Informe definitivo - Informe núm. 364, Junio 2012

Caso núm. 2881 (Argentina) - Fecha de presentación de la queja:: 23-JUN-11 - Cerrado

Allegations: The complainant organizations allege that judicial workers not exercising acts of public authority do not enjoy the right to collective bargaining

1. 212. The complaint is contained in a communication dated 23 June 2011 from the Congress of Argentine Workers (CTA) and the Judicial Federation of Argentina (FJA).
2. 213. The Government sent its observations in communications dated 13 February and May 2012.
3. 214. 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 complainants’ allegations

1. 215. In their communication dated 23 June 2011, the CTA and the FJA indicate that they submit a complaint against the Government of Argentina for violation of Conventions Nos 87 and 154.
2. 216. The complainants indicate that, currently, at the national level as well as in the vast majority of the provinces, judicial workers in Argentina are neither guaranteed the right to collective bargaining nor protected by a collective agreement. Indeed, judicial workers in Argentina have never enjoyed this right nor benefited from any such agreement. They point out that the right to collective bargaining is being denied to workers who do not exercise acts of public authority, but who, within the various judicial services, provide administrative and management tasks and services, and in general, any service supporting the operation of courts of justice at the national and provincial government levels.
3. 217. Moreover, except in four provinces (Córdoba, Santa Cruz, Neuquén and Mendoza) out of 22 and the Autonomous City of Buenos Aires, the right to collective bargaining has never been enforced, nor have collective bargaining agreements been concluded in the rest of the country, especially at the national level. Joint committees are operational in only two of these four provinces – Santa Cruz and Neuquén – whereas this right is denied in Córdoba and Mendoza. Moreover, even at the national level, the State Government has neither recognized nor ensured the right to collective bargaining, nor has any collective labour agreement ever been concluded for judicial workers.
4. 218. This complete absence of collective bargaining – with the few exceptions noted above – and particularly the absence of any collective agreement for judicial workers at the national level as well as in most of the provinces, is accompanied by intense unilateral activity of the governments at the national, provincial and Autonomous City of Buenos Aires levels moving towards determining salaries, wages and all other working conditions which should result from collective bargaining. In other words, the employer imposes its conditions, with workers being limited to the fate of their accession contract, without the possibility for engaging in any collective discussion.
5. 219. The complainants note that during the 2009 legislative session, the House of Deputies of Argentina approved a draft national law on the right to collective bargaining for all judicial workers, which set out a procedure for negotiation and a system for the provinces and the Autonomous City of Buenos Aires to adhere to this procedure with a view to establishing a common national scope, without prejudice to collective bargaining at the autonomous or federal levels. Nevertheless, after being submitted to the Senate, and in spite of having been dealt with in committees, the Senate did not take action on the draft law, which subsequently lapsed in December 2010. Consequently, there is no legal framework governing the collective bargaining of the judicial sector.
6. 220. The complainants note that the Government has failed to meet its obligations under ILO standards, especially its obligation to enforce and comply with ILO Convention No. 154 which the Government of Argentina ratified through Act No. 23544 in 1988. In accordance with paragraph 5(d) of article 19 of the ILO Constitution, once a member State has ratified a Convention, it must “take such action as may be necessary to make effective the provisions of such Convention”. Thus, in accordance with its obligation as under the provisions of the Convention, the Government must guarantee the right to collective bargaining of public service workers, including those in the judiciary.
7. 221. The complainants note that when a right is recognized under an international treaty, it is enforceable even in the absence of domestic regulation, all the more so when the right in question is recognized under the National Constitution. In that regard, the complainants maintain that the State of Argentina remains in violation of its obligation to guarantee collective bargaining rights to judicial workers by failing to take the necessary measures to ensure the effective implementation of such rights. Assuming that the federal authorities do not consider this matter to fall under their remit, the complainants note that: (a) firstly, as mentioned above, a member State’s obligations extend beyond the submission and subsequent ratification of an international standard; (b) in addition to ratification, it must take all the necessary measures to implement the international standard; (c) these measures include: (i) those relating to the workers under their (federal) jurisdiction, and, (ii) those relating to the workers in other jurisdictions who have the same right; and, (d) consequently, the obligation under international law refers to all those to whom the standard is intended without exception.
8. 222. The complainants note that the Government has not taken any measure to guarantee the right to collective bargaining of judicial workers at the federal level (for example, by adopting a national Parliament act to that end, or establishing itself directly or indirectly as the employer in any negotiation). According to the complainants, there is no valid reason or justification for the State of Argentina to continue to fail to comply with its collective bargaining obligations with regard to the administration of justice in its various jurisdictions.

