Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 387, Octubre 2018

Caso núm. 3272 (Argentina) - Fecha de presentación de la queja:: 05-ABR-17 - En seguimiento

Allegations: (i) refusal of the national Government to re-open collective bargaining with the public education sector; (ii) unlawful use of compulsory conciliation in the Province of Buenos Aires; (iii) obstruction of the right to strike of private tutors in the Province of Mendoza through the loss of a salary element (classroom allowance); (iv) threats against a trade union official; and (v) violations of freedom of association in the Province of Buenos Aires (request for the suspension of trade union status, restriction of the right to strike, police crackdown)

1. 69. The complaints are contained in communications from the Argentine Teachers’ Federation (UDA), dated 16 November 2016 and 31 May and 24 October 2017 (Case No. 3248); in communications from the Latin American Federation of Education and Culture Workers (FLATEC), representing one of its members, the Argentine Union of Private Tutors (SADOP), dated 10 February and 12 April 2017 (Case No. 3257); and in communications from the Confederation of Education Workers of Argentina (CTERA), dated 5 April and 24 May 2017 and 13 February 2018 (Case No. 3272).
2. 70. The Government sent its replies in communications dated April 2017 and February and March 2018.
3. 71. In view of the fact that the complaints address identical issues, Cases Nos 3248, 3257 and 3272 will be the subject of a single examination by the Committee on Freedom of Association.
4. 72. 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

Case No. 3248

Federal joint negotiation board for education

1. 73. In a communication of 16 November 2016, the UDA denounces the restriction on collective bargaining for the public teaching sector by the Government, in so far as, unlike the practice followed in previous years and despite insistent complaints by the UDA, it failed to reconvene collective bargaining with a view to revisiting the issue of salaries, despite the fact that teachers’ salaries have been strongly affected by rising inflation and the adverse socio-economic context of 2016. It also indicates that a number of points in the collective agreement concluded in February 2016 have not been implemented. The complainant considers that by acting in this way the Government is limiting the percentage increase in teachers’ salaries and is obstructing the collective bargaining process, in violation of ILO Convention No. 98.
2. 74. In an additional communication of 31 May 2017, the UDA declares that the initial complaint now has the support of the Federation of Education Workers (FETE) and of the secretariat for education policies, a subordinate body of the General Confederation of Labour (CGT). The UDA indicates that, together with its members, it organized and carried out industrial action from March 2016 in the search for a reformulation of salaries, among other labour claims, since the Government refused to reopen collective bargaining, namely to convene the federal joint negotiation board, and so the fixing of salaries remained in the hands of the State, against a background of 42 per cent year-on-year inflation. The industrial action, which was lawful and had been notified to the labour authority, received voluntary mass support from teachers in Argentina, who withdrew from their duties. The complainant alleges that, in addition to the failure to convene the joint negotiation board, the State decided to reduce the share of the Compensation Fund (financed by the Government) received by the seven provinces facing the greatest difficulties. According to official announcements, the intention of the Ministry of Education is to reduce that share by 25 per cent per year, until it disappears altogether in 2019. As regards the Education Incentive Fund (FONID), the UDA states that even though it had been instituted for “salary emergencies”, it has become a normal and usual complement to teachers’ salaries, albeit with the downside that it is not classified as remuneration and hence does not generate social security contributions.
3. 75. Considering the salary situation in the Province of Buenos Aires to be unsustainable, the complainant indicates that it filed an action for amparo (protection of constitutional rights) at the end of March 2017. As a protective measure, it requested the convening of the negotiation board provided for under section 10 of the Education Finance Act (No. 26075), with implementing regulations laid down by Decree No. 457/2007. By a decision of 5 April 2017, the protective measure was granted in summary proceedings and the Ministry of Labour, Employment and Social Security was ordered to convene within five days the negotiation board provided for by section 10 of Act No. 26075. The State appealed against this decision in the National Chamber for Labour Appeals. The proceedings are in progress and no first-instance ruling had been issued by the end of May 2017.

Situation in the Province of Buenos Aires

1. 76. The UDA adds that on 3 March 2017 the Government summoned the trade unions to a joint meeting during which it made a proposal consisting of the advance payment of one-off fixed sums not classified as remuneration (considered illegal and not generating contributions to the social security system) for serving employees, the payment being subject to non-implementation of the industrial action called for by the trade unions at the national level for 6 and 7 March 2017. As the proposal was rejected, the Ministry of Labour of the Province of Buenos Aires did not put forward any other proposal but served notice of compulsory conciliation on the trade unions. The unions had recourse to the local court for administrative disputes and on 6 March 2017 secured a ruling consisting of a protective measure. The ruling stated that if no agreement was reached between the parties, the dispute would be settled by a provisional impartial body set up by joint agreement for the sole purpose of settling the joint negotiations. This decision was then overturned by the appeals chamber for administrative disputes in La Plata. On 15 March 2017, the court for administrative disputes, at a request from the unions, issued a new protective measure: (i) ordering the Executive Authority to refrain from implementing any act that disrupted, restricted, limited or affected the freedom of workers and their organizations in collective negotiations; and (ii) ordering the Ministry of Labour to take the necessary steps to ensure that collective bargaining goes ahead in an environment of good faith, freedom and equality between the parties.
2. 77. The complainant also reports threats made by a number of officials in the Province of Buenos Aires (involving fines, declarations of illegality, revocation of trade union status, monetary deductions, etc.). In particular, it reports that an application was filed by the Ministry of Labour of the Province of Buenos Aires against the complainant for the suspension of trade union status (file No. 1/2015/1757059/2017).
3. 78. The UDA further denounces the fact that, in an unprecedented measure in the Province of Buenos Aires, the governor of the province called on 60,000 volunteers to give educational support to the almost 5 million pupils in Buenos Aires for the duration of the stoppage called by the teachers’ unions in March 2017, at the start of the 2017 academic year.
4. 79. Lastly, the complainant indicates that the summons of 3 March 2017 to joint negotiations was in reality a form of manipulation and deceit in relation to the trade unions, as the State showed no inclination to engage in dialogue but pursued the restriction of the right to strike as its sole objective. It alleges that the recourse to compulsory conciliation constitutes a violation of the Constitution of the Province of Buenos Aires and also of Acts Nos 10149 and 13552. The UDA also reiterates that the Ministry of Labour of the Province of Buenos Aires initiated the procedure calling for the suspension of its trade union status.

