Informe definitivo - Informe núm. 362, Noviembre 2011

Caso núm. 2798 (Argentina) - Fecha de presentación de la queja:: 29-JUN-10 - Cerrado

Allegations: The complainant organizations allege that although the Association of Judicial Employees of the Autonomous City of Buenos Aires (AEPJCABA) has demonstrated that it is the most representative in the sector – according to data provided by the Council of the Magistrature, and to which no objections have been raised – the administrative authorities still have not dealt with its application for trade union status, filed in 2006

1. 256. The complaint is contained in a communication from the Association of Judicial Employees of the Autonomous City of Buenos Aires (AEPJCABA) and the Argentine Judicial Federation (FJA) on 29 June 2010.
2. 257. The Government sent its observations in a communication in May 2011.
3. 258. 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 complainants’ allegations

1. 259. In its communication of 29 June 2010, the AEPJCABA and the FJA state that they have submitted the present complaint against the Government of Argentina owing to the unusual delay in granting the trade union status requested by the AEPJCABA, detailed in administrative Case No. 1.090.319/04. The facts point to a failure to recognize the trade union or, worse still, to uphold the principles of freedom of association. The complainant organizations request the Committee to urge the Government of Argentina to grant trade union status and trade union rights to the abovementioned organization, thus putting an immediate end to the flagrant violations of freedom of association.
2. 260. The complainant organizations indicate that the association in question is a first-level trade union entity, with trade union registration granted by the Ministry of Labour, Employment and Social Security by means of Decision No. 63/2003, registration number 2260. The information in Case No. 1.090.319/04 indicates that the trade union association was the most representative, in accordance with the provisions of article 25 of the Act on Trade Union Associations, with a view to the granting of trade union status in the following segment of the sector: “dependent workers in a permanent or temporary employment relationship, employed as administrative and maintenance staff, deputy clerks of court, deputy clerks dealing with administrative matters and heads of division by the judiciary of the autonomous city of Buenos Aires, within the zone covered by that city”. A comparison process was launched, to determine which union was more representative, with the assessment period running from December 2005 to May 2006, in line with the provisions of Act No. 23551.
3. 261. The complainants indicate that, in December 2006, the National Directorate of Trade Union Associations (DNAS) established – in a lengthy and well-founded statement – that the trade union had met all the requirements laid down in Act No. 23551, approved the request for trade union status from the AEPJCABA and transmitted the draft decision to the Secretariat of Labour of the Ministry. This document expressly stated that “the applicant had provided proof of the number of paying members, exceeding the percentage stipulated in article 25 of Act No. 23551 and, as there were no entities with trade union status, with a proven number of paying members, already in existence in the same category of persons and geographical area covered by the application, the advice was to accept the application, granting the applicant trade union status”. This statement was supported by the Head of the Trade Union Structure Department of the DNAS, the Deputy Director of the DNAS and the Director of the DNAS. On 1 February 2007, the case file was referred to the Secretariat of Labour, together with the draft decision, which was then read and signed by the Deputy Minister. On 8 March 2007, the Deputy Minister of Labour sent the case file and draft decision for the consideration of the Minister of Labour. The case file was returned to the DNAS on 18 April 2007. On 18 July 2007, the legal service of the Ministry of Labour, Employment and Social Security stated that it was necessary to determine which was the most representative trade union entity, comparing the membership of the abovementioned association and the Union of Employees of the National Judiciary (UEJN), as both trade union associations were competing to represent a similar segment of the sector, in order to ensure that trade union status was granted to the most representative union.
4. 262. The complainants state that both the AEPJCABA and the UEJN were merely registered entities in the segment of the sector in dispute. In this specific case, both associations had launched their application for trade union status in parallel (the AEPJCABA had been the first to do so) and, as there was no other association with trade union status already in existence, trade union status could be granted to either trade union entity, as existing legislation did not provide for a specific solution in this situation. The Ministry of Labour, Employment and Social Security was of the opinion that it was necessary to set the same time frame to compare the two associations, in order to establish which was the most representative. Both associations agreed to proceed in this manner. The DNAS also supported that decision and summoned the complainant association and the UEJN to a hearing to assess their representativeness, on 4 October 2007. The hearing proceeded according to plan. Once again, the AEPJCABA demonstrated that it was the more representative trade union association in the segment of the sector in which it wished to hold trade union status. However, the UEJN did not attend the hearing, delaying the process on the grounds that it had lodged an appeal for reconsideration and hierarchical re-examination against the decision to call the hearing.
5. 263. The administrative appeal was rejected, and the DNAS set a new hearing date to give the UEJN the opportunity to provide proof of the membership it claimed to have. On 30 November 2007, a hearing was held to establish the UEJN’s representativeness on the basis of its membership register, also attended by the AEPJCABA in order to exercise its right to control. In Case No. 1-2015-1251170-07, the AEPJCABA contested the hearing and the examination of documents, the UEJN having failed to respond to the notice served to exercise its right to defence. Subsequently, on 1 April 2008, and in order to obtain further knowledge of the facts, an official request was sent to the Council of the Magistrature of the Autonomous City of Buenos Aires to request information on the number of dependent workers employed as administrative and maintenance staff, deputy clerks of court, deputy clerks dealing with administrative matters and heads of division working for the Judiciary of the Autonomous City of Buenos Aires who were members of the AEPJCABA and members of the UEJN, with the same status, during the period December 2005 to May 2006 (inclusive), broken down by month.
6. 264. On 8 May 2008, the UEJN lodged an appeal for reconsideration and hierarchical reexamination of the official request of 1 April 2008, stating that this request was unjust and irrelevant. On 19 May 2008, the DNAS decided to reject the appeal for reconsideration lodged by the UEJN on the grounds that the official request for further clarification was a preparatory, and therefore unappealable, measure (article 80 of the Regulatory Decree issued by LNPA). The UEJN was informed of this decision on 26 May 2008, without it having expanded on the grounds for its pending appeal for hierarchical re-examination. In turn, the Council of the Magistrature of the Autonomous City of Buenos Aires responded to the request for data, broken down by month, as follows:
   • Month / Members of the UEJN / Members of the AEPJCABA
   • December 2005 / 146 / 230
   • January 2006 / 144 / 232
   • February 2006 / 141 / 235
   • March 2006 / 143 / 238
   • April 2006 / 138 / 240
7. May 2006 / 132 / 261
