Definitive Report - Report No 392, October 2020

Case No 3294 (Argentina) - Complaint date: 06-JAN-17 - Closed

Allegations: The complainant alleges acts of anti-union discrimination against the Secretary General of the APPJ (in the Province of Buenos Aires) and against the APPJ

1. 217. The complaint is contained in a communication dated 6 January 2017 from the Association of Professional Judicial Staff (APPJ). It is supported by the Argentine Federation of Management Staff Associations. The APPJ sent additional information related to the complaint in communications dated 3 October and 21 November 2017.
2. 218. The Government sent its observations in communications dated 23 May 2018 and 17 July 2019.
3. 219. 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. 220. In its communications dated 6 January, 3 October and 21 November 2017, the APPJ states that it is a forum for professionals working for the judiciary and/or the Public Prosecutor’s Office in the Province of Buenos Aires in a dependent employment relationship. It has simple trade union status and is affiliated with the Argentine Federation of Management Staff Associations. The complainant alleges acts of anti-union discrimination against the Secretary-General of the APPJ (in the Province of Buenos Aires) (instituting legal proceedings with the aim of dismissing him and not granting him trade union leave) as well as against the APPJ (refusing dialogue and refusing to allow it to participate in collective bargaining), by the employer, the Attorney General’s Office of the Supreme Court of Justice in the Province of Buenos Aires.
2. 221. The complainant states that an assembly of APPJ members was held in November 2016 and the Secretary-General was tasked with requesting recognition of one rest day per week from the Criminal Public Prosecutors in the Province of Buenos Aires, because the workers represented by the APPJ are required to work continuously for two weeks without weekly rest days whenever the Criminal Public Prosecutor’s Office that they work for is on duty. According to the complaint: (i) as a result of this, the Secretary-General sent official letters to several Criminal Public Prosecutor’s Offices and requested them to recognize one rest day per week; (ii) the Public Prosecutor’s Offices consulted on the matter with their supervisors, the General Public Prosecutor’s Office in the San Martín Judicial Department, which directed them not to recognize that right; (iii) in light of the foregoing, the APPJ requested, by means of a letter written by the Secretary-General, that the General Public Prosecutor’s Office cease its anti-union activity; and (iv) in response to that request, a disproportionate, illegitimate and illegal persecution and pressure campaign began, by bringing administrative proceedings against the Secretary-General of the APPJ for matters unconnected with his work, which had the ultimate aim of removing him from his job and from his trade union leadership role.
3. 222. The complainant alleges that, by taking disciplinary measures against the Secretary-General, the Attorney General’s Office of the Supreme Court of Justice in the Province of Buenos Aires is taking de facto measures against assembly decisions enacted by the Secretary General and, therefore, interfering in the institutional life of the APPJ. The complainant also alleges that, by arguing that the APPJ does not have trade union status, the Secretary-General has been denied trade union leave. It is also alleged that, while the Attorney General’s Office refuses to hold dialogue with the APPJ and does not respond to numerous requests, preference is given to a non-profit civil association: the College of Judges and Clerks in the Province of Buenos Aires. The complainant adds that the Ministry of Labour in the Province of Buenos Aires passed a resolution stating that, because it does not have trade union status, the APPJ cannot participate in collective bargaining.
4. 223. The complainant states that on 1 July 2016 it lodged a complaint with the legal authority for unfair practices, in which it alleged, among other things: failure to hold dialogue; refusal to allow the APPJ to participate in collective bargaining; failure to submit the list of workers in order to designate staff delegates; and failure to hold periodic meetings with delegates. In its communication of 21 November 2017, the complainant reports that this complaint was rejected in its entirety in a ruling handed down on 31 October 2017 and that an appeal to revoke that decision lodged on 3 November 2017 was also rejected. The complainant states that the judges who handed down the ruling are members of the provincial College of Judges, that is, the civil association favoured by the Attorney General’s Office of the Supreme Court of Justice in the Province of Buenos Aires, to the detriment of the APPJ. According to the complainant, this explains why the ruling omitted any reference to the discriminatory treatment suffered by the APPJ.
5. 224. The complainant also notes that, on 22 September 2016, they lodged an appeal for amparo (protection of constitutional rights), with regard to the persecution of the Secretary-General of the APPJ, and in particular for the illegal administrative proceedings and the refusal of trade union leave. The complainant notes that this appeal is still ongoing.

