Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 310, Junio 1998

Caso núm. 1887 (Argentina) - Fecha de presentación de la queja:: 05-JUN-96 - Cerrado

Allegations: Restrictions on the right to collective bargaining

1. 90. The Committee examined this case during its May 1997 meeting and presented an interim report to the Governing Body (see 307th Report, paras. 55-69, approved by the Governing Body at its 269th Session (June 1997)).
2. 91. The Government sent its observations in communications dated 9 May and 1 October 1997 and 27 May 1998. At its meeting of March 1998, the Committee deferred its examination of this case at the request of the Government.
3. 92. 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); and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 93. When this case was last examined there were outstanding allegations from the Tram Drivers' Union (UTA) raising objections to the following Decrees laid down by the executive power: Decree No. 1553/96, empowering the Ministry of Labour to revoke the registration of a collective labour agreement; Decree No. 1554/96, empowering the Ministry of Labour to determine the scope of collective bargaining; and Decree No. 1555/96, containing certain provisions regarding collective bargaining within the framework of small enterprises (see annexed the relevant articles to the Decrees in question).
2. 94. In its meeting in May 1997 the Committee formulated the following recommendation (see 307th Report, para. 69):
3. With regard to the alleged restriction of the right to collective bargaining under Executive Decrees Nos. 1553/96, 1554/96 and 1555/96, the Committee expresses the hope that the Government, as it has indicated, will forward its observations shortly. Finally, the Committee requests the complainant to submit additional information regarding these allegations.
4. B. The Government's reply
5. 95. In its communication of 9 May 1997, the Government indicated that Decrees Nos. 1553, 1554 and 1555 have been suspended since they were the subject of a case before the Supreme Court.
6. 96. In its communication of 1 October 1997, the Government stated that the suspension of the application of Decrees Nos. 1553/96, 1554/96 and 1555/96 would remain in place. Moreover, a presentation to the Supreme Court by the General Confederation of Labour (CGT) and the State has led to an agreed suspension of the legal process on the case (the Government attaches to its reply a copy of the above-mentioned judicial presentation, endorsed by legal representatives of the CGT and by the Ministry of Labour and Social Security). In this presentation a suspension of the legal process for a period of 120 days, in order to arrive possibly at an out-of-court solution was requested (the Government also attaches a copy of the ruling of the Supreme Court in reply to this request). The Government adds that suspension of the proceedings will remain in place until the middle of December 1997, and consequently the Decrees in question have not had any practical application; and currently representatives from workers, employers and the national authorities are involved in preparing a draft agreement on collective bargaining.
7. 97. In its communication of 27 May 1998, the Government forwarded a copy of the draft law on labour law reform, which has been presented to Parliament.

