Observación (CEACR) - Adopción: 1998, Publicación: 87ª reunión CIT (1999)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Argentina (Ratificación : 1960)

The Committee notes the information provided by the Government representative to the 1998 Conference Committee and the discussion that followed, as well as the supplementary information subsequently provided by the Government. The Committee also notes the detailed information provided by the Government during the Conference with regard to the provisions of Act No. 23.551 respecting trade union associations, which take into account the Committee's comments, as well as the statistical data and information covering trade union activities in Argentina in the decade which has elapsed since the above Act came into force.

The Committee recalls that its previous comments referred to:

-- section 28 of the Act, which requires the petitioning association, in order to contest the trade union status of an association, to have a "considerably higher" number of members;

-- section 21 of implementing Decree No. 467/88, which qualifies the term "considerably higher" by laying down that the association claiming trade union status should have at least 10 per cent more dues-paying members than the petitioning association;

-- section 29 of the Act, which provides that a "trade union at the enterprise level may be granted trade union status only when another first-level association and/or a trade union does not already operate within the geographical area or the area of activity or category covered";

-- section 30 of the Act, which imposes excessive conditions for granting trade union status to unions representing workshops, occupations or categories of workers;

-- section 31(a) of the Act, which provides that "associations which have been granted trade union status have the exclusive right to defend and represent the individual and collective interest of workers";

-- section 38 of the Act, which permits only associations enjoying trade union status, and not associations which are merely registered, to be retained for the purposes of trade union quotas;

-- section 39 of the Act, which exempts only associations with trade union status, and not associations which are merely registered, from taxation;

-- sections 48 and 52 of the Act, which provides that only the representatives of associations which have been granted trade union status may enjoy special protection (trade union protection (fuero sindical)).

Firstly, with regard to the comments made by the Government in its report in respect of Act No. 23.551 guaranteeing the right to freely organize and register trade unions and for trade unions to acquire legal personality, the Committee wishes to emphasize that it has not criticized these provisions, but the requirements to acquire trade union status and the privileges which organizations with trade union status enjoy. Similarly, the Committee wishes to state that, in general terms, it is not opposed to the most representative trade union organizations acquiring "trade union status", nor to these organizations enjoying certain privileges arising from their status of the most representative organization.

Whilst recognizing that an excessive proliferation of trade union organizations may weaken the trade union movement and ultimately prejudice the interests of workers, the Committee has always considered that a legislative provision which recognizes the most representative trade union is not in itself contrary to the principles of freedom of association, provided that certain conditions are met. In this respect, the Committee has emphasized that the determination of the most representative trade union must be based on objective, pre-established and precise criteria, so as to avoid any possibility of bias or abuse. Furthermore, the distinction should generally be limited to the recognition of certain preferential rights -- for example for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 97).

1. Criteria for representativeness

With regard to the term "considerably higher" referred to in section 28 of Act No. 23.551 and section 21 of the implementing Decree, the Committee notes the Government's statement to the effect that, in the decade which has elapsed since these provisions came into force, in practice no refusals of requests to grant trade union status have been registered, which suggests that the level set of at least 10 per cent more dues-paying members as established by law, has not prevented rival associations from acquiring trade union status. In this respect, the Government nevertheless acknowledges that of the 2,776 trade unions registered, 1,317 enjoy trade union status and in the last decade only 130 new trade unions with trade union status and 915 associations have been registered. The Committee considers that the requirement of a "considerably higher" number of members constitutes a practical difficulty for associations that are merely registered to acquire trade union status. Under the circumstances, the Committee urges the Government to adopt the necessary measures to repeal this requirement, particularly since section 25(b) of the Act lays down that an organization may not acquire trade union status unless it has a minimum membership of at least 20 per cent of the workforce which it seeks to represent.

With regard to sections 29 and 30 of Act No. 23.551, the Committee notes the Government's comments but nevertheless insists that the additional conditions for granting trade union status to unions representing enterprises, workshops, occupations or categories of workers are excessive and in practice prevent these organizations from acquiring trade union status, thereby privileging trade unions representing sectors of activity. In fact, where a trade union with trade union status representing a sector of activity exists and represents workers in this activity, a union representing an enterprise, workshop, occupation or category of workers in this sector of activity may not acquire the status of the most representative organization, as provided for under section 28, even though it may be shown that it is the most representative trade union. Furthermore, taking into account the number of privileges accorded in law to trade unions with trade union status, the Committee emphasizes that, in practice, this type of provision may restrict the right of workers to establish and become members of organizations of their own choosing and the right of organizations to organize their activities without interference from the public authorities.

2. Privileges derived from trade union status

With regard to the provisions of the Act respecting the privileges accorded to trade unions with trade union status (representing various collective interests other than through collective bargaining (section 31), entitlement to have trade union dues deducted from wages (section 38), tax exemption (section 39), and special protection granted to trade union leaders (sections 48 and 52)), the Committee emphasizes that this accumulation of privileges could have a negative impact on workers in their choice of trade union membership. In this respect, the Committee notes the Government's statement to the effect that 91 per cent of workers belong to trade union organizations with trade union status whereas only 9 per cent belong to organizations which have merely been registered. The Committee considers that this disparity could be interpreted as workers wishing to belong to organizations which are able to develop a real trade union activity through the nature and number of privileges granted under sections 31, 38 and 39 of the Act, as is the case of trade union organizations with trade union status, thereby prejudicing unions which are merely registered and only able to represent the individual interests of their members, at their request, as provided for under section 23 of the Act.

The Committee again recalls that the distinction of the most representative union should not result in the trade union being granted privileges, as already stated, extending beyond that of priority in representation for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, the Committee shares the view of the Committee on Freedom of Association that this distinction should not have the effect of depriving trade union organizations that are not recognized as being amongst the most representative organizations of the essential means of defending the occupational interests of their members, of organizing their administration and activities and formulating their programmes of action, provided for under Articles 3 and 10 of the Convention (see Digest of decisions and principles of the Freedom of Association Committee, 1996, paragraph 309).

The Committee also recalls that when legislation confers on the most representative trade unions certain privileges in connection with the defence of their occupational interests, by virtue of which they alone are in a position to act effectively, the granting of such privileges should not be made subject to such conditions as to influence unduly the choice of workers regarding the organization to which they intend to belong (see the report of the Committee of Experts 1989, pages 125 and 126).

The Committee notes with interest the Government's request for ILO technical assistance within the framework of the application of Convention No. 87, confirming the statement of the Government representative to the Conference Committee and the written communication of the Government dated October 1998.

Furthermore, the Committee notes with interest that in its previous communication the Government confirms its willingness and openness to reaching an understanding taking into consideration the realities of the country and the issues raised by the Committee. In this context, it announces that a decree implementing Act No. 23.551 has been drafted, to be signed by the President, taking into consideration the comments of the Committee, which will be forwarded to the Office in due course.

The Committee also notes with interest that the Government has set up a working group responsible for analysing the provisions that have been criticized by the Committee which raise particularly complex legal and political concerns; the Government expresses its hope that it can count on the technical assistance of the ILO to assist in this task. The Committee hopes that the mission in question will shortly take place and will encourage productive dialogue to facilitate the application of the Convention in law and in practice.

The Committee trusts that the Government will send in the near future a copy of the decree implementing Act No. 23.551 as soon as it has been adopted.

The Committee is also addressing a direct request to the Government.