Informe definitivo - Informe núm. 356, Marzo 2010

Caso núm. 2614 (Argentina) - Fecha de presentación de la queja:: 06-NOV-07 - Cerrado

Allegations: The complainant organizations object to a decision rendered by the Higher Court of Justice of the Province of Corrientes with regard to the regulations governing the right to strike within the judiciary; they also object to the decision to dock the salaries corresponding to days spent on strike by judicial employees

1. 203. The Committee last examined this case at its meeting in March 2009, when it submitted an interim report to the Governing Body [see 353rd report, approved by the Governing Body at its 304th Session (March 2009), paras 345–402].
2. 204. The Government sent its observations in a communication dated 17 September 2009.
3. 205. 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. Previous examination of the case

1. 206. In its examination of this case at its March 2009 meeting, the Committee made the following recommendations [see 353rd Report, para. 402]:
   • (a) The Committee expects that in future the authorities will endeavour to ensure compliance with the principle of the importance of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the sector involved and to promote collective bargaining, including on wages.
   • (b) The Committee requests the Government to send its observations concerning the allegations, presented in 2008, that with the aim of intimidating the SITRAJ leadership, criminal charges for the alleged crime of fraud were brought against its general secretary and subsequently dismissed and requests it to establish an investigation to determine whether these charges had an anti-union intimidation or discrimination motive. The Committee also requests the Government to send its observations relating to the allegations that by Decision No. 5 of 6 March 2008 the trade union privileges enjoyed by three SITRAJ leaders were withdrawn for the purpose of weakening the complainant organization.

