Informe definitivo - Informe núm. 355, Noviembre 2009

Caso núm. 2670 (Argentina) - Fecha de presentación de la queja:: 29-SEP-08 - Cerrado

Allegations: The complainant organization objects to a circular from the Ministry of Education of the Province of Tierra del Fuego, deeming that it violates the trade union right of teachers to participate in assemblies, and to a circular from the Department of Communication of the same province that restricts the possibility of issuing announcements

1. 268. This complaint is contained in a communication from the Confederation of Education Workers of Argentina (CTERA) dated 29 September 2008.
2. 269. The Government sent its observations in communications dated April and 26 May 2009.
3. 270. 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. 271. In its communication of 29 September 2009, the (CTERA) states that it considers that a legally detrimental situation has arisen that is prejudicial to education workers in the state of the Province of Tierra del Fuego, Antarctica and the Islands of the South Atlantic who belong to the Unified Trade Union of Fuegian Education Workers (SUTEF), a first-level trade union body belonging to the CTERA, and that constitutes a flagrant disregard of internationally accepted principles which, in as much as they have been incorporated into Argentina’s own legislation, guarantee freedom of association and freedom of expression.
2. 272. On the basis of the above, the CTERA refers to the issuance of Circular No. 18/08 of 12 June 2008 by the Ministry of Education subordinate to the authorities of the province mentioned in the previous paragraph, referring to the open curtailment of the exercise of the right to trade union participation, in which the directors of educational establishments are instructed in an intimidating manner to give the names of teachers who have held assemblies between 1 April 2008 and the date of issuance of the said administrative act to the General Directorate of Staff of the Ministry of Education.
3. 273. The CTERA indicates that Circular No. 18/08 provides that the information must be submitted on a daily basis and must contain the following details: (1) the teacher’s name and surname; (2) personnel file number; (3) date on which the teacher first attended an assembly; (4) the extent of the teacher’s teaching commitments; and (5) the amount of time involved. The CTERA also refers to Circular No. 02/08 of 1 September 2008 from the Department of Institutional Communication of the state of the Province of Tierra del Fuego, Antarctica and the islands of the South Atlantic, addressed to the directors of educational establishments, which establishes that, as from 1 September 2008, “no official notices by any department or under any circumstances may be issued without prior authorization from the Department of Institutional Communication. As stated in the previous circular, the only exceptions are communiqués of population alerts, tenders, missing person’s’ notices, announcements of teaching posts and anything that must, by law, be broadcast. All others, irrespective of the urgency expressed by those concerned, must without exception be properly authorized”.
4. 274. According to Circular No. 02/08, the directors of educational establishments in the province are prevented from communicating, as had always previously been done, the condition of school buildings, meaning that in cases when establishments are not in a position to give classes appropriately, parents cannot be informed of this fact through the corresponding communiqués so that they do not send their children to school, bearing in mind the disruption that the inability to give lessons involves when parents do not receive prior notification. One example of this is where, for example, a school experiences a lack of gas supply. In the past this has been swiftly announced by the directors in public communiqués to parents aired on the province’s state television Channel 11, in view of the very low temperatures, sometimes below zero, recorded in the world`s southernmost territory. Circular No. 02/08 now prohibits the directors of educational establishments from taking such action.
5. 275. As can be seen, a blatant violation of freedom of association and expression is occurring, particularly as a result of the actions of the authorities of the province of Tierra del Fuego, through the Ministry of Education, Culture, Science and Technology, which is trying to exercise functions that are expressly outside its remit. The same thing applies to the actions of the Department of Institutional Communication.
6. 276. With respect to the Ministry of Education Circular No. 18/08, the situation described is certainly due to a transgression of the Constitution and to certain legislative loopholes to which the State of Argentina as a whole must respond. Indeed, there is clear evidence that the problem relates to the State of Argentina, given the existence of other complaints made by the CTERA involving several of the nation’s states, including the state of the Province of La Rioja, the state of the province of Nuequen and the state of the Province of Buenos Aires.