Case No. 3257

Classroom allowance – Province of Mendoza

1. 80. In its communication dated 10 February 2017, FLATEC reports that the classroom allowance – which is an additional component to the salary structure of private tutors based on Act No. 8847 and Decree No. 228 of the Province of Mendoza – has actually been established to obstruct the regular exercise of the right to strike of private tutors, through the imposition of fines and the withholding of salary. They state that the monetary allocation constitutes remuneration, and so it entails contributions in the areas of welfare, assistance and union dues, and is to be considered in the calculation of additional annual earnings. The classroom allowance is to be paid from March 2016 for every employee covered by Act No. 4934 and its amendments who provides services in the Directorate-General for Schools, has the status of qualified teacher and performs assigned duties on all working days in the respective month, except for absences due to sick leave or accidents or any other leave on objective grounds defined by the abovementioned legislation.
2. 81. The complainant objects to the fact that for just one day of strike action in the month concerned, the classroom allowance is not paid, which signifies a very serious withholding of salary, amounting to some 10 to 20 per cent of monthly pay. Hence the right to strike is penalized through an excessive loss of pay, which is far greater than the amount that corresponds to the strike day.

Federal joint negotiation board for education

1. 82. FLATEC also denounces the arbitrary and unlawful failure to implement the collective bargaining procedure of the federal joint negotiation board for education, and describes the historical background to the current dispute. It recalls that, in order to cut costs in educational matters and as part of commitments for the renegotiation of foreign debt, in January 1992 the Executive Authority proposed, and Congress adopted, Act No. 24049 concerning the transfer of education services to the provinces. This transfer resulted in a serious imbalance in the quality of education and salary levels between the provinces with fewer financial resources and other provinces. The complainant indicates that in 2006 the Education Finance Act (No. 26075), among other legal instruments, sought to iron out inequalities and took grievances from the teaching community into consideration. The instruments established by the National Congress included the federal joint negotiation board for education, a national and federal forum in which, with the involvement of the national teachers’ unions, including SADOP, conditions of work were regulated and minimum pay for all teachers in the country was agreed on an annual basis, prior to the start of the academic year. In accordance with the Education Finance Act (No. 26075) and Decree No. 457/2007, the federal joint negotiation board for education was formally established through administrative file No. 1.243.441/2007 in the register of the Ministry of Labour, Employment and Social Security, where the records establishing the federal joint negotiation board were signed by the State, currently the Ministry of Education and Sport, the Ministry of Labour and the Federal Council for Culture and Education, representing the education ministries of the provinces and the national trade union organizations.
2. 83. The complainant emphasizes that, from 2007 to 2016, regular ongoing joint negotiations were held on an annual basis. It maintains that this practice has given rise to a sectoral and administrative custom which produces effects and legal obligations, and so neither the federal Government nor the provincial governments can restrict the federal joint negotiation board. Hence, for the complainant, the decision of the federal Government and initially of a number of provincial governments to nullify the salary negotiations established in the federal joint negotiation board is not an administrative omission whereby nothing was decided despite the request of the national unions; rather, it shows the Government’s wish to avoid complying with the Education Finance Act (No. 26075), as though this Act was not in force. The complainant also claims that this is a violation of Act No. 26206, section 67 of which provides that teachers throughout the education system shall have rights and obligations, including with regard to a decent salary and collective bargaining at the national and regional levels, and shall also be covered by the obligations arising from ILO Conventions Nos 98 and 154.
3. 84. The complainant considers particularly relevant the protective measure issued by the ruling of the National Labour Court, issued on 5 April 2017, which ordered that the federal joint negotiation board for education be constituted; however, the political and ministerial authorities announced publicly on 6 April 2017 that they would appeal against this ruling.

Restrictions of the right to strike – Province of Buenos Aires

1. 85. The complainant also denounces the restrictions of the right to strike of teachers represented by SADOP, imposed by internal regulations of the Province of Buenos Aires, in so far as the latter, by a decision of 15 March 2017, provided for a one-off exceptional payment of 1,000 Argentine pesos (ARS) not classified as pensionable remuneration for teachers who taught classes on the days of industrial action announced from 6 March 2017 onwards.

