Informe provisional - Informe núm. 320, Marzo 2000

Caso núm. 1953 (Argentina) - Fecha de presentación de la queja:: 18-FEB-98 - Cerrado

Allegations: Acts of anti-union discrimination, insufficient legal protection of trade unions leaders which are merely registered; revocation of a federation's registration in the registry of trade union associations

1. 98. The complaint was submitted in a communication from the Congress of Argentine Workers (CTA) dated 18 February 1998. The complainant organization presented supplementary information and new allegations in communications dated 18 February, 5 June and 22 December 1999. The Government sent its observations in communications dated 5, 6 and 19 October 1998, 3 May and 7 October 1999 and 11 January 2000.
2. 99. 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. The complainant's allegations

1. 100. In its communication of 18 February 1998, the Congress of Argentine Workers (CTA) alleges that the privatization of the Atlantic Electrical Energy Distribution Enterprise (EDEA S.A.), consistently opposed by the Mar del Plata Lighting and Power Workers' Union (which called for observance of the collective agreement in force), had resulted in the dismissal of over 70,000 workers. According to the complainant, the trade union had undertaken various types of industrial action, including strikes, and the enterprise illicitly brought pressure to bear by dismissing and suspending trade union representatives and members as well as non-members, and through the persecution and prosecution in civil and labour courts (legal action taken with a view to dismissal) of the trade union leaders Messrs. José Jorge Rigane (General-Secretary), Oscar Alberto Escalante and Néstor Daniel Cuenca, who were wrongfully accused of committing criminal offences. The enterprise instigated criminal and civil actions against them, falsely accusing them of responsibility for bomb scares, sabotage at enterprise facilities and disturbances, etc., and set the press and media against them. The enterprise also dismissed staff delegates without taking the step of calling upon the courts to lift their trade union protection, as required by the legislation.
2. 101. The CTA adds that Alitalia S.A. refused to grant trade union privileges to the trade union leader, Mr. Hugo Perosa, and completely changed his assignment, resulting in a deprivation of work responsibilities. Afterward, when Mr. Perosa became a member of the CTA executive, the enterprise dismissed him (on 28 October 1997), claiming "neglect of duties" as the cause, and without calling upon the courts to lift his trade union protection, as required by the legislation. (In a communication of 15 December 1999 sent to the Office, the CTA states that Federal Labour Chamber 10 had handed down a ruling on 13 November 1999 ordering the enterprise to reinstate Mr. Hugo Perosa in his post.)
3. 102. The CTA further alleges that the Nestlé S.A. enterprise dismissed the trade union leader Mr. Marcelo Fabián Martín without requesting that his trade union protection be lifted.
4. 103. In its communication of 18 February 1998 the CTA alleges that the provincial government of Salta and certain municipalities of the province refused to apply Act No. 23551 on trade unions, and specifically its provisions protecting the job security of trade union leaders who are public servants. This applied in particular to those who opposed privatization, as was the case of leaders of the State Workers' Association (ATE). The CTA refers to 18 leaders who were dismissed or transferred without the required judicial procedure being initiated to lift their trade union protection, and who were the subject of proceedings between 1992 and 1996 which have still not been concluded, including the following leaders from the province of Salta and some of whom were from the municipality of General Güemes: Carlos Alberto Ibarra, Miguel Angel Ravaza, Hugo Miguel Quispe, Rubén Antonio Saravia, Juana Isnardez de Ruiz, Reynaldo Eduardo Pistan, Ramona Escobar de Gutiérrez, Juan Carlos Valdez, Cristina Córdoba Ruiz de Mosa, Miguel Angel Vittor, Laura Alicia López, Samuel Osvaldo Polo, Elio Fernández Rodríguez, Ricardo Armiñana Dohorman, Raúl Avellaneda, René Francisco Elejalde, Héctor Luis Cruz and Luis Roberto Ramos.
5. 104. In its communication of 5 June 1998, the CTA alleges that on 6 May 1998 the registration of the Federation of Energy Workers of the Argentine Republic (FETERA) was revoked through administrative channels in violation of the legislation and of Convention No. 87. The revocation was based on the Federation's failure to comply with the requirements for constituent organizations, which are not set out by the legislation. It further alleges the persecution by the authorities of the province of Santiago del Estero of the State Workers' Association (ATE), as criminal charges were reportedly brought against its trade union leaders and its members' contributions were unjustly retained.
6. 105. In more general terms, the CTA notes that there is discrimination against trade union organizations which are "merely registered" (simplemente inscriptas) as opposed to those which are registered with "official trade union status" (personería gremial) with regard to protection against abuse and persecution by employers and the authorities. Specifically, sections 48 and 52 of Act No. 23551 on trade unions reserve for representatives of trade union associations with "official trade union status" the legal and procedural guarantees of protection against dismissal or modification of their work situation. Similarly, from the complaint it can be understood that there is some doubt regarding judicial rulings on the applicability of these provisions to public servants and employees.

