Definitive Report - Report No 365, November 2012

Case No 2870 (Argentina) - Complaint date: 08-JUN-11 - Closed

Allegations: The complainant organization alleges obstacles and an 11-year delay in processing the application for trade union status filed with the labour administrative authority

1. 216. The complaint is contained in a communication from the Federation of Energy Workers of the Argentine Republic (FETERA) of June 2011.
2. 217. The Government sent its observations in a communication dated 17 May 2012.
3. 218. 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. 219. In its communication of June 2011, FETERA alleges that the Ministry of Labour has refused to grant the organization trade union status, displaying a clearly discriminatory attitude which is contrary to ILO Convention No. 87. The complainant states that FETERA is a second-level trade union organization registered on 10 February 1998 by Decision No. 69 of the Ministry of Labour and Social Security.
2. 220. The complainant points out that FETERA groups together all the first-level organizations representing workers employed in the production, exploitation, sale, transmission, transport and distribution of energy, broadly defined, or derivatives required for the production of energy, at every stage, and who work for private employers, the State at national, provincial or municipal level, cooperatives or employee stock ownership companies, whether as operators, administrative employees, technicians or managers, with nationwide coverage.
3. 221. FETERA states that it started the application procedure for trade union status (“personería gremial”) in 2000, under file No. 1030777/00. It adds that, on 22 September 2006, the legal representative of the Federation adjusted the application for trade union status with regard to its affiliates, the Light and Power Workers’ Union of Mar del Plata and the Association of Gas Workers.
4. 222. In a new request dated 16 September 2008, the application for trade union status was again adjusted with regard to the Light and Power Workers’ Union of Mar del Plata and the Association of Professional Workers of the National Atomic Energy Commission and the Nuclear Sector (APCNEAN), cancelling the request concerning the Association of Gas Workers. The complainant organization states that the following documentation was attached with the file: (1) a certified photocopy of the record of the APCNEAN executive committee meeting, dated 23 June 2006, in which it was decided to approve the union’s affiliation with the Federation, submitting it to ratification by the general congress; (2) a certified photocopy of the record of the national extraordinary congress of delegates of the APCNEAN, dated 25 August 2006, at which it was decided to affiliate with the Federation; (3) a certified photocopy of the national extraordinary congress of delegates of the APCNEAN dated 24 August 2007; (4) a copy of the record of the Eighth National Extraordinary Congress of the Federation of Energy Workers of the Argentine Republic, dated 31 March 2007, at which the APCNEAN’s affiliation was unanimously approved; and (5) a minute signed by the general secretary and the trade union secretary of the APCNEAN stating that they supported the application for trade union status filed by FETERA.
5. 223. FETERA states that this, however, was not enough for the labour administrative authority, which, in a decision issued in 2009, requested the following in addition to everything that had already been provided:
   • (a) that the APCNEAN state whether it was affiliated with another second-level organization; and
   • (b) “given the time that has elapsed since the request was filed (3 May 2005), that the Light and Power Workers’ Union of Mar del Plata state whether it is affiliated to another second-level organization and whether it gives its assent to the present application for trade union status”.
6. 224. The complainant organization alleges that, in view of the above, and despite the clearly arbitrary nature of the decision of the National Directorate of Trade Union Associations of the Ministry of Labour, Employment and Social Security, it being patently obvious that the request was solely intended to delay its duty of bringing the procedure to its conclusion, FETERA, together with the abovementioned trade union organizations, complied with the new request in a timely and proper manner.
7. 225. Nonetheless, the complainant states that the Ministry of Labour still did not issue a final decision on the application; accordingly, a letter, the content of which is reproduced below, was sent to the Ministry:
   • I, JOSÉ JORGE RIGANE, in my capacity as General Secretary of the FEDERATION OF ENERGY WORKERS OF THE ARGENTINE REPUBLIC (FeTERA), located at Av. Belgrano 845, 3rd floor, Buenos Aires, in the application under consideration, request that the necessary steps be taken to ensure that the trade union organization which I represent is granted the trade union status for which it applied in a timely manner.
   • Our application procedure, which has been renewed, now dates back nearly 11 years, having been begun on 5 July 2000, after this body registered our organization as a second-level trade union association on 10 February 1998, by MTSS Decision No. 69.
   • I am pleased to inform you that the organization I represent has complied with each and every one of the requirements laid down in the law and administrative regulations. As may be seen from the documentation, its personal and geographical coverage has been duly demonstrated, and there is no conflict between the coverage claimed by FeTERA and the organizations informed by the National Directorate under section 28 of Act No. 23551, none of which have come forward.
   • Our right is the very principle of freedom of association enshrined in Conventions Nos 87 and 98 of the International Labour Organization (ILO), and in the statements of the Committee on Freedom of Association of the Governing Body of that organization, the aim being for the workers in the energy sector of the Argentine Republic to be able to defend their rights through an organization such as FeTERA, which has demonstrated from its inception an unwavering commitment to the destiny of the workers employed in the sectors it represents.
   • Over the nearly 11 years of its regrettable administrative peregrinations in search of trade union status, our organization has fallen victim to legislation which has been repeatedly criticized by the global labour administration (ILO), as recently expressed by the Committee of Experts of the ILO when it made an observation criticizing the “Argentinian trade union model”, in which it urged the Government to amend Act No. 23551 and to grant trade union status to the Confederation of Workers of Argentina (CTA), our sister confederation, which has suffered the same fate as FeTERA for many years.
   • There can certainly be no justification for the administrative delay caused by your Ministry in the granting of the status requested. This is all the more so considering that our country’s highest tribunal, the Supreme Court of Justice of the Nation, issued a detailed opinion on new orientations to bring our legislation into conformity with the principles of freedom of association under the abovementioned ILO Conventions, which are recognized in article 75, para. 22, and article 14bis of our Constitution.
   • There is nothing to justify the implementing authority’s silence which denies our right in an essentially politically motivated stance on your part – of that we have no doubt at this point.
   • As a member of the executive branch, Sir, you have every right to exercise your ministerial mandate as you deem appropriate based on merit and expedience, but if legitimate requests such as this one are denied a decision systematically and without reason for so many years, while other similar cases are given due consideration, with no more ado than a mere formality, then, Sir, this is nothing but POLITICAL DISCRIMINATION through “princely power”, which is strange in a democratic State governed by the rule of law with social justice, which we seek to build together, with equality of opportunity and respect for collective freedoms.
8. 226. The complainant organization states that the Ministry of Labour’s only response was again silence, expressing disregard for the right of FETERA, its affiliates and all the members and workers represented by the latter.
9. 227. Lastly, the complainant points out that given the time that has elapsed since it applied to the Ministry of Labour for trade union status (11 years), it is presenting a formal complaint against the Government of Argentina in view of the fact that its action constitutes a clear violation of freedom of association.

