Report in which the committee requests to be kept informed of development - Report No 365, November 2012

Case No 2861 (Argentina) - Complaint date: 12-APR-11 - Closed

Allegations: The complainant organizations allege acts of anti-union harassment against the General Secretary of the ASDE for having taken unpaid leave for the exercise of trade union activities, as well as the refusal to deduct ASDE members’ union dues at source

1. 195. This complaint is contained in a communication from the Confederation of Education Workers of Argentina (CTERA) and the San Luis Association of State Teachers (ASDE) dated 12 April 2011.
2. 196. The Government sent its observations in a communication in May 2012.
3. 197. 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 198. In their communication dated 12 April 2011, the CTERA and ASDE report a situation of unusual gravity which is detrimental to the education workers of San Luis province, giving rise to the submission of the complaint against the Argentine Republic for violation of the fundamental principles of freedom of association, the free and democratic right to organize, and the right to trade union representation which, as laid down in the treaties and Conventions of the ILO, are guaranteed by Argentine legislation, including the national Constitution ((articles 14bis and 75, paragraph 22) and other existing laws referred to below).
2. 199. The complainants state that the complaint relates to the actions of the state authorities in San Luis province, that is to say, the discriminatory and arbitrary acts of trade union harassment against Ms María Inés Quattropani, General Secretary of the ASDE and a member of the executive board of the CTERA. The complainants allege that Ms Quattropani was threatened with dismissal for taking trade union leave without pay pursuant to section 48 of Act No. 23551, which was communicated to the employer by the CTERA. Furthermore, the complainants add that San Luis province has also failed to deduct union dues at source for the ASDE despite doing this for other public sector organizations with the same legal status.
3. 200. The complainants allege that Ms Quattropani has suffered infringement of her rights as a state teacher and trade union representative, and her fellow union members have also been subject to clear discrimination. This has reached such illegal and arbitrary extremes that Ms Quattropani is threatened with arbitrary dismissal by the Ministry of Education of the province after their absurd refusal to grant her trade union leave in her capacity as a member of the executive board of the CTERA, as expressly and categorically provided for under section 48 of Act No. 23551 concerning trade union associations. Ms Quattropani has been a state teacher in San Luis province since March 1985, and is a member of staff at school No. 240 “Provincia de Corrientes” in Villa Mercedes, San Luis province. She is also General Secretary of the ASDE and a member of the executive board of the CTERA as well as a full national congress member of the Confederation of Argentine Workers (CTA), having been elected General Secretary of the ASDE for two consecutive periods in 2007 and 2010.
4. 201. During her first term of office, Ms Quattropani requested trade union leave under section 101 of the Regulations for Teaching Personnel, Provincial Act No. XV-0387-2004, administrative file No. 0000-2009-005421, but has so far received no reply despite making repeated requests verbally and in writing. In mid-2010, Ms Quattropani repeated her formal request for trade union leave owing to the increasing difficulty of fulfilling both her work and union duties in the light of the upcoming elections at both the ASDE and the CTERA, as well as the subsequent elections at the CTA. Given the tacit refusal of previous requests, Ms Quattropani decided to make clear to the management of school No. 240 that the trade union leave would be without pay, as laid down in section 102 of the abovementioned Regulations, initiating file No. NOA-2082-2010-000460. In this document, dated 5 July 2010, she provided the required documentation and stated that from 2 August 2010 and until the end of her term of office – November 2010 if not re elected – she would take trade union leave under section 102 of the Regulations, which clearly states: “Requests for trade union leave without pay … will enter into force from the requested date.”
5. 202. The complainants state that, under these conditions and without receiving any reply, Ms Quattropani was re-elected in September 2010 as General Secretary of the ASDE, a first-level trade union of the CTERA in San Luis province, and elected to the national executive board of the CTERA as a substitute member, which was communicated to the provincial authorities. On 6 December 2010, on the orders of the educational authority, the management of the state school of San Luis province told Ms Quattropani to return to work and informed her that her absence was unjustified (it should be noted that the trade union leave considered unjustified began after the requisite one month’s notice on 2 August 2010 yet the authorities informed Ms Quattropani of this “news” on 6 December 2010, namely four months later).
6. 203. The complainants state that the reading and interpretation of section 102 of the abovementioned Regulations clearly show that the granting of trade union leave without pay is not at the discretion of the employer. The staff member only needs to respect the period of notice, as was the case with Ms Quattropani. This was ignored by the authorities who informed her in an arbitrary and illegal manner that she must return to work and dealt with her situation in such a manner that were Ms Quattropani to return to work, she could still face dismissal. Her right to trade union leave was denied and so far no reply has been forthcoming regarding the appeal lodged on 9 December 2010 against the administrative authority’s decision of 6 December 2010. According to the complainants, it is important to make clear that the situation is worsening and to such an extent that it represents clear discrimination against, and harassment of, the ASDE, the CTERA and of course Ms Quattropani, given that trade union benefits that have been denied to these trade unions have been granted by the same authorities to other similar teachers’ trade unions in the province (for example, trade union leave with pay was granted to Mr Danna, a delegate of the Argentine Teachers’ Federation (UDA)).
7. 204. The complainants explain that the provincial authorities claim Ms Quattropani’s situation is not concerned with trade union leave without pay but is about unjustified absence, and are obviously acting deliberately and maliciously in a typical anti-trade union manner given that the request for trade union leave under section 102 of the Regulations for Teaching Personnel of the province arises from the tacit and discriminatory refusal by the authorities of the timely request for paid trade union leave. The complainants request that the discrimination and intimidation should cease and that a ruling be delivered to ensure that San Luis province recognizes the trade union leave that had to be taken without pay from August 2010. Furthermore, the complainants request that the ASDE and its members be accorded trade union leave with pay on the same terms as other teacher trade unions such as the UDA and the AMPPYA, both of which have their union dues deducted at source and have two members each on trade union leave, paid by the provincial government. According to the complainants, the ASDE should enjoy the same right so that these unfair inequalities cease, since the situation described above not only prevents it from functioning correctly but also puts its General Secretary at risk of dismissal.