   • This report – never questioned in the administrative case file – demonstrates that the complainant association is the most representative in the segment of the sector in which it is requesting trade union status, and thus has fulfilled and complied with all the provisions of article 25 et seq., of Act No. 23551, and the corresponding Regulatory Decree No. 467/88.
8. 265. The AEPJCABA had been registered, in line with the provisions of Act No. 23551, by means of Decision No. 63/2003 issued by the Ministry of Labour, Employment and Social Security and had been active for more than six months (a requirement set out in subparagraph (a) of article 25). Moreover, the AEPJCABA’s membership constituted more than 20 per cent of the workers it sought to represent. This fact emerged from the various reports supplied by the employer (the Council of the Magistrature of the Autonomous City of Buenos Aires), the most recent of which was collated in the form of Case No. 1.270.454/08. The latter demonstrated that the AEPJCABA had a larger average number of paid-up trade union members than the UEJN, and this figure constituted more than 20 per cent of the average number of workers it sought to represent. These average figures were calculated over the six-month period immediately preceding the date on which the application was submitted, namely from December 2005 to May 2006 (a requirement stipulated in subparagraphs (b) and (c) of article 25).
9. 266. In this case, the segments of the sector under dispute overlapped with those covered by the Association of State Workers (ATE) and the National Civil Servants’ Union (UPCN). The ATE stated its position on the historical coexistence of trade unions in the public sector, while the UPCN expressed its opposition. However, these bodies then failed to attend the relevant hearings to assess representativeness, or to provide evidence of the number of paying members they had in the segment of the sector in dispute, as required under article 28 of Act No. 23551. In this regard, it should be borne in mind that Decision No. 255/03 of the Ministry of Labour, Employment and Social Security, which is currently in force, states that the granting of trade union status to representative trade union associations in the public sector does not, for the abovementioned segment of the sector, displace any other entities with trade union status already in existence, which continue to enjoy the rights laid down in articles 31, 38 et seq. of Act No. 23551.
10. 267. The complainant organizations state that, in the light of this evidence, they fail to understand the unwillingness of the Ministry of Labour, Employment and Social Security to grant the AEPJCABA the right to trade union status, and with it all the rights and guarantees derived from those statutes, such as: the protection of the courts for trade union representatives; the right to elect delegates; to engage in collective bargaining; to defend and represent vis-à-vis the State and the employers – the individual and collective interests of the workers; the right to participate in the work of supervisory and planning bodies; in line with the relevant legislation; to intervene in collective bargaining and monitor compliance with labour and social security legislation; to collaborate with the State in investigating and resolving workers’ problems; to create patrimonies of affectation with the same rights as cooperatives and mutual aid societies; to manage its own social programmes; and, if required, be involved in the management of those set up by law or through collective bargaining agreements.
11. 268. According to the complainants, the information in administrative Case No. 1.090.319 indicates that the Ministry of Labour, Employment and Social Security has remained silent in the face of repeated requests from the AEPJCABA to be granted trade union status. On 19 May 2009, the AEPJCABA requested for the matter to be settled quickly, in line with the provisions of article 10 of Act No. 19549. Given that a special time frame of 90 working days applied in this case, in line with the provisions of article 26 of Act No. 23551, in order to enable the administrative authorities to issue a decision granting trade union status once all the formal requirements had been met, the authorities’ tacit refusal (denegatoria tácita) was noted on 22 September 2009. Given the arbitrary refusal by the relevant authority to grant the AEPJCABA trade union status, despite the fact that the association had met all the legal requirements, there was no other option available other than to lodge a complaint against this arbitrary treatment before the Committee on Freedom of Association. Under Argentine law, the refusal to grant trade union status places real restrictions on the ability to exercise trade union rights, especially with regard to collective bargaining.
12. 269. According to the complainants, the unlawful nature of the action taken by the relevant authority is demonstrated in the fact that it constitutes a blatant breach of the specific and operational provisions of Act No. 23551 and the corresponding Decree No. 467/88, the National Constitution, international treaties on fundamental rights of equal standing (article 75(22), paragraph 2, of the National Constitution) and ILO Conventions, in line with the jurisprudence of the National Supreme Court of Justice. The AEPJCABA has completed all the procedures required under Act No. 23551 and fulfilled all the requirements stipulated therein. Nevertheless, trade union status has not been granted, denying the association trade union rights on arbitrary grounds, and resulting in serious and real disadvantages. Therefore, this unlawful behaviour on the part of the relevant authorities must be remedied immediately.
13. 270. The complainants indicate that any application for trade union status is judged on the basis of past cases dealt with by the Ministry of Labour, whereby a first-level trade union entity seeking trade union status must have been active for at least six months as an entity which is merely registered, and it must be the most representative association in the category of workers and geographical area in which it operates. The Deputy Labour Minister aptly described the situation, when he stated before the Committee on the Application of Standards, during the 93rd Session of the International Labour Conference, on 7 June 2005, that: “The previous trend had been accelerated by the development of an administrative policy which used the comparison mechanism for representation established in article 28 of Act No. 23551, which was only brought into action to check that there was no imbalance between the personal and territorial limits of the registered association requesting union status and those of the association which already had union status.” The request for trade union status submitted by the AEPJCABA, is in accordance with the provisions of the Act on Trade Union Associations. Article 25 of that Act stipulates that two conditions must be met in order for trade union status to be granted, namely: (a) the entity is registered and has been active for a period no shorter than six months; and (b) its membership represents more than 20 per cent of the workers it seeks to represent. As all of these requirements were met during the course of the application process, the complainants are of the opinion that the administrative authorities are delaying the final decision to grant or refuse trade union status. The Labour Ministry must take action to decide, once and for all, which position to adopt. It cannot maintain its current state of silence or deploy delaying tactics in the face of requests to settle the matter quickly, or an imminent appeal for the protection of constitutional rights (amparo) on the grounds of administrative delays. Prevarication on the part of the Labour Ministry, which has failed to resolve the issue, is preventing an appeal to the courts to resolve the matter once and for all. Indeed, article 62 of Act No. 23551 provides that the refusal of trade union status can be appealed directly before the National Labour Court of Appeal. However, the failure of the administrative authorities to issue a definitive decision is also blocking access to this remedy.

