Rapport intérimaire - Rapport No. 57, 1961

Cas no 231 (Argentine) - Date de la plainte: 28-AVR. -60 - Clos

1. 97. The complaint of the I.F.C.T.U is contained in a communication dated 28 April 1960, which was followed up by two further communications dated 19 May and 29 June 1960. By a communication dated 4 June 1960 the International Federation of Christian Trade Unions of Salaried Employees, Technicians, Supervisors and Commercial Travellers informed the Director-General of their desire to support the complaint of the I.F.C.T.U. The Government submitted its observations on the various communications of the I.F.C.T.U in a letter dated 24 February 1961.
2. 98. 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. A. The complainants' allegations

1. 99. The complainants allege that on 1 December 1959 the Buenos Aires Bank Employees' Union (S.E.B.B.A) requested the Minister of Labour to grant it the status of an incorporated trade union (" trade union personality "); on the basis of a provision in Act No. 14455, the Minister rejected this request, on the grounds that the union had not been in existence for six months at the date of the application. Representations by the I.F.C.T.U requesting the Government to review its decision remained unanswered.
2. 100. In the meantime, on 11 January 1960, a dispute broke out at the National Bank as a consequence of the dispatch by the head office of a confidential circular (the text of which has been supplied by the complainants) forbidding employees to engage in any trade union activity, and a subsequent interview with the trade union officials of the Boedo branch to notify them of this order and announce possible disciplinary penalties.
3. 101. Representatives of the S.E.B.B.A thereupon presented themselves on 19 February at the Directorate-General of Labour Relations, the competent authority, with the request that a conciliation meeting be convened. This authority, it is alleged, after having verbally stated that it could not reply favourably to this request on account of the fact that the S.E.B.B.A did not possess " trade union personality ", allowed the normal waiting period to elapse without taking any action. An appeal to the Minister of Labour also remained without effect.
4. 102. On 24 March 1960 the S.E.B.B.A brought a lawsuit against the National Bank and the Minister of Labour for violation of the new article 14 of the National Constitution concerning the right of workers to organise freely and democratically in trade unions and asked the Government to act in accordance with Act No. 14932, which ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). On 2 April 1960 the labour judge, after verifying the facts alleged at the National Bank, sent letters to the Chairman of the Bank and to the Minister of Labour to inquire into the reasons for these infringements of trade union freedom. Three hours after the judge's visit to the National Bank, the Bank authorities are said to have decided to post the General Secretary of the S.E.B.B.A local, Mr. Raúl Ignacio Robaccio, to a branch situated 670 kilometres away from Buenos Aires, and at the same time initiated an administrative charge against him designed to convert this posting into an outright dismissal.
5. 103. The S.E.B.B.A then applied to the judge for an injunction to prevent any modification in the situation until judgment had been given. Although the judge granted this injunction, the complainants allege that the Bank refused to comply with it, despite a further sentence by the same judge against the Chairman of the Bank for refusal and contempt of court. The authorities of the National Bank having appealed against the labour judge's decision, the court of appeal on 19 April 1960 affirmed the interlocutory injunction granted by the judge. The National Bank is said to have likewise declined to comply with this decree.
6. 104. In its reply the Government states that the S.E.B.B.A is registered with the General Directorate of Occupational Associations of the Ministry of Labour and Social Security as a first-degree organisation. This registration was granted on application in accordance with the legislation in force, in view of the fact that the organisation in question complied with the requirements of section 22 of the Occupational Associations Act (No. 14455).
7. 105. Subsequently the S.E.B.B.A applied for recognition as a trade union; this request could not be complied with because the union did not fulfil the requirement laid down in section 18 (3) of Act No. 14455, viz. a union must have been in operation for more than six months.
8. 106. The Government adds that section 15 (3) of Act No. 14455 states that " occupational associations on registration in accordance with section 35 of the present Act shall be entitled to defend and represent the interests of the occupation concerned in dealings with the State and with employers whenever there is no organisation in the same occupation which has been recognised as the most representative body ". In banking, declares the Government, there already exists an organisation which enjoys such a status, to wit the Association of Bank Employees.
9. 107. In another case relating to Argentina (the Government now refers, incidentally, to the observations it made at that time) the Committee examined in great detail the numerous consequences of distinctions made under the Act in question between organisations with trade union status and those which did not have it.
10. 108. After a thorough study of the Act the Committee at that time expressed the opinion that the independence of occupational organisations in relation to the public authorities might be compromised if the legislator or the executive power could effect a discrimination between the various organisations concerned which was not based on objective criteria, and even more so where the consequences of the distinction between the different organisations were to reserve to certain organisations a monopoly both in respect of the determination of conditions of employment (collective bargaining, etc.) and in respect of the representation and defence of the interests of the workers in relation to the public authorities.
11. 109. The Committee also observed that from the strictly trade union point of view the role assigned to organisations which did not enjoy trade union status was extremely limited, and it recalled in this connection the definition contained in Article 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)-since ratified by Argentina-to the effect that the term " organisation " means " any organisation of workers or of employers for furthering and defending the interests of workers or of employers ".
12. 110. In view of the fact that the distinction made by the Act between organisations enjoying trade union status and ordinary organisations resulted in the latter's being unable to defend occupational interests and conclude collective agreements, the Committee concluded that organisations which did not have trade union status did not have the right to organise in freedom their administration and activities and to formulate their programmes. " Further," declared the Committee, " in view of the limited functions which are assigned to these organisations, it may be wondered whether the distinction does not infringe the generally recognised principle that workers shall have the right to establish and join organisations of their own choosing-a principle which is embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)."
13. 111. In view of the fact that the situation does not appear to have changed since the conclusions referred to above were reached, and that Argentina has in the meantime 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), the Committee recommends the Governing Body once again to draw the attention of the Government to the fact that the privileged position accorded to associations enjoying trade union status limits considerably the field of action of organisations which do not have this status, and may indirectly operate against the freedom of workers to belong to organisations of their own choosing, and to the desirability of considering the possibility of abolishing the distinction made under the Act between associations with trade union status and other occupational organisations.
14. 112. As regards the allegation to the effect that the management of the National Bank has taken steps to prevent its employees from engaging in any form of trade union activity (see paragraph 100 above) the Government recalls first of all that the employees of the National Bank, the official bank of Argentina, have the status of public servants. It adds that the measure taken by the management of the Bank was in accordance with Ministerial Order No. 112/59 dated 24 March 1959, which was itself adopted to deal with an exceptional situation which threatened to disrupt banking operations, which are of vital importance and a stoppage in which could paralyse the country's economic life.
15. 113. In these circumstances, declares the Government, there could be no question of allowing the employees of the National Bank, as public servants, under the pretext that they were taking part in their trade union activities during the hours when the Bank was open to the public, to bring the whole of the Government's banking activities to a halt with resulting disruption of the national economy. " Accordingly," concludes the Government, " it was essential to insist that all trade union activities should take place outside bank opening hours in order not to obstruct the essential operations of the state banking system."
16. 114. The Ministerial Order referred to in paragraph 112 above, the text of which is supplied by the Government, is couched in the following terms on the subject: " Employees' delegates, members of internal committees or workers with similar representative functions, while entitled to perform their union duties, should do so in a manner compatible with the effective carrying out of their obligations as employees; this is so because they have the status of active employees; for this reason any attitude designed to prevent or hinder in any way the proper and efficient giving of their services by disrupting the normal course of activities in banking and insurance establishments is out of place; ... in the branch of activity in question, in view of the peculiarities thereof, employees' delegates, members of internal committees or workers with similar functions of a trade union nature should carry on their trade union activities outside working hours."
17. 115. The explanations given by the Government and the texts that it has submitted in support of the same reveal that, contrary to the assertions of the complainants, the measures taken by the management of the National Bank do not prohibit employees absolutely from engaging in any form of trade union activity, but simply limit such activity to the time outside working hours.
18. 116. It appears that such limitation cannot be considered as an infringement of the exercise of trade union rights, since Article 1 (2) (b) of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), states unequivocally that employers, while they may agree to trade union activities being carried on during working hours, are not obliged to do so. The Convention puts it in this way: there should not be prejudice against a worker because of " participation in union activities outside working hours or, with the consent of the employer, within working hours ".
19. 117. In these conditions the Committee recommends the Governing Body to decide that this particular aspect of the case does not call for further examination.
20. 118. Answering the complainants' allegations concerning the transfer of the General Secretary of their organisation, which according to them constituted an anti-union discriminatory measure, the Government affirms that on the contrary it was a normal posting which took place under civil service regulations.
21. 119. While bearing in mind that the evidence available is not sufficient to enable it to determine the real reasons behind the transfer in question, the Committee considers that, since this posting was decided upon at a time when a dispute was in progress between the employers and the organisation of which the person in question was General Secretary, the complainants had some cause for supposing that there was a connection between the posting and the trade union position occupied by this man.
22. 120. In these circumstances, while considering that the contradictory information before it in this instance does not allow it to determine whether further examination by the Governing Body would serve any useful purpose, the Committee wishes to emphasise, as it has done on several previous occasions, that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment-dismissal, transfer or other prejudicial measures -and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee also wishes to point out that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure respect for the fundamental principle that workers' organisations should have the right to elect their representatives freely.
23. 121. In consequence the Committee recommends the Governing Body to draw the attention of the Government to the importance which it attaches to the principles mentioned above, which are embodied in 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), both ratified by Argentina.
24. 122. There remains one point put forward by the complainants concerning which the Government has refrained from submitting observations: the allegations that two injunctions granted in a court of first instance and confirmed by the court of appeal instructing the management of the Bank not to modify the situation with regard to the General Secretary of the complaining organisation were ignored by the said management.
25. 123. The Committee has adjourned its examination of this particular aspect of the case pending receipt of the Government's observations thereon, and recommends the Governing Body to request the Government to submit these observations.

