Informe provisional - Informe núm. 83, 1965

Caso núm. 399 (Argentina) - Fecha de presentación de la queja:: 11-MAY-64 - Cerrado

1. 278. The complaints by the General Confederation of Labour (C.G.T.) are contained in communications dated 11 May, 3, 4 and 16 June and 28 September 1964, all of which were sent directly to the I.L.O. They describe alleged violations of trade union rights in Argentina. The above communications were transmitted to the Government, which sent its observations by letter dated 30 November 1964.
2. 279. 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. A. The complainants' allegations

• Allegations relating to Government Interference in the Finances of Trade Unions
  280. 280 In their communication of 11 May 1964 the complainants state their opposition to Decrees Nos. 3470 of 1963 and 2437 of 1964, which, they say, infringe the Workers' Organisations Act (No. 14455) and Convention No. 87 by permitting interference in the operation of trade unions. With its letter of 3 June 1964 the Confederation sent a copy of Decree No. 2437 of 1964 and a legal opinion attacking that decree as well as Decree No. 3470 of 1963.
  281. 281 According to the complainants section 38 of Act No. 14455 provides that the authorities shall not intervene in the management or administration of any workers' organisations; the same principle is laid down in Article 3 of Convention No. 87. They then argue that, by establishing the Audit Department of the Ministry of Labour and Social Security, Decree No. 2437 of 1964 seeks to subjugate the workers' organisations by applying to them a procedure of supervision which is not employed in respect of other associations such as limited liability companies. The said Department, they point out, is authorised to " study and check all financial books ", to ascertain how the book-keeping is carried out, to " verify the date and completion of the closure of each financial year ", to carry out any kind of special audit, even when this is requested by a government department, and to verify the investment of funds. The complainants state that a trade union cannot be independent if it may be told daily whether or not it is complying with certain accountancy procedures and if the authorities are empowered to interfere in the life of the union at any time, indiscriminately and without due process.
  282. 282 The complainants add that in the specific case of the Argentine Textile Workers' Association the above machinery was set in motion at a time when the trade unions' " Battle Plan " had already been initiated; rash accusations were then made against leaders of the Association and a publicity campaign was undertaken against them. The complainants argue that if the administrative authorities had believed an offence to have been committed they should have taken proceedings before publicising matters on which a legal decision had not been reached. They point out the danger that the Ministry of Labour may choose the most favourable opportunity of ordering an audit and produce from it accusations against trade union officers which, if they cannot be cleared up immediately, may affect any action in which the said officers are engaged on behalf of the union they represent. The complainants append to their letter a number of publications, including a copy of Decree No. 3470 of 1963, which lays down general rules regarding the inspection of trade unions' accounts, the accounting documents which every union must maintain and the penalties in case of non-compliance.
  283. 283 In its reply of 30 November 1964 the Government refers to section 17 of the Workers' Organisations Act (No. 14455), providing that each trade union must " keep its accounts in such a way that the administering authority can supervise its financial operations ", and must " comply with such requirements in this connection as are prescribed in regulations ". It points out that the two decrees mentioned by the complainants were issued to give effect to the above general rules, which the complainants have never challenged. To supervise the financial operation of trade unions, the Government continues, is one thing; the interference which the decrees are alleged to constitute would be another, very different thing; to supervise or check accounts is no more than to verify; interference would mean taking an active part or imposing authority, which is not the case in this connection; accordingly, the decrees do not violate the rights afforded by the Workers' Organisations Act, nor are they a breach of Article 3 of Convention No. 87.
  284. 284 The Government states further that Decree No. 2437 of 1964 was prepared in the light of I.L.O studies on the supervision of trade union funds, and that the mere establishment within the Ministry of Labour and Social Security of a specialised body of officials which will enable it to give due effect to the statutory provisions on the supervision of trade union finances cannot be interpreted as a restriction on freedom of association.