B. The Government's reply

1. 106. In its communications of 5, 6 and 19 October 1998, 3 May and 7 October 1999 and 11 January 2000, the Government states that with regard to the complaint made against the Atlantic Energy Distribution Enterprise S.A. (EDEA S.A.) for allegedly committing anti-trade union acts, the Mar del Plata Lighting and Power Workers' Union correctly requested the intervention of the local administrative authorities. Consequently, the Ministry of Labour intervened by issuing Decision No. 760/97, which ordered that two trade union leaders be reinstated immediately and left the suspension of another without effect. The Ministry refrained from any further intervention pending a definitive ruling by the competent judicial authority. The Ministry's decision was appealed by EDEA S.A., thus prompting the Ministry of Labour to issue Decision No. 08/98. In it, following an extensive examination of the de jure and de facto circumstances surrounding the previous decision, the Ministry rejected the appeal against Decision No. 760/97 and confirmed it in its entirety. An agreement was signed on 13 October 1998 between EDEA S.A. and the Argentine Federation of Lighting and Power Workers (FATLYF), and was ratified by the administrative labour authority. In it: both parties expressed their interest in resolving and overcoming the conflicts which gave rise to sanctions, suspensions and other measures adopted by the enterprise; EDEA S.A. undertook to make null and void the disciplinary suspensions applied to its staff who took part in the work stoppages on 1, 2 and 3 July 1997, to pay the appropriate compensation to the dismissed staff, to transfer some of the staff and to reinstate the rest in the enterprise; EDEA S.A. further undertook to abstain from pursuing all pending judicial proceedings against the Mar del Plata Lighting and Power Workers' Union and against the members of its executive, including Mr. Rigane; and EDEA S.A. undertook to drop the criminal charges it had brought following the incidents on 1 July 1997. Clearly, it appears that the effective conciliation efforts of the competent authorities in the government of the province of Buenos Aires made it possible to overcome this conflict and to reaffirm the protection and guarantee of freedom of association.
2. 107. As regards the allegations concerning the incidents in the province of Salta, the Government states that the situations of Mr. Luis Alberto Ramos, Mr. Víctor Angel Ravaza and Ms. Cristina Córdoba Ruiz have been resolved. Mr. Osvaldo Polo, Mr. Raúl Vicente Avellaneda, Ms. Laura Alicia López de Cabral, Mr. René Francisco Elejalde and Mr. Elio Fernández Rodríguez, who were employed by what was then known as the Bank of the Province of Salta, have come to an agreement with the bank and have halted any action taken against it. As regards the other individual cases, since they were not within the direct competence of the provincial executive, it was not possible to provide any information beyond that which had been submitted. The national Ministry of Labour had directly requested the appropriate bodies and institutions (the municipality of General Güemes, the Senate of the province of Salta and the Bank of the Province of Salta, S.A.) to report on the situation to which the complainant referred.
3. 108. As regards the dismissal of the Alitalia S.A. trade union leader, Mr. Hugo Perosa, the Government states that no request for intervention has been submitted to the authorities, and that no judicial case has been brought. Nonetheless, from the inquiries which have been carried out there is no indication that the conflict was continuing. Under the legislation, questions relating to trade union immunity do not fall within the competence of the executive branch, and must be resolved through the labour courts.
4. 109. As regards the dismissal by the Nestlé S.A. enterprise of the trade union leader Mr. Marcelo Fabián Martín, the Government states that the CTA and the trade union leader in question have undertaken a summary reinstatement procedure against the enterprise, as provided in section 52 of Act No. 23551, and that it is currently before the National First Instance Judge, "Third Nomination" (Tercera Nominacion) (Civil and Commercial) of the City of Villa María in the province of Córdoba. In principle, the protective measure requested by the complainant reinstating Mr. Martín has already been taken. The Government includes copies of the lawsuit and the judicial decision. The judicial file on the incidents has been in the possession of the trade union leader's lawyer since June 1998, and has thus far not been returned to the judge. Despite the lack of action taken by the interested party, the judge has been asked to request that the file be returned so as to clarify the stage of the proceedings and determine whether any damages occurred which would justify intervention by the Ministry of Labour and Social Security pursuant to the protection provided under Conventions Nos. 87 and 98.
5. 110. As regards the allegations concerning the Federation of Energy Workers of the Argentine Republic (FETERA), the case is before the courts, as the Federation has invoked the provisions of section 62 of Act No. 23551 on trade unions, which establishes the exclusive competence of the National Labour Appeals Chamber for such questions, a legislative policy that is, moreover, in conformity with the principles of freedom of association. The Chamber recently ruled that judicial Decision No. 322/98 was to be revoked, and ordered that the FETERA must be registered in the Registry of Trade Union Associations (the Government encloses a copy of the ruling). Along the same lines, it should be noted once again that in the Argentine Republic the administrative acts are subject to the full review and supervision of an independent judicial authority. For that reason, as an appeal has been lodged against the judicial decision in question under the special appeals procedure provided by Act No. 48, and with the case pending before the Supreme Court of Justice, the Committee on Freedom of Association is requested for the time being to take into consideration that the matter has not yet been dealt with definitively.
