Definitive Report - Report No 360, June 2011

Case No 2784 (Argentina) - Complaint date: 18-MAY-10 - Closed

Allegations: The complainant organizations object to a decree of the executive authority of Neuquén province that, in the context of a strike in the education sector, designates education in the province as an essential public service and establishes a system of minimum services

1. 224. The complaint is contained in a communication dated 18 May 2010 from the Confederation of Education Workers of Argentina (CTERA) and the Educational Workers’ Association of Neuquén (ATEN).
2. 225. The Government sent its observations in a communication dated August 2010.
3. 226. 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 complainants’ allegations

1. 227. In their communication of 18 May 2010, the ATEN and the CTERA indicate that a legal and union-related situation has arisen that is prejudicial to state education workers in the province of Neuquén in Argentina, which constitutes a flagrant disregard of internationally accepted principles which, inasmuch as they have been incorporated into Argentina’s own legislation, guarantee freedom of association and the right to strike.
2. 228. The complainant organizations state that they are referring to the issuance of Decree No. 735/10 dated 15 May 2010 by the executive authority of Neuquén province concerning the non-recognition of the right to strike, as education has once again been designated as an “essential service”, with “minimum staffing levels” being introduced in educational establishments and directors being obliged to report on attendance, thereby preventing teachers in the province from exercising the right to strike and providing for sanctions to be applied to education workers who attempt to take collective and direct action measures.
3. 229. In particular, the complainant organizations indicate that the abovementioned decree, in its operative part, provides as follows:
   • Section 1: In Neuquén province, education during the period of compulsory schooling is designated as an essential public service.
   • Section 2: Minimum staffing levels are set for educational establishments, to ensure:
     • (a) that the educational establishment can open and that the pupils can remain there throughout the school day;
     • (b) that at least 50 per cent of classes, at all levels and structures of the provincial education system, can take place on any given school day.
   • Section 3: Minimum staffing levels are set for special schools, boarding schools, schools with residential facilities and schools that provide meals, to ensure:
     • (a) that the educational establishment can open and that the pupils can remain there with the necessary comprehensive assistance throughout the school day;
     • (b) that 100 per cent of classes, and all activities corresponding to these types of schools, at all levels and structures of the provincial education system, can take place on any given school day.
   • Section 4: In the event of a failure to comply with the provisions of the preceding sections, the competent educational authority may call upon supply teachers and non-teaching staff and may use the mechanisms that it considers necessary to enable educational establishments to operate, as appropriate.
   • Section 5: The directors or managers of each educational establishment, in their capacity as public servants, must keep a daily record of the attendance and absences of their staff and have a duty to provide information in this regard to the higher authority the following working day.
   • Section 6: Failure to comply with any of the obligations set out in the present legal standard constitutes a serious offence and carries the penalties established by the legislation in force.
   • Section 7: The Secretary of State for Education, Culture and Sport and the President of the Provincial Education Council are called upon to determine which mechanisms are needed to put into effect the provisions of the present decree, taking into account the specific needs and characteristics of each educational establishment, the number of pupils and the teaching methods that are used.
   • Section 8: A copy of the present decree shall be sent to the legislature of Neuquén province, in line with usual practice.
4. 230. The complainant organizations allege that, in the light of the above, a blatant violation of freedom of association has been occurring, in particular as a result of the actions of the authorities of Neuquén province, which are trying to exercise functions that are expressly outside their remit. This situation is without doubt due to a transgression of the Constitution and to certain legislative loopholes to which the State of Argentina as a whole must respond. The complainants explain that the labour dispute arose in Neuquén province as a result of the failure of the ATEN and the provincial government to reach a final agreement, despite the existence of a joint agreement reached at the national level between the CTERA and the national Government, dated February 2010, under which a wage increase of more than 23 per cent will be achieved.