B. The Government’s reply

1. 207. In its communication dated 17 September 2009, the Government forwarded the observations of the Higher Court of Justice of the Province of Corrientes.
2. 208. The authorities of the Higher Court of Justice of the Province of Corrientes state that they have been requested to communicate their observations on the allegations that, with the aim of intimidating the SITRAJ leadership, it brought criminal charges against its General Secretary for the alleged crime of fraud – charges that were subsequently dismissed. They deny emphatically that the Court has brought criminal charges against any member of SITRAJ. Nevertheless, in order to clarify the situation, it conducted an inquiry among the various magistrates’ courts of Corrientes to establish once and for all whether any criminal charge involving the trade union activities of any member of SITRAJ was pending. In the course of the inquiry, it was learnt from Resolution No. 2461 dated 21 December 2007 – adopted by Magistrate No. 1 of the City of Corrientes in report No. 9723/7 under the heading “Lugo Juan Heriberto S/Dcia. P/Sup. Fraud – Corrientes – art. 250 C.P.P.: González Juan Carlos” that Mr Juan Heriberto Lugo did indeed proffer charges against Mr Juan Carlos González for the alleged offence (article 173, para. 7, of the Penal Code) of fraudulent or disloyal administration, presumably on 17 December 2001. According to the resolution’s preambular paragraphs, in so far as the Public Prosecutor in agreement with the magistrate concerned determined that there were no grounds for proceeding further with the investigation since the alleged incident was not covered by any provision of the Penal Code, the case came under article 204 of the Code of Criminal Procedure and was accordingly dismissed. Consequently, as indicated above, the Higher Court of Justice has not brought charges against any member of SITRAJ.
3. 209. Regarding the alleged withdrawal of trade union privileges from three SITRAJ officers for the purpose of weakening the complainant organization, the authorities of the Higher Court of Justice state categorically that the circumstances were not as portrayed by SITRAJ and by the Argentine Judicial Federation (FJA). They also state that the Court did not act in any way that was designed to weaken the trade union organization referred to or intended as a form of reprisal. The events that gave rise to the incident originated in an official request that the President of the Public College of Lawyers of Corrientes submitted in administrative report No. C-286-07 under the heading “College of Lawyers – First Constituency re. Request concerning the payment of wages of SITRAJ officers out of the budget of the Judiciary”. The request called upon the Higher Court of Justice to revoke its earlier decision agreeing to the payment of the salaries of the persons filling the posts of General Secretary, Deputy Secretary and Financial Secretary of SITRAJ in the exercise of their trade union privileges, on the grounds that they should be remunerated by the trade union to which they are affiliated and not by the Judiciary, as required by law (article 48 of Act No. 23551).
4. 210. The Higher Court of Justice adds that, as a result of the request, a number of relevant Court documents and precedents were consulted. These show that: (1) by Decision No. 3 of 1990, point 1, paragraph 2, two of the Court’s officials were granted trade union privileges, including payment of salary by the Judiciary, and that by Decision No. 38 of 1994, point 17, those privileges were subsequently extended to a third employee, again with payment of salary by the Judiciary; (2) by Decision No. 27 of 1998, point 27, paragraph 4, it was decided to adapt the administrative arrangements to the requirements of Act No. 23551 and to grant trade union privileges to two officials of the Judiciary but without payment of salary by the Judiciary; (3) in 2000 it was again decided to grant union privileges to three officials, in one case with payment of salary by the Judiciary (Federal Ruling, Decision No. 03/2000, point 54). By Decision No. 26 of 2000 (point 3), such payment of salary by the Judiciary was extended to a second official, and by Decision No. 30/01 of 2001 (point 9) to all three officials.
5. 211. These precedents, together with the abovementioned administrative report, which was issued by the administrative director of the Judiciary on 14 September 2007, establish that Juan Carlos González, Adán Rodríguez and Epifanio Gómez received their income from the Judiciary and enjoyed trade union privileges. Responding to the request submitted by the College of Lawyers, and in accordance with the Trade Union Associations Act No. 23551 that applies to SITRAJ, the Higher Court as presently constituted, under the presidency of [the undersigned], determined by Decision No. 5 of 6 March 2008 (point 13) to grant the executive committee of the trade union, to which the court officials of the Province of Corrientes are affiliated and whose legal personality as a trade union has been recognized, the right to union privileges without payment of salary by the Judiciary for the duration of their mandate and with due recognition of seniority .
6. 212. The request submitted by the College of Lawyers stated that it had learnt that the SITRAJ leadership, which at the time comprised the General Secretary, Deputy Secretary and Finance Secretary, were paid their salaries out of the budget of the Judiciary, whereas they should be paid by the union they represented inasmuch as they enjoy privileged status in respect of their trade union activities. This claim was based on the fact that union privileges were designed to ensure the stability of employment of their beneficiaries but did not justify paying a salary to people who did not provide any services. The College of Lawyers argued that it was absurd that those who called strikes and took decisions entailing a loss of earning for officials of the Judiciary (loss of work attendance bonus) should not themselves have their salaries docked. It concluded by pointing out that article 48 of Act No. 23551 clearly recognized that workers holding elective or representative posts within a trade union association were entitled to union privileges but without payment of their salary. That being so, the College of Lawyers requested that the decision granting trade union privileges with payment of salary be revoked.