6. 111. As regards the protection afforded by the legal system against anti-union discrimination, the Government states that the Constitution expressly establishes in the second paragraph of article 14bis that "Trade union representatives shall have the guarantees required for them to accomplish their trade union activities and those required for their job security", and the legislative provisions are in conformity with this principle. The main provision on trade union immunity is found in section 47 of Act No. 23551, which provides that -
   • Any workers or trade union associations hindered or blocked from the regular exercise of their rights of freedom of association guaranteed under this Act shall be able to assert the protection of such rights before the competent judicial tribunal, in conformity with the summary procedure established under Section 498 of the national Code of Civil and Commercial Procedure or the equivalent provincial codes of civil procedure, so that the tribunal is able, when appropriate, immediately to bring the anti-trade union behaviour to an end.
   • This standard introduces a dynamic and effective means in order to guarantee the "rights of freedom of association". The active subjects of the action are "any workers or trade union associations". This section and the protection it affords are not restricted to members, delegates or members of representative bodies, etc., but extends to any worker or group of workers who may carry out such activities in search of effective remedies. By the same token, because it does not distinguish between trade unions, the action may be taken by a union whether or not it has "official trade union status", by first, second or third level trade unions or even by a group of trade unions. The object of the action is to protect the regular exercise of the rights of freedom of association. In this sense, the case law has shown that the criteria for the interpretation of the rights of freedom of association must be broad, although the provisions of Act No. 23551 do not stand on their own, deriving as they do from section 14bis of the Constitution. Act No. 23592 sets out measures for those who arbitrarily hinder the full exercise of such rights and obstruct the fundamental guarantees recognized in the national Constitution. Section 1 of the Act provides that -
   • Whoever arbitrarily hinders, obstructs, restricts or in any way impinges upon the full and equitable exercise on an equal basis of the fundamental rights and guarantees recognized in the national Constitution shall be obliged, at the request of the injured party, to make the discriminatory act null and void or to cease its implementation, and to compensate the moral and material damages caused. For the purposes of this Section, discriminatory acts or omissions based on race, religion, nationality, ideology, political or trade union opinion, sex, economic status, social condition or physical characteristics shall be of special concern.
   • The set of constitutional provisions, the provisions of section 47 mentioned above and Act No. 23592 provide appropriate protection for all workers to exercise their trade union activities, as they prevent inter alia dismissal, suspension or arbitrary modification of conditions of work in such circumstances.
7. 112. In addition, sections 48 and 52 of the Act on trade unions more specifically address the protection of trade union representatives in an enterprise, though they are not the only provisions which do so, as can be seen in the previous paragraphs. For representatives to carry out such activities, under section 41 of the Act and in accordance with other conditions, they must be members of associations with "official trade union status", although that requirement may not be necessary "when the employer with whom the representative has to work has no association registered with official trade union status, the function of representative may be carried out by members of an association which is merely registered".
8. 113. It is thus clear that Argentine law affords protection not only to representatives of organizations with official trade union status, but to all trade union representatives in the enterprise, and further to all workers whether or not they are members of a trade union organization, be it with official trade union status or merely registered. It is up to those who have theoretically suffered damages to appeal to the courts to assert their rights when they have been violated, as the State is prohibited under section 63(c) of Act No. 23551 from intervening in any way.
9. 114. Finally, as regards the allegations of persecution against members of the State Workers' Association (ATE) by the authorities of the province of Santiago del Estero, the Government requests more time to present its observations, as the province is in the process of evaluating and considering the case and the reply still has yet to be received. As regards the allegations concerning the Province of Santiago del Estero, the Government denies that the provincial government instigated criminal proceedings against Ms. Alba Luna Aguirre de Castillo. Criminal proceedings were initiated against the trade union leader on 15 July 1992 by members of the board of the ATE's Santiago del Estero branch, with other trade union leaders accused under the provisions of section 173, paragraph 7, of the Criminal Code of defrauding that branch. The case is currently before the Third Chamber (Crime), and the trial has been scheduled to begin on 30 January 2000, subject to the state of health of the accused, Ms. Aguirre de Castillo, who is currently ill in Buenos Aires. The Chamber has ordered forensic experts from the Buenos Aires city courts to determine her exact state of health so as to establish whether it can allow her to stand trial, as the proceedings have previously been suspended for health reasons. As regards the retention of trade union dues, the Government states that the allegation is unfounded, as the province was sued in the Supreme Court of Justice for collecting contributions, and it was proved during that case that the payments had been forwarded. It should be noted in any case that the payments were made with some delay owing to the serious economic and financial crisis which the provincial government had to face, which even led to federal intervention under Act No. 24.306.

