Definitive Report - Report No 355, November 2009

Case No 2666 (Argentina) - Complaint date: 30-SEP-08 - Closed

Allegations: The complainant organization alleges that, in a discriminatory way and in disregard of the law, it was not provided with premises for carrying out its activities and that acts of anti-union harassment were carried out against a trade union official

1. 244. The present complaint is contained in a communication from the Association of State Workers (ATE) dated September 2008.
2. 245. The Government sent its observations in a communication dated April 2009.
3. 246. 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. 247. In its communication of September 2008, the ATE states that it is presenting a complaint against the Government of Argentina for the violation of Conventions Nos 87 and 98 through discrimination and reprisals carried out against both workers and the trade union by the management of the Dr Juan A. Fernández General Hospital for Acute Medicine, which operates under the aegis of the Department of Health of the Government of the City of Buenos Aires, Argentina. The ATE indicates that the present complaint concerns the following violations: (a) the management of the Dr Juan A. Fernández General Hospital for Acute Medicine systematically violated the principle of good faith and in a discriminatory way violated the rights of the trade union by failing to provide a physical space for the development of trade union activities; and (b) there has been a tendency to harass and take reprisals against a representative of the workers of the ATE.
2. 248. The ATE has official trade union status (No. 2) and is authorized to operate in the hospital in question, where it has been carrying out trade union activities for a long time. Nevertheless, it is prevented from fully carrying out its union activities in the hospital as it does not have union premises. This denial of rights has been compounded in recent months by the harassment suffered by one of the representatives of the ATE, in relation to which an order was issued to modify her working conditions.
3. 249. The ATE indicates that, first of all, it can be demonstrated among other things that the hospital management has systematically refused to make a physical space available for the performance of trade union activities, even though this is required by law. In fact, the ATE has been requesting a space and a bulletin board, as provided for in section 44 of Act No. 23551, since 2005, in other words, for more than three years, and its demands have not yet met with a favourable response. The ATE has provided a copy of its latest communication to the hospital, in which it also calls upon the employer to stop its anti-union campaign against Ms Viviana Claudia Tarragona, ATE’s general representative in the hospital and assistant administrative secretary of the ATE’s executive board for the City of Buenos Aires. The communication states that:
   • Buenos Aires, May 2008. On behalf of the national executive board of the Association of State Workers (ATE), we demand that you desist immediately from this attitude of discrimination and harassment against our organization and our representatives, on pain of the appropriate legal action. The current administration has carried out a series of acts of harassment and discrimination against our general delegate and colleague Viviana Tarragona (wage deductions for days actually worked, wage deductions for days taken as union leave, etc.), constituting an attitude that is prohibited by law insofar as it concerns a member of this association’s executive board for the Federal Capital and the issue of trade union immunity (cf., sections 14bis and 75, paragraph 22, of the National Constitution, section 48 et seq. of Act No. 23551 and ILO Conventions Nos 87, 98 and 135), as well as acts of discrimination that are prohibited by law (section 1 of Act No. 23551). This attitude has been compounded by the lack of recognition shown to the organization, as you have not complied with the provisions of section 44 of Act No. 23551 by neglecting to grant a physical space for the union premises of ATE’s internal board in the hospital and by failing to put back the ATE’s bulletin board following its removal by the management, despite being duly requested to do so. In fact, both requests have been systematically ignored, despite being an obligation on your part (section 44 of Act No. 23551), and as premises have been granted to another trade union this has become a discriminatory and anti-union issue. For these reasons, we ask that, within 72 hours, you desist from your anti-union and discriminatory attitude, kindly refund the amounts unduly withheld from our colleague Viviana Tarragona, and provide a physical space and a bulletin board for union activities of this organization, on pain of legal action (section 47, Act No. 23551), a complaint of unfair practice (section 53, Act No. 23551), a complaint to the ILO’s Committee on Freedom of Association and criminal action for discrimination (Act No. 23592).
