Interim Report - Report No 363, March 2012

Case No 2702 (Argentina) - Complaint date: 28-FEB-09 - Closed

Allegations: The complainant organization alleges acts of anti-trade union harassment were committed and dismissal of a trade union officer

1. 248. The Committee last examined this complaint at its March 2011 meeting and on that occasion presented an interim report to the Governing Body [see 359th Report, approved by the Governing Body at its 310th Session (March 2011), paras 214–226].
2. 249. The Government sent its observations in a communication dated 2 November 2011.
3. 250. 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. Previous examination of the case

1. 251. In its previous examination of the case, the Committee made the following recommendations [see 359th Report, para. 226]:
   • (a) The Committee urges the Government to conduct the requested investigation immediately into all the allegations of discrimination and anti-union dismissals (14 trade union members and one union officer according to the complainant; 11 workers according to the company) and to keep it informed in this regard. Furthermore, while noting the company’s statement that the judicial authority rejected an amparo appeal filed by the representatives of the union being established, the Committee requests the Government to inform it whether the dismissed workers, including trade union officer Mr Rubén Óscar Godoy, have taken legal action. In addition, the Committee invites the CTA to forward any additional information.
   • (b) As regards the allegation that on 18 April 2008, the day of the strike, the police used force against the strikers, leaving seven injured (one of them, Mr José Lagos, seriously), the Committee urges the Government to take steps to ensure that an investigation is launched into this matter, to send information on its outcome and to send information on the outcome of the complaints against these acts filed with the Public Prosecutor’s Office of Mar del Plata, Buenos Aires Province.

B. The Government’s reply

1. 252. In its communication dated 2 November 2011, the Government sends the reply from the administrative authority of Buenos Aires Province (hereinafter referred to as the provincial authority). The provincial authority states that the complainant organization considered that a judicial situation has arisen that is prejudicial to the workers, who consider that it constitutes a failure to comply with internationally accepted principles which, inasmuch as they have been incorporated into Argentina’s own legislation, guarantee freedom of association and the right to strike. Nevertheless, in the opinion of the provincial authority, the complainant organization has failed, in its complaint, to identify any specific action taken by Buenos Aires Province that might have violated freedom of association, and the provincial Ministry of Labour intervened within the limits of its own powers of conciliation and restoration of social peace.
2. 253. The provincial authority outlines the facts set forth in previous examinations of the case. It also states that it intervened in the dispute involving the Supermercados Toledo SA enterprise as soon as it was informed of it through a complaint lodged by the workers and the Confederation of Argentine Workers (CTA). It emphasizes the important role played by the provincial labour authority, which offered the parties a conciliation procedure, summoned them to conciliation hearings, and constantly sought a peaceful settlement to the dispute.
3. 254. The provincial authority adds that in this context, the intervention by Ministry of Labour of Buenos Aires Province had a positive effect from the complainant organization’s point of view since it led to an administrative procedure that provided an opportunity for dialogue within the framework established by law. It was a lawful and appropriate intervention, within the limits of the powers of the body to which the party had appealed; this does not preclude any intervention at the national level by the Ministry of Labour, Employment and Social Security, which is the authority responsible for enforcing Act No. 23551, and before which the parties could have filed their complaints.
4. 255. The provincial authority points out that, notwithstanding the above, the dispute lay outside the competence of the provincial Ministry of Labour, since the complaint referred to unfair practices, applicability issues and violations of trade union rights – matters which should be resolved at the national level by the Ministry of Labour, Employment and Social Security, which is the authority responsible for enforcing Act No. 23551, and/or the judiciary. That being so, and given the fact that the employer party had repeatedly declined to take part in the procedure, and that the dispute involved issues in respect of which the provincial labour authority was not competent to intervene, the provincial Ministry of Labour merely organized the abovementioned hearings and attempted to reach a peaceful settlement between the parties.
5. 256. According to the provincial authority, it is clear from the above that credence should not be given to the suggestion that the Government was reluctant to exercise its legislative capacity as the body responsible for guaranteeing the minimum rights of freedom of association contained in ILO Conventions Nos 87 and 98. As described above, freedom of association is guaranteed, and any discrimination sanctioned, by the legislative framework in force – articles 14bis, 16 and 75(22) of the National Constitution; and Acts Nos 23551 and 23592. Furthermore, it states that Act No. 23551 applies, under article 14bis of the National Constitution, and in accordance with ILO doctrine, the mechanisms of state control and regulation do not in any way restrict the powers inherent in freedom of association, since they provide objective and predetermined criteria serving to prevent rights abuses and promote collective bargaining. The provincial authority states that national legislation provides sufficient guarantees for the exercise of freedom of association and that the complainant had the opportunity to apply for judicial review of the dismissals ordered by the employer, and for enforcement of the applicable statutory penalties.
6. 257. The provincial authority recalls that the Argentine legal system guarantees the freedom to establish trade unions without prior authorization.

