Report in which the committee requests to be kept informed of development - Report No 356, March 2010

Case No 2718 (Argentina) - Complaint date: 26-MAY-09 - Closed

Allegations: The complainant organization alleges that the authorities of the municipality of Corrientes and of the Corrientes Municipal Loan Fund decided, in a discriminatory fashion, not to deduct union dues and to persecute and take reprisals against its representatives

1. 261. The complaint is contained in a communication from the Association of State Workers (ATE) dated May 2009.
2. 262. The Government sent its observations in a communication dated 1 September 2009.
3. 263. 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. 264. In its communication of May 2009, ATE states that it is presenting a complaint against the Government of Argentina for the violation of Conventions Nos 87 and 98 because of unfair practice, discrimination and reprisals against both workers and the ATE on the grounds of trade union participation by the Corrientes Municipal Loan Fund and the town council of Corrientes, in the province of Corrientes. The ATE states that despite Argentina having ratified ILO Conventions Nos 87 and 98, article 14bis of the Argentine Constitution guaranteeing workers the free and democratic right to organize, the second paragraph of article 75, subsection 22, of the Constitution according constitutional status to a series of international human rights treaties; the first paragraph of article 75, subsection 22, of the Constitution granting legal precedence to other international treaties, including ILO Conventions, the Government engaged in the systematic violation of freedom of association.
2. 265. The ATE states that, the complaint concerns the following violations: (a) the financial controller of the Corrientes Municipal Loan Fund engaged in systematic violation of freedom of association and in discrimination against the organization’s trade union rights by not granting a check-off code for the deduction of trade union dues, failing to provide office accommodation for the conduct of trade union activities and not allowing workers to exercise the fundamental rights of holding assemblies, electing delegates, and so on; (b) there has been a tendency to persecute and take reprisals against representatives of the workers of the ATE; and (c) the mayor of the town council of Corrientes ordered an act prejudicial to freedom of association by withdrawing the check-off code for the deduction of trade union dues from the ATE.
3. 266. The ATE notes that it has official trade union status No. 2 and is authorized to operate throughout Argentina and, consequently, in the town council of Corrientes, as well as in the autonomous agency under its authority, the Corrientes Municipal Loan Fund. However, the ATE is prevented from fully carrying out its trade union activities, both at the town council of Corrientes and at the Corrientes Municipal Loan Fund, as its scope of activity and all the rights that flow automatically and naturally from its representation are not recognized (articles 31, 38 et seq. of Act No. 23551). The ATE adds that this situation is exacerbated by the persecution suffered by one of the delegates, María Elena Villalba, a workers’ representative, who works at the Municipal Loan Fund.
4. 267. The ATE alleges that the Corrientes Municipal Loan Fund, when requested to grant the corresponding check-off code for the deduction of trade union dues, stated that, according to the terms of Corrientes Municipal Ordinance No. 3641/01, the only bodies recognized for this purpose are the Association of Municipal Workers and Employees of Corrientes (AOEM), the Federation of Corrientes Municipal Workers’ Unions (FESTRAMCO) and the Confederation of Municipal Workers and Employees of Argentina (COEMA), and not the ATE. Following this response, the ATE appealed to the Ministry of Labour, Employment and Social Security (MTSS) to rule on the scope of activity of the ATE and its applicability at the town council of Corrientes and at the Corrientes Municipal Loan Fund. The Ministry of Labour granted a certificate – established in MTSS resolution No. 51/87 – ruling that union dues should be deducted from ATE members, in accordance with article 24 of Decree No. 467/88 and article 38 of Act No. 23551 concerning trade union associations. On 26 August 2008, the implementing authority issued the corresponding certificate, which was submitted to the Corrientes Municipal Fund on 10 September 2008, together with National Trade Union Associations Directorate provision No. 20/02, which establishes the deduction of trade union dues as an obligation for employers.