7. 213. Notwithstanding the submission of the President of the College of Lawyers of the first judicial constituency, which was at the origin of this case, the Higher Court deemed it necessary to examine the provisions of article 56 of the Internal Rules of the Administration of Justice (RIAJ) in light of the relevant legal provisions in order to determine their legality. It accordingly compiled a list of precedents and previous agreements since the introduction of trade union privileges in the provincial Judiciary and verified the net monthly emoluments of Juan C. González, Adán Rodríguez and Epifanio Gómez and the amounts paid to them as officials of the Judiciary whose posts were reserved. A closer look at the legislation revealed, first of all, that trade union privileges constituted a workers’ right that was laid down in article 14bis of the national Constitution and article 48 of Act No. 23551 as applying to any worker acting in the capacity of union representative. It is a right established by law for any trade union association that is empowered to request it and any employer entitled to grant it. Article 48 of the Trade Union Associations Act stipulates that “workers who cease to provide services because they occupy elective or representative posts in trade union associations with legal personality shall automatically have the right to union privileges without payment of salary and to be reinstated in the same post upon termination of their union mandate”.
8. 214. The concept of trade union privileges means that certain aspects of a work contract are suspended if, by the nature of the post and the duties associated with it, the union duties require a worker’s full-time presence and are therefore in practice incompatible with the simultaneous performance of the contractual duties (cf. Corte, Néstor: El modelo sindical argentino, page 463). This right, which is expressly provided for by law, comes into play automatically as soon as a worker ceases to provide services so as to engage in trade union activities. However, a worker may choose not to exercise that right, like any other right, and in practice many union officials do continue to provide services during their mandate without exercising such a privilege. If, for instance, a worker should for any reason decide to return to his post, the employer – who must keep the post available – must reinstate him in the undertaking. Moreover, the privilege provides for the suspension of only certain features of the work contract (cf. Chapter X of the Labour Contract Act, article 217, and article 48 of Trade Union Associations Act No. 23551), notably its material benefits, i.e. remuneration and services rendered. From a strictly literal interpretation of article 48 of Act No. 23551, the fact is that the privilege conferred does not include the payment of salary, especially where it takes precedence as a legal standard over the Rules. Thus, the Higher Court of Justice argues that article 48 of Act 23551 was wrongly interpreted inasmuch as the possibility was recognized under article 56 of the RIAJ to confer on officials elected to represent a trade union an entitlement to union privileges for the duration of their mandate and with payment of salary. This, it states, is clearly incompatible both with the legal standard cited above and with established precedents with regard to the payment of remuneration without the provision of services in return.
9. 215. The Higher Court goes on to state that the concept of protection of trade union representatives, and specifically of the right to union privileges, is based on the fact that the post is reserved for the worker concerned for the duration of his or her mandate, but without payment of salary. And although in recent time such privileges have been granted with payment of salary, the Court has done so on the basis of the Rules in force, notwithstanding the fact that the union privileges conferred under article 48 of Act No. 23551 should be without payment of salary, since such payment can be neither assumed nor financed by the Judiciary in its capacity as employer.
10. 216. The Court adds that, although the payment was agreed to at the time, it did not imply any acquired right or create an expectation that those Rules would continue to operate in the same way as they did when the union privileges were granted previously. Consequently, it was unquestionably the trade union itself that should pay its representatives their remuneration. It states further that the said remuneration is determined by the effective and regular provision of services due by the worker, that being the legal justification for the latter’s entitlement to it. In other words, the entitlement exists only is so far as services are actually rendered, whereas the union privileges that are granted for the performance of trade union activities are not designed for the same purpose and are not an inherent part of the labour relationship, which is concerned with the effective provision of services. Consequently, no remuneration can be deemed due whose justification derives from the actual fulfilment of the labour relationship. It should further be noted, according to the Higher Court, that the legal relationship of a trade union’s representative with the union is not that of a labour relationship (cf. article 21 of the Labour Contract Act), but rather an institutional relationship, as a result of the worker’s post and responsibilities within the union, as provided for in article 48 of Act No. 23551. That is to say that, for as long as workers are paid union officials with duties within a trade union, they are not bound by a contractual labour relationship but by a legal and institutional relationship deriving from their union status. This assertion is supported by those who maintain that union privileges do not include payment of salaries and that, in the event that remuneration is in fact paid, then by virtue of the union representative’s institutional relationship with the trade union, it does not constitute remuneration for labour – even though it is calculated in the same way – but rather a form of financial compensation that is equal in amount to the salary the worker received for services rendered to the enterprise, often with the additional reimbursement of costs incurred as a result of the worker’s activities as a trade union representative. In other words, trade union privileges do not entail payment of salary and, even if occupational associations normally do compensate in some way the earnings foregone by persons taking on union duties, that does not imply that the trade union association concerned can be considered the union official’s employer, since between the official and the union there exists no labour relationship in the sense of articles 21, 22 and 23 of the Labour Contracts Act.
