Definitive Report - Report No 392, October 2020

Case No 3302 (Argentina) - Complaint date: 25-AUG-17 - Closed

Allegations: Non-authorization of deduction at source (check-off) of members’ dues, and lack of dialogue and negotiation with a “merely registered” trade union in the judicial sector

1. 235. The complaint is contained in communications dated 25 August and 15 December 2017 from the Association of National Judiciary Employees and Officials (AEFPJN).
2. 236. The Government sent observations in communications dated 24 September 2018 and 5 July 2019.
3. 237. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 238. In its communications of 25 August and 15 December 2017, the complainant organization indicates that it is a “merely registered” (simplemente inscripta) primary-level organization in the judicial sector. The AEFPJN alleges that the National Supreme Court of Justice (Supreme Court), as the employer, did not accept or even consider the union’s request for deduction at source (check-off) of its members’ union dues. This refusal was communicated through Administrative Decision No. 3566/2016, which the Supreme Court based on internal regulations, especially section 38 of the Trade Unions Act (No. 23551, which only grants this prerogative to trade unions possessing trade union status (personería gremial). According to the complainant, this decision was issued after more than five years of formalities, requests and legal action by the AEFPJN.
2. 239. The complainant alleges that there is a restriction on the exercise of collective bargaining, in that the Supreme Court never convened or agreed to a meeting with the union’s officers. The AEFPJN also considers that the Supreme Court has shown discrimination towards it in not inviting it to take part in discussions on matters of institutional importance. As an example, it mentions the discussions on income tax, which were attended by many representative bodies as well as the entity having trade union status but to which AEFPJN representatives were not admitted on the grounds that they belonged to a merely registered union.
3. 240. In general, the complainant alleges that since it was established (in 2012) the union has never been received by the authorities or by representatives of the employer (the Supreme Court) despite numerous requests for a meeting made by various means. It affirms that the Supreme Court provides no information to the AEFPJN and that no invitation has been made to engage in any dialogue between the parties. The AEFPJN emphasizes that this lack of dialogue makes it impossible to address topics or issues of common interest.
4. 241. The AEFPJN indicates that, as a result of the foregoing, it has instituted several legal proceedings against the Supreme Court, in particular regarding the deduction of union dues at source (check-off), and also regarding other requests it (the complainant) has made to which it claims not to have received any reply (regarding the number of workers with disabilities in the judiciary, the implementation of safety and health policies, overtime payments and increases in staff numbers). The complainant regrets the fact that, in view of the lack of dialogue, it is obliged to institute long and costly legal proceedings.

B. The Government’s reply

1. 242. In its communications of 24 September 2018 and 5 July 2019 the Government provides observations relating to the allegations made.
2. 243. With regard to the allegation of non-authorization of the deduction of union dues, the Government criticizes the complainant organization for having recourse to an international body before exhausting its claims at the national level. The Government states that the administrative statement made by the Court in 2016 rejecting the request through Administrative Decision No. 3566/2016 in no way implied a pronouncement by the Supreme Court on the constitutionality of the applied legislation (the Trade Unions Act). The Government states that because of the administrative function the Court was unable to revise the legislation concerned at that time and it considers that the complainant should have filed the plea for declaration of unconstitutionality of section 38 of the Trade Unions Act at the outset.
3. 244. In this regard, the Government states that, as a result of the amparo (protection of constitutional rights) appeal lodged by the complainant challenging the constitutionality of section 38: (i) the National First-Instance Labour Court No. 22 dismissed the action brought by the complainant; (ii) however, this ruling was appealed against and Chamber I of the National Labour Appeals Court decided, on 19 April 2019, to overturn the initial ruling and instruct the Supreme Court to implement measures to grant the AEFPJN a code for the deduction of assets in its capacity as withholding agent for amounts paid by members as union dues. In its ruling the National Appeals Chamber, with regard to the specific case, declared section 38 of the Trade Unions Act to be unconstitutional and referred to past decisions of the Supreme Court itself and to previous recommendations of the Committee on Freedom of Association and of the Committee of Experts on the Application of Conventions and Recommendations (CEACR), which had emphasized that the said legislation (including restricting the deduction of union dues to organizations possessing trade union status) was not in conformity with the rights and principles established in ILO Convention No. 87.
4. 245. With regard to the allegations of lack of information, lack of dialogue and lack of negotiation with the employer, the Government indicates that: (i) the AEFPJN is a minor union, with only 177 members; (ii) in the complaint the complainant does not dispute this question or mention the launching of any assessment process to seek the status of an organization having trade union status; (iii) as a merely registered union, the AEFPJN does not have the representativeness needed to engage in collective bargaining; (iv) the other legal proceedings cited in the complaint are not concerned with issues related to the collective rights of judiciary workers, and with regard to one of these cases the labour commission referred to never existed; and (v) the Government is always open to social dialogue, which should be cooperative, transparent and wide-ranging, and this does not imply disregarding certain powers of the most representative organizations but clearly identifying entities that have the capacity to engage in collective representation.

C. The Committee’s conclusions

1. 246. The Committee notes that in the present complaint the complainant denounces the non-authorization of the deduction at source (check-off) of its members’ union dues, and alleges a lack of information, dialogue and negotiation on the part of the Supreme Court as the employer.
2. 247. The Committee observes that one of the key issues of the complaint was resolved in favour of the complainant by a judicial decision which, recalling previous Supreme Court decisions and also pronouncements of the ILO supervisory bodies, in particular the Committee on Freedom of Association (Case No. 2054), considered the restriction of the check-off facility for union dues to trade unions possessing trade union status as unconstitutional and contrary to freedom of association. The Committee duly notes that this ruling instructed the Supreme Court to take steps to grant the AEFPJN a code for the deduction of assets in its capacity as withholding agent for its members’ union dues.
3. 248. The Committee recalls that even though systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association, where the law of a country draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1351 and 1387].
4. 249. The Committee observes that the complainant does not demonstrate or claim sufficient representativeness to be able to engage in collective bargaining under the system of most representative organizations (that is, those having trade union status) established by the national legislation. The Committee also observes that although the Government emphasizes that the AEFPJN is a merely registered trade union, it does not deny the lack of dialogue with the employer referred to by the complaint.
5. 250. In light of the foregoing, the Committee invites the authorities concerned to promote dialogue with the complainant organization in accordance with the national legislation.

The Committee’s recommendation

1. 251. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee invites the authorities concerned to promote dialogue with the complainant organization in accordance with the national legislation.