Informe provisional - Informe núm. 371, Marzo 2014

Caso núm. 2987 (Argentina) - Fecha de presentación de la queja:: 22-AGO-12 - En seguimiento

Allegations: The complainant organizations challenge the decision of the administrative labour authority of the Government of the City of Buenos Aires to summon to compulsory conciliation proceedings the parties to a dispute in the subway sector and the imposition of a fine on AGTSyP for failing to respond to the summons

1. 154. The complaint is contained in communications from the Trade Union Association of Subway and Light Rail Workers (AGTSyP) and the Confederation of Workers of Argentina (CTA), dated 22 and 24 August 2012, respectively.
2. 155. The Government sent its observations in a communication dated September 2013.
3. 156. 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. 157. In their communications of 22 and 24 August 2012, the AGTSyP and the CTA indicate that the AGTSyP is a first-level trade union for the workers of the Buenos Aires subway transport service. They also state that a concession of this public service was granted more than 20 years ago to a private company (Metrovías SA), which currently employs the workers represented by the AGTSyP. The complainants add that although the employer is a private company, its activities are regulated and directed by the State (the complainants are referring to the State’s transfer to the Autonomous City of Buenos Aires of the concession of the subway network of that city).
2. 158. The complainant organizations report that following the unsuccessful negotiation of certain working conditions under the collective agreement in force and of a salary adjustment request for 2012, and the company’s declaration that it was unable to meet the demands due to lack of funds, a strike was declared on 3 August and ran from 4 to 13 August 2012.
3. 159. The complainant organizations indicate that in this context, a legislator of the Autonomous City of Buenos Aires filed amparo proceedings before the courts and the judge ordered the Office of the Undersecretary of Labour of the Government of the City of Buenos Aires (GCBA) to call the subway workers’ representatives to negotiations with the company Metrovías SA, to enable both parties to reconcile their respective interests and thus bring an end to the dispute. According to the complainants, the court’s decision did not mention the suspension of the exercise of the right to strike nor the application of the regime of compulsory conciliation. However, the complainants report that the Office of the Undersecretary of Labour of the GCBA issued Administrative Decision No. 1015/SSTR/2012 of 9 August 2012, ordering the workers to abandon all direct action. The complainants indicate that AGTSyP lodged an action for reconsideration with a subsidiary appeal against the decision, under the local administrative procedural system.
4. 160. The complainants add that the AGTSyP appeared before the Office of the Undersecretary of Labour of the GCBA for negotiations on 9 August, at which time the negotiations resumed. On 10 August, it was indicated that the administrative labour authority of Buenos Aires was not an impartial body and should therefore not intervene in collective labour disputes involving subway workers. Notwithstanding, they expressed their willingness to proceed on the basis of voluntary participation, in line with the court decision, to find a solution to the dispute. The complainants also state that immediately after issuing Administrative Decision No. 1015/SSTR/2012, which has been the subject of various appeals, the Buenos Aires authorities issued Administrative Decision No. 1016/SSTR/2012 of 11 August 2012, imposing a fine of 4,933,000 Argentina pesos (ARS) on AGTSyP for non-compliance with Administrative Decision No. 1015/SSTR/2012 and with the compulsory conciliation proceedings. According to the complainants, confirmation of this fine would result in the economic liquidation of the trade union. Likewise, the complainants add that public prosecutors have filed complaints, which are ongoing, and that the GCBA has applied to the National Ministry of Labour, Employment and Social Security and the National Labour Court for the withdrawal of the legal personality of the AGTSyP.