The Committee's recommendations

1. 124. As regards the case as a whole the Committee recommends the Governing Body:
   • (a) to decide, for the reasons indicated in paragraphs 112 to 117 above, that the allegations concerning the prohibition of National Bank employees from engaging in trade union activities do not call for further examination;
   • (b) to draw the attention of the Government to the fact that the privileged position accorded to associations enjoying trade union status limits considerably the field of action of organisations which do not have this status, and may indirectly operate against the freedom of workers to belong to organisations of their own choosing, and to the desirability of considering the possibility of abolishing the distinction made under the Act between associations with trade union status and other occupational organisations;
   • (c) to draw the attention of the Government to the importance attached by the Governing Body to the principle whereby workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment-dismissal, transfer or other prejudicial measures-and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions;
   • (d) to draw the attention of the Government to the fact that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure respect for the fundamental principle that workers' organisations should have the right to elect their representatives freely;
   • (e) to request the Government to submit its observations in respect of the allegations to the effect that the management of the National Bank did not comply with the injunctions granted by the labour judge and subsequently affirmed by the court of appeal relating to the situation of the General Secretary of the complaining organisation;
   • (f) to take note of the present interim report in respect of this last allegation, it being understood that the Committee will report further thereon as soon as it is in possession of the information requested from the Government in accordance with subparagraph (e) above.