, measures were taken in systematic violation of freedom of association.
2. 223. The ATE states that the complaint concerns the following violations: (a) within the context of the strikes being carried out in the province’s hospitals and health centres, the Ministry of Health of the Province of Mendoza, by resolution No. 1452/2008 of 25 June 2008, unilaterally and without being competent to do so, ordered the establishment of minimum services in violation of the maximum established under the corresponding legislation in force and relevant ILO principles, setting the level of service provision at 100 per cent, thereby effectively prohibiting the right to strike; and (b) the Fourth Family Court of the First Judicial District of the Province of Mendoza issued an injunction ordering the ATE to comply with the minimum duty levels stipulated in the aforementioned resolution No. 1452/2008, under penalty of application of article 239 of the Penal Code. The ATE considers this to be a veritable assault on freedom of association by the government of the Province of Mendoza and hence a violation of Convention No. 87, inasmuch as the exercise of the right to strike is being restricted and prohibited.
3. 224. The complainant states that, within the framework of the ongoing collective bargaining process between the union entities representing state employees of the Province of Mendoza and the province’s government authorities, the ATE, being unable to agree to the proposed pay increase and in response to a series of violations of the principle of bargaining in good faith, decided on various forms of direct action within the provincial hospitals’ sector and other health centres. On 3 June 2008, the Subsecretariat of Labour of the Province of Mendoza convened the parties in dispute in an attempt, in its own words, to maintain social calm; however, no agreement was reached on account of the absence of any proposals on the government side.
4. 225. In view of the ongoing collective dispute, and the lack of proposals or convocations on the part of the provincial government, on 20 June 2008, the General Secretary of the ATE provincial council in Mendoza sent a registered letter to the Governor of the Province of Mendoza, stating that:
   • As the trade union with the highest level of representativity in the province in the field of health, having the highest number of paid-up affiliated workers, and given that you and your subordinate officials have refused to engage in collective bargaining with the Association of State Workers (ATE), the union organization empowered under Act 23551 to engage in collective bargaining, thereby causing delays which hamper the negotiation process aimed at resolving the current conflict in the health sector ... I hereby call upon you to take, within five days, the necessary measures to rectify such conduct and convene a meeting with the most representative organization for the purpose of resolving the conflict in accordance with the corresponding legislation, under penalty of initiation of the proceeding for unfair practices (article 53, Act No. 23551), a complaint to the International Labour Organization (ILO) and appropriate legal proceedings.
   • In the absence of any response or specific action by the provincial government to resolve the conflict, forceful measure were maintained and stepped up until, on 5 June 2008, the Ministry of Health of the Province of Mendoza issued resolution No. 1452/2008 setting the minimum levels of service.
5. 226. The ATE states that Ministry of Health resolution No. 1452/2008 sets the minimum levels of service, this in itself being illegal, emanating as it does from the employer itself. Yet more serious, however, is the fact that it sets a coverage level of 100 per cent for the majority of services, and 50 per cent for administrative services. The ATE reports that this administrative resolution was appealed against on the day following its announcement, on account of the violations of freedom of association described below. Despite this, the government of the Province of Mendoza applied to the local family court for an injunction (medida cautelar) and a ruling ordering those concerned to comply with resolution No. 1452/2008. In its presentation of the case, the government does not indicate that there is any current or imminent risk, but invokes children’s right to health.
6. 227. According to the ATE, the judge analysed the situation in terms of “right”, without considering the facts of the case. In other words, her understanding is that the need to give effect to children’s right to health requires a 100 per cent level of service, leading her to order compliance with resolution No. 1452/2008, thus effectively prohibiting the right to strike. The ATE draws attention to what it considers the absurdity of a situation in which it is not the labour court that is ruling on a labour dispute but the family court. It asserts that at no time in any union dispute throughout its 83 years of existence has it put anyone’s health or health care at risk. Furthermore, it is health workers, not governments, who ensure, every day of the year and not only at times of dispute, the provision of adequate health care. The present case is no different, as there has been no complaint of lack of care. In the absence of any agreement as to minimum service levels, it is the ATE that is guaranteeing compliance with the ILO provisions and relevant legislation in force, not the employer.