Case No. 3272

Threats against a trade union official

1. 86. In its first communication dated 5 April 2017, CTERA indicates that the Education Sector Collective Bargaining Act of the Province of Buenos Aires has been in force for over ten years and collective negotiations were always resolved in a context of dialogue and in the framework of the law. However, it claims that the situation in the country has changed. From mid-February 2017 the general secretary of the Single Union of Education Workers (SUTEBA), Mr Roberto Baradel, started to receive death threats aimed at himself and his family. The threats, received by email, made specific reference to his role in collective bargaining in the sector that he represents. CTERA adds that these serious threats are the subject of a complaint before Federal Court No. 2 of the Autonomous City of Buenos Aires. CTERA denounces the lack of protection and solidarity from the Government.

Compulsory conciliation – Province of Buenos Aires

1. 87. The complainant denounces the use of compulsory conciliation (a mechanism whereby the labour administrative authority summons the parties to the dispute to a forum for dialogue) as a tool for restricting the right to strike of education workers in the Province of Buenos Aires, since the union representatives were summoned on 3 March 2017 to the third meeting of the joint negotiation board for education (Act No. 13552), at which the Government made a salary proposal similar to the one which had already been rejected. It claims that in such circumstances and within the collective negotiations themselves, the labour minister of the province notified the union representatives of the order for compulsory conciliation (decision No. 86/17 of the Ministry of Labour of the Province of Buenos Aires). For CTERA, it is incomprehensible that a mechanism for bringing parties to dialogue should be used when they are already at the negotiating table. It claims that the use of compulsory conciliation by the employer can only be construed as a ploy to restrict the right to strike. This being the case, the trade unions had recourse to the local court to guarantee their rights and they secured a ruling in their favour on 6 March 2017. CTERA alleges that the government of the Province of Buenos Aires, far from complying with the legal order, sought the participation of another legal entity with a view to overturning the initial court decision. According to the complainant, the matter is before the Provincial Supreme Court. In these circumstances, the trade unions lodged another appeal with the local court and secured another favourable ruling from another provincial magistrate (decision No. 17/13 (R.A.) CCALP).

Restriction of the right to strike – Province of Buenos Aires

1. 88. Lastly, CTERA denounces the joint decision of the Directorate-General of Culture (No. 478) and the Ministry of Economic Affairs (No. 31) of 15 March 2017, ordering – in violation of ILO Conventions Nos 87 and 98 and of the National Constitution – the payment of ARS1,000 to teachers who, from 6 March 2017 onwards, taught classes on days of industrial action.

Federal joint negotiation board

1. 89. In a second communication dated 5 April 2017, the complainant denounces the refusal of the National Executive to guarantee to education workers the right to collective bargaining. It indicates that collective negotiation at national level in Argentina was initiated within the Ministry of Labour, Employment and Social Security through file No. 1.243.441/2007 under section 10 of Act No. 26075 and implementing Decree No. 457/2007. It also recalls that section 14 of the Decree prescribes that the provisions of the Decree shall be interpreted in conformity with ILO Convention No. 154 and that section 67 of the National Education Act (No. 26206) of December 2006 recognizes the right of all teachers to engage in collective bargaining at the national and regional levels. The complainant indicates that in the 2016 round of negotiations with the current national Government, a collective agreement was reached for a salary increase in February of that year, within the said bargaining entity.
2. 90. Despite the clarity of the legislation, since 2017 the State as employer has systematically refused to empower the collective bargaining body, on the grounds that the third clause of the joint agreement of 2016 established an automatic increase of 20 per cent of the initial teaching salary above the minimum living wage which is to be fixed in accordance with Act No. 24013. According to the complainant, this interpretation of the collective agreement of 2016 is unsustainable, not only because of the clarity of the abovementioned Act, which stipulates compulsory negotiation for the future, but also because the aforementioned minimum figure of 20 per cent clearly constitutes a threshold resulting from the imbalances which arose in previous years in first negotiating the teaching salary and then the minimum living wage, the former having remained lower than the latter, a situation that the clause in question sought to avoid. For the complainant, that clause could never be used as a pretext for not engaging in collective bargaining. The mere fact of adopting a clause to keep the minimum teaching salary in proportion to the minimum living wage cannot mean that the teachers’ unions – including CTERA, which represents 85 per cent of education workers – shall stop the regular exercise of their right to fix salaries and conditions of work.
3. 91. In its communication of 13 February 2018, the complainant denounces the recent adoption by the national Government of Decree No. 52/2018, involving the de facto abolition of the national system of collective negotiation in force for education workers. It claims that this is clearly part of a general elimination of the rights of workers in both the public and private sectors in the country, with clear instances of persecution by the Government and some of the provincial administrations.
4. 92. For CTERA, Decree No. 52/2018, in an unconstitutional manner and violating ILO Conventions Nos 87, 151 and 154, seeks to amend Act No. 26075 and prevent the fixing of the national minimum salary for the education sector within the federal joint negotiation board. It also objects to the fact that: (i) there is no possibility of discussing or agreeing on the minimum teaching salary as provided for in Act No. 26975; (ii) the expression of the wishes of the trade unions is not respected by the employer in that the key element of representativeness is disregarded; (iii) there is no right to information on collective bargaining matters since a close examination of the Decree shows that it abolishes the right to information within the joint negotiation board for education itself (section 7), thereby denying the unions knowledge of employment levels in the education sector, investment policies, programmes for the introduction of new technologies, etc.; and (iv) there is also no possibility of requesting the Ministry of Labour to set up a board for collective agreement negotiations since section 5 of Decree No. 457/2007 has been abolished.