7. 277. The CTERA considers that the employer’s action transgresses the prevailing rules in that it alters and restricts the system established under Act No. 25551 by contravening the principle of legality (articles 28, 75, para 22, of the Constitution); by violating the principle of freedom of association through restrictions in violation of the principle of legality (article 75, para 22, of the Constitution; articles 16 and 30 of the Pact of San José de Costa Rica; Articles 5 and 8 of the International Covenant on Economic, Social and Cultural Rights; and article 8 of ILO Convention No. 87); by being highly discriminatory (article 75, para 22 of the Constitution; Articles 1, 2 and 7 of the Universal Declaration of Human Rights; article 1 of the Pact of San José de Costa Rica; and article 1 of Act No. 23592); by thwarting the guarantee of protection of trade union business established under article 14bis of the Constitution and interfering with the normal running of trade union activities. The CTERA adds that the Committee on Freedom of Association has had occasion to rule on similar allegations in its examination of Case No. 2223.
8. 278. According to the CTERA, Circular No. 18/08 issued by the Ministry of Education of the province of Tierra del Fuego can be considered to be null and void, for it regulates issues over which it has no jurisdiction. More specifically, the monitoring of employment attendance that it regulates is already covered by provincial legislation, and there is no reason to require any further checks when an assembly is held. The purpose of Circular No. 18/08 is to require the directors of educational establishments to compile “lists” of education workers who attend assemblies convened by the trade union. The measure lacks several essential elements that administrative acts must contain. Firstly, it lacks a purpose, because attendance is already monitored and, secondly, it lacks a motive or else the motive (if it is to monitor assembly attendees rather than absentees) violates the Constitution.
9. 279. Clearly, underlying the content of Circular No. 18/08 is the wish to present educational activities as “an essential service”, as apparent in other regulations established by the state of the Province of Tierra del Fuego. It cannot be alleged, as inferred from the content of Circular No. 18/08 of the state of the Province of Tierra del Fuego, that all matters pertaining to the staff of the provincial authorities are always, and in all circumstances, the sole responsibility of the provinces; here, as in the matter of stability of employment or work, the abovementioned constitutional requirements are binding for the provinces in respect of their workforce. It is even acknowledged in international treaties “that enjoy constitutional status” that one of the highest general interests of the state is specifically to respect and uphold the rights derived from freedom of association.
10. B. The Government’s reply
11. 280. In its communications of April and 26 May 2009, the Government says that the legal basis of Circular No. 18/08 is Provincial Decree No. 2441 dated 1 December 2008, which approves the “methodology of relations between trade union associations and the provincial state”. The Government considers it useful to quote two of the provisions contained in this decree, without prejudice to the consideration of the whole text:
12. Article 1 stipulates: The “Methodology of relations between trade union associations and the provincial state” is approved in accordance with the guidelines set forth in Annex 1, which forms an integral part of this document, “without prejudice to the validity of what has been agreed through collective agreements or officially approved agreements in respect of aspects where this methodology contradicts them”.
13. In turn, Article 5 of Annex 1 stipulates: “When trade union associations convene staff to assemblies in the workplace, these may only be held at the end of the working day, and in the place assigned to that effect by the highest authority of the body or entity with jurisdiction over the building in which it is to be held”.
14. In the event of an extraordinary situation for which the trade union association requires an assembly to be held at the workplace and during the working day, it must request the corresponding authorization 12 hours in advance from the same authority as that shown in the previous paragraph.
15. If the reasons given are valid, and in a period of more than six hours, the authority will issue the relevant administrative act authorizing the assembly to be held, taking the proper precautions to ensure the normal running of the workplace and due attention to the public.
16. The administrative act will contain details of the physical location where the assembly is to be held. The assembly must display the proper decorum and the attendees shall not be authorized to move to other parts of the building.