B. The Government’s reply

1. 228. In its communication of 17 May 2012, the Government states that, in view of the personal coverage claimed by FETERA and of the existence of another organization at the same level competing for similar status, the provisions of section 28 of Act No. 23551 apply.
2. 229. The Government adds that the complainant organization itself also recognized the complexity of the problem, since, as may be seen from the report of the General Directorate of Legal Affairs (a copy of which is attached by the Government), during all the time that has elapsed it has not availed itself of the legal remedies afforded by the legislation itself in order to protect its rights.
3. 230. Lastly, the Government points out that another reason explaining the failure to use the judicial remedy available is that the first-level trade union affiliated to the complainant organization has trade union status, and the situation of the Federation thus does not affect its capacity to negotiate conditions of work, so that freedom of association is not impaired.

C. The Committee’s conclusions

1. 231. The Committee observes that in this case FETERA alleges that it started the application procedure for trade union status (“personería gremial”) in 2000 with the administrative authority; that in 2006 and 2008 it adjusted its application with regard to two FETERA affiliates (the Light and Power Workers’ Union of Mar del Plata and the APCNEAN); and that, although it complied with all the requirements, the Ministry of Labour’s only response was silence.
2. 232. The Committee notes that the Government states: (1) that in view of the personal coverage claimed by FETERA and of the existence of another organization at the same level competing for similar status, the provisions of section 28 of Act No. 23551 apply; (2) the complainant organization itself also recognized the complexity of the problem, since, as may be seen from the report of the General Directorate of Legal Affairs (a copy of which is attached to the Government’s reply), during all the time that has elapsed it has not availed itself of the legal remedies afforded by the legislation itself in order to protect its right; and (3) another reason explaining the failure to use the judicial remedy available is that the first-level trade union affiliated to the complainant organization has trade union status, and the situation of the Federation thus does not affect its capacity to negotiate conditions of work, so that freedom of association is not impaired.
3. 233. The Committee recalls that under the Act on trade union associations, No. 23551 “the association that is most representative in terms of geographical and personal coverage shall obtain trade union status, provided that it meets the following requirements: (a) it has been registered in accordance with this Act and carried out its activity for at least six months; (b) its membership includes over 20 per cent of the workers it seeks to represent; and (c) the designation of most representative association shall be granted to the association with the highest average number of dues-paying members out of the average number of workers it seeks to represent”. Section 28 of the Act, referred to by the Government in its reply, provides that: “If another trade union association of workers with trade union status exists, the same status can be granted to another association to carry out its activity in the same area, occupation or category, only if the number of dues-paying members of the applicant association, for a continuous period of at least six months prior to the application, was considerably larger than that of the existing association with trade union status. Once the application has been filed, the association with trade union status shall be informed within 20 days in order to enable it to present its defence and provide evidence. The applicant shall be informed of the reply within five days. The evidence shall be subject to verification by both associations. Where the decision is taken to grant trade union status to the applicant, the trade union that had such status shall remain registered. The requested trade union status shall be granted without the need to carry out the procedure provided for in this section, provided that the express consent of the highest decision-making body of the association previously holding trade union status is given.”
4. 234. In this regard, the Committee observes that the Government states that in this case the provisions of section 28 of Act No. 23551 apply, given that there is an organization at the same level competing for status in a similar area as the complainant organization, but does not specify whether, judging from the information provided by FETERA (between 2000 and 2008) a comparison of the membership of the two associations was carried out and what the result was. In these circumstances, the Committee regrets the length of time that has elapsed (12 years) and recalls that a long delay in the procedure constitutes a serious obstacle to the exercise of trade union rights. The Committee urges the Government to verify the percentages of membership to determine which of the two trade unions in question (FETERA in the areas of coverage requested or the organization with trade union status referred to by the Government) is most representative. If the complainant organization is found to be more representative than the organization with trade union status, the Committee requests the Government to grant it the trade union status it has been requesting since 2000.

The Committee’s recommendations

1. 235. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets the length of time that has elapsed (12 years) since the complainant’s request for trade union status and recalls that a long delay in the procedure constitutes a serious obstacle to the exercise of trade union rights.
   • (b) The Committee urges the Government to verify the percentages of membership to determine which of the two trade unions in question (FETERA in the areas of coverage requested or the organization with trade union status referred to by the Government) is most representative. If the complainant organization is found to be more representative than the organization with trade union status, the Committee requests the Government to grant it the trade union status it has been requesting since 2000.