Police crackdown – Province of Buenos Aires

1. 93. Lastly, CTERA denounces the brutal crackdown by the police in the city of Buenos Aires on 9 April 2017 against education workers and union officials belonging to CTERA, some of whom were unlawfully arrested and subsequently released, for attempting to set up the “Mobile School” at the Plaza de los Dos Congresos with a view to calling on the Government, in ways other than work stoppages, to convene a national joint negotiation board in the sector. It also claims that the head of State, when referring to the teachers’ salary claims, made offensive comments about the education unions.

B. The Government’s replies

Case No. 3248

1. 94. In a communication dated 12 April 2017, the Government states that at no time was there non-compliance on its part which would justify the complaint presented by the UDA. On the contrary, considerable progress had occurred in relation to the previous situation.
2. 95. Firstly, the Government makes a clarification regarding the reference to the national Government (to which the Ministry of Education and Sport belongs) as the “employer”. For the Government, this assertion is far removed from reality. In this regard, it explains that in the early 1990s legislation adopted by the national Congress (Act No. 24049 and complementary legislation) provided that educational establishments that had hitherto been under the auspices of the national Government would now be directly governed by the provinces. Hence the legislation provided at that time for the transfer to the provinces of educational establishments and their teaching and non-teaching staff that until then had been under national direction. Consequently, from that time onwards no educational establishments, or any of the teachers employed there, were any longer under the control of the national Government. Hence it is incorrect to describe the national Government as the “employer”. There are 24 different sets of regulations relating to teaching, each of them applicable in their respective area of jurisdiction. According to the Government, this demonstrates that the central government is not the “employer”: the employers are the 23 provinces plus the Autonomous City of Buenos Aires, each having its respective territory.
3. 96. As regards the framework agreement (provided for in section 10 of the Education Finance Act (No. 26075) and referred to in point 8 of the collective agreement of February 2016), the Government indicates that it should not be forgotten that even if reference is made to a “framework agreement”, what is essential is the existence of agreements between the parties in each province. On that basis, from a position already fixed internally, discussions on the framework agreement can begin with the aim of reaching basic agreements at national level. The Government indicates that section 10 of Act No. 26075 of January 2006 (implemented by Decree No. 457/2007), provides as follows: “The Ministry of Education, Science and Technology (currently the Ministry of Education and Sport) together with the Federal Council for Culture and Education (currently the Federal Council for Education) and the teaching unions with national representation, shall conclude a framework agreement which shall include general guidelines relating to: (a) conditions of work; (b) the school calendar; (c) the minimum teaching salary; and (d) the teaching career. The Government explains that: (i) although no meetings were held from 2006 to 2015 for the purposes of formulating the framework agreement established in section 10 of Act No. 26075 – there were only meetings at the start of each year to discuss the minimum teaching salary, which had been fixed by agreement with the unions in some cases, while other meetings had been prescribed by decree of the Executive Authority where there was no agreement – this inaction ceased as from 2016; (ii) the foregoing does not alter the fact that it is a complicated, difficult task for the various regional jurisdictions, each having its own regulations relating to teachers, to reach basic agreements in relation to the creation of the framework agreement; and (iii) this whole situation goes far beyond the possibilities of the national Government, which depends on the decisions and policies of the various regional jurisdictions within the country’s federal system.
4. 97. With regard to the minimum teaching salary (point 3 of the collective agreement of 25 February 2016), namely the salary threshold below which no province may set the salary of any teacher, the Government explains that reaching agreement at that time on an automatic mechanism for increasing the minimum teaching salary was a significant step forward. The new mechanism agreed upon with the trade unions entails the automatic increase of the minimum salary, which is updated each year. This joint agreement establishes that the teaching salary must be at least 20 per cent higher than the minimum living wage, and this adjustment would be automatic, irrespective of any agreement reached in the joint negotiation board for education. For the Government, the clause regarding the automatic increase makes it unnecessary and merely academic to hold discussions on the minimum teaching salary each year. The automatic increase is calculated on the basis of the minimum living wage. This is fixed annually by the Council for the Minimum Living Wage, with the participation of workers, employers and representatives of the national Government and of the Federal Labour Council (provincial governments). Hence, in addition to the amount established annually as the general minimum wage by this Council, there is an extra 20 per cent as a fixed component of the minimum teaching salary for the year.
5. 98. With regard to the Compensation Fund referred to in the complaint from the UDA, this is designed to complement (compensate) the earnings of teachers who do not reach the established minimum threshold. The aim is to help iron out disparities in the initial teaching salary in provinces where, despite financial input into the sector and greater efficiency in the allocation of resources, it is not possible to overcome those inequalities. This is separate from the FONID, which, simply providing incentives as its name suggests, has a totally different function from the Compensation Fund.