5. 268. Nevertheless, and before transferring to another trade union organization, the Municipal Loan Fund stated that it is an autonomous and independent entity that is governed according to Ordinance No. 3641/01, and that the provisions of the Ministry of Labour do not apply to it. Article 83 provides that: “Personnel are entitled to form unions and to organize, in accordance with the applicable legislation. This statute recognizes the Association of Municipal Workers and Employees of Corrientes (AOEM), the Federation of Corrientes Municipal Workers’ Unions (FESTRAMCO) and the Confederation of Municipal Workers and Employees of Argentina (COEMA), trade unions of first, second and third levels, respectively, pursuant to the modalities provided for in article 11 of Act No. 23551, as sole trade union representatives of the workers of the town council of the city of Corrientes” … “that on this basis and adherence to the whole by the Municipal Loan Fund through the provisions of resolution No. 063 of 29 May 2001, which makes all the agents of that institution subject to the Single Statute for the personnel of the town council of the city of Corrientes (Ordinance No. 3641/01), the Municipal Loan Fund, like the town council, only recognizes the trade union associations described in article 83 of the rules cited”.
6. 269. The ATE indicates that this is the reason why the check-off code for the deduction of trade union dues for ATE members is not authorized, as provided in article 11 of Act No. 23551, article 83 of Ordinance No. 3641/01 and resolution No. 063/01 of the Municipal Loan Fund. According to the ATE, while the Municipal Loan Fund of the municipality of Corrientes did not grant the requested check-off code for the deduction of trade union dues, the town council of Corrientes had been deducting the union dues for the organization for over eight years. Despite such recognition, on 8 October 2008, the town council issued resolution No. 2526 withdrawing the check-off code for the deduction of trade union dues from the ATE on the basis of the abovementioned ordinance. Given this situation, and as there is no other trade union body with official trade union status at the town council of Corrientes, the implementing authority was once again asked to rule on whether this association has official trade union status, whether its rights as a legal entity are applicable in the municipality of Corrientes and whether the rights established in Act No. 23551 are accorded to it as it has official trade union status.
7. 270. On 23 October 2008, the Ministry of Labour handed down a ruling stating that “the ATE is a first-level trade union with official trade union status (registered as No. 2) with the exclusive powers indicated in article 31 and related provisions of Act No. 23551 and with representative capacity within the town council of Corrientes. It is also noted that there is no record of any displacement of the representative status of the ATE by another trade union organization”. The town council was again made aware of the implementing authority’s declaration, but it was not favourably received. The ATE alleges that the continued failure to recognize it constitutes systematic persecution of the affiliated workers and of their representatives.
8. 271. According to the ATE, on 23 June 2008, María Elena Villalba was appointed normalizing delegate of the Municipal Loan Fund, in accordance with the provisions of the statutes of the organization, and her mandate to occupy the same position was extended by 60 more days on 27 August 2008. On 8 October 2008, an election of delegates was held at the Municipal Loan Fund, and María Elena Villalba was elected. The employer was notified of this in due time, but refused to recognize her activity or position. Not only was María Elena Villalba’s position as delegate not recognized, but resolution No. 030/08, issued by the Municipal Loan Fund, ordered that she be laid off for a period of six months, extendable, together with all the other workers in the treasury sector.
9. 272. The ATE states that, while that resolution was not enforced, other actions were carried out against the workers’ organization. Memorandums were issued prohibiting workers from meeting or attempting to assemble or organize, timetables were altered, transfers were carried out and workers were intimidated. Furthermore, on 22 September 2008, the delegate María Elena Villalba was sanctioned under resolution No. 034/08, being suspended for 30 calendar days and having administrative proceedings brought against her for the purpose of imposing further sanctions, simply for being a normalizing delegate and having attended in that capacity the conciliation hearing on 18 September 2008 to which she had been summoned by the labour directorate of the province of Corrientes.