C. The Committee's conclusions

1. 115. The Committee observes that in the present case the complainant organization alleges the dismissal, transfer or prosecution of trade union leaders and shortcomings in the legal protection against anti-union discrimination, as the latter provides preferential treatment for organizations with "official trade union status" (personería gremial) over those which are "merely registered", which has resulted in excessive delays in the treatment of cases by the judicial authorities and has led to the revocation from the trade union registry of the Federation of Energy Workers of the Argentine Republic (FETERA).
2. 116. As regards the allegations of anti-union dismissals, the Committee notes with interest that some of the cases have been resolved. In this regard, the Committee notes that: (1) according to the Government, thanks to the conciliation efforts of the authorities, the Atlantic Electrical Energy Distribution Enterprise (EDEA S.A.) enterprise and the Argentine Federation of Lighting and Power Workers (FATLYF) signed an agreement (which the Government encloses) providing for the reinstatement of the trade union leader Mr. José Jorge Rigane and other trade union leaders, and making null and void the labour and criminal proceedings undertaken against him and the trade union; (2) according to the complainant, the judicial authorities ordered the reinstatement of Mr. Hugo Perosa at Alitalia S.A. in November 1999; (3) as regards the dismissal or transfer of trade union leaders in the province of Salta, according to the Government the situation of Mr. Luis Alberto Ramos, Mr. Víctor Angel Ravaza and Ms. Cristina Córdoba Ruiz have been resolved, as have those of Mr. Osvaldo Polo, Mr. Raúl Vicente Avellaneda, Ms. Laura Alicia López de Cabral, Mr. René Francisco Elejalde and Mr. Elio Fernández Rodríguez, who were employed by the institution known at the time as the Bank of the Province of Salta and have come to an agreement with the bank and have halted any action taken against it. The Committee further notes that according to the Government, the judicial authorities have ordered the protective measure reinstating the trade union leader Mr. Marcelo Fabián Martín; the Government emphasizes in this case the failure by the interested party to take action, as the file has been in the possession of Mr. Martín's lawyer since June 1998, and he has so far not returned it to the judge. The Committee requests the Government to inform it of the final ruling on the case of the trade union leader Mr. Marcelo Fabián Martín. The Committee further requests the Government to send its observations concerning the dismissal or transfer between 1992 and 1996 of the following trade union leaders, whose proceedings have not yet been concluded from the province of Salta (some of whom were from the municipality of General Güemes): Carlos Alberto Ibarra, Hugo Miguel Quispe, Rubén Antonio Saravia, Juana Isnardez de Ruiz, Reynaldo Eduardo Pistan, Ramona Escobar de Gutiérrez, Juan Carlos Valdez, Miguel Angel Vittor, Ricardo Armiñana Dohorman and Héctor Luis Cruz.
3. 117. The Committee notes from the allegations that some of the proceedings concerning dismissals or transfers have gone on for years. In this respect, the Committee draws the attention of the Government to the principle according to which -
   • Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of trade union rights of the person concerned.
   • (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 749.)
4. 118. The Committee further observes that the problem of delays in the procedures concerning the dismissal or transfer of trade union leaders is related to the different levels of protection which the law affords to trade unions with "official trade union status" and to those which are "merely registered", and that the problem is worsened in the case of public employees, as they must exhaust administrative remedies before being able to bring cases before the judiciary. As regards the allegation concerning the insufficient legal protection of trade union leaders against anti-union discrimination, the Committee takes note of the Government's statement, which indicates that the legislation provides adequate protection from acts of anti-union discrimination committed against trade union leaders and members, even if in certain situations the delays may be excessive, as has been seen in the present case. The complainant organization contends that those trade union organizations which are "merely registered" suffer discrimination with respect to those which have "official trade union status" (which are more representative) insofar as the dismissal or worsening of the conditions of employment of the leaders of the latter require judicial authorization (under sections 48 and 52 of the Act concerning trade unions), while no such authorization is required for the former. In this respect, the Committee shares the opinion of the Committee of Experts, which reads as follows:
