Rapport définitif - Rapport No. 106, 1968

Cas no 541 (Argentine) - Date de la plainte: 31-OCT. -67 - Clos

1. 7. The complaint from the United Unions of Workers in the State Oil Industry is contained in a communication dated 31 October 1967 and sent directly to the I.L.O. The communication was referred to the Government, which furnished its observations through the Permanent Mission of the Argentine Republic accredited to the international organisations at Geneva on 3 April 1968.
2. 8. 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

• Allegations relating to Violation of the Right to Bargain Collectively
  9. 9 The subject of the complaint is Act No. 17371 (1967), by means of which the Government has regulated work on board national ships and a copy of which has been supplied by the complainants. Its various clauses relate to recruitment of seamen, the master's authority, the manning of ships, the working day and holidays and the system of work on board, and they also amend various sections of the Commercial Code relating to contracts of employment at sea. Since the Act has been declared to be a matter of public interest, it revokes all the previous laws, agreements and regulations which are inconsistent with it.
  10. 10 According to the message with which the proposed Act was submitted for the signature of the President of the Republic, the new legislation was motivated by the fact that the present regulation of work on board national ships had not only lost its relevance to modern conditions in view of recent developments of science and technology but also had various shortcomings which considerably increased the cost of operating merchant ships. The complainants' reply to this is that they are in favour of any measure that might be taken to improve the shipping industry, provided that the parties directly concerned can participate in the adoption of such measures. In this instance, however, this has not occurred, since the Government has unilaterally laid down a system of work on board ship which is damaging to the rights acquired by workers through collective bargaining. The various provisions of the Act are analysed in the complaint and reference is made to the points in regard to which they are considered to violate both International Labour Conventions concerning work on board ship and collective agreements. In addition, one of the clauses in the Act lays down that agreements between the parties concerned whereby changes are made in the manning of a ship shall not be valid. The complainants consider that the Government has violated Convention No. 87, Article 4 of Convention No. 98, and national legislation concerning trade unions and collective bargaining. Lastly, they add that it is acceptable and even advisable that certain aspects of national labour legislation should be brought up to date, but that this does not justify action which is prejudicial to the labour benefits acquired by seamen.
  11. 11 The Government, in its reply, refers to certain of the considerations mentioned by the complainants as regards the content of Act No. 17371. It outlines the supposed defects in the recruitment system in force before the Act was adopted, as well as the over-manning of ships which the trade union organisations had imposed. As regards the allegations that the Government had disregarded the provisions of collective agreements and infringed Convention No. 98, the Government points out that it is fully aware of the obligations arising from ratification of that Convention, and had taken them into consideration, together with the higher interests of the country, in adopting the Act. Its respect for Convention No. 98 had been amply demonstrated by its promulgation of Act No. 17494 of 1967 (respecting the labour system in state undertakings), which provides for the introduction of methods and systems of rationalisation in consultation with the unions. As a result of that Act, the interested organisations play a direct part in rationalising state undertakings, and it was the United Unions of Workers in the State Oil Industry which signed the first rationalisation agreement provided for under the Act. The Government also refers to the temporary nature of Act No. 17371, which will remain in force until the General Shipping Act, a draft of which has already been prepared, is promulgated.

B. B. The Committee's conclusions

1. 12. The Committee observes that the complainants state that the Act runs counter to various international standards relating to the work of seafarers, and that they criticise a series of changes made in the labour system in force for seafarers. They allege, in addition, that in promulgating Act No. 17371 the Government has infringed the right to voluntary collective bargaining laid down in Convention No. 98. The Committee feels that it is not called upon to consider amendments made in national labour legislation unless they affect the exercise of trade union rights, but it is prepared, on the other hand, to examine the manner in which such amendments are imposed, taking into account in this instance the fact that the complainants state that the Government failed to consult the trade union organisations and overlooked the standards laid down in collective agreements. As regards the new provisions which concern the exercise of trade union rights, the Committee observes that section 7 of Act No. 17371 lays down that agreements concluded between the parties concerned which alter the manning of ships shall not be valid.
2. 13. The action taken by the Argentine Government raises questions which have to be considered in the light of Article 4 of Convention No. 98, ratified by Argentina, according to which " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ". In this respect the Committee has in previous cases pointed out the importance it attaches to the fact that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and to the principle that the public authorities should refrain from any interference which might restrict the trade unions' right to seek, through collective bargaining or other lawful means, to improve the living and working conditions of those whom the trade unions represent, or impede the lawful exercise of this right.
3. 14. In certain cases a the Committee has had to express its views on matters similar to those raised in this case, in examining legislation under which prior approval is required before collective agreements can take effect, the government being given the power to amend such agreements or refuse them its approval for reasons of economic policy. The Committee considers that such provisions are contrary to the principle of free bargaining provided for in Convention No. 98.
4. 15. The present case does not concern prior approval of a collective agreement, but the legislation has gone further by amending agreements which had already been in force for some time. In addition, the legislation also prohibits collective agreements concerning the manning of ships from being concluded in the future, as indicated in paragraph 12 above.
5. 16. The Committee has admitted certain exceptions to the general rule concerning interference by the authorities in collective bargaining. It has considered that in certain circumstances governments might feel that the situation in the country called for stabilising measures, and it has therefore accepted that during the application of such measures it would not be possible for wage rates to be fixed freely through the medium of collective bargaining.
6. 17. In this connection the Committee observes that Act No. 17371 is only in force temporarily until the General Shipping Act is promulgated. Furthermore, it would appear that the latter of these Acts will cover some of the matters dealt with in Act No. 17371, according to section 36 thereof. Hence in this case what is involved is not the mere suspension of particular clauses of a collective agreement, but a new method of regulation of these matters, by legislative action.
7. 18. Lastly, the Committee observes that, after the events described, the Government enacted Act No. 17494, providing for the introduction of methods and systems of rationalisation of state undertakings in consultation with the trade unions. According to the Government, the United Unions of Workers in the State Oil Industry concluded the first collective agreement on rationalisation within the framework of this Act.

The Committee's recommendations

1. 19. In these circumstances the Committee recommends the Governing Body:
   • (a) to draw the Government's attention to Article 4 of Convention No. 98, and to the principle that the public authorities should refrain from any interference which might restrict the unions' right to seek, through collective bargaining or other lawful means, to improve the living and working conditions of those whom the trade unions represent, or which might impede the lawful exercise of this right;
   • (b) to remind the Government of the importance it attaches to the principles contained in the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), according to which the authorities should seek the views, advice and assistance of the employers' and workers' organisations in an appropriate manner in respect of the preparation and implementation of laws and regulations affecting their interests;
   • (c) to take due note of the fact that, after the events alleged, the Government promulgated Act No. 17494, which has enabled the complainants to negotiate a rationalisation agreement with the appropriate state undertaking.