17. In other words, this last article governs where and when assemblies are to be held, and the communications and authorizations required in this respect. This complies with Recommendation No. 143, as the administrative measure does not affect the work of the teaching staff in any way.
18. 281. The Government also refers to the Supplementary Agreement Act of 10 November 2003, signed by the complainant organization and the provincial government, regulating the method of granting trade union leave for delegates and members of the trade union’s staff committee, which fully complies with the previous regulation, most specifically article 3 of the Annex to Decree No. 2441/98 of 1 December 1998, which ensures compliance with the provisions of Convention No. 151. In other words, the complainant organization was fully aware of the existence of this decree and, in full exercise of the powers accorded to it in article 1 quoted above, that is to say “officially approved agreements”, it signed an agreement setting forth the modalities governing trade union leave recognized for the members of the committee and the trade union leaders under Act No. 23.551, article 44. If these facts are being linked to Circular No. 18/08 now being challenged as requiring lists to be drawn up, there has been a failure to cite the regulation mentioned.
19. 282. It is this failure by the union that was behind the decision of the Ministry of Education of the province to regulate the provisions of the decree in question. Priority has been given to the need to reconcile the rights of the workers with the objectives of the State, thereby avoiding disrupting their functions or harming the rights granted to the community as a whole in respect of the benefits the State is obliged to provide them with, without seeking in any way to infringe or violate any trade union rights. Furthermore, and although it is an obvious statement, educational institutions provide a service for a vulnerable sector of the population – children – and consequently the service should be ensured at all times.
20. 283. The Government says that it is this fact that dictates the need to determine the number of teachers in attendance and the number of teachers absent attending assemblies or briefings in educational establishments throughout the province. In other words, it is necessary to monitor whether the number of teachers who are performing their tasks is sufficient to comply with the stipulated annual schedule and will not hinder the normal performance of educational tasks. This has nothing to do with the violation of trade union rights, and the disputed circular in no way violates the provisions of ILO Convention No. 87. Trade union rights, as has already been shown, are protected and regulated by rules not observed in this case by the complainant organization.
21. 284. The Ministry of Education of the province, the agency which issued the measure in question, mentions, in concluding, the judicial decision of the National Civil Chamber, Division B, dated 22 December 1976, handed down in the case of Manuel Blanco et al. v. the National Council of Education, which stipulates that: “While a minor is at school, as the material custody of the child is transferred from the parents by circumstance, the vigilance and care of the child are the responsibility of the class teacher, and if the child comes to any harm the lack of vigilance must be questioned, in the very place where parents send their children to be watched over and monitored”, to summarize the principal objective of its actions.
22. 285. Regarding the reference to Case No. 2223 made by the complainant organization, the Government states that the right of assembly has not been violated as the possibility exists of establishing by common accord how to exercise this right (article 1, Decree No. 2441 of 1998), which does not imply its prohibition in any way. For the same reasons Article 6 of Convention No. 151 has not been violated either. Also, the possibility of negotiating exists and is absolutely viable, as demonstrated by the Agreement Act mentioned. According to the Government, it is wrong to draw any comparison with Case No. 2223.
23. 286. With regard to Circulars Nos 001/08 and 002/08, having obtained the relevant information on Circular No. 002/08 of 1 September 2008, the Government states that the Department of Institutional Information of the Ministry of the Interior is responsible for the three public media sources in the province, namely Ushuaia Channel 11, Río Grande Channel 13 and radio station Radio Fundación Austral, headquartered in the capital of Tierra del Fuego. The public Fuegian channels are the only available broadcast television channels in the province, and as such, cater to a fundamental audience, both in terms of being an official source of public information as well as a source of entertainment for people who have neither cable nor satellite television.