5. 231. The complainant organizations add that, in accordance with the statutes of the CTERA, which have been duly registered with the National Ministry of Labour, and with the specific provisions of Act No. 23551 on trade union associations, trade unions are guaranteed, in terms of collective freedom of association, the right “to formulate their own action plans and to carry out any lawful activity to defend the interests of workers. In particular, they may exercise the right to bargain collectively, the right to participate, the right to strike and the right to take other forms of legitimate trade union action” (section 5(d) of Act No. 23551). In addition, the national Constitution contains a strong operative clause, establishing a sequence to be followed: “Trade unions are guaranteed the right to enter into collective agreements, to have recourse to conciliation and arbitration and to strike” (section 14bis, second paragraph). It is clear that, according to the Constitution, the first step is to negotiate, reach agreement, restore balance, correct inequities and ensure bargaining parity between unions and employers through the introduction of legislation negotiated as part of a collective agreement; the next step is to establish dispute prevention mechanisms based on conciliation and voluntary arbitration (although the Constitution does not indicate whether this should be a government activity); and finally, as a last resort, the power of the union to exercise the right to strike (the legitimate use of force). A collective process was foreseen that, even in the worst of cases, should be completed without any legal obstacles.
6. 232. According to the complainant organizations, the national Constitution does not set any limits or conditions, as is the case with other constitutions. Therefore, the collective law institutions provided for by the Constitution are characterized by their strong capacity to act immediately and efficiently. Accordingly, the right to strike may be invoked and exercised even though there is no regulatory act passed by Congress governing this right, because exercising the right to strike does not require legislative regulation. Article 75(22) of the Constitution of Argentina provides for the recognition of the constitutional status of human rights declarations and treaties. Of the human rights instruments, only the International Covenant on Economic, Social and Cultural Rights explicitly refers to the right to strike (section 8.1(d)). Nevertheless, the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the American Convention on Human Rights encompass the right to strike as part of the right to freedom of association.
7. 233. The complainant organizations state that there are no ILO Conventions or Recommendations specifically governing the right to strike, but that the right is seen as being implicit in the right to freedom of association enshrined in Conventions Nos 87 and 98 and in the right to collective bargaining enshrined in Convention No. 154. They also state that a new interaction appears in section 24 of Act No. 25877 in relation to disputes concerning essential services: “Essential services are defined as being health and hospital services, the production and distribution of drinking water, electricity and gas and air traffic control. An activity that is not included in the above list may, on an exceptional basis, be designated as an essential service by an independent commission established in accordance with the regulations”. Accordingly, the complainant organizations consider that, according to national legislation, education neither is nor could be an essential service, in view of the above and of the principles of the ILO supervisory bodies. According to the complainant organizations, it is worth mentioning that, on 18 March 2010, the national executive authority issued regulatory Decree No. 362/10 on the Guarantees Commission as provided for under section 24 of Act No. 25877, for the purposes foreseen in that provision, in other words with a view to designating on an exceptional basis activities that do not feature on the abovementioned list.
8. 234. The complainant organizations are truly surprised by the illegal and arbitrary way in which Decree No. 735/10 was issued by the executive authority of Neuquén province, which is clearly in no way in line with the principles of the ILO Committee on Freedom of Association. It cannot be claimed, as is inferred from the issuance of Decree No. 735/10 by the executive authority of Neuquén province, that regulating the right to strike falls within the remit of the provincial authorities. The complainant organizations claim that they do not share the assumptions that are set out in the introductory clauses of Decree No. 735/10, according to which the section 24 in question of Act No. 25877 allows education to be designated as an essential service.
9. 235. The complainants maintain that education is not an essential service, but a social right that should be guaranteed by the State. Decree No. 735/10 of the provincial government constitutes a clear regulatory excess, insofar as it attempts to regulate a constitutional right, but especially insofar as it does not comply with the decisions, guidance and conclusions of the Committee on Freedom of Association. The complainant organizations conclude by indicating that the designation of education as an essential service, the introduction of “minimum staffing levels” and the obligation on the directors of educational establishments to inform on teaching staff who exercise the right to strike, as provided for under Decree No. 735/10 of the State of Neuquén province, are acts that are in blatant violation of the decisions of the Committee on Freedom of Association.