4. 250. Secondly, the ATE states that this lack of recognition is compounded by the harassment against general representative and executive board member, Ms Viviana Tarragona. For over two years, she has suffered a series of acts that, when viewed and interpreted as a whole, are evidence of the abovementioned harassment. The worker in question has suffered undue deductions for workdays on which she duly applied for union leave, has been deprived of colleagues during her nursing shift, meaning that she was overworked and prevented from carrying out her union activities, and, lastly and most seriously, has been reclassified without the corresponding proceedings to lift the trade union immunity provided under Argentinean law. Ms Viviana Tarragona was elected as the general representative in the hospital on 24 September 2007, and the hospital was notified on 26 September 2007. Similarly, on 30 May 2007, she was elected assistant administrative secretary of the executive board for the autonomous City of Buenos Aires, taking office on 6 November 2007, and the hospital was notified on 4 September 2007.
5. 251. Irregardless of her immunity, by Order No. 298/DGARH/2008 and without the corresponding proceedings to lift her immunity, Ms Tarragona was demoted to a lower grade, causing her serious financial damage. Upon learning of this violation, the ATE sent a letter to the government of the City of Buenos Aires on 27 August 2008, calling for the annulment of Order No. 298/DGARH/2008 on the grounds that it was illegal and inappropriate.
6. 252. The attitudes adopted by the government of the City of Buenos Aires and the Dr Juan A. Fernández Hospital for Acute Medicine may be considered from different perspectives, but overall they constitute anti-union activity because the employer is the same in all cases. With regard to the reprisals against a union representative, there is a clear impairment of the rights of a workers’ representative to perform her union duties in the hospital. In fact, the general representative of the ATE’s internal board, Ms Viviana Claudia Tarragona, suffered as a result of her union activities – her salary was cut on several occasions because of false accusations and her grade was changed even though she had trade union immunity. It is worth mentioning that undue deductions were taken from the pay of the representative in question for days worked and days taken off as union leave. Both the ATE and Ms Tarragona have sent telegrams and requests in response to these violations, but they have received no reply to date and the harassment has not stopped. This situation was further compounded by the fact that, by Order No. 298/DGARH/2008, Ms Tarragona’s working conditions were modified, even though she had trade union immunity in accordance with the provisions of Act No. 23551.
7. 253. With respect to discrimination and the failure to make union premises available, the management of the hospital has systematically refused to provide a physical space for the ATE. Since 2005, the ATE has called for the provision of union premises and for compliance with Act No. 23551, and to date it has neither been granted the premises nor given a response. Consequently, there is only one set of trade union premises in the hospital in question, which was granted to another union, even though such a physical space, as is provided for by law, has been denied to this organization. This attitude runs counter to freedom of association as provided for in Act No. 23551, section 44 of which states that: “Without prejudice to the provisions of collective labour agreements, employers shall: (a) provide a place where staff representatives may carry out their activities, to the extent made necessary by the nature of the establishment, taking into account the number of workers involved and the mode of service delivery ...”. It is the understanding of the ATE that the refusal of the administration to provide it with a physical space shows a clear attitude of discrimination which is contrary to the spirit of the domestic and international legislation mentioned above.