24. 287. Given their role of public and mass media and their strategic location in view of population distribution in the province (two urban centres 220 kilometres apart), the channels are also in considerable demand for the broadcasting of institutional information. This means that many of the province’s public institutions, plus those associated with the State by way of circumstance, plus non-profit-making NGOs, exert considerable pressure on the channels to broadcast a wide variety of advertising. Most of the time this so-called institutional advertising is free of charge for public media broadcasters. We would mention, by way of example, that in April 2008, on Ushuaia Channel 11 alone, 100 institutional notices were being broadcast simultaneously.
25. 288. The broadcaster’s management felt that at that level of demand it was impossible to programme reasonable slots into the programme schedule, something that was exacerbated by other problems. In other words, any institution that needed to broadcast a message went to the channel through a representative. With the sole purpose of putting an end to this situation and to manage it more reasonably, the above department issued Circular No. 001/08 on 22 May 2008. This first regulation did no more than explain what has been stated in the previous paragraph, establishing that “all state bodies (including autonomous entities) and social organizations interested in broadcasting free institutional advertising on state channels” must adhere to a set of guidelines.
26. 289. The circular stipulates that for the broadcasting of official notices, authorization will be required from the Department of Institutional Communication in order to coordinate the quantity of broadcasts and the urgency of the announcement. It should be noted that the circular refers to “free-of-charge institutional advertising”, which in itself invalidates any other interpretation that could be made. In turn, in the second paragraph of the section entitled “for your approval” it says “exceptions to this rule are notices containing emergency information (population alerts, school closures, etc.), tenders, missing persons’ notices, announcements of teaching posts and anything that must by law be broadcast, which can be submitted to the director of the broadcasting station”. It is also expressly stated that notices containing urgent information are not included and, furthermore, specific mention is made of the fact that notices of school closures and even announcements of teaching posts are not covered by this rule.
27. 290. It also establishes a series of requirements for the preparation (maximum duration 30 seconds, inclusion of the official logo in the closing credits) and editing (idea outline, texts to be presented orally or as stills, images) of the notices, in addition to other considerations. This confirms that the only purpose of the circular is to establish rules governing free-of-charge institutional advertising. The requirements concerning maximum duration, closing credits, submission of images, etc. would be meaningless if the circular applied to regulating communiqués of school closures which, as the circular makes abundantly clear (perhaps anticipating complaints such as the ones that have been made) “can be submitted to the director of the broadcasting station”. In the Government’s view the complaint does not correspond to the actual facts or to the purpose of the object in question.
28. 291. The Government adds that, following this sequence of events, in August 2008 the abovementioned department issued Circular No. 002/08, establishing 1 September of that year as the date of the entry into force of the order governing official advertising on the province’s television channels. This circular establishes the procedure for authorizing official notices for the city of Río Grande and makes the directors of the channels and the editors-in-chief responsible for failure to comply with it. The circular also expressly exempts communiqués of population alerts which, in the previous circular, had been referred to as “school closures” and “emergency information”, also in keeping with the original meaning of the first circular, in other words putting order into free-of-charge institutional advertising. This is entirely borne out in reality: there are no cases of complaints from any school directors who have been asked to request prior authorization to broadcast a communiqué of a school closure. There is no other way to interpret this text, unless the intention is to distort it.
29. 292. By way of additional information, at the same time the circular was issued, a major dispute was under way between SUTEF and the provincial government concerning the application for a wage increase of 24 per cent that the trade union body considered had been granted at national level. The conflict included several work stoppages and assemblies, plus countless media exchanges, giving the views of officials and union leaders. During this conflict, the department in question played a vital role in guaranteeing the sectors’ freedom of expression, with the three daily news bulletins giving the teachers’ work stoppage broad coverage, taking special care to give each of the trade union leaders time to give their views, and covering each press conference and public statement made by the trade union.