Case No. 3257

1. 99. In a communication of March 2018, the Government forwards information provided by the Ministry of Governance, Labour and Justice of the Province of Mendoza regarding the classroom allowance. It states that FLATEC brought a claim of unconstitutionality before the provincial court. However, it was withdrawn by the plaintiff. According to the Government, this demonstrates a lack of coherence in that the union renounced any local ruling but decided to pursue the matter at the international level in the ILO Committee on Freedom of Association. It also indicates that: (i) the Province of Mendoza is experiencing a severe financial emergency; (ii) in conformity with the terms of the national joint negotiations signed by the national union representatives on 25 February 2016, the initial teaching salary was raised by implementing the Compensation Fund, with a further increase in the funds supplied by FONID, and stipulating that the teaching salary must now be at least 20 per cent above the minimum living wage, irrespective of any agreements reached in the joint negotiation board for education; (iii) the negotiations took place in accordance with all the principles of good faith negotiation. For each proposal made, appropriate efforts were made to reach agreements, within the current economic context and budget of the province; (iv) however, even though the province improved the initial proposal on several occasions, no agreement could be reached. It was here that the increase in the teaching salary was fixed by decree, chiefly safeguarding the right to education and thereby guaranteeing the resumption of classes; and (v) with regard to the classroom allowance, the provincial government considers that the whole complaint is based on the incorrect and unsubstantiated premise, that the classroom allowance is not designed to be an incentive for teacher productivity. On the contrary, the Government explains that this measure has had a direct positive impact with regard to teacher absenteeism, there has been a substantial improvement in pupil attendance and also a reduction in the number of replacement teachers required. The Government also denies categorically that the classroom allowance is a way for the legislation or Government to penalize the right to strike through substantial losses of teaching salary for just one stoppage or strike day.
2. 100. Lastly, the Government attaches a copy of the decision of the Supreme Court of Justice of Mendoza, Second Chamber, in the case “Single Union of Education Workers v. Government of Mendoza – claim of unconstitutionality”, dated 15 December 2017, which calls on the Plenary Court to rule on the constitutionality of the legal provisions challenged in the case file (Decree No. 228/2016 ratified by Act No. 8847 concerning the classroom allowance).

Case No. 3272

1. 101. In its communication of February 2018, which also refers to Cases Nos 3248 and 3257 since they involve similar facts, the Government considers that in all the scenarios under examination agreement had been reached, or was about to be reached, and so the complaints should be disregarded.
2. 102. With regard to the threats to the SUTEBA union official, Mr Roberto Baradel, the Government indicates that they are the subject of judicial proceedings before Federal Court No. 2 and the corresponding criminal investigation proceedings provided for by law have been instituted.
3. 103. As regards the statements of the national President, the Government considers that they are part and parcel of democratic debate, and that in any case there have been no judicial complaints in this regard. It is also surprised that the issue has been brought before a supranational body without any recourse to the competent national bodies.
4. 104. With regard to the issue of national collective bargaining in education, the Government indicates that the joint agreement of 25 February 2016 had been signed by the general secretaries of CTERA, the UDA and SADOP. The agreement establishes that, irrespective of what the unions negotiate with the provinces, a minimum salary of ARS7,400 from February and ARS7,800 from July will be guaranteed through the implementation of the Compensation Fund (Education Finance Act No. 26075) for all the modalities and jurisdictions of the country. There is also an increase in the funds contributed by FONID, which brings the national minimum salary to ARS7,800 from February and to ARS8,500 from July. The agreement also stipulates that the teaching salary must now be at least 20 per cent above the national living wage (clause 4 of the agreement).
5. 105. The Government reiterates that the payment of teaching salaries is a matter for each of the 23 provinces and the Autonomous City of Buenos Aires. The fact that national funds have gone to compensate teaching salaries in provinces where they are below the minimum living wage does not mean that the national Government is the employer. The Government reiterates that if the clause regarding automatic adjustment is interpreted correctly, any discussion each year on salaries at national level in relation to teachers’ minimum earnings is needless and/or purely academic.
6. 106. With regard to the framework agreement, the Government indicates that the parties undertake to establish within 30 days a working group for the drafting of a framework agreement (collective labour agreement), in accordance with section 10 of the Education Finance Act (No. 26075). This lays the foundations of a framework agreement, or the foundations of a new national joint negotiation board for education, which, unlike those adopted in previous years, takes account of the different situations in all the regional jurisdictions of the State, with the sole aim of avoiding the inequalities produced by the previous system, which the national Government had to resolve by contributing more funds to the provinces for the payment of teaching salaries. It points out that the aforementioned section provides for the setting up of a working group to draft a framework agreement, making it clear that collective agreements will be a matter for the provincial jurisdictions. Hence it has been possible to create an automated mechanism for the minimum salary, something that was provided for by law more than ten years ago but which has never been done in practice. It adds that the amparo action “Argentine Teachers’ Federation v. Ministry of Education and Sport et al.” (Case No. 19774/2017) produced a ruling which rejected the claim brought by the union (Labour Court No. 60).
7. 107. With regard to the allegations concerning the Province of Buenos Aires and the recourse to compulsory conciliation, the Government considers that the principal circumstance which gave rise to the order for conciliation was the need to keep schools open because many of them also operate as canteens. However, the dispute has been settled with the adoption of Act No. 5/2017 of 28 June 2017 (“Agreement with all teachers and their professional organizations involved in the salary dispute in the Province of Buenos Aires”). Specifically, it is stated that the implementing authority has formally approved by an absolute majority the salary proposal for 2017 presented by the provincial government in the joint negotiation document, in accordance with the terms of Act No. 13552.
8. 108. With regard to the ARS1,000 bonus, established by the internal regulations of the Province of Buenos Aires, for teachers who taught classes on the days of industrial action since 6 March 2017, the Government indicates that this action was taken with an eye to the resumption of classes, with the aim of giving objective recognition to those who performed their tasks in a clearly extraordinary context, since the strikes were carried out with the pupils inside the classrooms.
9. 109. With regard to the allegations of a brutal crackdown by the police of Buenos Aires on account of the setting up of a mobile school, the Government has supplied the report of 14 February 2018 drawn up by the Secretary for Security of the Ministry of Security and Justice of the city of Buenos Aires, which states that the unions did not comply with the regulations governing the occupation of public spaces and that the police acted in line with the provisions of the Comprehensive Public Security System Act (No. 5688), in particular as regards the proportional use of force.