B. The Government’s reply

1. 205. In its communication of May 2012, the Government indicates that, in answer to its enquiries, the Ministry of Education of San Luis province replied as follows:

(a) The leave

1. 206. The San Luis Ministry of Education provided a brief, balanced overview, stating that the teacher, Ms Quattropani, kept changing her request for trade union leave. In the first instance, she requested trade union leave with pay, then later requested trade union leave without pay. The Ministry stresses the fact that this was itself confusing, since the two requests involved a mixture of the provisions of both types of leave contained in the Regulations for Teaching Personnel (those in section 101 and those in section 102). Indeed, in a note dated 14 July 2010, Ms Quattropani stated that she would take trade union leave without pay as of 2 August 2010. On 29 September, the Human Resources Department of the Ministry of Public Finance responded, indicating that the request could not be granted, since special leave as provided under section 102 of Act No. XV 0387 2004 was appropriate.
2. 207. It is worth pointing out that the Regulations for Teaching Personnel (Act No. XV-0387-2004) do not provide for trade union leave without pay; in section 101, they provide for trade union leave and in section 102, for special leave without pay. The Ministry points out that, in this case, Ms Quattropani abandoned her teaching post on 2 August 2010 without first ensuring that the administrative measures granting her any type of leave had been implemented. It indicates that these details can be found in administrative file No. NOA-2082-2010-000460, which will be complete once the certified copy of the file has been delivered.

(b) Application for legal amparo

1. 208. At the same time as requesting trade union leave, Ms Quattropani applied for a judicial measure, which included a measure for no new action, dated 25 April 2011, prohibiting any action that might alter or modify the state of the claim in law or in fact, as prescribed by law. This case is currently before court No. 2 of the Third Civil Commercial and Mining Court of the First Judicial District of San Luis province, and is docketed under: “Quattropani María Inés c/Ministerio de Educación y otros s/amparo” (file No. 209962/11). The Ministry of Education adds that, since legal proceedings involving another branch of the State have been launched concerning this issue, it is necessary to await the judiciary’s decision and ruling on the case, not only because that is appropriate in a State subject to the rule of law, but also because there is a judicial measure that specifically requires that this be the case.

(c) Multiple posts

1. 209. Lastly, the provincial education authorities point out that the teacher in question has another post in the San Luis province judiciary, namely in the second judicial district where she is a first administrative officer, with a 30-hour working week, file No. 5212. This situation not only violates article 23 of the provincial Constitution and the rules on activities compatible with teaching (section 65 of the Regulations for Teaching Personnel), but also runs counter to the very purpose of the request for the supposed trade union leave, given that such leave should be granted in order to enable the person concerned to adequately perform their trade union duties. Hence, reaffirming the above, if the reason Ms Quattropani applied for trade union leave was to carry out her duties as a trade union representative, those duties can hardly be performed if she continues to work in another field, regardless of whether both jobs are compatible or not.
2. 210. In conclusion, the Government states that, by virtue of the abovementioned and bearing in mind the information provided by the provincial education authorities, it is appropriate to await the relevant court decision and the referral of the administrative file concerned.