  285. 285 The Committee observes that, in general, trade union organisations appear to agree that legislative provisions requiring, for instance, financial statements to be annually presented to the authorities in a prescribed form and the submission of other data on points which may not seem clear in the said statements, do not per se infringe trade union autonomy. However, the Committee considers it necessary to stress that such provisions may in no case infringe the rule laid down in Article 3 of Convention No. 87, namely that workers' and employers' organisations must have the right to organise their administration and activities and formulate their programmes and that public authorities must refrain from any interference which would restrict this right or impede its lawful exercise. In this connection the Committee wishes to refer to the view expressed by the Committee of Experts on the Application of Conventions and Recommendations to the effect that measures of supervision over the administration of trade unions may be useful if they are employed only to prevent abuses and to protect the members of the trade union themselves against mismanagement of their funds. " However ", the Committee of Experts continues, " it would seem that measures of this kind may, in certain cases, entail a danger of interference by the public authorities in the administration of trade unions and that this interference may be of such a nature as to restrict the rights of organisations or impede the lawful exercise thereof, contrary to Article 3 of Convention No. 87. It may be considered, nevertheless, that there is a certain measure of guarantee against such interference where the official appointed to exercise supervision enjoys some degree of independence of the administrative authorities and where he is himself subject to the control of the judicial authorities."
  286. 286 Examining Decrees Nos. 3470 of 1963 and 2437 of 1964, the Committee notes that section 2 (c) of the former empowers the Ministry of Labour and Social Security " to make an investigation whenever it may observe or have knowledge of any irregularity in the handling of social funds "; while paragraph (c) of the Annex to Decree No. 2437 of 1964 relating to the functions of the newly established Audit Department states that the latter shall decide on the manner of closure of each financial year, determining the procedure followed. The Committee assumes that the principle behind those rules is to provide for special investigations only when there is evidence of irregularity in the handling of funds. However, section 8 of Decree No. 3470 of 1963 also states that the authorities may require presentation of balance sheets where they deem this advisable (in addition to the accounts for the ordinary financial year); and the same rule is endorsed in the above-mentioned paragraph (c) of the Annex. According to these provisions, the obligation to make the balance sheets available does not appear to be a general one, applying to all organisations; the authorities seem able to impose it, at their discretion, on particular organisations only. Paragraph (d) of the Annex enables the Audit Department also to undertake any kind of audit called for by a government department, trade union authority or workers' central organisation.
  287. 287 The Committee considers that these two rules should be applied only in exceptional cases when justified by grave circumstances-for instance presumed irregularities in the annual statement or irregularities reported by members of the organisation-so as to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union's exercise of the right to organise its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential.
  288. 288 Moreover, the Committee observes that under section 13 of Decree No. 3470 of 1963, in case of any infringement of the provisions of the decree, concealment, obstruction, false statement or refusal to give information regarding accounts or funds by workers' organisations, the Ministry of Labour and Social Security may apply the sanctions for which provision is made in section 34 (2) of the Workers' Organisations Act (No. 14455). This last provision enables the Ministry to act regardless of the corporate status of a union and might amount in practice to preventing it from taking any action as an occupational association for the defence of its members' interests. Indeed, the procedure is analogous to that of suspension or dissolution of a workers' organisation by administrative authority, which is prohibited by Article 4 of Convention No. 87. Although there is provision for appeal against such a decision of the Ministry of Labour and Social Security, in practice it appears to take immediate effect on the trade union concerned. The Committee refers to its 74th Report, Case No. 308 (Argentina), paragraphs 83 to 88, when it recommended the Governing Body to invite the Argentine Government to examine the possibility of modifying the relevant statutory provisions. Similarly, the Committee now considers that if the Ministry of Labour were to discover an infringement of the rules or a case of concealment, false statement, etc., by officers of a union, proceedings should be taken in a law court, so as to ensure due process of law and, if appropriate, application of sanctions by the court.
  289. 289 In all the circumstances the Committee recommends the Governing Body, while taking note of Argentine legislation on the supervision of administration of trade union property and funds, to call the Government's attention to the considerations set out in paragraphs 285 to 288 above and invite it to re-examine the said legislation in the light thereof, particularly as regards the reference of the results of administrative audits to a law court, so as to ensure due process of law and, if appropriate, application of any sanctions by the court.