B. The Government’s reply

1. 225. In its communications dated 23 May 2018 and 17 July 2019, the Government states that, in accordance with the report sent by the National Directorate of Trade Union Associations, the APPJ is a minor trade union, with a total of 75 members and has only become active recently (its simple trade union status was granted in 2014). The Government states that, although its numerical circumstances do not lessen its right to representation, the Trade Union Associations Act No. 23.551 grants trade union status, which includes the ability to collectively bargain on behalf of the sector, to the most representative trade union. In this case, the most representative trade union, with trade union status and which participates in collective bargaining, is the Judicial Association of Buenos Aires.
2. 226. With regard to the administrative proceedings against the Secretary-General of the APPJ, the Government states that no part of the resolution of the Province’s Attorney General shows any act of persecution for his role as a trade union leader and that attention was drawn to his behaviour as a result of a failure to carry out his duties as a public servant, after all the planned legal remedies for his defence had been exhausted.
3. 227. The Government also reports that Labour Tribunal No. 5 in the San Martín Judicial Department, Province of Buenos Aires, handed down a final ruling rejecting the complaint of unfair practices presented by the APPJ in its entirety, considering that there was no evidence of any intention discredit, disturb or obstruct the activities of the APPJ in the positions attributed to the judiciary. According to the Government, that ruling has been accepted by the claimant and is final.

C. The Committee’s conclusions

1. 228. The Committee observes that, in this complaint, the complainant alleges acts of anti-union discrimination by the Attorney General’s Office of the Supreme Court of Justice in the Province of Buenos Aires against the Secretary-General of the APPJ (by bringing administrative proceedings against him for matters unconnected with his work and by not granting him trade union leave) as well as against the APPJ (with which they do not hold dialogue and which they do not allow to participate in collective bargaining).
2. 229. With regard to the Secretary-General of the APPJ, the Committee notes the complainant’s allegation that: (i) as a result of his request, in November 2016 and on behalf of the APPJ, for the authorization of one rest day per week during two-week shifts, administrative proceedings were brought against him for matters unconnected with his work, with the aim of removing him from his job and his trade union leadership role; (ii) by taking disciplinary measures against the Secretary-General, the Attorney General’s Office of the Supreme Court of Justice is taking de facto measures against and interfering with the whole of the APPJ; and (iii) by arguing that the APPJ does not have trade union status, it has been denied trade union leave. With regard to the APPJ, it is alleged that: (i) it is not permitted to participate in bargaining because it does not have trade union status, and (ii) while the Attorney General’s Office refuses to meet with the APPJ and does not have any dialogue with it at all, it does hold dialogue and meet with the College of Judges and Clerks in the Province of Buenos Aires, which is a non-profit civil association.
3. 230. In this regard, the Committee notes that the Government states that the APPJ is a trade union with 75 members that has only become active recently, and that although its numerical circumstances do not lessen its right to representation, another trade union, which is the most representative union and has trade union status (the Judicial Association of Buenos Aires) has the authority to bargain collectively. The Government also states that the administrative proceedings were a result of a failure to carry out his duties as a public servant and had no relationship whatsoever with his role as a trade union leader.
4. 231. The Committee notes that, according to both the complainant and the Government, a legal complaint for unfair practices made by the APPJ was rejected in its entirety. The Committee notes that, in its ruling, handed down on 31 October 2017, the court found that there was no evidence of any intention discredit, disturb or obstruct the activities of the APPJ in the positions attributed to the judiciary. The Committee also observes that, according to the complainant: (i) an appeal to revoke that ruling lodged by the APPJ was rejected (because the ruling was not revocable); and (ii) the appeal to revoke the ruling was based on the fact that the ruling had omitted any reference to the discriminatory treatment suffered by the APPJ (according to the APPJ, the judges did not make any reference to the favourable treatment that the Attorney General’s Office gave to the College of Judges, because the judges are members of that organization).
5. 232. The Committee observes that the matter relating to the refusal to grant the Secretary General of the APPJ trade union leave because the APPJ does not have trade union status, was not raised by the APPJ in its legal complaint, which has a firm and definitive judgment, but rather in an appeal for amparo presented in 2016, according to the complainant. Not having any more information about that appeal, the Committee trusts that in this case the right of workers to enjoy adequate protection against anti-union discrimination has been protected.
6. 233. Recalling that minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 545], the Committee encourages the Government to take the necessary measures to promote dialogue between the parties with a view to ensuring the right of the APPJ to make representations on behalf of its members and to represent them in cases of individual grievances.

The Committee’s recommendation

1. 234. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee encourages the Government to take the necessary measures to promote dialogue between the parties with a view to ensuring the right of the APPJ to make representations on behalf of its members and to represent them in cases of individual grievances.