10. 273. The complainant organization indicates that the employer’s main argument for refusing to recognize the ATE revolves around Municipal Ordinance No. 3641 of 2001, mentioned above, article 83 of which recognizes that the AOEM, FESTRAMCO, and COEMA, as sole workers’ representatives at the town council of the city of Corrientes. Not only do these arguments ignore and violate national regulatory provisions, but it is also important to mention, in this specific case, that there are no administrative or judicial resolutions excluding the ATE from the Corrientes Municipal Loan Fund.
11. 274. The ATE states that the limits and scope of the principle and fundamental right of freedom of association, embodied in rules with constitutional status and legal precedence, are a federal matter, by rule of the devolution practiced in favour of the State. Consequently, provinces and municipalities are prohibited from legislating on aspects that are inherent to the organization and functioning of trade union organizations. But, despite this, the town council of the city of Corrientes mistakenly argues for, establishes and insists upon the monopoly of the AOEM. Also, the ATE maintains, according to Act No. 23551, the refusal to recognize it lacks any real or legal basis, given that the Ministry of Labour’s records show that the AOME has merely been registered and does not have official trade union status.
12. 275. The so-called trade union monopoly implies an attempt at compulsory affiliation to a trade union with the exclusion of others. This violates article 14bis of the Constitution, by seeking to limit “free and democratic organization”, and ILO Conventions Nos 87 and 98. The actions of the Corrientes Municipal Loan Fund and the town council of Corrientes constitute anti-union activity because the employer is the same in both cases. The ATE alleges that the employer’s actions can be divided into the following three anti-union actions: (a) establishing a trade union monopoly, failing to recognize and discriminating against the ATE by not granting it a check-off code for the deduction of trade union dues at the Municipal Loan Fund and, after eight years of recognition, stopping deductions at the town council of Corrientes; (b) failing to recognize the trade union representation status of the delegate María Elena Villalba, elected by the workers of the Corrientes Municipal Loan Fund, and persecuting and intimidating her; and (c) prohibiting the fundamental rights of workers, such as the right to hold assemblies.
13. 276. The complainant organization refers to a letter dated 9 October 2008, endorsed by the representative of the Corrientes Municipal Loan Fund which, in its view, details the mistaken and illegal belief held by that body, seeking to establish a trade union monopoly. The text is as follows:
    • … the exchange of opinions does not achieve any result. The town council of Corrientes and its autonomous body the Municipal Loan Fund is governed by Ordinance No. 3641/01, article 3, which provides that sole trade unions authorized in the public employment relationship are the Association of Municipal Workers and Employees of Corrientes (AOEM), domiciled at calle la Rioja 73, Corrientes, the Federation of Corrientes Municipal Workers’ Unions (FESTRAMCO), domiciled at Avenida 3 de abril 1394, Corrientes, and the Confederation of Municipal Workers and Employees of Argentina (COEMA), current and compulsory standards (within the framework of its competence) and rights reserved (article 2 of the Constitution). Reinforced by article 123 of the Constitution, the municipality is enjoying full autonomy. This ordinance was imposed by the federal Government through federal intervention (article 6 of the Constitution). The trade unions mentioned have almost all the unionized municipal employees, which makes the ATE’s claim invalid, and as such we dismiss the claim of a trade union that has neither a territorial nor an occupational connection to the Municipal Loan Fund. While this is in force, employees are subject to the abovementioned ordinance, freely and voluntarily (theory of individual action). As to María Elena Villalba, the proceedings instituted relate to other causes and we deny any type of persecution …
14. 277. The ATE indicates that before Ordinance No. 3641/01 came into force it was recognized by the town council of Corrientes, which deducted the union dues from members until November 2008, adding to the above argument concerning the monopoly established by the ordinance used by the autonomous body of the municipality. It is the ATE’s understanding that the actions of the administration in respect of the check-off code for the deduction of trade union dues, in addition to the express prohibition to exercise fundamental rights, shows a clear attitude of discrimination that is contrary to the spirit of the domestic and international legislation mentioned above.