   • 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.
   • 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 Report of the Committee of Experts, Report III (Part 1A), 1999, p. 203.)
5. 119. In these circumstances, the Committee requests the Government to take measures to ensure that in affording legal protection to trade union leaders against dismissal and other prejudicial acts, the legislation does not discriminate against trade union organizations which are "merely registered" with respect to those which enjoy "official trade union status".
6. 120. As regards the revocation through administrative channels of the registration of the FETERA trade union, the Committee notes that the Government states that the first instance judicial authority cancelled the revocation and ordered the registration to take place, and that its ruling was appealed before the Supreme Court of Justice. The Committee observes that according to the first instance judicial decision, which the Government encloses, the administrative revocation of the registry was due to the fact that the federation in question was composed of four constituent trade unions which were entirely different in nature (two enterprise unions, a sectoral union and an occupational union), which was supposedly prohibited by the law. In this respect, the Committee wishes to point out that it is for the statutes of the federations of a branch of activity to determine the number and type of organizations which it comprises, and that the revocation of the registration of an organization through administrative channels and the legal voiding of that organization is equivalent to an administrative dissolution thereof, which is contrary to Article 4 of Convention No. 87. Consequently, the Committee requests the Government to ensure that the administrative authority withdraw its appeal against the decision of the first instance, which ordered that the FETERA trade union be registered, and to keep it informed of any decisions or rulings adopted in connection with this case.
7. 121. Lastly, as regards the allegations concerning the persecution of the State Workers' Association (ATE) trade union by the authorities of the province of Santiago del Estero through criminal charges brought against trade union leaders and the unjust retention of members' dues, the Committee notes the Government's statements to the effect that the criminal proceedings were not initiated by the authorities, but rather by a group of trade union leaders, against other leaders who were accused of defrauding the union, and that it has been proved in other proceedings that the payments of trade union contributions (dues) were forwarded to the union by the province.

The Committee's recommendations

1. 122. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to inform it of the final decision concerning the dismissal of the trade union leader, Mr. Marcelo Fabián Martín (reinstated for the time being under a protective measure).
   • (b) The Committee requests the Government to send its observations concerning the dismissal or transfer between 1992 and 1996 of the following trade union leaders from the province of Salta (some of whom were from the municipality of General Güemes), whose proceedings have not yet been concluded: Carlos Alberto Ibarra, Hugo Miguel Quispe, Rubén Antonio Saravia, Juana Isnardez de Ruiz, Reynaldo Eduardo Pistan, Ramona Escobar de Gutiérrez, Juan Carlos Valdez, Miguel Angel Vittor, Ricardo Armiñana Dohorman and Héctor Luis Cruz.
   • (c) The Committee requests the Government to take measures to ensure that the legislation ensuring the legal protection of trade union leaders against dismissal and other prejudicial acts does not discriminate against the leaders of organizations which are merely registered with respect to the leaders of those which have official trade union status.
   • (d) The Committee requests the Government to ensure that the administrative authority withdraws its appeal against the decision of the first instance judicial authority which ordered the trade union registration of the FETERA trade union, and to keep it informed of any decision or ruling adopted with respect to this case.