B. The Government’s reply

1. 236. In its communication of August 2010, the Government reports that, according to the executive authority of the province, it is necessary to describe the situation prior to the issuance of Decision No. 735/10. Specifically, the executive authority of the province indicates that for six months prior to the start of the academic year and while industrial action was being taken, negotiations were being held between the complainant trade union, the Board of Education and the provincial government (November and December 2009 and February, March and April 2010). In view of the ongoing disagreement, Decision No. 067/10 was issued on 23 April 2010 calling for compulsory conciliation (Case No. 4070-001974/210 entitled “Secretary of State for Education, Culture and Sports, concerning compulsory conciliation order, teaching dispute”).
2. 237. The provincial government adds that, despite the appeal for compulsory conciliation, the union ATEN refused to recognize the authority of the Office of the Under-Secretary of Labour to convene such conciliation proceedings, did not attend the notified hearings and continued its ongoing industrial action, resulting in a total of 39 days with no classes and the setting up of roadblocks. It indicates that it was under these circumstances that Decision No. 71/10 was issued, closing the conciliation phase and ordering the initiation of examination proceedings. In this instance, and giving priority to the right to education, the executive authority of the province issued Decision No. 735/10, which is challenged in the complaint.
3. 238. The provincial government indicates that, on 20 May 2010, an agreement was signed on wages and the consequent lifting of industrial action. The executive authority of the province states that the teachers’ union did not change its position before the start of the corresponding academic year; in other words, it continued to take direct action, resulting thereafter in the loss of classes with no opportunities for replacement classes, in complete and systematic disregard for existing legal practice. The provincial government’s intention when it issued its decisions, and as has been seen throughout the course of the dispute, was not in any way to limit the right of teachers to strike, but basically to ensure the right of children to education and health, in accordance with the obligations enshrined in the Constitution. Furthermore, it considers that, given the context, the administrative measure that was taken does not warrant any sanction.
4. 239. Finally, with reference to Case No. 2414, the Government considers it important to note that ATEN represents only the teaching staff who are a party to the dispute, and not the directors and deputy directors, who enjoy the status of political officials, in other words representatives of the public authority responsible for running educational establishments.
5. 240. With regard to the Guarantees Commission, which is in fact governed by Decree No. 56/10 (and was established under section 24 of Act No. 25877), the Government indicates that section 24 of Act No. 25877 provided that the obligation to continue to provide a minimum service during a strike or work stoppage is enforceable only in cases where a direct action measure affects the provision of an essential service in accordance with the criteria established in that respect by the supervisory bodies of the ILO, namely, with regard to health and hospital services, the production and distribution of drinking water, electricity and gas and air traffic control. Accordingly, the standard in question provided that only on an exceptional basis can activities other than those listed be designated as essential services, through an independent commission, prior to the opening of the conciliation procedure provided for by law and only under the following circumstances: (a) when the duration and geographical extent of the interruption of activity mean that the implementation of the measure might endanger the life or safety of all or part of the population; and (b) when it is a public service of vital importance. According to the information provided by the provincial authority, neither of these conditions were fulfilled, and an agreement with the union could be reached, meaning that the dispute did not fit appropriately into the category of situations for which the intervention of the Guarantees Commission is envisaged, in accordance with the provisions of section 24 of Act No. 25877.