C. The Committee’s conclusions

1. 110. The Committee observes that Cases Nos 3248, 3257 and 3272 are concerned with similar allegations, namely: (i) the refusal of the national Government to resume collective bargaining with the public education sector (issue of the federal joint negotiation board for education); (ii) the unlawful use of compulsory conciliation in the Province of Buenos Aires; (iii) obstruction of the right to strike of teachers in the private sector in the Province of Mendoza through the loss of a salary component (classroom allowance); (iv) threats against a trade union official; and (v) violations of freedom of association in the Province of Buenos Aires (request for the suspension of official trade union status; restriction of the right to strike; and police crackdown).

Federal joint negotiation board for education

1. 111. The Committee observes that a key element common to the complaints is the complainants’ allegation that the public authorities refused to convene the resumption of collective bargaining for addressing the issue of salaries for teachers in the public sector, thereby putting an end to the mechanism of the federal joint negotiation board for education, which had existed since 2007, as regulated by the Education Finance Act (No. 26075) and Decree No. 457/2007. The Committee notes that, according to the information supplied by the complainants, the purpose of the negotiation mechanism, with the involvement of the national teaching unions, was to remove disparities in salaries arising from the transfer of education services to the provinces. The Committee observes that the complainants concur that the Government unilaterally put an end to the social dialogue mechanism provided for in the Education Finance Act and hence failed to meet the obligations arising from ILO Conventions Nos 98 and 154. The Committee also notes the indication of CTERA in its additional communication of February 2018 that the national Government adopted Decree No. 52/2018 entailing the de facto abolition of the collective bargaining system at the national level in the education sector.
2. 112. The Committee notes the Government’s statement that the central government is not the employer of the teachers and that salary issues are a matter for discussion by the provincial governments. It notes in particular that the Government considers that in view of the tripartite agreement of February 2016 in which a minimum teaching salary was fixed with an automatic adjustment, there is no need for periodic discussions at federal level. The Committee also notes the Government’s indications that progress has been made regarding the framework agreement provided for in section 10 of Act No. 26075, making it clear that collective agreements shall come within the competence of the provincial authorities. The Committee notes the Government’s indication that no meeting has been held so far for formulating the framework agreement, that the only meetings held had been at the start of each year to discuss the minimum teaching salary and that, while acknowledging the difficulty of the task, steps are being taken to establish the framework agreement.
3. 113. The Committee observes that section 10 of the Education Finance Act (No. 26075) provides that the Ministry of Education, Science and Technology in conjunction with the Federal Council for Culture and Education and the teaching unions with national representation shall adopt a framework agreement which shall include general guidelines relating to: (a) conditions of work; (b) the school calendar; (c) the minimum teaching salary; and (d) the teaching career, but that so far the appropriate conditions had not existed for establishing the framework agreement. The Committee understands, from the information provided by the parties, that the federal joint negotiation board for education was designed to be a forum for dialogue on issues relating to work in the education sector, including salary issues.
4. 114. The Committee observes that in the collective agreement of February 2016 concluded within the federal joint negotiation board an automatic mechanism was agreed upon for increasing the minimum teaching salary: the new mechanism agreed upon with the trade unions involves the automatic increase of the minimum salary each year, with the result that, on the basis of the joint negotiations, the teaching salary must be at least 20 per cent higher than the minimum living wage, and this adjustment would be automatic, irrespective of any agreement reached in the joint negotiation board. In this respect, the Committee notes the different viewpoints of the complainants and the Government. On the one hand, the unions claim that the mere fact of adopting a clause to keep the minimum teaching salary higher than the minimum living wage by a specified proportion (20 per cent) cannot mean that the teaching unions shall stop exercising their right to bargain collectively with regard to salaries and conditions of work. On the other hand, the Government considers that because of the clause regarding the automatic increase, there is no need to reopen discussions each year regarding the minimum teaching salary. The Committee also observes that the Government’s position is consolidated with the adoption of Decree No. 52/2018 amending certain sections, and abolishing others, of Decree No. 457/2007. The Committee observes that with these amendments the discussions no longer focus on salary issues, since the only requirement is the link between the minimum teaching salary and the minimum living wage.
5. 115. The Committee wishes to recall that on several occasions it has drawn attention to the importance of promoting collective bargaining, as set out in Article 4 of Convention No. 98, in the education sector [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1265]. While considering that it is not competent to express views on the level – federal or provincial – of collective bargaining, and noting the efforts made regarding the implementation of a framework agreement, the Committee also wishes to underline the special importance of salary matters in collective bargaining. The Committee therefore requests the Government to keep it informed on salary matters as part of the exercise of collective bargaining, in order to determine the scope of the clause for the automatic adjustment of the minimum teaching salary that the parties to the February 2016 federal joint negotiations agreed on and to ensure that collective bargaining on salary remains possible at all levels.
6. 116. The Committee notes that although both the complainants and the Government have mentioned various amparo appeals, no definitive decisions have yet been adopted on the issue of the federal joint negotiation board. The Committee requests the Government to forward the relevant judicial decisions, once they have been issued.
7. 117. As regards the abovementioned Decree No. 52/2018, which, according to CTERA, entails the de facto abolition of the collective bargaining system at the national level in the education sector, the Committee notes that so far the Government has not supplied any information on the Decree. With regard to the allegation by CTERA that the new Decree disregards the key element of representativeness, the Committee is bound to note in this regard that section 2 of the Decree substantially alters the previous situation. It provides that the representation in the framework agreement of public sector education workers, in the provinces and in the Autonomous City of Buenos Aires, shall be exercised by one member of each first-, second- and third-level organization having official trade union status and having nationwide geographical scope for teaching, and that if in the course of the negotiations there is no uniformity within the representation of the teachers’ unions, that of the majority members shall prevail.
8. 118. The Committee also observes that the reference to a list of information which must be in the possession of the parties, and considered to be the minimum necessary for undertaking the required discussions within the framework agreement, has been removed from section 7 of new Decree No. 52/2018. In this regard, the Committee recalls that Article 7 of the Collective Bargaining Recommendation, 1981 (No. 163), which complements Convention No. 154 ratified by Argentina, provides that measures adapted to national conditions should be taken, if necessary, so that the parties have access to the information required for meaningful negotiations. Hence, while observing the efforts made by the Government to undertake reforms in the education sector, the Committee invites the Government to hold consultations with the social partners to determine the appropriate representation of workers in the process of establishing the framework agreement provided for in section 10 of the Education Finance Act (No. 26075). It also requests the Government to ensure that the parties have the necessary information during the actual negotiations. The Committee requests the Government to provide information on this matter.