7. 228. The ATE wishes to emphasize that by issuing resolution No. 1452/2008, the Ministry of Health of the Province of Mendoza, together with the local court that ordered compliance with the resolution, is engaged in conduct which violates the principles of international labour law, and more specifically the principles of freedom of association enshrined in Conventions Nos 87 and 98. In concrete terms, the resolution contains the following irregularities: (a) the employer cannot set the minimum service levels; (b) abusive curtailment of the right to strike by setting the minimum service level at 100 per cent; and (c) prohibition of the right to strike.
8. 229. According to the ATE, it has first to be pointed out that the Ministry of Health of the Province of Mendoza is the direct employer, since the issue concerns a dispute and a strike in the hospitals for which it is responsible. The State is thus acting as both judge and party in this collective dispute within the public sector, although this is prohibited under the local legislation in force and has been repeatedly criticized by the Committee. The ATE points out in this regard that, under the relevant local legislation, it is section 24 of Act No. 25877 which governs collective disputes in essential services. That provision establishes a reference to the guidelines and international case law developed by the Committee on Freedom of Association, incorporating the labour principles pertaining to essential services. This being the case, and in accordance with that supervisory body’s case law, the unilateral setting of minimum service levels by the provincial Ministry of Health, through resolution No. 1452/2008, is contrary to the principles of freedom of association.
9. 230. The ATE reiterates that the local administrative labour authority, the Subsecretariat of Labour of the Province of Mendoza, did not convene nor at any time seek to bring about a negotiated settlement between the parties, as is required under the law. Although it is not competent to do so itself, since, under the terms of article 24 of Act No. 25877, such competence lies with the national Ministry of Labour, Employment and Social Security, the local authority nevertheless failed to request the intervention of the national Ministry. Under the terms of article 24 of Act No. 25877, the responsibility for guaranteeing the provision of minimum services lies with “the party” that has decided to take action.
10. 231. The ATE points out that, in accordance with the case law of the Committee on Freedom of Association, there are certain services in which prohibiting the right to strike may be deemed acceptable, without this amounting to a violation of freedom of association. Where such activities are concerned, it is essential that expeditious negotiation and dispute resolution mechanisms be in place as a counterbalance for workers who are deprived of such a fundamental right. However, this is not the case in Argentina, whose legislation does not provide for the prohibition of strikes in any activity – an approach which, given the progressive nature of its social human rights environment, could no longer be implemented in this country. The necessary consequence of this is that prohibition of the right to strike does not – and cannot – exist in Argentina, even though the ILO has provided for such a possibility in other contexts which do not apply here.
11. 232. The judicial ruling ordering compliance with the Ministry of Health’s resolution No. 1452/2008, on the grounds that article 24 of Act No. 25877 authorizes prohibition of the right to strike, is therefore incorrect. Setting a minimum service level of 100 per cent is no more than an expression of the administration’s desire to prohibit strike action. A contrast cannot be made, as the judicial ruling does, between the right of children to health care and the right to strike, first of all because no one’s life is being put at risk, which is why the abovementioned injunction was not issued on those grounds; second, because it is for this very reason that there is a minimum service, which is not the normal level of service; and third, because the Family Court is mistaken in its identification of the legal guarantor of the right to which it refers, since guaranteeing the protection of children is the responsibility not of the workers but of the State, and it is in any case the State that is failing to provide the necessary resources to protect children’s rights in the present health case, concerning specifically health workers’ wages. The Family Court is thus placing an obligation on a party which is not a legal guarantor.