30. 293. The Government states that it could be thought that this is the role of the Department of Institutional Communication, but this is not the case: on 4 June 2008, there was a live televised broadcast of a meeting between the members of the executive committee of SUTEF and officials from the province’s Ministry of Education. On that occasion the trade unionists challenged the Government officials to publicly debate the budget at a joint meeting. The following day, June 5, and in an unprecedented event in the country, Tierra del Fuego public television broadcast live throughout the province, for over ten hours, the public budget debate between trade unionists and Government members. During that period, the union, without any qualms, contracted advertising space on Ushuaia Channel 11 on which it ran spots about the conflict, and the director of Río Grande Channel 13 agreed to receive a large group of teachers who asked for space to make statements live, and minutes later a news flash of their claims was broadcast. All this was happening while a group of teachers were putting up a protest tent on the corner of the Governor’s residence, and yet, this is the same television channel that SUTEF is now accusing of refusing to broadcast communiqués of school closures due to burst boilers.
31. 294. The Government considers that the circulars in question have been issued with the sole aim of regulating the broadcasting of free institutional advertising on the public television channels of Tierra del Fuego, as can be seen from the wording of both regulations, with express clarifications made with respect to other types of official notices, such as those indicated by SUTEF in the complaint.

C. The Committee’s conclusions

1. 295. The Committee observes that in this case the Confederation of Education Workers of Argentina (CTERA) is objecting to Circular No. 18/08 of 12 June 2008 issued by the Ministry of Education of the Province of Tierra del Fuego, Antarctica and the islands of the South Atlantic, as it considers it in violation of the exercise of trade union participation; according to the CTERA, this circular requires the directors of educational establishments to provide the General Directorate of Personnel of the Ministry of Education with the names of teachers (the information must contain the name and surname; personnel file number; date on which the teacher first attended a trade union assembly; the extent of the teacher’s teaching commitments; and the amount of time involved) who held assemblies between 1 April 2008 and the date of issue of the circular. The CTERA also objects to Circular No. 002/08 of 1 September 2008, issued by the Department of Institutional Communication of the state of the Province of Tierra del Fuego, Antarctica and the islands of the South Atlantic, which affects the directors of educational establishments, who cannot currently use communiqués to provide information, in view of the provision that, as from 1 September 2008, no official notices by any department or under any circumstances may be issued without prior authorization from the Department of Institutional Communication; for example, directors cannot circulate information to warn that the establishment is not in a position to open. According to the complainant organization, these circulars violate freedom of association and are damaging to the province’s education workers affiliated to SUTEF.
2. 296. With respect to Circular No. 18/08 of 12 June 2008, issued by the Ministry of Education of the Province of Tierra del Fuego, Antarctica and the islands of the South Atlantic, the Committee notes the Government’s statement that: (1) the legal basis of the circular is Provincial Decree No. 2441 of 1 December 2008, which approves the methodology of relations between trade union associations and the provincial state and regulates, inter alia, when and where assemblies are to be held, and the communications and authorizations required in this respect; (2) likewise, a Supplementary Agreement Act, dated 10 November 2003, was signed by SUTEF and the provincial government, regulating the method of granting trade union leave for delegates and members of the trade union’s staff committee; (3) SUTEF was fully aware of the existence of Decree No 2441 of 1998 and, in full exercise of the powers it accords, signed the Agreement Act setting forth the modalities governing trade union leave; (4) the Ministry of Education was obliged to regulate the provisions in Decree No. 2441, giving priority to the need to reconcile the rights of workers with the objectives of the state, avoiding disrupting their functions or adversely affecting the rights of the community; (5) educational institutions provide a service for a vulnerable sector of the population and the provision of that service should be ensured at all times – this fact dictates the need to determine the number of teachers in attendance and the number of teachers absent attending assemblies or briefings in educational establishments throughout the province; (6) it is necessary to monitor whether the number of teachers who are performing their tasks is sufficient to comply with the stipulated annual schedule and will not hinder the normal performance of educational tasks; this has nothing to do with the violation of trade union rights; and (7) the Ministry of Education of the province referred to a judicial decision of the National Civil Chamber, which provides that while a minor is at school, as the material custody of the child is transferred from the parents by circumstance, the vigilance and care of the child are the responsibility of the class teacher and if the child comes to any harm, the lack of vigilance must be questioned in the very place where parents send their children to be watched over and monitored.