Compulsory conciliation – Province of Buenos Aires

1. 119. With regard to compulsory conciliation instigated by the Minister of Labour of the Province of Buenos Aires, the Committee notes that CTERA denounces the use of compulsory conciliation (consisting of a mechanism in which the labour administrative authority summons the parties to the dispute to a forum for dialogue) as a tool for restricting the right to strike of education workers in the Province of Buenos Aires, since no industrial action may be taken during the period of compulsory conciliation. The Committee notes the indication by CTERA that the trade unions secured protective measures in their favour and that (as at April 2017) the matter was before the Provincial Supreme Court. The Committee notes the Government’s indication that the main factor behind the summons to conciliation was the need to keep schools open since many of them also function as canteens. It also notes the Government’s statement that the dispute was settled with the agreement of all teachers and professional organizations involved in the salary dispute in the Province of Buenos Aires (Act No. 5/2017 dated 28 June 2017).
2. 120. The Committee recalls that the provision of food to pupils of school age may be considered to be an essential service [see Compilation, op. cit., para. 840]. It also recalls that it has examined several cases from Argentina involving objections to orders for compulsory conciliation between the parties to a dispute in the public education sector by the administrative authority, when the latter was a party in the dispute and that it has considered that it was necessary to entrust the decision of initiating the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute (see 368th Report, Case No. 2942, paragraph 188).

Classroom allowance – Province of Mendoza

1. 121. As regards the classroom allowance, which forms part of the salary structure for private tutors, as established by law in the Province of Mendoza, the Committee notes the complainant’s objection that this salary element has been established for the purpose of obstructing the regular exercise of the right to strike by private tutors. The Committee notes the complainant’s allegation that if there is just one strike day in the month concerned, the classroom allowance is not paid, which signifies a very serious withholding of salary, amounting to some 10 to 20 per cent of monthly pay, and so the right to strike is penalized by an excessive loss of remuneration. The Committee notes the Government’s reply indicating that the plaintiff brought a claim of unconstitutionality before the provincial court, though this was later withdrawn. The Committee also notes the Government’s indication that: (i) the present denunciation is based on the incorrect and unsubstantiated premise, that the classroom allowance is not designed to be an incentive for teacher productivity; and (ii) on the contrary, this measure has had a direct positive impact with regard to teacher absenteeism.
2. 122. The Committee observes that the classroom allowance mechanism does not in itself raise any issue relating to freedom of association. Nevertheless, it considers that it may have indirect repercussions with regard to salary deductions for strike days, where it involves a substantial loss of teaching salary for just a one-day stoppage or strike. On several occasions the Committee has considered that salary deductions for days of strike should only apply to workers who have taken part in the strike or a protest action and that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Compilation, op. cit., paras 950 & 942]. However, in a case where the pay deductions were higher than the amount corresponding to the period of the strike, the Committee recalled that the imposition of sanctions for strike action was not conducive to harmonious labour relations [see Compilation, op. cit., para. 944]. In the present case, the Committee requests the Government to ensure that the classroom allowance mechanism operating in the Province of Mendoza does not give rise to excessive salary deductions for legitimate strike action. In view of the information provided by the Government, the Committee requests the complainant to indicate the reasons for withdrawing its claim of unconstitutionality concerning the classroom allowance.