• Allegations relating to Proceedings against Trade Union Officers
  290. 290 On 4 June 1964 the complainants reported that an official belonging to the executive branch of government had started criminal proceedings against C.G.T for association for unlawful purposes and was asking for a sentence of imprisonment on all the officers and the closing of the respective offices. On 16 June they sent a further communication amplifying the information on this complaint; the same letter was also sent to delegates at the 48th Session of the International Labour Conference. This states that at its ordinary congress in January 1963 C.G.T had adopted a plan, known as the Battle Plan, comprising social, economic and political objectives. With their letter the complainants enclosed a number of publications in which the said objectives are clearly set out.
  291. 291 The complainants go on to say that when a new government came into office C.G.T had a series of meetings with the governmental and employers' sectors, and even with the President of the Republic, and that a group of workers made representations to the National Congress. Since the action for which they called was not taken and the cost of living and the unemployment figures were rising at a dangerous rate, it was decided to start the occupation of factories in order to back up C.G.T's demands. From that time on the complainants state, C.G.T was the object of various kinds of persecution by the Government. Previously the Battle Plan had never been declared subversive, but now the Government arranged for the public prosecutor to take proceedings against the members of the C.G.T executives who had approved the action undertaken. Accordingly, the chairmen and general secretaries of over 300 workers' organisations were sued for breach of state security and incitement to commit offences and all the members of the C.G.T. Executive Board were liable to arrest at any moment. On 28 September 1964 the complainants reported that the preventive detention of 119 union leaders had just been ordered, and hundreds of suits had been brought against shop stewards-all in consequence of the Battle Plan.
  292. 292 In its reply of 30 November 1964 the Government states that the execution of the Battle Plan involved the commission of offences against property and persons; that the occupation of industrial premises, with the result that firms are deprived of free exercise of their right of property, constitutes the offence of dispossession, for which penalties are laid down in the Penal Code; and that if to occupation there is added the unlawful detention of personnel of the undertakings concerned, another punishable offence has been committed. The Government argues that such action did not proceed from exercise of the right to strike; it was taken not in consequence of a labour dispute with the undertakings in question, but by virtue of a political plan; the Argentine Supreme Court has had occasion to consider similar situations and has concluded that the right to strike is not an absolute right, i.e. its exercise cannot justify the commission of common law offences. The Government adds that freedom of association cannot be invoked to justify unlawful action, and refers to Article 8 of Convention No. 87, which expressly states that workers and their organisations shall respect the law of the land. Finally, the Government points out that it has not arrested the trade union leaders who are being sued, nor has it taken control of any unions.
  293. 293 The Committee has always applied the principle that allegations respecting the right to strike are not outside its competence in so far as they affect the exercise of trade union rights. It has also pointed out that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. The Committee has, however, also held that the restriction of political strikes and strikes to coerce the government or the community to recognise certain action is not an infringement of trade union rights.
  294. 294 In the present case the Committee observes that the action taken was not an occupational strike called by the unions which followed C.G.T's directives, but that its object was to exert pressure on the Government and so oblige it to proceed to certain measures of an economic, social and political character. Moreover, the movement was accompanied by the occupation of a number of establishments and the prevention of free movement on the part of senior employees of the undertakings concerned, who were in the establishments at the time. It was in consequence of the above acts that proceedings were taken against the union officers who had given the respective orders.
  295. 295 When, in previous cases, allegations that trade union leaders or workers were arrested or detained for trade union activities have been met by governments with statements that the arrests or detentions were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has always followed the rule that the governments concerned should be requested to submit further information, as precise as possible, concerning the arrests or detentions and the reasons for them. If in certain cases the Committee has concluded that allegations relating to the arrest or detention of trade unionists did not call for further examination, this has been after it has received information from the governments showing with sufficient clarity and detail that the arrests or detentions were in no way occasioned by trade union activities but solely by activities outside the trade union sphere, which were either prejudicial to public order or of a political nature.
