Effect given to the recommendations of the committee and the Governing Body - Report No 375, June 2015

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

Effect given to the recommendations of the Committee and the Governing Body

1. 15. The Committee last examined this case at its November 2012 meeting [see 365th Report, paras 216–235]. The Committee recalls that the complainant organization, the Federation of Energy Workers of the Argentine Republic (FETERA), alleged obstacles and an 11-year delay in processing the application for trade union status filed with the labour administrative authority at its November 2012 session. In examining the case, the Committee made the following recommendations [see 365th Report, para. 235]:
   • (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.
2. 16. In a communication from February 2013, FETERA sent additional information in relation to the complaint, recalling that it: (1) is a second-level organization registered as a union since 10 February 1998; (2) 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 coverage across Argentina; and (3) started the application procedure for the federation in 2000, and then in 2008 adjusted the application for trade union status to cover the areas of its member organizations, 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.
3. 17. FETERA adds that, although the Committee urged the Government to expedite the application, the Committee had asked the Government to perform the comparative count (verifying the percentages and membership) in the manner provided for in section 28 of Act No. 23551 on Trade Union Associations. Were this to happen, it would seriously violate the freedom of association of the organization and its members. The complainant organization recalls that both the Committee and the Committee of Experts on the Application of Conventions and Recommendations called into question the counting procedure set out in this law.
4. 18. In reference to the complaint, FETERA alleges that the Government misled the Committee by maintaining 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”. FETERA affirms that the system set forth in section 28 of Act No. 23551 is applicable in cases in which the competition for trade union status is between two first-level unions. Section 28 is in other words not applicable when the application for trade union status is by a federation, confederation or workers’ central organization, irrespective of whether or not there are already bodies at the same level and scope which enjoy trade union status (the complainant organization indicates that the Ministry of Labour has often stated that the trade union status of a second- or third-level trade union body must be in line with the geographical area and category of persons recognized in the status of the trade unions which make up that trade union association. Trade union status has, for example, been granted in this way to the Argentine Federation of Pastry, Cake, Ice Cream, Pizza and Biscuit Makers, the Federation of Government Professionals of the Autonomous City of Buenos Aires and the National Taxi Drivers’ Federation (FEPETAX)).
5. 19. FETERA goes on to state that, when counting dues-paying members, under the procedure covered by section 28: “if another 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”. FETERA claims that in reality it is almost impossible for a trade union seeking trade union status to replace an existing trade union. This is on account of a number of factors, including the requirement to count “dues-paying members”. This requirement relates to section 38 of Act No. 23551, which obliges employers to deduct union fees solely for bodies with trade union status. FETERA maintains that, since a trade union which does not have trade union status must collect its fees in person, each month receiving the relevant amount from each of the members, the body seeking trade union status is at a clear disadvantage when it comes to replacing other unions, given that it is specifically its “dues-paying” members who are counted. Lastly, FETERA points out that under sections 23 and 31 of the Act on Trade Union Associations, a trade union which does not enjoy union status lacks the basic legal rights to represent its members adequately. This shortcoming not only applies to collective bargaining, but also implies, for example, that its directors and members are not protected or cannot call a strike.
6. 20. The Committee regrets that, despite the time which has elapsed since additional information was sent by the complainant organization, the Government has not sent its observations on the matter. The Committee recalls that it has already had the occasion to note “with concern that, for a number of years, it has had to examine cases relating to Argentina concerning allegations of excessive delays – between three and four years – in the processing of applications for trade union status [see, for example, 307th Report, Case No. 1872, paras 45–54; 309th Report, Case No. 1924, paras 45–55; 338th Report, Case No. 2302, paras 346–358; 346th Report, Case No. 2477, paras 209–246; and 348th Report, Case No. 2515, para. 211]”. On that occasion too, the Committee recalled that as early as 1997 it urged the Government to take the necessary measures to ensure that in the future, when an organization requests registration or the granting of recognition, the competent administrative authorities return their decisions without unjustified delay” [see 307th Report, op. cit., paras 54 and 211]. Lastly, the Committee requested the Government to “take, in consultation with representatives of workers’ and employers’ organizations, the necessary steps to amend section 28 of the Act, under which, in order to challenge another association’s trade union status, the petitioning association must have a ‘considerably larger’ membership, and section 21 of implementing Decree No. 467/88, which qualifies the term ‘considerably larger’ by laying down that the association claiming trade union status should have at least 10 per cent more dues-paying members than the organization which currently holds the status” [see 348th Report, Case No. 2515, para. 214].
7. 21. In these circumstances, the Committee urges the Government to take the necessary measures without delay so that: (a) the trade union status for which FETERA has been applying for over 14 years is awarded; and (b) in consultation with the social partners, all the provisions of the Act on Trade Union Associations (No. 23551) which do not conform to the principles of freedom of association are amended as recommended by the ILO supervisory bodies. The Committee requests the Government to keep it informed in this regard.