C. The Committee’s conclusions

1. 258. The Committee recalls that in the present case the complainant organization alleged acts of discrimination, specifically the anti-union dismissal of 14 trade union members and one trade union officer in the Supermercados Toledo SA enterprise. It further alleged that the police had used force against the strikers and seven persons had been injured. In its previous examination of the case, the Committee urged the Government to conduct the requested investigation immediately into all the allegations of discrimination and anti union dismissals; it also requested the Government to inform it whether the dismissed workers, including trade union officer Mr Rubén Óscar Godoy, had taken legal action. Furthermore, it urged the Government to take steps to ensure that an investigation was launched into the use of force by police against the strikers (leaving seven injured, one of them seriously).
2. 259. The Committee observes that the Government has sent the reply from the administrative authority of Buenos Aires Province. In this regard, the Committee notes that the provincial authority states that: (1) it intervened in the dispute between the enterprise and the complainant when it was informed of the complaint lodged by the workers and the CTA, and offered the parties a conciliation procedure; (2) it summoned them to conciliation hearings and constantly sought a peaceful settlement to the dispute; (3) the intervention had a positive effect since it led to an administrative procedure that provided an opportunity for dialogue; (4) the dispute lay outside the competence of the provincial labour authority, since the complaint referred to unfair practices, applicability issues and violations of trade union rights – matters which should be resolved at the national level by the Ministry of Labour, Employment and Social Security and/or the judiciary; (5) given that the employer party had declined to take part in the dialogue procedure, and that the dispute involved issues outside the remit of the provincial labour authority, it confined itself to holding the abovementioned hearings and attempting to reach a peaceful settlement between the parties; and (6) freedom of association is guaranteed and any discrimination was sanctioned by the National Constitution and Acts Nos 23551 and 23592.
3. 260. While noting the observations of the provincial administrative authority (particularly in so far as they relate to its intervention in the dispute, which involved complaints of violations of trade union rights, with a view to offering a conciliation procedure), the Committee regrets that the Government has failed to report on the specifically requested investigations or transmit the requested information. In these circumstances, the Committee once again urges the Government to: (1) conduct the requested investigation immediately into all the allegations of anti-union dismissals (14 trade union members and one union officer according to the complainant; 11 workers according to the company) and to keep it informed in this regard; (2) inform it whether the dismissed workers, including trade union officer Mr Rubén Óscar Godoy, have taken legal action; and (3) conduct an investigation into the allegation that on 18 April 2008, the day of the strike, the police used force against the strikers, leaving seven injured (one of them, Mr José Lagos, seriously), and send information on the outcome of the investigation as well as on the outcome of the complaints against these acts filed with the Public Prosecutor’s Office in Mar del Plata, Buenos Aires Province.

The Committee’s recommendation

1. 261. In the light of the foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee once again urges the Government to: (1) conduct the requested investigation immediately into all the allegations of anti-union dismissals in the Supermercados Toledo SA enterprise (14 trade union members and one union officer according to the complainant; 11 workers according to the company) and to keep it informed in this regard; (2) inform it whether the dismissed workers, including trade union officer Mr Rubén Óscar Godoy, have taken legal action; and (3) conduct an investigation into the allegation that on 18 April 2008, the day of the strike, the police used force against the strikers, leaving seven injured (one of them, Mr José Lagos, seriously), and send information on the outcome of the investigation as well as on the outcome of the complaints against these acts filed with the Public Prosecutor’s Office of Mar del Plata, Buenos Aires Province.