3. 297. In this regard, the Committee notes that while the Supplementary Agreement Act of 2003 aims to establish what is meant by union leave and the working time that can be used for such leave, Circular No. 18/08 of 12 June 2008, requires that information be provided on the teachers who participated in assemblies between April and June 2008. In these circumstances, considering that the aim of the circular being objected to is unclear, the Committee requests the Government to take the necessary measures to ensure that the competent authority of the Province of Tierra del Fuego, Antarctica and the islands of the South Atlantic revokes or amends Circular No. 18/08 of 12 June 2008 in consultation with the workers’ organization concerned.
4. 298. With regard to disputed Circular No. 002/08 dated 1 September 2008, issued by the Department of Institutional Communication of the state of the Province of Tierra del Fuego, Antarctica and the islands of the South Atlantic which, according to the complainant organization, is targeted at the directors of educational establishments who can currently not use communiqués to provide information, for example to warn that the establishment is not in a position to open, establishing that, as from 1 September 2008, no official notices by any department, or under any circumstances, may be issued without prior authorization from the Department of Institutional Communication, the Committee notes the Government’s statement that: (1) the Department of Institutional Information of the Ministry of the Interior is responsible for the three public media sources in the province (Ushuaia Channel 11, Rio Grande Channel 13 and radio station Radio Fundación Austral); (2) these public channels are the only available broadcast television channels in the Province and, as such, cater to a fundamental audience both in terms of being an official source of public information as well as a source of entertainment; (3) given their role of public and mass media and their strategic position in view of population distribution in the province, the channels are also in considerable demand for institutional information, which means that many public institutions, plus those associated with the state, plus non-profit-making NGOs, exert pressure on the channels to broadcast a wide variety of advertising; (4) in order to put an end to this situation and to manage it in a reasonable manner, Circular No. 001/08 was issued on 22 May 2008, and establishes that all state administrative bodies (including autonomous entities) and social organizations interested in broadcasting free institutional advertising on state channels must adhere to a set of guidelines (it is stipulated that for the broadcast of official notices authorization will be required from the Department of Institutional Communication, but official notices of emergency information such as population alerts or school closures are exceptions to this rule); (5) in August 2008, Circular No. 002/08 was issued, which specified 1 September 2008 as the date of the entry into force of the order governing official advertising on the Province’s television channels, including the procedure for authorizing official notices for the city of Río Grande, making the directors of the channels responsible for failure to comply with this procedure (this circular expressly establishes communiqués of population alerts and school closures as exceptions to this rule); (6) there are no cases of complaints from any school directors who have been asked to request prior authorization to broadcast a communiqué of a school closure; (7) at the time the circular was issued there was a conflict between SUTEF and the provincial government concerning a request for a wage increase and during that dispute the freedom of expression of the sectors was guaranteed so that the trade union officials had time to appear on the news, and (8) the circulars in question have been issued with the sole aim of regulating the broadcasting of free institutional advertising on the public television channels.
5. 299. Given this information and the fact that the complainant organization neither alleges that Circular No. 002/08 has been used in a discriminatory manner in respect of its members, nor highlights any obstacles in practice to the exercise of the right of expression by trade union officials, the Committee will not pursue its examination of these allegations.

The Committee's recommendations

1. 300. In the light of its foregoing conclusions, the Committee requests the Governing Body to approve the following recommendation:
   • The Committee asks the Government to take the necessary measures to ensure that the competent authority of the Province of Tierra del Fuego, Antarctica and the islands of the South Atlantic revokes or amends Circular No. 18/08 of 12 June 2008, in consultation with the workers’ organization concerned.