B. The Government’s reply

1. 254. In its communication of April 2009, the Government states that, having gathered the relevant information, the management of the Dr Juan A. Fernández General Hospital for Acute Medicine indicates that, before a reply is given to specific allegations, it should be emphasized that several trade union associations (SUTECBA, the UPCN, the ATE, the Association of Municipal Physicians, the Association of Professionals, etc.) operate in the institution, along with ordinary associations of psychologists, biochemists, nurses, pharmacists, etc. This broad and non-exhaustive list of social partners within the scope of the Ministry of Health led to the signature in 2006 of Decision No. 5 in the Joint Sectoral Committee for the Ministry of Health. The Government also draws attention to the full implementation of Article 2 of Convention No. 87, with respect to trade union plurality, as set out in the Digest of decisions and principles of the Freedom of Association Committee.
2. 255. The hospital indicates that, in the abovementioned Decision No. 5, it is agreed that: “… representation must meet objective requirements with regard to membership …”, “… that representation to that effect may be exercised when proof is provided that it has as a minimum the support of at least 10 per cent of hospital employees ...” (section 25 of Act No. 23551 on trade union associations). The hospital management notes in this regard that the ATE must prove that it has the support of that 10 per cent, which it has never done. Nevertheless, the authority in question has never questioned the nature of minority representation in the institution and has always endeavoured to work with the union.
3. 256. As for the alleged discrimination against and failure to recognize the ATE by not providing it with union premises, as is required by law, it is emphasized that, given the particular characteristics of the institution (it is a public hospital where priority is given to patient care and ongoing staff training), and given that it is located in a building that cannot be extended, it does not currently have any free spaces that could be used for the requested purposes. Nevertheless, studies are currently being carried out into possible architectural modifications that would make it possible to provide a physical space for the development of trade union activities. With regard to the alleged rejection of a request for permission to put up a bulletin board, the institution categorically denies this allegation, as on various occasions it has authorized the placement of a bulletin board on the fifth floor in the main staff entrance hall, which is a area that the entire hospital staff has to pass through, on the condition that the cost of the bulletin board should be covered by the ATE. To date, no bulletin board has been put up in the space agreed upon with the representatives of that association, a situation that is certainly not attributable to the hospital, which in its reply stresses that the space in question is available. The institution states that, when agreement was reached with regard to the space in question, the union agreed that it would stop posting fliers on walls throughout the building.
4. 257. As for the alleged reprisals against the union official, Ms Tarragona, the Government indicates that she is a nurse and works on Saturdays, Sundays and holidays in the out-of-hours medical unit. This unit provides a public service and deals with a high number of patients, especially on weekends, as the institution has an emergency medicine and trauma centre and so receives many accident victims; it should also be noted that the hospital is located near to several high-speed roads. Furthermore, the Government indicates that the hospital is located close to several recreation and dance establishments, which means that a significant number of patients receive medical attention for alcohol-related conditions and for injuries caused in accidents, especially during weekends. There are also the normal patient demands, for the treatment of various conditions. In the report, the director of the institution indicates that it is common knowledge that there is a lack of trained nursing staff, in both the public and the private sectors. However, efforts have continued to be made to make more nurses available in all of the hospital’s departments, including the outof-hours medical unit. Accordingly, in recent months there has been a significant increase in the nursing staff, especially in the out-of-hours medical unit, which has had a new intake of six nurses. In the light of the above, the Government rejects the allegation that nurses were withdrawn from the out-of-hours medical unit intentionally to do a disservice to Ms Tarragona.
5. 258. With regard to Order No. 298/DGARH/2008, under which, according to the ATE, Ms Tarragona was demoted to a lower grade, it is reported that on 13 February 2008 there was a meeting of the Administrative Technical Advisory Committee (CATA), a body comprising the department heads of the hospital’s administrative and professional technical services, union representatives of the Association of Municipal Physicians, SUTECBA and representatives of the hospital management and deputy management. At the meeting, the SUTECBA representative reported that some members of the nursing staff were classified as registered nurses but did not have the necessary qualifications, and requested the hospital management to investigate the alleged irregularity.
6. 259. An assessment was made by human resources, which found that four staff members were on a pay scale that was applicable to registered nurses, while they were qualified as licensed practical nurses. These nurses included Ms Tarragona and three other people (who were named). This information was sent to the Ministry of Finance, which issued the order that is now being challenged (No. 298/DGARH/2008) to adjust the grades of the staff members accordingly. This is a matter that falls within the Ministry of Finance’s area of competence, given that it concerns the classification of staff in accordance with the effective verification of the qualifications of Ms Viviana Tarragona, Ms Ester Pelozo, Ms Rosa Pérez and Ms María Cristina Vázquez. In other words, far from being harassment, their grades were adjusted to reflect their actual qualifications. No other aspects of the reviewed situation or work situation of Ms Tarragona or her reclassified colleagues were changed in any way.
7. 260. With regard to the days deducted for having applied for union leave, the institution indicates that the deductions were made in April and May 2008 and were repaid in accordance with Note No. 2323 HGAJAF of 5 June 2008. The deductions from September 2008 were also repaid, following the proper and timely submission of the relevant documentation. It is stressed in conclusion that it is the spirit and policy of the hospital management (the current director has been working for the institution for 30 years) to work in partnership with the different trade unions and associations, never losing sight of the fact that better working conditions for all will lead directly to the better delivery of health services to patients and setting out the shortcomings and difficulties faced by the institution, which are discussed with the union representatives of the bodies concerned.
8. 261. The Government adds that the Director General for Administration in the Human Resources Management Unit of the Ministry of Finance of the government of the City of Buenos Aires sent a note that supports the observations made by the hospital management, to the effect that Ms Tarragona’s reclassification was the result of an assessment of staff duties under the new system governing the administrative careers of city government officials, which has nothing whatsoever to do with her union activities; furthermore, the union official did not duly raise an objection to the measure challenged in this complaint in accordance with the procedural remedies at her disposal (Administrative Procedure Act).

