Rapport définitif - Rapport No. 327, Mars 2002

Cas no 2095 (Argentine) - Date de la plainte: 16-AOÛT -00 - Clos

Allegations: Breach of a collective agreement; obligation to renegotiate collective agreements

1. 162. The Committee last examined this case at its November 2001 meeting [see 326th Report, paras. 181-195].
2. 163. 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. Previous examination of the case

1. 164. When the Committee examined this case at its November 2001 meeting, there remained pending allegations presented by the Aviation Technicians’ Association of the Argentine Republic (APTA) challenging Ministry of Labour Resolution No. 30/2001, promulgated under sections 95 ff. of the Employment Act, No. 24013, ordering the APTA to renegotiate the content of collective agreements governing the employment relationship between its members and the enterprises Aerolíneas Argentinas S.A. and Austral Líneas Aéreas-Cielos del Sur S.A. According to the APTA, it is being obliged to renegotiate an administrative programme to prevent unemployment in the sector, the impact of production restructuring on conditions of work and employment, and vocational retraining and reintegration measures for the workers affected. On that occasion the Committee had noted that the Government had sent its observations in a communication dated 15 October 2001 and proposed to examine these allegations at its next meeting [see 326th Report, para. 195].

B. The Government’s reply

1. 165. In its communication dated 15 October 2001, the Government states that Act No. 24013 of 17 December 1991, pursuant to which Resolution ST No. 30/2001 was adopted, allows the Ministry of Labour – at the request of the parties concerned or on its own initiative – to declare production restructuring in enterprises that are affected or are likely to be affected by significant reductions in employment, convening the social partners to collective bargaining in the negotiating committee of the branch collective agreement (section 95 of the Act). Specifically, the Act provides for negotiation on the following issues: administrative programmes to prevent unemployment in the sector; impact of production restructuring on conditions of work and employment; and measures for vocational retraining and reintegration of the workers likely to be affected. This legislation dates back to December 1991, has been applied on a number of occasions and has never been challenged in any way.
2. 166. The Government adds that Aerolíneas Argentinas is a private enterprise in the aviation sector numbering approximately 6,500 employees. It is a well-known fact that airlines throughout the world are in the midst of a crisis and many of them have drastically cut back their staff. In the case of Aerolíneas Argentinas S.A. certain frequencies and routes have been cut and substantial staff cutbacks are envisaged. In view of the imminence of the crisis invoked by the enterprise, which will prevent it from continuing to operate with present staff levels, and lay-offs having already begun in the sector, the Ministry of Labour carried out all the procedures legally within its power to reverse the lay-offs that had occurred and preserve employment in the enterprise.
3. 167. The Government states that the Ministry of Labour did not suspend or repeal by decree the agreement between the parties, neither did it terminate contracts that had already been negotiated, nor did it cancel collective agreements or oblige the parties to renegotiate them; on the contrary, the procedure challenged by the complainant was aimed at providing a framework for and promoting collective bargaining in situations that were undeniably critical in order to avoid unilateral solutions that would be detrimental to jobs; in no case was the free will of the parties impaired or coerced. If the parties fail to reach an agreement, the points at issue are not settled through compulsory arbitration by the labour authority. This is evidenced by the fact that the framework agreement appended to Resolution ST No. 30/2001 (which sought to ensure stability of at least two years for the workers of the enterprises concerned) has not been signed by two of the seven unions in the branch and therefore did not enter into force, and hence the applicable collective agreements have remained in force and no new agreements or new amendments of existing agreements have been negotiated to date.
4. 168. The Government explains that intervention by the administrative authority in cases such as the present one is aimed solely at creating an enabling environment for bargaining when employment in a given sector is likely to be affected by extraordinary circumstances such as restructuring and crisis situations. The Government further emphasizes that this procedure does not suspend or rescind collective agreements that are in force; on the contrary, the free will of the parties is fully exercised in reaching solutions by consensus that seek to avoid the scourge of unemployment. It is not even a matter of renegotiating existing agreements. The procedure laid down in Act No. 24013 does not go to these extremes, since, as pointed out above, it is aimed at providing a framework for collective bargaining in situations likely to have a serious impact on employment, but neither suspends nor rescinds collective agreements in force. It cannot, by any description, be viewed as infringing freedom of association and/or the right to collective bargaining.
5. 169. Lastly, the Government points out that the SEPI (majority shareholder of the enterprises at the time the complaint was presented) transferred its shares on 11 October 2001 to the Air Comet group, which stated its intention to maintain stability for all employees for at least two years, guarantee the operating capacity of the enterprise and restore the routes and frequencies that had been cut.

C. The Committee's conclusions

1. 170. The Committee observes that when it examined this case at its November 2001 meeting, there remained pending allegations presented by the Aviation Technicians’ Association of the Argentine Republic (APTA) challenging Ministry of Labour Resolution No. 30/2001 adopted under sections 95 ff. of the Employment Act, No. 24013, ordering the APTA to renegotiate the content of collective agreements governing the employment relationship between its members and the enterprises Aerolíneas Argentinas S.A. and Austral Líneas Aéreas-Cielos del Sur S.A. According to the APTA, the association was obliged to renegotiate an administrative programme to prevent unemployment in the sector, the impact of production restructuring on conditions of work and employment, and vocational retraining and reintegration measures for the workers affected.
2. 171. The Committee notes that the Government states that: (1) Act No. 24013 allows the Ministry of Labour to declare production restructuring in enterprises that are affected or are likely to be affected by significant reductions in employment, convening the social partners to collective bargaining in the framework of the negotiating committee of the branch collective agreement. Specifically, provision is made for negotiation on administrative programmes to prevent unemployment in the sector; the impact of restructuring on conditions of work and employment; and measures for vocational retraining and reintegration of the workforce likely to be affected; (2) Aerolíneas Argentinas is a private enterprise in the aviation sector numbering approximately 6,500 employees, and it is a well-known fact that airlines throughout the world are in the midst of a crisis. In view of the imminence of the crisis invoked by the enterprise, and lay-offs having already begun in the sector, the Ministry of Labour carried out all the procedures aimed at reversing the lay-offs that had occurred and preserving employment in the enterprise; (3) the Ministry of Labour did not suspend or repeal by decree either agreements between the parties or collective agreements; rather the procedure was aimed at providing a framework for and promoting collective bargaining in situations that were undeniably critical in order to avoid unilateral solutions; the framework agreement appended to Resolution ST No. 30/2001 was not signed by two of the seven unions in the sector and hence did not enter into force; and therefore the applicable collective agreements remained in force and no new agreements have been negotiated to date; and (4) the SEPI, the majority shareholder of the enterprises at the time the complaint was presented, transferred its shares on 11 October 2001 to the Air Comet group, which expressed its intention to maintain stability of all employees for at least two years, guarantee the operating capacity of the enterprise and restore the routes and frequencies that had been cut.
3. 172. In these circumstances, the Committee hopes the relations between the complainant and the Air Comet group will be constructive. Moreover, it considers that Act No. 24013 and Resolution ST No. 30/2001 establish consultation machinery to achieve solutions by consensus to crisis situations and do not oblige the parties to renegotiate the terms of collective agreements. Therefore the Committee will not continue its examination of these allegations.

The Committee's recommendations

1. 173. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.