Definitive Report - Report No 399, June 2022

Case No 3356 (Argentina) - Complaint date: 02-JAN-19 - Closed

Allegations: Delays in and impediments to sectoral collective bargaining procedures

1. 60. The complaint is contained in a communication from the Latin American and Caribbean Confederation of Public Employees (CLATE), the Association of Professional Workers of the National Atomic Energy Commission and the Nuclear Sector (APCNEAN) and the Association of State Workers (ATE), which was received on 26 January 2019.
2. 61. The Government sent observations by a communication of 5 March 2021.
3. 62. 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. 63. The complainant organizations allege that, in the first process of sectoral collective bargaining provided for under the applicable legislation, the national Government constantly delayed and impeded bargaining.
2. 64. In particular, they allege that, with respect to collective bargaining in the National Atomic Energy Commission (CNEA): (i) in the context of a pay claim in accordance with the provisions of Act No. 14.786, the CNEA as the employer requested at a meeting on 21 October 2005 the opening of a collective bargaining process for the workers of the enterprise; (ii) the CNEA relied on the 1997 Nuclear Act, which established that the relationship with its workers is governed by the Employment Contract Act; (iii) subsequently, on 18 May 2006, the APCNEAN called for the bargaining to be opened, as did other organizations active in the CNEA (the ATE, the National Civil Servants’ Union (UPCN) and the Association of Technicians of the CNEA (ATCNEA)) on various occasions; (iv) on 5 June 2007, negotiations were opened and at a subsequent meeting separate technical committees were established to address the various items to be included in the collective agreement to be signed; (v) throughout the endless bargaining, the trade unions sought to discuss pay increases (which were invariably set by the State with the participation of only the UPCN); (vi) the employer’s representation – consisting of peers designated by the CNEA and other State actors – abruptly and without explanation stopped participating in the technical meetings and stopped providing information; (vii) requests and petitions were made to the Ministry of Labour, Employment and Social Security to urge the employer’s representatives to return to the negotiating table, but the Ministry disregarded all the requests, in complicity with the employer; (viii) on 13 January 2010, the board of the CNEA stated that it could not continue to attend the meetings owing to a lack of instructions from the Government; (ix) in view of the prolonged delay, the ATE filed an application for the protection of constitutional rights (amparo) before the courts, which issued a ruling on 27 September 2012 that was subsequently upheld by the Appeals Chamber; (x) however, the Ministry of Labour delayed the implementation of the court decision, and bargaining only resumed on 15 December 2016; (xi) in the long gap, there was a change in Government administration, the “nuclear plan” involving the construction of two new nuclear power stations was put on hold and a new State actor, the Secretariat for Modernization, emerged, whose role was to impede the bargaining process further still; and (xii) consequently, in practical terms the process remains at the initial phase, as the last meeting of the bargaining committee was held on 11 September 2018 and the following meeting was scheduled for 27 November 2018.
3. 65. Furthermore, the complainants also report delays in and impediments to collective bargaining in the Nuclear Regulatory Authority (ARN), alleging in this respect that: (i) on 26 June 2007, the APCNEAN called for the opening of the relevant sectoral collective bargaining; (ii) the ARN (and subsequently the ATE and the UPCN) expressed their support; (iii) however, the request was not accepted and on 28 March 2008 the APCNEAN requested that the parties be urged to comply; (iv) finally, on 13 November 2011, the meeting was held, following the amparo application filed by the APCNEAN before the courts which resulted in an order to comply; and (v) the meetings subsequently took place without any tangible results, always facing different types of delays on the part of the employer, with the complicity of the Ministry.
4. 66. The complainants consider that the State’s dilatory approach in the aforementioned bargaining violates freedom of association and the right to collective bargaining and caused irreparable harm in terms of pay and working and living conditions. They consider that there is no will to bargain and that the opportunity to bargain freely is not guaranteed.
5. 67. Firstly, the complainants state that the actions they report concern the cancellation of sectoral collective bargaining and the impossibility of negotiating pay and working conditions. In this respect, they recall that: (i) in accordance with Act No. 24.185 governing the procedure for collective bargaining in the national public service, the parties may negotiate a framework and/or general collective agreement and, at a lower level, sectoral collective agreements by bodies or sectors, always within the framework of the general collective agreement; (ii) the national public service of the Argentine Republic has an approved general collective agreement and various sectoral collective agreements, some of which have been approved and are in force, and others that are in the process of negotiation; (iii) in the aforementioned cases of the CNEA and the ARN, the delays mean that the bargaining “proceedings” have already taken (as of the date of presentation of the complaint) 13 and 11 years, respectively, which is evidence of a political decision to decline to negotiate the working conditions of this group of workers with the trade union organizations; (iv) in the context of the collective bargaining in force, because there are not yet any sectoral collective agreements in the CNEA and the ARN, the pay increases that are applied are those that are agreed at the general level, in which only the ATE and the UPCN participate in the bargaining; and (v) as the latter is the majority trade union, it negotiates only the pay scale – which is always far removed from the needs of the workers – such that collective bargaining in the sectors is impeded through the general bargaining committee, which lacks genuine debate.
6. 68. Secondly, the complainant organizations consider that the actions described constitute a breach of the duty to negotiate in good faith. They state that, after more than ten years of “bargaining”, all parameters of good faith in the matters have been put aside by the national public service as the State employer, in that it indirectly declined to conclude the sectoral collective agreements.
7. 69. Thirdly, the complainants allege that, instead of acting as an impartial or independent body, the National Ministry of Labour, Employment and Social Security was complicit in supporting the irregular actions of the public employers. They state that, after more than ten years without results, the Ministry adjusted its approach at the request of the national Government to prevent sectoral collective agreements from being concluded in the two bodies, which is evidenced by the fact that it never called on the public employer to negotiate in good faith, arranged meetings at an appropriate time or requested joint members with decision-making powers to attend negotiations, among other measures that might have advanced the negotiations.