C. The Committee’s conclusions

1. 211. The Committee observes that, in the present case, the complainant organizations state that Ms María Inés Quattropani, a state teacher in San Luis province and General Secretary of the ASDE, a member of the executive board of the CTERA and a full national congress member of CTA, requested trade union leave several times under section 48 of the Act concerning trade union associations – according to the documentation attached to the complaint, on at least four occasions, in June and August 2009, and October and December 2010 – and having received no reply informed the authorities that, under the provisions of the provincial Regulations for Teaching Personnel, she would take trade union leave without pay. The Committee observes that the complainants allege that: (1) in an illegal and arbitrary manner – since according to the complainants the granting of trade union leave without pay is not at the discretion of the employer – on 6 December 2010, the management of the school in San Luis province told Ms Quattropani to return to work and informed her that her absence was deemed unjustified; (2) should Ms Quattropani return to work and end her trade union leave without pay, she could still face dismissal; (3) this situation represents clear discrimination against, and harassment of, the ASDE and its General Secretary since the benefits denied to this trade union (for example the deduction at the source of the union dues of its members) are granted to other teacher trade unions; and (4) so far no reply has been forthcoming regarding the appeal lodged on 9 December 2010 against the abovementioned decision of 6 December telling Ms Quattropani to return to work.
2. 212. The Committee notes the Government’s statement that it consulted the Ministry of Education of the San Luis province, which replied as follows: (1) the teacher, Ms Quattropani, kept changing her request for trade union leave (in the first instance requesting trade union leave with pay, then later requesting trade union leave without pay; this request was itself confusing, since the two requests involved a mixture of the provisions of both types of leave contained in the Regulations for Teaching Personnel); (2) in a note dated 14 July 2010, she indicated that she would take trade union leave without pay as of 2 August 2010 and on 29 September, the Human Resources Department of the Ministry of Public Finance responded, indicating that the request could not be granted, since special leave as provided under section 102 of the Regulations for Teaching Personnel was appropriate; (3) the Regulations for Teaching Personnel do not provide for trade union leave without pay; in section 101, they provide for trade union leave and in section 102, for special leave without pay; (4) Ms Quattropani abandoned her teaching post on 2 August 2010 without first ensuring that the administrative measures granting her any type of leave had been implemented; (5) at the same time as requesting trade union leave, Ms Quattropani applied for a judicial measure, which included a measure for no new action dated 25 April 2011, prohibiting any action that might alter or modify the state of the claim in law or in fact, as prescribed by law (this case is currently before court No. 2 of the Third Civil Commercial and Mining Court of the First Judicial District of San Luis province, and is docketed under: “Quattropani María Inés c/Ministerio de Educación y otros s/ amparo”); (6) since legal proceedings involving another branch of the State have been launched concerning this issue, it is necessary to await the judiciary’s decision and ruling on the case, not only because that is appropriate in a State subject to the rule of law, but also because there is a judicial measure that specifically requires that this be the case; and (7) the teacher concerned has another post in the San Luis province judiciary, and this situation not only violates article 23 of the provincial Constitution and the rules on activities compatible with teaching (section 65 of the Teaching Regulations), but also runs counter to the very purpose of the request for the supposed trade union leave, given that trade union leave should be granted in order to enable the person concerned to adequately perform their trade union duties.
3. 213. The Committee would like to recall that Article 6 of Convention No. 151 ratified by Argentina provides that such 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; and that the granting of such facilities shall not impair the efficient operation of the administration or service concerned. In this respect, the Committee takes note of the contradictory versions provided by the complainants and the provincial authorities concerning the request for trade union leave by the union leader Ms Quattropani. According to the allegations, the educational authorities of San Luis province did not respond to several requests for trade union leave with pay made by Ms Quattropani and the CTERA and that on this basis Ms Quattropani took trade union leave without pay. Noting that trade union leave is provided for in the law, and recalling that the exercise of this right must not impair the functioning and efficiency of the department concerned, and while noting that legal proceedings are under way concerning this case, the Committee expects that when the competent authorities of San Luis province issue a decision on this matter, they take into account the provisions of Article 6 of Convention No. 151. The Committee requests the Government to keep it informed in this regard.
4. 214. With reference to the allegation that the ASDE, unlike other teacher trade unions, does not enjoy check-off facilities (deduction of trade union dues from wages), the Committee regrets that the Government has not sent its comments on this issue. The Committee notes that according to the law – Act No. 23551, section 38 – employers have the obligation to deduct the amounts which workers are required to pay as membership dues to workers’ trade unions with recognized legal status. The Committee expects that the ASDE will benefit from the deduction of trade union dues at source for its members.

The Committee’s recommendations

1. 215. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that when the competent authorities of San Luis province issue a decision on Ms Quattropani’s taking trade union leave without pay, they take into account the provisions of Article 6 of Convention No. 151, and requests the Government to keep it informed in this regard.
   • (b) The Committee expects that the ASDE will benefit from the deduction of trade union dues at source for its members.