B. The Government’s reply

1. 161. In its communication dated September 2013, the Government transcribes the main parts of the reply sent by the GCBA. It indicates that National Decree No. 2608/93 granted the concession for underground passenger rail services for the City of Buenos Aires to the company Metrovías SA. The workers at the enterprise belong to two trade union associations: the Automotive Tramway Union (UTA), which is a first-level trade union association with legal personality (in other words, in keeping with Act No. 23551 concerning trade union associations, one of its exclusive rights is the right to participate in collective bargaining) and the AGTSyP, which is an association that is simply registered. It recalls that section 1 of Act No. 14250 provides that collective agreements concluded with a trade union association with legal personality are governed by the provisions of the Act and section 13 provides that the National Ministry of Labour, Employment and Social Security is the authority responsible for implementing the Act.
2. 162. The Government adds that during the years of coexistence of the UTA and AGTSyP trade union associations, the authority responsible for the implementation of collective agreements, and in the event of collective labour disputes, has been the National Ministry of Labour, Employment and Social Security. According to the Government, in the context of negotiations between the parties, a collective dispute arose on 2 August 2012 and the AGTSyP specifically requested the intervention of the administrative labour authority of the GCBA. The Government indicates that through its own actions the AGTSyP has recognized the authority of the Office of the Undersecretary of Labour of the GCBA.
3. 163. The Government states that irrespective of the request made by the AGTSyP, the intervention of the administrative authority of the GCBA occurred in accordance with the legal decision handed down by Administrative and Tax Court No. 6 of the Autonomous City of Buenos Aires in the case of Lubertino Beltrán and María José v. GCBA and others regarding protection of constitutional trade union rights (amparo). The officiating judge ordered the Office of the Undersecretary of Labour of the GCBA to convene the subway workers’ representatives to negotiations with the company to enable both parties to reconcile their respective interests and thus bring an end to the dispute. On 9 August 2012 the Office of the Undersecretary of Labour was informed of the legal ruling and in compliance with the ruling it convened all the parties to a hearing. Following seven hours of intense debate, the meeting concluded and the Office of the Undersecretary of Labour ordered compulsory conciliation through Administrative Decision No. 1015/SSTR/2012 in order to resolve the conflict.
4. 164. The Government states that under this procedure an agreement was concluded between the UTA (trade union association with legal personality) and the enterprise, which consisted of an increase in the basic salary on the salary scale, in line with the definitive conditions to be agreed. The Government states that the AGTSyP did not comply with the compulsory conciliation and instead continued the industrial action for a period of ten days. Consequently, and in accordance with the powers vested in it under the law (Act No. 245), the administrative authority issued Administrative Decision No. 1016/SSTR/2012, imposing on the trade union association the legally stipulated fine. The Government notes that the fine was not enforced. The Government stresses that the administrative labour authority, in issuing Administrative Decision No. 1015/2012, did not stipulate the provision of minimum services, but underlined in its whereas clauses the critical importance of the subway and light rail service. Lastly, the Government states that it is clear that the administrative labour authority of the GCBA acted in conformity with the prevailing legislation, with the instructions of the officiating judge and with the request made by the AGTSyP.