  296. 296 In the case now before the Committee the complainants appear to state that they acted in the final analysis because, despite their demands and negotiations, the Government had not taken emergency measures to contain the rise in the cost of living and counteract the growing unemployment. However, the acts effectively performed to exert pressure on the authorities included (on this point there appears to be no disagreement between the parties) the occupation of factories and the detention of senior employees of the undertakings concerned. The Government points out that these are criminal offences.
  297. 297 Having regard to the events in question, namely strikes accompanied by occupation of factories with the object of exerting pressure on the Government to take action in the economic, social and political fields, the Committee considers in the present case, in the light of the principles which it has always applied in these matters and which are reproduced above, that the proceedings entered against the trade unionists involved do not justify the allegation that trade union rights have been infringed. It should also be borne in mind that none of the persons sued appears to have been detained.
  298. 298 Nevertheless, since the complainants also allege that the principal officers of over 300 unions have been charged with security offences and that these various cases are now before the courts, the Committee requests the Government to inform it of the exact nature of the offences with which the said trade union officers are charged, and to keep it informed of any new development in this connection.
• Allegations relating to Non-Attendance of the Argentine Workers' Delegation at the 48th Session of the International Labour Conference
  299. 299 In its complaint of 16 June 1964, to which reference is made under the previous heading, C.G.T also stated that, for the first time, it would not be represented at a session of the International Labour Conference, its representatives not being able to leave the country because officials of the Public Prosecutor's service had taken proceedings against them.
  300. 300 In its reply of 30 November 1964 the Government maintains that it appointed Workers' delegates to the 48th Session, assumed responsibility for their travel and subsistence costs and issued the appropriate passports. By reason of C.G.T's " Battle Plan " an official of the judiciary considered that the authors of the Plan were guilty of association for unlawful purposes as defined in the Penal Code and started proceedings on that score. The said official, the Government continues, had not received instructions from the executive branch, but acted in full independence. The magistrate dealing with the case did not order the arrest of the persons charged, and the fact that proceedings had been opened did not prevent the members of the Workers' delegation from leaving the country if the magistrate gave his permission. In due course the representatives of the Argentine Government explained the above situation to the Credentials Committee of the Conference, which accepted the explanation given.
  301. 301 On a previous occasion the Committee expressed the view that no delegate to any organ or conference of the I.L.O should be interfered with in any way to prevent or deter him from carrying out his functions.
  302. 302 In the present case the Government states that the delegates in question were not detained under arrest and that the proceedings did not prevent the Workers' delegates appointed by the executive branch from leaving the country if the magistrate in charge of the case gave his permission. The complainants make no mention whatever of having asked for such permission or that it was refused. Secondly, the Committee observes that the complaint on this point was also addressed to the 48th Session of the Conference and was, therefore, duly brought to the notice of the Credentials Committee.
  303. 303 Having regard to the above considerations, and in particular the fact that the Argentine Workers' delegates do not appear to have been prevented from leaving the country in order to attend the 48th Session of the International Labour Conference, the Committee recommends the Governing Body to decide that there would be no object in continuing to examine this aspect of the case.

The Committee's recommendations

1. 304. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) as regards the allegations relating to non-attendance by the Argentine Workers' delegation at the 48th Session of the International Labour Conference, to decide that there would be no object in continuing to examine this aspect of the case;
   • (b) as regards the allegations relating to interference by public authorities in the finances of trade unions, to take note of Argentine legislation on the supervision of administration of trade union property and funds, to call the Government's attention to the considerations set out in paragraphs 285 to 288 above, and to invite it to re-examine the said legislation in the light thereof, particularly as regards the reference of the results of administrative audits to a law court so as to ensure due process of law and, if appropriate, application of sanctions by the court;
   • (c) to take note of the present interim report, on the understanding that the Committee will report further to the Governing Body when it has received the information from the Government referred to in paragraph 298 above.