C. The Committee's conclusions

1. 98. The Committee observes that, in this case, the complainant organization is alleging restrictions on the right to collective bargaining in virtue of the Decrees passed in December 1996 by the executive power: Decree No. 1553 (which empowers the Ministry of Labour and Social Security to revoke, in part or in whole, the registration of a collective labour agreement), Decree No. 1554 (which provides that should there be disagreement among the parties the Ministry of Labour and Social Security will determine the scope of collective bargaining) and Decree No. 1555 (which provides for collective bargaining within the framework of small enterprises).
2. 99. The Committee notes that the Decrees in question were declared wholly or partly unconstitutional by legal tribunals of first and second instance, and subsequently went before the Supreme Court.
3. 100. In this respect the Committee notes the Government's indication that: (1) the Decrees were suspended from taking effect in virtue of judicial proceedings before the Supreme Court; (2) the Ministry of Labour and Social Security and the General Confederation of Labour (CGT) requested the Supreme Court to suspend the proceedings for a period of 120 days so that there was a possibility of arriving at an out-of-court agreement; (3) up until now the Decrees have not had any formal practical application; and (4) currently representatives of workers, employers and national authorities are in the process of drawing up a draft agreement on collective bargaining.
4. 101. The Committee, in this context, proposes to examine the Decrees in question so that the principles of freedom of association and collective bargaining may be taken into account in the process of the legislative changes which the Government is carrying out with the social partners.
5. 102. As regards Decree No. 1553/96, which empowers the Ministry of Labour and Social Security to revoke, in part or in whole, the registration of a collective labour agreement, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations, on analysing the application of Convention No. 98 by Argentina, has for several years criticized the legal provisions relating to the registration of collective labour agreements, and has also already commented on the conformity of the Decree in question with Convention No. 98 (see observation of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part 1A of 1998). Therefore the Committee refers to the commentary of the Committee of Experts as follows:
   • The Committee recalls that for many years it has criticized the legal provisions relating to the granting of official approval by the Ministry of Labour for the validity of collective agreements which go beyond enterprise level; for the purposes of official approval consideration must be given not only to whether a collective labour agreement contains clauses violating the public-order standards of Acts Nos. 14250 and 23928, and also whether it complies with the following criteria: productivity, investment and the introduction of technology and vocational training systems (section 3 of Act No. 23545, section 6 of Act No. 25546 and section 3 of Decree No. 470/93).
   • In this respect, the Committee notes that the Government states that the question relating to the approval to be granted by the labour authorities, together with the contents of the collective agreements analysed prior to the granting of approval, should be dealt with in a draft legislative reform. Similarly, the Committee notes that the Government states that the influence of the State, through the granting of approval, has been significantly reduced as a result of the increase in collective bargaining at enterprise level, and that Decree No. 1334/91, which links wage negotiation to an increase in productivity is virtually revoked by Decree No. 470/93 for a wide range of conventional activities.
   • In these circumstances, the Committee expresses the hope that the draft reform on collective bargaining to which the Government refers will eliminate the provisions which place conditions on the official approval necessary from the administrative authorities for collective agreements going beyond enterprise level, and which are linked to criteria of productivity, investments and the introduction of technology and vocational training systems. The Committee requests the Government to send it a copy of the draft legislation with its next report.
   • The Committee observes that in December 1996 the Government issued Decree No. 1553/96 which authorizes the Ministry of Labour and Social Security to revoke, in part or in whole, the official approval of a collective agreement if the provisions thereof conflict with the legal rules issued after approval has been granted and if once the agreed period has expired the Ministry considers that the validity of the agreement no longer meets the requirements of section 4 of Act No. 14250. The Committee considers that this Decree confirms and expands the intervention of administrative authorities in collective bargaining, something which has already been criticized.
6. 103. As regards Decree No. 1554/96, which empowers the Ministry of Labour and Social Security to determine the scope of collective bargaining, the Committee notes also that the Committee of Experts has commented on the conformity of this Decree with the provisions of Convention No. 98 (see observation from the Committee of Experts, op. cit.). Therefore, the Committee refers to the commentary of the Committee of Experts as follows:
   • Furthermore, the Committee observes that in December 1996, Decree No. 1554/96 was also issued and provides that in cases where parties do not reach agreement on the sectors to be covered by negotiations of a collective agreement, this shall be decided by the Ministry of Labour, which must not exceed the minimum scope proposed. In the Committee's opinion, this implies that between a proposal for negotiation at the level of industry or branch of activity and a proposal for negotiation at enterprise level, in the absence of an agreement between the parties, a decision is taken within the enterprise sector and is imposed by the administrative authority concerned. In this respect, the Committee emphasizes that in drawing up the Convention, the principle of voluntary collective bargaining and the level of negotiation should not be conditioned or imposed by legislation or by a decision of the administrative authority, but should depend essentially on the will of the parties concerned.
7. 104. As regards Decree No. 1555/96, which contains certain provisions regarding collective bargaining within the framework of small enterprises, the Committee notes that the National Chamber of Labour -- a judicial body at the appeal level -- declared sections 1 and 5 of the Decree in question unconstitutional. In this respect it should be highlighted that section 1 gives "the internal committee, staff delegates or similar bodies" the possibility of concluding collective agreements within the sphere of small enterprises. In this way, although it may be considered that a provision of this type does not in itself violate the principles of freedom of association, the Committee reminds the Government that the Workers' Representatives Convention, 1971 (No. 135) and the Collective Bargaining Convention, 1981 (No. 154), contain explicit provisions guaranteeing that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade unions concerned (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 787). The Committee would point out to the Government the importance it attaches to this principle.
8. 105. The Committee points out to the Government the above-mentioned principles and conclusions on Decrees Nos. 1553/96, 1554/96 and 1555/96 -- currently suspended -- in so far as they pose problems of conformity with Convention No. 98. The Committee requests the Government to keep it informed of developments concerning the decrees and any collective agreements adopted pursuant to the decrees. Likewise, the Committee expresses the firm hope that the draft agreement for collective bargaining which the Government has indicated it is preparing with the participation of the social partners and the recent draft law on labour law reform, as adopted, will fully conform with the principles of freedom of association.

