Rapport définitif - Rapport No. 286, Mars 1993

Cas no 1551 (Argentine) - Date de la plainte: 20-SEPT.-90 - Clos

1. 47. The Committee examined this case at its meeting of November 1991 when it presented an interim report to the Governing Body (see 279th Report of the Committee, paras. 665-679, approved by the Governing Body at its 251st Session (November 1991)).
2. 48. Subsequently, the Government sent its observations in communications dated 14 February and 30 December 1992. In the first communication, it pointed out that the complainant organization had not given sufficient details for it to be able to reply to the allegations pending concerning anti-trade union dismissals. The Office transmitted this communication to the complainant organization on 18 March 1992, but no reply has been received to date.
3. 49. Argentina has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 50. When the Committee examined this case at its meeting of November 1991, the pending allegations concerned legislative provisions that allegedly violated Conventions Nos. 87 and 98; excessive delays and red tape in the processing of union registration and to the granting of recognition, or refusal to do so, and the anti-trade union dismissals of the trade union leaders of associations of supervisory staff. In particular, the complainant organization challenged the following provisions of Act No. 23551 respecting trade union associations dated 14 April 1988 and its regulatory Decree No. 467/88: sections 28 of the Act and 21 of the Regulations (number of dues-paying members required for an association that has not been granted recognition to take the place of an association covering the same area which has already been granted recognition), section 29 (prerequisites for an enterprise-level union to obtain the same recognition as unions covering a particular occupation, profession or category) and sections of the Act which grant exclusive rights to recognized organizations (representation of collective interests, collective bargaining, administration of social welfare activities, deductions from pay of trade union dues, tax exemption and trade union impunity for the representatives, etc.).
2. 51. The Committee made the following recommendations (see 279th Report, para. 679):
   • - The Committee notes with satisfaction the Government's decision, communicated to an ILO expert mission which visited Argentina in August 1991, to draw up as soon as possible, with ILO cooperation, draft amendments for submission to Congress so as to bring the legislation on trade union associations fully into line with the principles of freedom of association laid down in international labour standards. The Committee observes that the proposed new system in respect of trade union associations deals with the problem of supervisory staff associations. The Committee requests the Government to inform it of the reforms under way and trusts that in the near future it will be able to note major progress on the matters raised in the complaint and that, in the more immediate future, the Government will take measures to accelerate the processing of applications for trade union registration or the granting of recognition to trade union associations.
   • - Lastly, the Committee requests the Government to send its observations on the allegations concerning the dismissal of trade union leaders of associations of supervisory staff.

B. The Government's reply

1. 52. In its communication of 14 February 1992, the Government stated that a priority objective was the search for faster procedures to facilitate the simple inscription and granting of legal recognition of trade unions covering a particular occupation, profession, category or enterprise. The Government announced that a Bill to amend the Act respecting trade union associations would be submitted to Congress, the drafting of which would include participation by an ILO expert mission.
2. 53. Concerning the allegations of dismissals of trade union officials of supervisory staff associations, the Government adds that, in order to reply, it needed the names of the enterprises in which these officials worked and the details of the administrative denunciations procedure followed in respect of these dismissals (which furthermore could be challenged in the courts).
3. 54. In its communication of 30 December 1992, the Government transmits the Bill amending Act No. 23551 respecting trade union associations submitted to the National Congress, which was prepared with the assistance of ILO experts. The Government adds that this Bill marks a significant step forward in the situation of the supervisory staff associations and encloses the following extract from the introductory part of the Bill:
   • Section 30 of the trade union law in force establishes stricter conditions for the granting of recognition to unions covering a particular occupation, profession or category than those applicable to general unions. For these unions to obtain recognition, differentiated trade union interests must exist which justify the granting of such recognition, which in practice makes it difficult to establish horizontal trade unions. A criterion which is consonant with the principle of freedom of association leads us to conclude that this requirement is excessive when workers have freely decided that this is the type of union which is most suitable to their needs, and these reasons were taken into account in the Bill to derogate section 30. With this amendment the trade unions covering a particular occupation, profession or category will be able to enjoy freely trade union recognition.
4. 55. Finally, believing that the differences which might exist with the complainant organization have now been settled, the Government requests that this case should be now closed.

C. The Committee's conclusions

1. 56. The Committee notes that the complainant organization has not provided the information required by the Government to be able to reply to the allegations concerning the dismissal of trade union officials of supervisory staff associations (names of the enterprises in which they worked, details of the administrative denunication procedure followed, etc.), although the Office wrote to the complaining organization on 18 March 1992. In these circumstances, in view of the time which has elapsed, the Committee believes that these allegations require no further examination.
2. 57. As regards the allegations concerning the excessive delays and red tape in the processing of union registration and the granting of recognition, or refusal to do so, and the legislative provisions which allegedly violate Conventions Nos. 87 and 98, the Committee notes that a Bill has been presented to the National Congress to amend the Act respecting trade union associations and that it is a priority objective of the Government to establish faster procedures to facilitate trade union registration and the granting of most representative status to trade unions covering a particular occupation, profession or category, such as those represented by the complainant organization.
3. 58. In this respect, the Committee notes with interest that the Bill proposes the repeal or amendment of sections challenged by the complainant organization. Thus section 2 of the Bill provides for the repeal of section 30 of the Act respecting trade union associations (which set excessive conditions for the granting of most representative status to trade unions covering a particular occupation, profession or category), and section 1 amends section 28 of the Act (which stipulated that an organization not having the most representative status, in order to challenge the recognition granted to another association, had to have a "considerably higher" number of members). The Bill amends section 38 (which allowed only associations which had been granted recognition, but not those which were simply registered, to deduct trade union dues from pay) and section 39 (which exempted only associations with legal recognition, but not those which were simply registered, from taxes and levies).
4. 59. Despite these substantial improvements, the Committee observes that the Bill respecting trade union associations has not amended the excessive provisions in legislation for enterprise-level trade unions to obtain legal recognition (section 29 of the Act which provides that, in the same jurisdiction, there may be no other union operating in the area of activity or category covered). Furthermore, the Bill did not amend the provisions which grant privileges to trade union associations "with legal recognition" (in other words, the most representative associations which are allowed to bargain collectively) as regards the designation of staff representatives and internal commissions (sections 40 and 41(a)(ii) of the Act), and as regards trade union immunity ("fuero sindical") (sections 48 and 52 of the Act which grant facilities to trade union leaders, and require judicial authorization for their dismissal or other prejudicial measures to which they may be subjected). The Committee trusts that the National Congress will take into account these comments, as well as those of the Committee of Experts on the Application of Conventions and Recommendations (see Report III (Part IVA), 1991, examination of Argentina's application of Convention No. 87), when it adopts the amendments to the Act respecting trade union associations and requests the Government to communicate them to the National Congress with a view to bringing the provisions of legislation fully into line with Conventions Nos. 87 and 98.

The Committee's recommendations

1. 60. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While noting with interest that major improvements have been brought through the Bill amending the Act on trade union associations, the Committee asks the Government to transmit to the National Congress its conclusions on certain omissions in the Bill which leave in force provisions of the Act regarding trade union associations which violate Conventions Nos. 87 and 98, as mentioned in the preceding paragraph.
   • (b) The Committee trusts that the National Congress will take its comments into account as well as those of the Committee of Experts and asks the Government to communicate them to the National Congress with a view to bringing the legislation fully into line with Conventions Nos. 87 and 98.