12. 233. The ruling itself fails to go into the substance of the dispute, confining itself to ordering compliance with resolution No. 1452/2008. In other words, while on the one hand the Ministry of Health is setting the minimum level of service at 100 per cent of normal services, the family court – which has no competence in this area – is for its part ordering compliance with the resolution on penalty of application of the Penal Code, which provides for imprisonment. This entails another extremely serious violation of freedom of association, since the penalty established by the judge is imprisonment, this being tantamount to categorizing the exercise of the right to strike as a crime punishable by a period of between 15 days to one year in prison. Furthermore, one of the arguments put forward was that no appeal had been lodged against resolution No. 1452/2008, whereas in reality an appeal was lodged in good time, and that the ruling was not definitive or agreed upon. According to the ATE, all this is just a manoeuvre aimed at prohibiting the right to strike, which is not counterbalanced by any exceptional assurance of negotiation.

B. The Government’s reply

1. 234. In its communication of May 2009, the Government states that in the first place, it has to be understood that in the present case there were no excessive restrictions on the right to strike, and still less any legal prohibition. The Government points out that within the framework of the collective bargaining on wages for 2008, the ATE union had arranged for various forms of action, the provincial government for its part having guaranteed that the right to strike could be exercised in full. According to the Government, the union, contrary to what it states in its complaint, guaranteed only minimum service levels, equivalent to a Sunday level of service, thereby for the most part completely paralysing the work of the province’s health-care providers.
2. 235. The Government states that in accordance with the principles governing strike action in essential services, and given that the guiding principle therein is negotiated settlement of the dispute by the parties concerned, or else agreement and establishment by the parties of minimum services, a conciliation hearing was organized at the headquarters of the Subsecretariat of Labour and Social Security. During the hearing, it was impressed upon the parties that, in the event of the announcement of direct action by the ATE, ATSA and AMPROS, the participating trade unions should agree with the provincial Ministry of Health on the minimum services to be guaranteed during the strike. In a procedure similar to the one established by Decree No. 272/2006, the parties were urged to reach agreement on the minimum services to be provided during the period of the action. The ATE, totally disregarding the body of doctrine which guides and informs Decree No. 272/2006, insisted on pursuing a position against the public rights and interest, maintaining only a minimum service equivalent to a Sunday service.
3. 236. The Government points out that this position is without any legal foundation, implies the abusive exercise of the right to strike, and ignores the likely consequences of paralysing the health services. The Government maintains that the failure to agree on minimum services did not stem from any negligence on the part of the provincial government, but rather from the obstinate position on the part of the union in not wishing to reach such agreement. In response to this situation, the Ministry of Health issued resolution No. 1452/2008 whereby the province’s health authority establishes the percentages of service to be maintained in each health service during the period of the direct action. It is clear from the foregoing that at no time was direct action prohibited, but that a number of services were earmarked as critical and hence as requiring guaranteed 100 per cent coverage. The Ministry of Health issued the resolution in question solely in respect of the critical services and only after having made every possible attempt to reach agreement with the union on the provision of an adequate minimum service.
4. 237. As regards the ruling by the Fourth Family and Juvenile Court, the Government states that, here again, this does not imply prohibition of the right to strike, since the action was left totally unrestricted in so far as most people were concerned, compliance with resolution No. 1452/2008 having been required solely in regard to minors up to age 18, in accordance with article 3 of Act No. 26061, which provides that: “… where there is a conflict between the rights and interests of children and adolescents with respect to other, equally legitimate, rights or interests, the former shall prevail”. In other words, the ruling ordered that protection be assured for the rights of children and young persons below the age of 18, in the light of the failure to reach an agreement on minimum services between the union and the health authority at the meeting held for that purpose.

C. The Committee’s conclusions

1. 238. The Committee notes that in this case, the complainant organization alleges that, in the context of the strikes being carried out in the province’s hospitals and health centres, the Ministry of Health of the Province of Mendoza, by resolution No. 1452/2008, and in violation of the principles of freedom of association, unilaterally ordered that minimum services be provided at the level of 100 per cent, and that the judicial authority (with competence in the area of family law, rather than labour law, to which the complainant objects) issued an injunction ordering compliance with the minimum duty levels stipulated in the aforementioned resolution (on penalty of penal sanction).