C. The Committee’s conclusions

1. 262. The Committee notes that, in this case, the complainant organization, the ATE, alleges that the authorities of the Dr Juan A. Fernández Hospital for Acute Medicine has, in a discriminatory way, failed to provide it with union premises for carrying out its trade union activities, has not given it a place for a bulletin board and that acts of anti-union harassment have been taken against one of its officials.
2. 263. With regard to the allegation concerning the refusal to provide the ATE with premises for carrying out its trade union activities (according to the ATE, it has been demanding such premises since 2005 and the hospital has made premises available to another trade union), the Committee notes that, according to the hospital in question: (1) several trade union associations (SUTECBA, the UPCN, the ATE, the Association of Municipal Physicians, the Association of Professionals, etc.) operate in the institution, as do ordinary associations of psychologists, biochemists, nurses, pharmacists, etc., and that the number of social partners led to the signature in 2006 of Decision No. 5 in the Joint Sectoral Committee within the Ministry of Health; (2) in Decision No. 5, it was agreed that representation must meet objective requirements with regard to membership and that representation to that effect may be exercised when proof is provided that it has as a minimum the support of at least 10 per cent of hospital employees; (3) the ATE never provided proof of such support, but nevertheless the authority in question has never questioned the nature of minority representation in the institution and has always endeavoured to work with the trade union; (4) given the particular characteristics of the institution (it is a public hospital where priority is given to patient care and ongoing staff training) and, given that it is located in a building that cannot be extended, it does not currently have any free spaces that could be used for the purposes requested by the ATE; (5) nevertheless, studies are currently being carried out into possible architectural modifications that would make it possible to provide a physical space for the development of trade union activities.
3. 264. In this respect, while noting the difficulties in the hospital with regard to making union premises available to trade unions, the Committee notes with interest that studies are being carried out to find a solution to this issue. The Committee recalls that Convention No. 151 provides in its Article 6 that: (a) 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; (b) the granting of such facilities shall not impair the efficient operation of the administration or service concerned; and (c) the nature and scope of these facilities shall be determined in accordance with the methods referred to in Article 7 of this Convention, or by other appropriate means. In these circumstances, the Committee expresses the hope that, taking into account the provisions of the abovementioned Convention, the ATE and the hospital authorities will be able to reach a satisfactory agreement in this respect.
4. 265. With regard to the refusal by the hospital authorities to provide a space for an ATE bulletin board, the Committee notes that, according to the Government: (1) on various occasions, it gave the ATE permission to put up a bulletin board on the fifth floor in the main staff entrance hall, which is an area that the entire hospital staff has to pass through, on the condition that the cost of the bulletin board would be covered by the ATE; (2) to date, no bulletin board has been put up in the space agreed upon with the representatives of that trade union, a situation that is not attributable to the hospital, which has stressed that the space is available; and (3) when a space was provided for the bulletin board, the union agreed that it would not post fliers on walls throughout the building. In the light of this information, the Committee will not pursue its examination of these allegations.
5. 266. With regard to the allegation that acts of anti-union harassment have been taken against one of its officials, Ms Viviana Claudia Tarragona (according to the complainant, these include undue deductions of workdays – including those on which she applied for union leave – work overload during her shift as a result of a decision to withdraw staff and modification of her professional grade – and therefore her employment conditions – causing her material damage), the Committee notes that, according to the Government: (1) the trade union official in question is a nurse and works on Saturdays, Sundays and holidays in the out-of-hours medical unit, which provides a public service and deals with a high number of patients, especially during weekends, as the institution has an emergency medicine and trauma centre and receives many accident victims; (2) according to the director of the institution, it is common knowledge that there is a lack of trained nursing staff, in both the public and the private sectors, but there have nevertheless been ongoing efforts to make more nurses available in all of the hospital’s departments, including the out-of-hours medical unit. Accordingly, in recent months there has been a significant increase in the nursing staff, especially in the out-of-hours medical unit, which has had a new addition of six nurses and, in the light of this, the allegation that nurses were withdrawn from the out-of-hours medical unit intentionally to do a disservice to Ms Tarragona cannot be sustained; (3) with regard to Order No. 298/DGARH/2008, under which, according to the ATE, Ms Tarragona was demoted to a lower grade; on 13 February 2008 there was a meeting of the CATA, a body comprising the department heads of the hospital’s administrative and professional technical services, union representatives of the Association of Municipal Physicians and SUTECBA, and representatives of hospital management and, at the meeting, the SUTECBA representative reported that some members of the nursing staff were classified as being registered nurses but did not have the necessary qualifications and requested the hospital management to investigate the alleged irregularity; (4) an assessment was made of staff duties under the new system governing the administrative careers of city government officials, which found that four staff members were on a pay scale that was applicable to registered nurses, when they were qualified as licensed practical nurses; (5) Ms Tarragona and three other nurses were found to be in this situation. This information was sent to the Ministry of Finance, which issued the order that is now being challenged (No. 298/DGARH/22008) to adjust the grades of the staff members accordingly (this is a matter that falls within its area of competence, given that it concerns the classification of staff in accordance with the effective verification of their qualifications); (6) far from being a form of harassment, the grades were adjusted to reflect their actual qualifications. No other aspects of the reviewed situation or work situation of Ms Tarragona or her reclassified colleagues were changed in any way; (7) with regard to the days deducted for having applied for union leave, the deductions were made in April and May 2008 but were repaid in accordance with Note No. 2323 HGAJAF of 5 June 2008, and the deductions of September 2008 were also repaid, following the proper and timely submission of the relevant documentation; and (8) it is the spirit and policy of the hospital management to work in partnership with the different trade unions and associations, not losing sight of the fact that better working conditions for all will lead directly to the better delivery of health services to patients and setting out the shortcomings and difficulties faced by the institution, which are discussed with the union representatives of the bodies concerned. In the light of this information, the Committee will not pursue its examination of these allegations.

The Committee's recommendations

1. 267. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee expresses the hope that, taking into account the provisions of Convention No. 151, the ATE and the authorities of the Dr Juan A. Fernández General Hospital for Acute Medicine will be able to reach a satisfactory agreement with regard to granting premises so that the trade union can carry out its activities.