Threats against a trade union official

1. 123. With regard to the allegations by CTERA that the general secretary of SUTEBA, Mr Roberto Baradel, has become the target of death threats, directed at himself and his family, in relation to his role in collective bargaining in the sector which he represents, the Committee notes that these serious threats are the subject of a complaint before Federal Court No. 2 of the Autonomous City of Buenos Aires. Reiterating that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Compilation, op. cit., para. 82], the Committee urges the Government to provide information as soon as possible on the steps taken to assess the need to provide protection for Mr Roberto Baradel, and on any corresponding measure.

Request for the suspension of official trade union status – Restriction of the right to strike – Police crackdown – Province of Buenos Aires

1. 124. As regards the proceedings requesting the suspension of the official union status of the UDA, the Committee notes that the latter, in its communication of 24 October 2017, reiterates that those proceedings were instituted by the Ministry of Labour of the province. In view of the lack of response in this regard the Committee requests the Government to provide information on the trade union status of the UDA.
2. 125. With regard to the measures agreed upon by the Ministry of Education – Province of Buenos Aires – to recompense workers who did not take part in the strike of 6 March 2017 with an exceptional payment of ARS1,000, the Committee notes the Government’s indication that this action was taken with an eye to the resumption of classes, with the aim of giving objective recognition to those who performed their tasks in a clearly extraordinary context, since the strikes were carried out with the pupils inside the classrooms. The Committee recalls that on various occasions, concerning measures applied to compensate workers who do not participate in a strike by bonuses, it considered that such discriminatory practices constitute a major obstacle to the right of trade unionists to organize their activities [see Compilation, op. cit., para. 976]. With regard to the allegation by the UDA that in March 2017 the governor of the province called on 60,000 volunteers to give educational support to the almost 5 million pupils in Buenos Aires for the duration of the strike called by the teaching unions at the start of the 2017 academic year, the Committee has indicated, for example, that minimum services may be established in the education sector, in full consultation with the social partners, in cases of strikes of long duration [see Compilation, op. cit., para. 898]. While noting the Government’s indication that it acted with an eye to the resumption of classes, the Committee requests the Government to take appropriate steps to ensure that the right of trade unions to organize their activities is not obstructed, and that any minimum service is subject to discussions with the trade unions concerned.
3. 126. With regard to the allegations of CTERA denouncing a brutal crackdown by the police in the city of Buenos Aires on 9 April 2017 against workers and officials belonging to the aforementioned union, and also the illegal detention of some of them, for attempting to set up the “Mobile School” at the Plaza de los Dos Congresos, the Committee, while noting the report of the Secretary for Security at the Ministry of Security and Justice in Buenos Aires, wishes to recall that freedom of assembly and freedom of opinion and expression are a sine qua non for the exercise of freedom of association. It also recalls that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights, and that the police authorities should be given precise instructions so that, in cases where public order is not seriously threatened, people are not arrested simply for having organized or participated in a demonstration [see Compilation, op. cit., paras 122, 205 and 230].

The Committee’s recommendations

1. 127. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of collective bargaining on salary matters, in order to determine the scope of the agreement reached on the clause for the automatic adjustment of the minimum teaching salary in the February 2016 federal joint negotiations and to ensure that collective bargaining on salary remains possible at all levels.
   • (b) The Committee requests the Government to forward the relevant judicial decisions concerning the federal joint negotiation board, once they have been issued.
   • (c) The Committee invites the Government to hold consultations with the social partners to determine the appropriate representation of workers in the process of establishing the framework agreement provided for in section 10 of the Education Finance Act (No. 26075). It also requests the Government to ensure that the parties have the necessary information during the actual negotiations. The Committee requests the Government to provide information on this matter.
   • (d) The Committee requests the Government to ensure that the classroom allowance mechanism operating in the Province of Mendoza does not give rise to excessive salary deductions for legitimate strike action, and to send the text of any judicial decision in this respect. The Committee also asks the complainant to indicate the reason for withdrawing its claim of unconstitutionality regarding the classroom allowance.
   • (e) The Committee urges the Government to provide information as soon as possible on the steps taken to assess the need to provide protection for the SUTEBA general secretary, Mr Roberto Baradel, and on any corresponding measure.
   • (f) The Committee requests the Government to provide information on the situation of the UDA with regard to the request for the suspension of its official union status made by the Ministry of Labour of the Province of Buenos Aires.
   • (g) The Committee requests the Government to take appropriate steps to ensure that the right of trade unions to organize their activities is not obstructed, and that, in cases of strikes of long duration, any minimum service is subject to discussions with the trade unions concerned.