2. 239. In this respect, the Committee notes the Government’s information that: (1) within the framework of the collective bargaining held to discuss wages, the ATE arranged for various forms of direct action and the provincial government guaranteed that the right to strike could be exercised in full; (2) the complainant organization guaranteed minimum services equivalent only to a Sunday service; (3) in accordance with the principles governing strike action in essential services, a conciliation hearing was organized at the headquarters of the Subsecretariat of Labour and Social Security, it being impressed upon the parties that they should agree on the minimum services to be guaranteed during the strike; (4) the ATE insisted on maintaining only minimum level of service equivalent to a Sunday service; (5) that position is without any legal foundation, entails the abusive exercise of the right to strike and ignores the likely consequences of paralysing the health services; (6) the failure to agree on the minimum services did not stem from any negligence on the part of the provincial government, but rather from the obstinate position of the union in not wishing to reach such agreement, in response to which attitude the Ministry of Health issued the resolution in question establishing the percentages of workers required to be on duty in each health service during the period of the strike; (7) at no time was direct action prohibited, but a number of services were earmarked as critical and hence as requiring guaranteed 100 per cent coverage; (8) resolution No. 1452/2008 was issued after every possible effort had been made to reach agreement with the union on the provision of an adequate minimum service.
3. 240. The Committee recalls, first, that the health/hospital sector is an essential service in which the right to strike may be restricted or prohibited [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 576 and 585]. The Committee observes in this respect that Argentina’s national legislation permits the exercise of the right to strike in this sector, while stipulating the need to maintain minimum services.
4. 241. In this context, the Committee observes that in the present case, according to the documentation communicated by the complainant organization, a meeting was held between the parties, presided over by the administrative labour authority of the Province, “for the purposes of determining the percentage of services to be maintained during the holding of the direct action”, but that the parties failed to reach agreement. The Committee further observes that in response to the absence of agreement, the province’s Ministry of Health issued resolution No. 1452/2008 providing that in certain health sectors (intensive care units, emergency services, cardiovascular recovery, neonatal therapy, etc.) a 100 per cent level of service should be guaranteed, while in other services (laboratory, imaging, haemotherapy, etc.) a 50 per cent level should be maintained. In this respect, the Committee recalls that employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests, for example, provision of joint conciliation procedures, and, where conciliation fails, the provision of joint arbitration machinery [see Digest, op. cit., para. 600]. In the case of workers not engaged in essential services in the strict sense of the term, but who carry out tasks in which a minimum service may be imposed, the Committee emphasizes that on numerous occasions it has indicated that where there is any disagreement as to the number and duties of the workers concerned in the minimum services to be maintained, provision should be made for such disagreement to be settled by an independent body and not by the Ministry of Labour or the ministry or public enterprise concerned [see Digest, op. cit., para. 613]. In these circumstances, the Committee trusts that the Government will ensure respect for these principles.
5. 242. As regards the allegation that it was a family court, rather than a labour court, which required that the full range of health services be guaranteed in the case of children and adolescents aged from 0 to 18 years, on penalty of penal sanctions, the Committee considers that the specific remits of courts should be determined by national legislation and that the Committee’s role is confined to ensuring that any decisions taken are in line with the principles of freedom of association. As regards the alleged possibility of penal sanctions against strikers who fail to abide by the judicial ruling, the Committee emphasizes that any penalty in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed, and that the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., para. 668].

The Committee's recommendations

1. 243. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee trusts that the Government will guarantee that employees deprived of the right to strike because they perform essential services have appropriate guarantees to safeguard their interests, for example, provision of joint conciliation procedures, and, where conciliation fails, the provision of joint arbitration machinery; and that where there is any disagreement as to the minimum number of workers and minimum services to be maintained in the case of a strike in non-essential services, but in which a minimum service may be imposed, such disagreement is settled by a body independent of the parties involved.