15. 278. The lack of recognition is compounded by the harassment against the delegate mentioned, proof of which is the result of the administrative proceedings ordered by resolution No. 034/08, with an excessive, unfounded and arbitrary sanction consisting of 30 days’ suspension. This worker, therefore, had her wages deducted as a result of her trade union activities, with a very severe sanction clearly intended to thwart any attempt by workers to organize in the defence of their interests. On 25 August 2008, and in compliance with a mandate from the workers of the Municipal Loan Fund, the ATE requested the intervention of the Undersecretariat of Labour of the province of Corrientes, asking it to initiate a conciliation process with the employer to solve the collective labour dispute caused by laying off all the personnel in the treasury sector, where the delegate works. The first hearing of that conciliation process was held at the headquarters of the Undersecretariat of Labour, in the presence of representatives of the Municipal Loan Fund, and the director of work called for a recess. The ATE delegate agreed. The second hearing was scheduled for 18 September 2008 by means of a writ of notification from the executive council for the province of Corrientes, and the delegate again requested an exemption in order to attend the hearing together with confirmation from the SecretaryGeneral of the ATE. This time the exemption was refused, but María Elena Villalba attended all the same, and, in any case, she was exercising her rights under the principle of freedom of association, attending the hearing in defence of the workers. The employer then sanctioned her for attending the hearing, although she had previously requested an exemption and had informed the employer of her absence from her place of work, which, furthermore, had been approved for the first hearing without any type of objection.
16. 279. The ATE indicates that resolution No. 058/08 set aside the order to lay off all the workers in the treasury sector of the Municipal Loan Fund of the city of Corrientes. To sanction her for this is clearly an example of trade union persecution, which, in addition to the serious financial and personal damage that she has suffered, certainly also hampers her trade union representation duties.
17. 280. The ATE indicates that the terms of letter No. 988207639 of 29 October 2008, signed by the representative of the Municipal Loan Fund, reveal the illegal position held by that body, namely: “… I notify you specifically, reiterating our earlier letter in view of the fact that it appears that you do not read the texts, that it is totally and absolutely prohibited to hold any type of meeting of a religious, political or trade union nature inside the institution, and persons who pursue such objectives will be prevented from entering by the police. The town council of Corrientes and the Municipal Loan Fund are governed by Ordinance No. 3641/01, articles 83 and 59 – which I advise you to read – which provide that the AOEM, FESTRAMCO and COEMA are sole trade unions authorized in public employment relationships. The trade unions mentioned exclude the ATE in compliance with prevailing legislation. Employees subject to the Ordinance …”. According to the ATE, the writ of notification from the Municipal Loan Fund shows that all the personnel were notified that “any type of trade union act is prohibited within the Municipal Loan Fund without the due authorization of the institution’s authorities”.
18. 281. On this matter, it is recalled once again that national regulations, as well as specific constitutional and international guarantees, guarantee freedom of association and, more specifically, article 23 of Act No. 23551 establishes that trade unions, once they are registered, are entitled to “hold meetings and assemblies without the need for prior authorization”. To summarize, the ATE claims that the State of Argentina, through the town council of Corrientes and the Municipal Loan Fund of Corrientes, has systematically violated the fundamental collective and trade union rights of workers.

B. The Government’s reply

1. 282. In its communication of 1 September 2009, the Government states that it consulted the Undersecretariat of Labour of the province of Corrientes and was informed that, in provision No. 895 of 23 October 2008, a conciliation hearing was scheduled for 28 October 2008, which did not go ahead due to the failure of the parties to appear. Furthermore, it indicates that the ATE has not taken any action in respect of the administrative proceedings since November 2008.