C. The Committee’s conclusions

1. 241. The Committee observes that, in the present case, the complainant organizations object to Decree No. 735/10 dated 15 May 2010 issued by the executive authority of Neuquén province, which establishes that, in Neuquén province, education during the period of compulsory schooling is designated as an essential public service and sets minimum staffing levels (minimum service) for 50 per cent of classes and for 100 per cent of classes in special schools, boarding schools, schools with residential facilities and schools that provide school meals; the complainant organizations also object to the provision of the decree that states that the directors or managers of each educational establishment must keep a daily record of the attendance and absences of their staff and provide this information to the higher authority.
2. 242. The Committee notes that, according to the Government, the Neuquén province reported that: (1) it is necessary to describe the situation prior to the issuance of Decision No. 735/10; specifically, for six months prior to the start of the academic year and while industrial action was being taken, negotiations were being held between the complainant trade union, the Board of Education and the provincial government and, in view of the ongoing disagreement, Decision No. 067/10 was issued on 23 April 2010 calling for compulsory conciliation; (2) despite the appeal for compulsory conciliation, the union ATEN refused to recognize the authority of the Office of the Under-Secretary of Labour to convene such conciliation proceedings, took ongoing industrial action – for 39 days no classes were given – and set up roadblocks; (3) it is under these circumstances that Decision No. 71/10, closing the conciliation phase, and Decision No. 735/10, which is challenged in the complaint, were issued; (4) on 20 May 2010, an agreement was signed on wages and the consequent lifting of industrial action; (5) prior to the start of the academic year in question, the teachers’ union took direct action, resulting thereafter in the loss of classes with no opportunities for replacement classes, in complete and systematic disregard for existing legal practice; (6) the provincial government’s intention when it issued the abovementioned decisions and throughout the course of the dispute was not in any way to limit the right of teachers to strike, but basically to ensure the right of children to education and health, in accordance with the obligations enshrined in the Constitution; (7) Act No. 25877 provided that only on an exceptional basis can activities other than those listed (health and hospital services, the production and distribution of drinking water, electricity and gas and air traffic control) be designated as essential services, through an independent commission, prior to the opening of the conciliation procedure provided for by law and only under the following circumstances: (a) when the duration and geographical extent of the interruption of activity mean that the implementation of the measure might endanger the life or safety of all or part of the population; and (b) when it is a public service of vital importance; and that, as neither of these conditions were fulfilled, and because an agreement could be reached with the union, the dispute did not fit appropriately into the category of situations for which the intervention of the Guarantees Commission is foreseen.
3. 243. First of all, the Committee observes that the dispute and the strike that gave rise to Decision No. 735/10, which is contested by the complainant organizations, were settled as a result of an agreement reached by the parties in May 2010. The Committee recalls that it has been called upon in the past to examine a case against the Government of Argentina relating to allegations of limitations on the right to strike in the education sector in Neuquén province and that, on that occasion, it emphasized that the education sector in general does not constitute an essential service in the strict sense of the term and recalled that minimum services may be established in the education sector, in full consultation with the social partners, in cases of strikes of long duration [see 349th Report, Case No. 2562, paragraph 406]. Furthermore, the Committee has considered that the provision of food to pupils of school age and the cleaning of schools may be considered essential services in the strict sense of the term [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paragraph 585].
4. 244. The Committee observes that, in the present case, the Government indicates that the industrial action continued for a period of 39 days and that subsequently Decree No. 735/10 was issued, imposing minimum services, but the Government does not mention holding consultations with the social partners on the scope of the minimum services. Bearing in mind that, in Argentina, the right to strike exists in the education sector in a broad sense, but that in this specific case the organizations of employers and workers concerned were not consulted with regard to the minimum services, the Committee requests with insistence the Government to ensure that, in the future, in the event of a dispute in the education sector in Argentina involving a strike of long duration, measures are taken to ensure that not only the public authorities but also the organizations of workers and employers concerned participate in defining the minimum service. The Committee recalls that this had already been requested previously in the context of Case No. 2562. Accordingly, the Committee requests the Government to confirm that Decree No. 735/10 issued by Neuquén province is no longer in force.

The Committee's recommendations

1. 245. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to confirm that Decree No. 735/10 issued by Neuquén province is no longer in force. The Committee requests with insistence that, in the future, in the event of a strike of long duration in the education sector in the aforementioned province, the Government will take measures to ensure that not only the public authorities but also the organizations of workers and employers concerned participate in defining the minimum service.