Informe definitivo - Informe núm. 326, Noviembre 2001

Caso núm. 2117 (Argentina) - Fecha de presentación de la queja:: 01-FEB-01 - Cerrado

Allegations: Provincial decree restricting the right to collective bargaining

1. 196. The complaint submitted by the Association of State Workers (ATE) is contained in a communication dated February 2001. The Government forwarded its observations in a communication of 3 July 2001.
2. 197. 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. 198. In its communication of February 2001, the Association of State Workers (ATE) states that Act 23328 ratifies Convention No. 151 and Act 23544/88 ratifies Convention No. 154 and that article14bis of the Argentinian constitution guarantees the right to collective bargaining as a fundamental right. Likewise, the complainant indicates that the Constitution establishes the representative, republican and federal system and provides, moreover, that each provincial state has legislative powers and that the procedure and holding of collective bargaining for public administration must be legislated in keeping with the existing normative framework. The Constitution of the Province of Buenos Aires, article 29, paragraph 4), explicitly provides for the right to collective bargaining for public officials of the province.
2. 199. The ATE alleges that, on 12 January 2001, the Governor of the Province of Buenos Aires vetoed the Act adopted by the legislature (provincial legislative power), under file 237/99-00. According to the complainant, the Act that was vetoed conformed in every way with national Act 24185 on collective bargaining in the national public sector and with Convention No. 151. The Act covers employees of the provincial public administration as well as those of the legislature and the judiciary, and of the Instituto de Obra Médico Asistencial (IOMA) and the Social Security Institute, both of which are tripartite public administration bodies funded by the provincial budget.
3. 200. The complainant states that Decree No. 33/01 which vetoes the Act legally adopted by the provincial legislature and which, by extension, prevents its application, constitutes an act of outright interference by the provincial administrative authority in matters pertaining to collective bargaining by public officials of the Province of Buenos Aires and is, therefore, an infringement of the principle of free and voluntary collective bargaining.

B. The Government’s reply

1. 201. In its communication dated 3 July 2001, the Government states that under Decree No. 33/01, article 1, and under the powers vested in it by article 108 of the Constitution of the Province of Buenos Aires, the government of the province decided to veto the law adopted on 20 December 2000 by the legislature, regulating collective agreements for public officials of Buenos Aires.
2. 202. The Government states, in response to the allegation that Decree No. 33/01 constitutes an act of outright interference by the provincial administrative authorities in collective bargaining by public officials in the Province of Buenos Aires and is, therefore, a breach of the principle of free and voluntary collective bargaining, that the veto was issued on unassailable legal grounds, in accordance with current provincial public law whereby promulgation of the vetoed Act was clearly inadmissible, first and foremost because it infringed the executive’s so-called “reserve zone”, by seeking to place the constitutional powers of a branch of state power within the ambit of collective agreement. The Government emphasizes that the possible existence of a breach in connection with Decree No. 33/1 should be dismissed, both in terms of constitutional principles and norms and of the international conventions in question.
3. 203. The Government states that the Act contained irreparable material flaws, making valid enforcement impossible within the current federal and provincial order in Argentina. Specifically, the Government states that the flaws involve the scope of personal application of the Act; matters of trade union representation and administrative authority; restrictions on participation in collective bargaining by given trade union organizations; the content of collective bargaining (according to the Government, the Act places powers inherent in the provincial executive within the ambit of collective agreement); unequal treatment in terms of the duty to provide information; the levying of a trade union solidarity fee on employees, even if they are not members of workers’ organizations and conflict prevention and settlement mechanisms.
4. 204. Lastly, the Government states that the veto was imposed under constitutional powers vested in the provincial executive, of an exclusive nature that cannot be delegated, relating to operational and implementation matters which must ultimately be settled by the State, and which the ILO Conventions in question likewise attribute to national legislation and practice and which in no way constitute an anti-trade union attitude and much less a violation of the principle and implementation of free and voluntary collective bargaining.

C. The Committee’s conclusions

1. 205. The Committee notes that in this case the complainant objects to Decree No. 33/01 issued by the executive of the Province of Buenos Aires, vetoing a provincial Act regulating collective agreements for public officials which, according to the complainant, conforms in every respect to national law on collective bargaining in the public sector and with Conventions Nos. 151 and 154. The Committee notes that the complainant alleges that this constitutes an act of outright interference by the provincial administrative authority in matters pertaining to collective bargaining by public officials of the Province of Buenos Aires and is, therefore, an infringement of the principle of free and voluntary collective bargaining.
2. 206. In this regard, the Committee takes note that the Government states that: (1) under the powers vested in it by article 108 of the Constitution of the Province of Buenos Aires, the government of the province decided to veto the law regulating collective agreements for public officials of the province; (2) the veto was issued on unassailable legal grounds, in accordance with current provincial public law whereby promulgation of the vetoed Act was clearly inadmissible, first and foremost because it infringed the executive’s so-called “reserve zone”, by seeking to place the constitutional powers of a branch of state power within the ambit of collective agreement; (3) the flaws involve the scope of personal application of the Act; matters of trade union representation and administrative authority; restrictions on participation in collective bargaining by given trade union organizations; the content of collective bargaining (according to the Government, the Act places powers inherent in the provincial executive within the ambit of collective agreement); unequal treatment in terms of the duty to provide information; the levying of a trade union solidarity fee on employees, even if they are not members of workers’ organizations and conflict prevention and settlement mechanisms; and (4) the veto does not constitute an anti-trade union attitude and much less a violation of the principle and implementation of free and voluntary collective bargaining.
3. 207. Firstly, the Committee emphasizes that it is not up to the Committee to give an opinion on the decision by a national or provincial government to veto an Act by a national or provincial legislature.
4. 208. In regard to the right to collective bargaining of public officials in the Province of Buenos Aires, the Committee notes that Argentina ratified Convention No. 98, in 1956, whereby public officials who are not engaged in the administration of the State should enjoy the right to collective bargaining and that, through ratification of Conventions No. 151, in 1987, and No. 154, in 1988, this right has been recognized in general for all public officials. Under these circumstances, and bearing in mind that collective bargaining in the public administration provides for the establishment of specific application modalities, the Committee requests the Government to take measures to respect the right to collective bargaining of public officials in the Province of Buenos Aires, in accordance with the provisions of Conventions Nos. 98, 151 and 154 and reminds the Government that it may request the technical assistance of the Office in drafting a new bill for such employees.

The Committee's recommendations

1. 209. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Taking into account that the right to collective bargaining has not been granted to workers in the public sector in the Province of Buenos Aires, the Committee requests the Government to take measures to respect the right to collective bargaining of these public sector workers in the Province of Buenos Aires, in accordance with the provisions of Conventions Nos. 98, 151 and 154 and reminds the Government that it may request the technical assistance of the Office in drafting a new bill for such employees.