2. 283. The provincial authority states that, at the beginning of 2009, the trade union organization made an application before the ordinary courts of the city of Corrientes, initiating judicial proceedings No. 33311 entitled “Precautionary measure, Association of State Workers (ATE) v. Town council of the city of Corrientes and others concerning appeal for the protection of constitutional trade union rights”. It also notes that the relevant part of judicial resolution No. 107, dated 8 June 2009, orders: (1) the suspension of any act by the Municipal Loan Fund that constitutes an obstacle to the ATE in the exercise of its trade union activities; and (2) that the exceptional precautionary measure be allowed, setting aside the suspension of María Elena Villalba for 30 days. The Government indicates that having channelled the claims through the appropriate judicial body and having abandoned the administrative route pursued initially, it considers that the result of the judicial proceedings should now be awaited.

C. The Committee’s conclusions

1. 284. The Committee observes that, in this case, the complainant organization alleges that, in violation of its trade union rights, the authorities of the Corrientes Municipal Loan Fund decided not to deduct the union dues of its members, failed to provide the trade union with an office space, did not allow assemblies to be held and sanctioned with a suspension of 30 days the ATE delegate, María Elena Villalba, under resolution No. 034/08 for having attended, in her capacity as delegate, a conciliation hearing to which she had been summoned by the Labour Directorate of the Province of Corrientes. The ATE also alleges that the authorities of the municipality of Corrientes ruled in resolution No. 2526 of 8 October 2008, to withdraw the check-off code for the deduction of trade union dues from union members (according to the complainant organization, the town council had been deducting union dues for ATE members for over eight years).
2. 285. The Committee notes the Government’s information that it consulted the Subsecretariat of Labour of the Province of Corrientes, which informed it that: (1) in provision No. 895 of 23 October 2008, a conciliation hearing was scheduled for 28 October 2008, which did not go ahead due to the failure of the parties to appear and that the ATE had not taken any action in respect of the administrative proceedings since November 2008; (2) at the beginning of 2009 the trade union organization made an application to the courts, initiating judicial proceedings No. 33311 entitled “Association of State Workers (ATE) v. Town council of the city of Corrientes concerning appeal for the protection of constitutional trade union rights”; and (3) judicial resolution No. 107 of 8 June 2009 ordered the suspension of any act by the Corrientes Municipal Loan Fund that constitutes an obstacle to the ATE in the exercise of its trade union activities, which gave rise to a precautionary measure, setting aside the suspension for 30 days of María Elena Villalba. Finally, the Committee notes the Government’s indication that, having channelled the claims of the complainant organization to the appropriate judicial body and having abandoned the administrative route, it considers that the result of the judicial proceedings should now be awaited.
3. 286. The Committee takes due note of the intervention of the judicial authorities in respect of the allegations and, in particular, the provision that all acts that constitute obstacles to the ATE’s trade union activities be suspended and that they cancelled the suspension of the trade union delegate María Elena Villalba. In this respect, the Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way.
4. 287. With respect to the alleged refusal to deduct union dues from ATE members at the Corrientes Municipal Loan Fund and at the town council of Corrientes (at the latter institution, the deduction had been made for eight years, according to the complainants), the Committee cannot determine, from the Government’s reply, whether the judicial action under way has given rise to any measures relating to these allegations. The Committee observes the complainant organization’s statement that the Ministry of Labour granted a certificate (MTSS resolution No. 51/87) ruling, in application of the Act on trade unions, that trade union dues be deducted from ATE members in the context in question. The Committee observes that neither the Government nor the municipal authorities have denied these statements. The Committee recalls that depriving trade union organizations of the trade union dues of their members can cause them considerable financial difficulties and, consequently, serious operational difficulties; also, it is not conducive to the development of harmonious industrial relations. This being the case, the Committee requests the Government to ensure that the Corrientes Municipal Loan Fund and the town council of Corrientes deduct and submit to the ATE the trade union dues of its members. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 288. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way initiated by the ATE against the town council of Corrientes, to which the Government refers.
   • (b) The Committee requests the Government to ensure that the Corrientes Municipal Loan Fund and the town council of Corrientes deduct and submit to the ATE the trade union dues of its members, in accordance with its certificate (MTSS resolution No. 51/87) issued by the Ministry of Labour. The Committee requests the Government to keep it informed in this respect.