B. The Government’s reply

1. 223. In its communication dated 13 February 2012, the Government forwards the response of the Supreme Court of Justice of the Nation (CSJN). According to the Government, the Court’s response states that the Framework Act Regulating National Public Employment No. 25164 is not applicable, because it excludes judiciary staff from its specific scope, setting out that such staff is governed by a special rule (article 5), and there is thus no gap in domestic law. Therefore, for the Court, the scope of Convention No. 154 on collective bargaining in the public sector (which Argentina ratified in a timely manner) does not cover Argentina’s judiciary staff.
2. 224. The CSJN states the following in relation to the complaint:
   • – for the purpose of this complaint, the judiciary is placed on equal footing with the public sector or public service with a clear aim of imposing the conclusion of collective agreements, following the wording of ILO Conventions, which specifically refer to “public service”;
   • – the claim that the judiciary of Argentina is an integral part of its national public service is clearly unfounded, since the judiciary is vested with the authority to exercise judicial oversight over the latter’s activities, following the principle of the separation of powers of a federal and republican State;
   • – thus, the Framework Act Regulating National Public Employment No. 25164 has specifically excluded Argentina’s judiciary staff from its scope – which includes collective bargaining (article 3) – stipulating that this staff is governed by a special rule (article 5), and there is thus no gap in domestic law;
   • – the complaint lacks specific evidence of wrongs on which to base the claim of effective violations of the rights of judicial workers, indicating a possible lack of understanding of their actual professional status, or the intentional disregard thereof;
   • – thus, it fails to recognize that these workers enjoy the same policy of privileges and exemptions as judges and public officials (Decree No. 34/77), except as regards the latter’s professional incompatibilities (articles 8 and 10 of the Rules of the national justice system), and, like them, their income is guaranteed under a system of self sufficiency, characteristic of the national judiciary (Act No. 23853). Thus, in exercising its powers, the Court has made no hierarchical distinction between employees or the type of work they carry out; the judiciary supports all its employees with the primary task of carrying out its key role;
   • – neither of the trade union organizations (the complainants) is the most representative of judicial employees, at least as regards the scope of the national judiciary, of which the activity is glaringly inexistent;
   • – since the claim is not about regulating the free exercise of the right to organize, the recommendations by the ILO Committee of Experts to the Argentine State that the “most representative status should not imply privileges other than priority of representation in collective bargaining, in consultations with the authorities and in the appointment of delegates to international bodies” would not apply;
   • – whereas, on the contrary, in the context of the complaint in question, and particularly vis-à-vis the national judiciary, full effect should be given to the ILO Constitution, which sets out the notion of the most representative industrial organizations (article 3, paragraph 5), indicating that the claimants are not;
   • – with regard to the CTA, it is noted that, because this confederation has been “simply registered”, as it claims, it cannot defend collective interests because it lacks the exclusive rights enjoyed by trade union associations with union status recognized under article 31 of Act No. 23551; it is thus presenting its case jointly with the FJA, which has trade union status, but no influence in this judiciary; and
   • – Mr Pablo Micheli, who presented himself as Secretary-General of the CTA, did not have such unquestionable trade union representation as to be able to take a complaint before an international body against the National State for violation of international treaties; the conflict within this union association, which gave rise to the decision of 13 July 2011 of the National Labour Appeals Tribunal, in the case entitled “Congress of Argentine Workers (CTA) v. the National Electoral Board (CTA) on proceedings filed for the protection of constitutional rights (amparo)” is public.
3. 225. In its communication of May 2012, the Government indicates that the relevant consultations are undertaken in the judicial services that are not governed by a collective agreement.