The Committee's recommendations

1. 106. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee would point out to the Government the principles formulated in the conclusions with respect to Decrees Nos. 1553/96, 1554/96 and 1555/96 in so far as they pose problems of conformity with Convention No. 98. The Committee requests the Government to keep it informed of developments concerning the decrees and the collective agreements adopted pursuant to the decrees.
   • (b) The Committee expresses the firm hope that the draft agreement on collective bargaining which the Government has indicated it is preparing with the participation of the social partners, and the recent draft law on labour law reform, as adopted, will fully conform with the principles of freedom of association.

Z. Annex

• Decree No. 1553/96: The President of Argentina decrees that: Section 1. The
• Ministry of Labour and Social Security, after consultation with the parties,
• may revoke, in part or in whole, the registration of a collective labour
• agreement when:
  • (a) its clauses conflict with legal standards laid down subsequent to
• registration;
  • (b) one or more of its clauses have been judicially declared illegal;
  • (c) the time period having lapsed, its validity no longer meets the
• requirements of section 4 of Act No. 14250 (Decree No. 108/88).
• Section 2. Inform, publish, pass on to the National Directorate of the
• Official Registrar, and file.
• Decree No. 1554/96: The President of Argentina decrees that: Section 1.
• Substitute section 4 of Decree No. 200/88 with the following: "Section 4.
• Within the legal time-limit laid down in section 4 of Act No. 23546 a hearing
• will be called to form the negotiating committee. During this the parties may
• agree to carry out their negotiations directly or through a civil servant who
• will be designated by the relevant authority. Once the negotiating committee
• is formed, each party shall clearly indicate its functional, personal and
• territorial sphere. Should disagreement arise, the Ministry of Labour and
• Social Security will define the sphere of negotiation in such a way that this
• covers and does not transgress the spheres that the parties' proposals
• superimpose." Section 2. Inform, publish, pass on to the National Directorate
• of the Official Registry and file.
• Decree No. 1555/96: The President of Argentina decrees that: Section 1
• (section 99 of Act No. 24467). The internal committee, staff delegates or
• similar bodies and an employer, group or association of employers may grant
• the start of collective bargaining for small enterprises. Likewise, lower
• level union bodies may request negotiation of a collective agreement for small
• enterprises. In both cases the higher level union body should begin
• negotiations within 15 days, and once this time-limit is passed the matter is
• understood to have been delegated to the lower level union body for
• negotiation. In all competing cases of collective agreements, the collective
• agreement within the sphere of small enterprises shall prevail. Section 2
• (section 100 of Act No. 24467). Should any one of the parties signatory to a
• collective labour agreement request the start of collective bargaining on
• labour organization and wage structure for small enterprises, the Ministry of
• Labour and Social Security will convoke the parties to form a negotiating
• committee within 20 days of receiving the petition to this effect. In this
• case the petition does not imply denunciation of the Convention in force for
• the petitioner but rather the claim to adapt what is already in force to the
• provisions of Act No. 24467. Without prejudice to that previously established,
• the parties involved may denounce the applicable collective labour agreement
• under the terms of section 12 of Law No. 14250 (Decree No. 108/88) and request
• as an alternative: (a) agreement on a new general collective agreement which
• should contain one special chapter for small enterprises; (b) agreement on a
• collective labour agreement with a specific sphere for small enterprises. In
• both cases the Ministry of Labour and Social Security should arrange the start
• of negotiations within a time-limit similar to that laid down in the first
• paragraph of this section. Section 3 (section 101 of Act No. 24467). Should
• collective bargaining for small enterprises occur, the negotiating committee
• should include a representative from this sector. Section 4. During the
• proceedings of collective bargaining for small enterprises the procedures of
• Act No. 23546 will apply. Section 5. Once the time-limit of a general
• collective labour agreement expires its application within the sphere of small
• enterprises will remain for a time-limit of three months. Three months after
• the time-limit of a collective agreement for small enterprises has expired,
• labour conditions shall be governed by Act No. 20744 and other applicable
• legal standards. At no time will the clauses in a collective agreement for
• small enterprises, once expired, be considered as acquired rights or with
• legal effect remaining in labour relations. That which is laid down in
• paragraph 2 shall not be applicable should there already be a collective
• agreement with larger scope with a specific chapter for small enterprises in
• force. Section 6. Inform, publish, pass on to the National Directorate of the
• Official Registry and file.