B. The Government’s reply

1. 271. In its communication of May 2011, the Government indicates that having requested the relevant report from the Department of Legal Affairs of the Ministry, the following response was received:
   • – administrative Case No. 1.090.319/04 was opened following a request for trade union status lodged by the AEPJCABA;
   • – the DNAS referred the case file to the legal services, informing them that, in administrative Case No. 12.139/05, the UEJN had requested an extension of its trade union status to cover workers providing services for the judicial authorities and/or those directly employed as dependent workers by the public and defence services, the Council of the Magistrature of the Autonomous City of Buenos Aires or bodies belonging to the justice services in the Autonomous City of Buenos Aires. Given the fact that two entities which were merely registered had submitted applications for trade union status covering the same category of workers and geographical area, a review would be required, in order to establish what course of action was necessary;
   • – in Decision No. 743, dated 16 July 2007, the Directorate-General of Legal Affairs indicated that it was necessary to compare the representativeness of the two trade union associations, in order to determine which was the more representative, in accordance with the guidelines in articles 25 and 28 of Act No. 23551 on trade union associations, and that this was a reasonable solution, in line with the intended spirit of the legislative text. It was proposed that a single date should be set for the end of the assessment period, namely 30 May 2006;
   • – the case file contains records of hearings to determine representativeness, held on 4 September and 30 November 2007. The AEPJCABA filed a complaint, in the form of administrative Case No. 1.251.170/0, regarding the records relating to the hearing on 30 November 2007;
   • – on 1 April 2008, the DNAS, in order to obtain further knowledge of the case, sent an official request to the Council of the Magistrature of the Autonomous City of Buenos Aires for information on the number of dependent workers employed as administrative staff and heads of division by the Judiciary of the Autonomous City of Buenos Aires, who were affiliated to the AEPJCABA and the UEJN, during the period under examination (December 2005–May 2006), broken down by month;
   • – in administrative Case No. 1.270.552/08, the UEJN appealed for the reconsideration and hierarchical re-examination of the actions of the DNAS on 1 April 2008, on the grounds that the employer had been involved in an issue which should have been resolved between the two trade union entities, and stressing the fact that a complaint had been lodged against that body (the Council of the Magistrature) for unfair practices. The case is currently before the National Labour Court (No. 75);
   • – on 19 May 2008, the DNAS rejected the appeal for reconsideration, referring the appeal for hierarchical re-examination to a higher instance; administrative Case No. 1.270.454/08 contains the reply of the local Council of the Magistrature;
   • – on 4 December 2008, the Directorate-General of Legal Affairs referred the case files to the Office of the Minister as that entity was handling Case No. 1.121.139/05, which deals with the application submitted by the UEJN for the extension of its trade union status;
   • – finally, in Case No. 1.328.506/09, the AEPJCABA indicated procedural issues which violated their rights, and requested that the matter be settled quickly.
2. 272. The Government states that the process has been wholly in line with legislation, involving only understandable delays relating to normal legal proceedings, under Act No. 23551, with regard to the comparison required when two entities which are merely registered apply for trade union status covering the same category of persons and geographic area, a matter which had already been the subject of a legal proceedings involving the Council of the Magistrature. The Government indicates that, without prejudice to the information provided, it is fully committed to submitting to the ILO the follow-up of the entity’s application for trade union status.