B. The Government’s reply

1. 70. In its communication of 5 March 2021, the Government transmits its observations on the case and provides information, firstly, on the handling of the proceedings concerning the collective bargaining processes that are the subject of the complaint. The Government states that: (i) there was no conduct on the part of the authorities that impeded or obstructed collective bargaining in the relevant sectors and that the parties engaged in bargaining over time, but did not reach an agreement that would enable a collective agreement to be signed; and (ii) nor was there any obstructive conduct concerning pay, as the subjects for collective bargaining were validated in accordance with the legislation in force, which, through the negotiations within the bargaining committee for the general collective agreement, periodically defined the pay increases applicable to workers in the national public service.
2. 71. Concerning collective bargaining in the CNEA, the Government indicates that: (i) the parties were invited to the preparatory meeting on the establishment of the joint sectoral committee of the CNEA, when they agreed to establish three working committees and agreed on the timetable of meetings, and the Ministry of Labour requested the parties to keep the implementing authority informed of the progress of negotiations in the three committees so that a further meeting could be organized when necessary; (ii) in 2008 and 2009 the committee met for the purposes of implementing the pay increases agreed under the general collective agreement; (iii) in 2009, the ATCNEA requested that the committee meet to discuss a sectoral collective agreement; (iv) the Undersecretariat for Budgetary Affairs replied that the ATCNEA’s request would be “examined when the representatives of the State employer meet, in accordance with article 5 of Act No. 24.185, to determine the timetable for opening collective bargaining at the general and sectoral levels”; (v) in this connection, the CNEA stated that it did not decline to participate in the technical subcommittees as the trade union representation claims, and that it considered the continued handling of the sectoral collective agreement as quickly as possible to be of paramount importance; (vi) in 2010, the National Office of Public Employment intervened, stating that the request did not comply with the requirements; (vii) on 9 June 2010, a meeting was held in the framework of the CNEA to implement the pay increases agreed under the general collective agreement; (viii) moreover, the APCNEAN requested that the State be called on to resume negotiations to reach a collective agreement for the workers of the CNEA, which was transmitted to the remaining representations; (ix) the ATCNEA and the ATE replied, repeating the requests that had been made in good time and their requests for a meeting; (x) the CNEA also made fresh submissions, stating that the appropriate steps were being taken to resume negotiations; (xi) in June 2011, a meeting of the CNEA was held for the purposes of implementing the pay increases agreed under the general collective agreement; (xii) interlocutory ruling No. 1320 of 27 September 2012, which was handed down by the National Labour Court of First Instance No. 68 and upheld by interlocutory ruling No. 63.760 of 14 May 2013 of the National Chamber for Labour Appeals, ordered that an administrative decision be issued establishing the sectoral bargaining committee for the staff of the CNEA for the purposes of concluding a collective agreement at the sectoral level for the staff of the CNEA; (xiii) consequently, on 6 June 2013, the implementing authority (the Ministry of Labour) requested the parties to approve or amend the nominations for the participants in the sectoral bargaining committee; (xiv) once the parties had been notified, they nominated their respective joint members for the establishment of the sectoral bargaining committee; (xv) as not all submissions met the requirements, the implementing authority repeated its request to the parties to nominate their joint members; (xvi) in July 2016, the implementing authority notified the parties that, as a result of the inauguration of the new national government administration and of a restructuring of the national public service, the parties needed to approve or amend their nominations for the members of the bargaining committee; (xvii) once the parties had complied with the requirements, on 6 November 2016 the bargaining committee was declared to have been established and the implementing authority called a meeting, which was held on 15 December 2016, at which the parties agreed to establish three committees, whose meetings would be held at the headquarters of the CNEA; (xviii) subsequently, the bargaining between the parties continued uninterrupted, and 16 meetings were held within the Ministry of Labour between December 2016 and March 2020; (xix) furthermore, the parties held private meetings of the aforementioned technical committees, in which proposals were discussed; (xx) at the time of the Government’s reply, the parties had not reached full agreement on a final text of a collective agreement, but the bargaining committee remained active with the aim of concluding a sectoral collective agreement; (xxi) the last meeting at the seat of the Ministry of Labour took place on 5 December 2019, at which the parties agreed to meet in two technical committees on 13 March 2020; and (xxii) the parties were sent a new invitation for a meeting at the Ministry of Labour scheduled for 26 March 2020, which ultimately could not take place as a result of the mandatory preventive social distancing measures decreed in the context of the COVID-19 pandemic.