11. 217. Even when the beneficiaries are actually exercising their trade union privileges, the existing arrangement can perfectly well be modified in the future, and this should be interpreted neither as a restriction on the full exercise of their duties as union representatives, which they should continue to perform till the end of their mandate, nor as a way of hindering the full exercise of freedom of association as guaranteed by the Constitution (article 14bis of the national Constitution and article 1 of the Trade Union Associations Act). The fact is that it is in any case desirable to also limit the number of trade union privileges that are granted to officials of the Judiciary serving as union representatives, so as to ensure the continuity and regularity of the services rendered by the Judiciary. Indeed, inasmuch as article 56 of the RIAJ contradicts and infringes the principles of labour legislation and Act No. 23551, it should, for all the reasons adduced, be brought into line with the legal provisions in force.
12. 218. Finally, the Higher Court of Justice states that it is precisely in this spirit that provision was made for union privileges in article 62 of the Rules governing the Assistance and Privileges of Magistrates, Officials and Employees of the Judiciary (RAL), that was approved by Extraordinary Decision No. 5/2002, i.e. the decision handed down by the Higher Court of Justice along with other matters in respect of which SITRAJ lodged the appeal that was denied by Decision No. 28/02, point 26. Despite the fact that the aforementioned Rules are still in force, by Decision No. 31, point 4, of 5 December 2002, the Higher Court ordered the provisional suspension of articles Nos 25–79 of the RAL. Following consultation of the Public Prosecutor of the Judiciary, it was decided to waive the suspension ordered by Decision No. 31/02, point 4 – which related solely to the first (and still suspended) part of article 62 of the RAL modifying article 56 of the RIAJ. Point 4 of Decision No. 31/02 reads as follows: “Art. 56: Trade union privileges: The executive committee of the trade union to which officials of the Judiciary of the province are affiliated and whose juridical personality has been recognized, may grant trade union privileges to one official – which official shall have been duly elected to act in the capacity of titular member of the said committee – without payment of salary and for the duration of his or her mandate with due recognition of seniority. At the end of that mandate the official must return to work within five consecutive days, failing which he or she may be dismissed. During the period covered by union privileges, the Higher Court of Justice may provisionally replace the official concerned”.
13. 219. According to the Higher Court of Justice, the foregoing considerations outline briefly the political, institutional and legal context in which it operates and could be expanded upon if necessary. The Higher Court adds that it is and has always been committed to the full protection of its employees, including their remuneration as determined by their grade and place in the hierarchy, within the framework of its budgetary restrictions and of the economic circumstances in which Argentine’s society finds itself. The appeals that were lodged with other national authorities were dealt with in a spirit of institutional dialogue, without infringing in any way the independence of the Judiciary. The goals that have been set for the Higher Court of Justice as presently constituted are being diligently pursued, with an eye to correcting the deficiencies of a system of administration of justice that suffers from chronic shortcomings and to ensuring that justice is dispensed more efficiently in the service of society. As regards its human resources management policy, the objective of the Higher Court is to ensure that every department of the Judiciary has adequate and appropriate human resources to guarantee the efficiency of the services provided. The Higher Court has reorganized the judicial career of officials in the administrative sector and in the maintenance and services sector, so that they can invest themselves in their jobs according to the competence and efficiency with which they perform their duties. Initially, this has meant modifying existing rules and procedures on the basis of an analysis and final diagnosis whereby it has been possible to redistribute the duties pertaining to each sector equitably and in keeping with the structure of the Judiciary throughout the province, while at the same time correcting inequities and shortening the time needed for the various categories of employees to progress in their careers.
14. 220. It is in line with the above that Decision No. 40/08 was adopted in order to implement a system of redistributing posts for purposes of promotion which has meant reorganizing those posts in keeping with the availability of resources. The process began in February 2009 and to date has benefited 53.14 per cent of the overall staff of both sectors. In pursuit of its goal of creating conditions that are conducive to career development in the Judiciary, the Higher Court has focused on introducing a fair and objective skills assessment system that encourages promotion, for which purpose it has drawn up and approved a corresponding workplan as an integral part of Decision No. 40/08.