C. The Committee’s conclusions

1. 273. The Committee notes that, in the present case, the complainant organizations allege that, despite the fact that the AEPJCABA is the most representative union in the sector, according to data provided by the Council of the Magistrature of the Autonomous City of Buenos Aires, and which have never been questioned, the administrative authorities have not granted its request for trade union status, submitted in 2006, thereby preventing the trade union from appealing to the courts or enjoying the various legal benefits derived from recognized trade union status as the most representative trade union (including the right to engage in collective bargaining and manage its own social programmes, and the protection of the courts for trade union representatives).
2. 274. The Committee notes that the Government states that: (1) the AEPJCABA submitted an application for trade union status and the UEJN requested an extension of its trade union status and, given the existence of two bodies simultaneously requesting trade union status, covering the same staff and area, it was necessary to determine the action to be taken; (2) the Department of Legal Affairs stated that it was necessary to compare the representativeness of the two trade union associations in order to establish which was the more representative, in line with the provisions of the Act on Trade Union Associations, and suggested setting the date for the end of the assessment period as 30 May 2006; (3) hearings were held on 4 September and 30 November 2007 to determine representativeness, and the AEPJCABA contested the records relating to the meeting of 30 November 2007; (4) on 1 April 2008, the DNAS requested the Council of the Magistrature of the Autonomous City of Buenos Aires, to provide information on the number of dependent workers employed in administrative tasks or as heads of division by the judicial authorities of the Autonomous City of Buenos Aires who were members of the AEPJCABA and the UEJN during the period under examination (December 2005–May 2006, broken down by month); (5) the UEJN filed an appeal for reconsideration of the action taken by the DNAS on 1 April 2008, as it was of the opinion that it had involved the employer in a matter which must be resolved between the two entities, and announced that it had lodged a complaint alleging unfair practices against the Council of the Magistrature of the Autonomous City of Buenos Aires; (6) the DNAS rejected the appeal filed by the UEJN and the Directorate of Legal Affairs referred the case, on 4 December 2008, to the Minister’s Office, as that body was already dealing with the application for the extension of trade union status submitted by the UEJN; (7) the AEPJCABA drew up a statement indicating the procedural issues which infringed its rights and requested that the matter be settled quickly; and (8) the procedure had involved no unlawful measures, only understandable delays relating to normal legal proceedings, under Act No. 23551, and the assessment process required in cases where two registered trade union organizations applied for trade union status covering the same segment of the sector and category of staff.
3. 275. In this regard, noting that the complainant organization has repeatedly requested, through appropriate legal channels, the granting of trade union status, without any success, the Committee regrets the long period of time which has lapsed (almost five years) without a definite ruling by the administrative authorities on the AEPJCABA’s application for trade union status, a situation which has certainly placed the trade union at a disadvantage, as it has been unable to exercise, among others, the right to collective bargaining. Under these circumstances, and bearing in mind that the authorities possess information on the comparison of representativeness, as submitted by the Council of the Magistrature of the Autonomous City of Buenos Aires (informing the Government that the AEPJCABA was the more representative trade union), the Committee urges the Government to take a decision without delay regarding the AEPJCABA’s application for trade union status.

The Committee's recommendations

1. 276. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee strongly urges the Government to take a decision without delay regarding the AEPJCABA’s application for trade union status.