3. 72. Concerning collective bargaining in the ARN, the Government indicates that: (i) on the basis of the request from the APCNEAN, steps were taken to begin discussing a sectoral collective agreement and the request was first sent to the ARN so that it could take a position; (ii) the ARN replied that it was agreed to the opening of the joint body to discuss a new collective agreement; (iii) the request was subsequently communicated to the remainder of the State employer and the UPCN and ATE trade unions to allow them to intervene; (iv) the Secretariat of Public Affairs replied, indicating that the request had to be transmitted in accordance with the provisions of General Collective Agreement No. 214/06 and Act No. 24.185; (v) on 10 October 2019, the ARN stated that the competent body to settle the matter was the National Office of Public Employment; (vi) subsequently the APCNEAN filed amparo proceedings on the grounds of delays; (vii) on 15 September 2011, invitations were issued for a preparatory meeting on the opening of the sectoral bargaining committee of the staff of the ARN, scheduled for 23 September 2011; (viii) the ATE did not attend the meeting, and the parties were informed of the application made by the APCNEAN and new meetings were scheduled; (ix) on 1 November 2011, the chairperson of the public sector bargaining committee issued an administrative ruling that was notified to the parties, requesting the representatives of the trade unions to unify their position and propose a list of subjects to be handled by the sectoral bargaining committee, to be transmitted to the public employer, and informing them that until the required documentation had been submitted and transmission had been confirmed, the deadline under article 7 of Act No. 24.185 would be suspended; (x) the parties remained silent and the notification was reissued; (xi) subsequently the parties were sent an invitation to a further meeting to formally establish the sectoral bargaining committee for the staff of the ARN, in which they were informed that they would have to agree at that meeting on the subjects to be handled by the committee and appoint up to three titular members and two substitute members plus the relevant advisers to the joint committee; (xii) the trade union representation as a whole announced the required topics and on 17 October 2012 Regulation DALSP 1 was issued, which formally established the sectoral bargaining committee for the staff of the ARN; (xiii) once the members of the committee had been appointed, on 29 October 2012 the parties were invited to an initial meeting, which at the request of the parties was moved to 31 October 2012; (xiv) at that meeting, the parties made proposals for the methodology to move the collective bargaining forward, agreeing to establish three technical committees and setting dates for additional meetings (four meetings to be held in November and December 2012); (xv) once those meetings had taken place, the parties made proposals, supplemented reports and debated the relevant topics, indicating the aspects on which they agreed or disagreed; (xvi) in the months that followed, the parties did not maintain meetings within the implementing authority, and 11 meetings were held between August 2013 and August 2014, at which the parties continued the bargaining; (xvii) the implementing authority urged the parties to maintain the ongoing dialogue and bargaining in good faith to seek a final agreement; (xviii) none of the parties appeared at the meeting scheduled on 24 September 2014, which was rescheduled for December 2014; (xix) between February and December 2015, one to two meetings were held each month to continue the bargaining. At each meeting, the public employer made proposals (which the Government encloses with its reply to the complaint) and presented a text amended in accordance with the proposed sectoral collective agreement; (xx) the ATE and the APCNEAN submitted their respective proposals on the text presented by the public employer, which then presented a document with adjustments and additions to the completed text, on the basis of the comments and observations made by some of the trade unions. The public employer also incorporated a proposal with aspects related to the “training and development programme” and “operational modalities”, which it presented for the consideration of the trade union entities; (xxi) subsequently, the implementing authority notified the parties by an April 2016 ruling that, as a result of the inauguration of the new national government administration and of a restructuring of the national public service (by Decree No. 13 of 10 December 2015), the parties needed to approve or amend their nominations for the members of the sectoral bargaining committee for the staff of the ARN. Once the parties had met the requirements, the implementing authority declared the bargaining committee to have been established, by administrative ruling No. DI-2016-17-E-APNDALSP#MT; (xxii) subsequently, the bargaining between the parties continued uninterrupted, and 42 meetings were held within the Ministry of Labour. Furthermore, the parties held private meetings within the aforementioned technical committees, which were held at the headquarters of the ARN; (xxiii) according to information provided by the parties, at those meetings they made proposals, supplemented reports and debated the relevant topics; (xxiv) at the time of the Government’s reply, the parties had not reached full agreement on a final text of a collective agreement; (xxv) nevertheless, the bargaining committee continued its activity with the aim of concluding a sectoral collective agreement for its staff; and (xxvi) at the last meeting that took place at the Ministry of Labour, the parties agreed to meet on 7 August 2019 in two technical committees at the headquarters of the ARN, and a further meeting at the Ministry of Labour was scheduled for 4 September 2019, at which the parties did not appear.
4. 73. Moreover, the Government provides the following information on the particulars of pay bargaining in the national public service: (i) as of 2012 the signatories of the general collective agreement for the public service, exercising their collective autonomy, decided to modify the pay bargaining modality for the public sector by unifying pay negotiations for the public sector within the scope of the bargaining committee for the general collective agreement; (ii) as from that agreement, the parties focused all pay bargaining in the general joint committee, where they resolved the setting of pay increases applicable to both workers covered by the general collective agreement and workers covered by sectoral collective agreements; (iii) consequently, on each occasion that the parties reached a pay agreement, they signed separate annexes with the pay scales governing each sector, meaning that the pay scale applicable to the workers in the various sectors of the national public service is defined through the collective bargaining within the general bargaining committee (rather than through sectoral bargaining committees); (iv) under the applicable legislation (Act No. 24.185 and the corresponding Regulatory Decree No. 447/93), the parties may use a sectoral collective agreement to negotiate matters not handled at the general level, matters expressly referred from the general level, and matters already handled at the general level to be adapted to the organization of work in the sector. In this respect, a sectoral collective agreement takes precedence over any other whenever it is more favourable overall to the workers.