C. The Committee’s conclusions

1. 165. The Committee observes that, in this case, the complainant organizations indicate that following the unsuccessful negotiation of certain working conditions and of a salary adjustment for workers in the subway sector of the City of Buenos Aires, a strike was declared and held from 4 to 12 August 2012, and that although the courts only ordered the Office of the Undersecretary of Labour of the GCBA to summon the subway workers’ representatives to negotiations with the representatives of the company Metrovías SA with a view to putting an end to the conflict, the administrative authorities exceeded their remit and issued Administrative Decision No. 1015/SSTR/2012 of 9 August 2012 ordering the workers to abandon all industrial action. The Committee also notes that the complainant organizations allege that, although the AGTSyP filed administrative appeals against the abovementioned decision, and appeared before the Office of the Undersecretary of Labour of the GCBA under the abovementioned framework of negotiations on 9 August – indicating that it did not consider that the administrative labour authority of the City of Buenos Aires was an impartial body and should therefore not intervene in disputes – resuming negotiations at that time, the authorities of the City of Buenos Aires issued Administrative Decision No. 1016/SSTR/2012 of 11 August 2012, imposing a fine of ARS4,933,000 on the AGTSyP for non-compliance with Administrative Decision No. 1015/SSTR/2012 and the compulsory conciliation proceedings (in addition, according to the complainants, public prosecutors have filed complaints on these grounds, which were ongoing, and the GCBA has applied to the National Ministry of Labour, Employment and Social Security and the National Labour Court for the withdrawal of the legal personality of the AGTSyP).
2. 166. As regards the challenged summons to compulsory conciliation proceedings of the parties to the dispute (the company Metrovías SA and the AGTSyP) under Administrative Decision No. 1015/SSTR/2012 (the AGTSyP did not consider that the administrative labour authority of the City of Buenos Aires was an impartial body), the Committee notes the Government’s statement that the GCBA indicated that: (i) the workers at the enterprise belong to two trade union associations: the UTA, which is a first-level trade union association with legal personality (in other words, in keeping with Act No. 23551 concerning trade union associations, one of its exclusive rights is the right to participate in collective bargaining) and the AGTSyP, which is an association that is simply registered; (ii) during the years of coexistence of the UTA and AGTSyP, the authority responsible for the implementation of collective agreements and in the event of collective labour disputes has been the National Ministry of Labour, Employment and Social Security; (iii) in the context of the negotiations between the parties, a collective dispute arose on 2 August 2012 and the AGTSyP specifically requested the intervention of the administrative labour authority of the GCBA; (iv) through its own actions the AGTSyP has recognized the authority of the Office of the Undersecretary of Labour of the GCBA; (v) irrespective of the request made by the AGTSyP, the intervention of the administrative authority of the GCBA occurred in accordance with the legal decision handed down by Administrative and Tax Court No. 6 of the Autonomous City of Buenos Aires in the case of Lubertino Beltrán and María José v. GCBA and others regarding protection of constitutional trade union rights (amparo); (vi) the officiating judge ordered the Office of the Undersecretary of Labour of the GCBA to convene the subway workers’ representatives to negotiations with the company to enable both parties to reconcile their respective interests and thus bring an end to the dispute; (vii) on 9 August 2012, the Office of the Undersecretary of Labour of the GCBA, in order to comply with the order handed down by the judicial authority, convened all the parties to a hearing and following seven hours of intense debate the meeting concluded and the Office of the Undersecretary of Labour ordered compulsory conciliation through Administrative Decision No. 1015/SSTR/2012 in order to resolve the conflict; (viii) under this procedure an agreement was concluded between the UTA (trade union association with legal personality) and the enterprise; and (ix) the AGTSyP did not comply with the compulsory conciliation and instead continued the industrial action for a period of ten days.
3. 167. Recalling that “a decision to suspend a strike for a reasonable period so as to allow the parties to seek a negotiated solution through mediation or conciliation efforts, does not in itself constitute a violation of the principles of freedom of association” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 550], the Committee requests the Government to keep it informed of the outcome of the action for reconsideration with a subsidiary appeal which, according to the complainants, was filed against Administrative Decision No. 1015/SSTR/2012 ordering compulsory conciliation proceedings.
4. 168. Furthermore, with respect to Administrative Decision No. 1016/SSTR/2012 of 11 August 2012, imposing a fine of ARS4,933,000 (approximately US$900,000) on AGTSyP for non-compliance with Administrative Decision No. 1015/SSTR/2012 and with the compulsory conciliation proceedings, the Committee observes the statement by the GCBA that: (i) the AGTSyP did not comply with the compulsory conciliation and instead continued the industrial action for a period of ten days; (ii) consequently, and in accordance with the powers vested in it under the law, the administrative labour authority imposed on the trade union association the legally stipulated fine; (iii) the fine in question was not enforced. In this respect, the Committee recalls, in a general manner, the importance of sanctions in the event of failure to observe the legal requirements for a strike (which are in conformity with the principles of freedom of association) being commensurate with the transgression in question, and requests the Government to indicate whether the administrative decision imposing the fine has been withdrawn.
5. 169. Lastly, the Committee requests the Government to send its observations without delay regarding the allegations that prosecutors (representatives of the Public Prosecutor’s Office) have filed complaints in relation to this dispute, which are ongoing, and that the GCBA applied to the National Ministry of Labour, Employment and Social Security and the National Labour Court for the withdrawal of the legal personality of the AGTSyP.

The Committee’s recommendations

1. 170. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the outcome of the action for reconsideration with a subsidiary appeal which, according to the complainants, was brought against Administrative Decision No. 1015/SSTR/2012 ordering compulsory conciliation proceedings in a dispute in the Buenos Aires subway sector.
   • (b) The Committee requests the Government to indicate whether Administrative Decision No. 1016/SSTR/2012 of 11 August 2012 imposing the fine on the AGTSyP has been withdrawn.
   • (c) The Committee requests the Government to send its observations without delay regarding the allegations that prosecutors (representatives of the Public Prosecutor’s Office) have filed complaints in relation to this dispute, which are ongoing, and that the GCBA has applied to the National Ministry of Labour, Employment and Social Security and the National Labour Court for the withdrawal of the legal personality of the AGTSyP.