C. The Committee’s conclusions

1. 226. The Committee notes that, in the present case, the complainant organizations allege that judicial workers not exercising acts of public authority (i.e. those providing services within the judicial services, such as administrative and management tasks and services, or, in general, any service supporting the operation of the courts) do not enjoy the right to collective bargaining.
2. 227. The Committee notes that the Government has sent the reply from the CSJN on the case and that the CSJN indicates that the Framework Act Regulating National Public Employment No. 25164 excludes judiciary staff from its specific scope, setting out that such staff is governed by a special rule and, therefore, for the Court, Convention No. 154 does not cover Argentina’s judiciary staff. The Committee notes that in its reply, the CSJN states that: (1) the claim that the judiciary of Argentina is an integral part of its national public service is clearly unfounded, since the judiciary is vested with the authority to exercise judicial oversight over the actions of the public service, following the principle of the separation of powers of a federal and republican State; (2) the Framework Act Regulating National Public Employment No. 25164, which covers collective bargaining, expressly excludes from its scope national judiciary staff, setting out that such staff is governed by its special rule; (3) judiciary workers enjoy the same policy of privileges and exemptions as judges and public officials, except as regards the latter’s professional incompatibilities, and, like them, their income is guaranteed by a system of self-sufficiency under the judiciary; (4) the complainant organizations are not the most representative of judicial employees, at least as regards the scope of the national judiciary; and (5) the relevant consultations are undertaken in the judicial services that are not governed by a collective agreement.
3. 228. The Committee recalls that in the preparatory work leading up to Convention No. 151, it was established that judges of the judiciary did not fall within the scope of implementation of the Convention; nevertheless, said Convention does not exclude the auxiliary staff of judges. Also, according to Article 1 of Convention No. 154, ratified by Argentina, only armed forces and the police may be excluded from its scope. Furthermore, the same article states that the Convention applies to all branches of economic activity and that as regards public service, special modalities of application of this Convention may be fixed by national laws or regulations or national practice. Therefore, although the Committee notes that judiciary workers in Argentina are not covered by the Framework Act Regulating National Public Employment and that the characteristics of the judicial sector may make it necessary to apply special modalities as regards collective bargaining (especially with regard to salaries, since state budgets must be approved by Parliament), it deems that auxiliary staff of the judiciary must have the right to collective bargaining. The Committee requests the Government, as under Article 5 of Convention No. 154, to take measures adapted to national conditions, including legislative measures if necessary, to promote collective bargaining between the judiciary and the trade union organizations concerned.
4. 229. With regard to the statement by the CSJN that the complainant organizations are not the most representative and that the CTA, because it is merely registered, cannot defend collective interests as it lacks the exclusive rights for that purpose, which are recognized for trade union associations with union status as under Act No. 23551, the Committee recalls that it has considered that systems of collective bargaining with exclusive rights for the most representative trade unions and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 950]. The Committee also recalls that, in the context of Case No. 2477, it “strongly urged the Government to take a decision without delay regarding the CTA’s application for trade union status (made almost three years ago)” [see Report No. 346, June 2007, para. 246].
5. 230. Lastly, with regard to the statement by the CSJN that the signatory of the complaint did not have such unquestionable trade union representation as to be able to take a complaint on the violation of international treaties before an international body, the Committee notes that a complaint relating to the electoral process of the CTA is indeed currently pending. The Committee notes that in any case, the present complaint has been presented jointly by the CTA and the FJA.

The Committee’s recommendation

1. 231. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government, pursuant to Article 5 of Convention No. 154, to take measures adapted to national conditions, including legislative measures if necessary, to promote collective bargaining between judiciary authorities and the trade union organizations concerned.