C. The Committee’s conclusions

1. 74. The present complaint alleges the constant obstruction of and delays in sectoral collective bargaining in two entities that are part of the national public service. The complainants consider that the actions they report are tantamount to the cancellation of sectoral collective bargaining, a lack of any possibility to negotiate working conditions and pay, a violation of the duty to negotiate in good faith and a lack of impartiality, and the Ministry of Labour’s complicity with the public employer in the bargaining process. The Government responds that: (i) there was no conduct on the part of the authorities that impeded or obstructed collective bargaining in the relevant sectors, and that the parties developed negotiations over time, without reaching an agreement that would enable a collective agreement to be signed; and (ii) nor was there any obstruction in matters of pay, as the subjects for collective bargaining were validated in accordance with the legislation in force, which, through the negotiations that developed as part of the bargaining committee for the general collective agreement, has periodically defined the pay increases applicable to the workers of the national public service.
2. 75. While observing from the Government’s factual account that, during the phases subsequent to the proceedings that are the subject of the complaint, the negotiations proceeded with greater agility, the Committee is compelled to note the lengthiness of these sectoral collective bargaining proceedings (13 and 15 years, as at the date of the Government’s reply). The Committee also observes that, although the Government alludes in its reply to certain actions by the parties that might explain in part some of the delays in the proceedings (such as non-compliance with certain requirements), it does not provide explanations for significant allegations of delays made by the complainants (such as the delay that led the APCNEAN to file a judicial application for amparo on the grounds of delays, which culminated in an order to continue with the negotiations after years of paralysis).
3. 76. In this respect, the Committee recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties. The principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paragraphs 1328 and 1330].
4. 77. The Committee hopes that, in light of the conclusions above, new measures will be taken where appropriate to pursue the promotion of collective bargaining in the two public entities concerned in the complaint.

The Committee’s recommendations

1. 78. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the necessary additional measures will be taken to continue promoting collective bargaining in the two public entities that are the subject of the complaint.
   • (b) The Committee considers that this case does not call for further examination and is closed.