C. The Committee’s conclusions

1. 221. The Committee recalls that, when it examined this case at its meeting in March 2009, it requested the Government to send its observations concerning the allegations that, with the aim of intimidating the SITRAJ leadership, criminal charges for the alleged crime of fraud were brought against its General Secretary and subsequently dismissed, and that by Decision No. 5 of 6 March 2008 the trade union privileges enjoyed by three SITRAJ leaders were withdrawn for the purpose of weakening the complainant organization.
2. 222. With respect to the allegation that, with the aim of intimidating the SITRAJ leadership, criminal charges for the alleged crime of fraud were brought against its General Secretary that were subsequently dismissed, the Committee notes that the Government has communicated the observations of the Higher Court of Justice of the Province of Corrientes, to the effect that: (1) the Higher Court has not brought criminal charges against any member of SITRAJ; (2) Mr Juan Heriberto Lugo brought charges against Mr Juan Carlos González for the alleged crime of fraudulent or disloyal administration, presumably in December 2001; and (3) according to the preambular paragraphs of Resolution No. 2461 of 21 December 2007 adopted by Magistrate No. 1 of the City of Corrientes, there were no grounds for proceeding any further with the investigation since the alleged incident was not covered by any provision of the Penal Code, and the case was accordingly dismissed. In the light of this information, the Committee does not intend to pursue the examination of these allegations any further.
3. 223. As regards the allegation that by Decision No. 5 of 6 March 2008 the trade union privileges exercised by three SITRAJ leaders were withdrawn for the purpose of weakening the complainant organization, the Committee notes the Higher Court of Justice’s statement that the circumstances were not as portrayed by the complainant organizations, and that the Court did not act in any way that was designed to weaken SITRAJ or intended as a form of reprisal. Specifically, the Higher Court states: (1) that the events that gave rise to the incident originated in an official request to the Court from the President of the Public College of Lawyers of Corrientes, contained in the administrative report “College of Lawyers – First Constituency re. Request concerning the payment of wages of SITRAJ officers out of the budget of the Judiciary”, calling on the Higher Court of Justice to revoke its earlier agreement to the payment of salaries due to persons filling the posts of General Secretary, Deputy Secretary and Financial Secretary of SITRAJ and benefiting from trade union privileges, since they should be remunerated by the trade union to which they are affiliated and not by the Judiciary; (2) that by Decision No. 3 of 1990, two of the Court’s officials were granted trade union privileges, including payment of salary by the Judiciary, and that by Decision No. 38 of 1994 such privileges were subsequently extended to a third employee, again with payment of salary by the Judiciary; (3) that by Decision No. 27 of 1998, it was resolved to bring the administrative arrangement into line with Act No. 23551 and to grant trade union privileges to two officials of the Judiciary but without payment of salary; (4) that it was resolved by Decision No. 3 of 2000 to accord union privileges to three officials, in one case with payment of salary by the Judiciary, and by Decision No. 30 of 2001 to extend payment of salary to three officials; (5) that, in the light of the administrative report stating that Juan Carlos González, Adán Rodríguez and Epifanio Gómez received their salary from the Judiciary and had been granted trade union privileges, the Higher Court, responding to the submission of the College of Lawyers and in accordance with the Trade Unions Associations Act, resolved by Decision No. 5 of 6 March 2008 to grant the executive committee of SITRAJ the right to union privileges without payment of salary for the duration of its mandate; (6) that article 48 of the Trade Union Associations Act stipulates that workers who cease to provide services because they occupy elective or representative posts in trade union associations with legal personality have automatically the right to union privileges without entitlement to salary and to be reinstated in the same post upon termination of their union mandate; (7) that, although the payment was agreed to at the time, it did not imply any acquired right or create an expectation that those Rules would continue to operate in the same way as they did when the union privileges were granted previously; (8) that, even if the beneficiaries are actually exercising their trade union privileges, the existing arrangement can perfectly well be modified in the future, and this should be interpreted neither as a restriction on the full exercise of their union duties nor as a way of hindering the full exercise of freedom of association; and (9) that it is desirable to limit the number of trade union privileges that are granted to officials of the Judiciary serving as union representatives, so as to ensure the continuity and regularity of the services rendered by the Judiciary.
4. 224. In this regard, the Committee wishes to point out that Paragraph 10, subparagraph 1, of the Workers’ Representatives Recommendation, 1971 (No. 143), stipulates that workers’ representatives should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions. Subparagraph 2 of the same Paragraph adds that, although a workers’ representative may be required to obtain permission from the management before taking time off from work, such permission should not be unreasonably withheld. That being so, the Committee requests the Government to take steps to ensure that, bearing in mind the aforementioned principles and the fact that SITRAJ has already been granted union privileges with payment of salary for three officials, the complainant organizations and the Higher Court of Justice of the Province of Corrientes envisage the possibility of again granting such privileges, on the understanding that their exercise should not negatively affect the efficient functioning of the Judiciary.

The Committee's recommendations

1. 225. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take the necessary measures to ensure that the complainant organizations and the Higher Court of Justice of the Province of Corrientes envisage the possibility of again granting such union privileges, on the understanding that their exercise should not negatively affect the efficient functioning of the Judiciary in the Province of Corrientes.