Rapport définitif - Rapport No. 332, Novembre 2003

Cas no 2263 (Argentine) - Date de la plainte: 29-AVR. -03 - Clos

Allegations: The complainant organization alleges that, ever since a negotiating committee was set up in the private teaching sector in 1999, the employers, in violation of the duty of good faith and the duty to make every effort, as laid down in legislation, have resorted to unfair practices (the refusal to attend meetings, delaying measures, the denial of the right of teachers to bargain collectively in the private teaching sector) in order to avoid negotiating a collective agreement in the private teaching sector. The complainant organization also alleges that, with regard to this situation, the Ministry of Labour has been unhelpful and has not acted in any way, ignoring its obligation to encourage and promote collective bargaining in accordance with Conventions Nos. 98 and 154 and has not penalized the employers in spite of their non-compliance with the legislation and in spite of trade union complaints

1. 284. The complaint is contained in a communication dated April 2003 from the Latin American Federation of Education and Culture Workers (FLATEC), on behalf of the Argentinian Trade Union of Private Tutors (SADOP). The Government sent its observations in communications dated 29 July and 10 September 2003.
2. 285. 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). It has also ratified the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 286. In its communication of April 2003, the Latin American Federation of Education and Culture Workers (FLATEC), on behalf of its affiliated organization the Argentinian Trade Union of Private Tutors (SADOP), alleges that this trade union represents more than 200,000 Argentinian private tutors. FLATEC alleges that, in spite of efforts made by SADOP to reach agreement on a collective agreement for work in the private teaching sector, the employers (business chambers) have systematically refused to make the necessary efforts and have even denied that private tutors have the right to bargain collectively. With regard to this situation, the Ministry of Labour has been unhelpful and has not acted in any way, thereby infringing legislation in force and Conventions Nos. 98 and 154, ratified by Argentina, which require the Government to encourage and promote collective bargaining.
2. 287. FLATEC explains that for four years now, and more specifically since 19 June 1999, SADOP has submitted a file for collective bargaining in the private teaching sector. After difficult discussions, the Ministry of Labour formed a negotiating committee in resolution No. 376/99 of 17 November 1999. In May 2000, SADOP laid a written complaint that the employers had repeatedly refused to consider trade union proposals; in July 2001, the employers stated that resolution No. 376/99 did not mention the establishment of a joint committee; on 2 August 2001, SADOP laid a complaint about the violation of the legal obligation of good faith and the legal obligation to make every effort to negotiate; in recent months, in 2002, the employers have denied that private tutors have the right to bargain collectively and have refused to attend the hearings called at the Ministry of Labour to proceed with the collective bargaining process (moreover, SADOP has stated in writing that the non-appearance by the employers constitutes unfair practice, which is punishable by a fine inasmuch as they refuse to participate in collective bargaining and are causing delays).
3. 288. According to the complainant organization, throughout this process the Ministry of Labour, instead of encouraging collective bargaining and punishing the employers, has done nothing but forward to the trade union organization the unlawful statements and actions of the employers.
4. B. The Government’s reply
5. 289. In its communications of 29 July and 10 September 2003, the Government states that the complaint is based on the hypothetical non-compliance of the Government with Conventions Nos. 98 and 154 for failing to encourage and promote collective bargaining in the negotiating committee set up under resolution No. 376/99 of the Ministry of Labour, Employment and Social Security of 17 November 1999 (the Government attaches a copy of the resolution to its response).
6. 290. The Government states, in this respect, that the Ministry of Labour has always worked to ensure that collective bargaining takes place, within its legal powers, taking into account the voluntary character of collective bargaining (the Government attaches a copy of the minutes of the meetings which had taken place on the initiative of the administrative authority). With regard to this subject, the Committee has stated that “collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining”, and indicates that “nothing in Article 4 of the Convention places a duty on the government to enforce collective bargaining by compulsory means with a given organization; such an intervention would clearly alter the nature of bargaining”.
7. 291. In the case in question, according to the Government, the administrative authority summoned the parties to start a process of collective bargaining, a process that it has always tried to encourage, providing the appropriate environment so that employers and workers might carry out voluntary collective bargaining. If, in such a process, one of the parties did not proceed with due good faith, which should prevail in all collective bargaining, it is not for the administrative authority to determine whether or not such an attitude existed or to impose penalties. On the contrary, the party that considers itself wronged has every right to resort to legal proceedings, and these proceedings will resolve the issue. If the State had intervened, this would have been contrary to the spirit and the letter of the international conventions and the declarations of the supervisory bodies of the ILO.
8. 292. Argentinian legislation treats this issue in Law No. 25250, article 14, and establishes the following:
9. 3. The parties are obliged to negotiate in good faith, which implies:
10. (a) Attendance at meetings fixed by common accord or by the bodies or third parties that convene them in the framework of proceedings to resolve disputes laid down in the previous article.
11. (b) The designation of negotiators with the appropriate mandate.
12. (c) The exchange of the information necessary to examine the issues under discussion in order to begin justified discussion and to obtain a fruitful and balanced agreement. In particular, the parties are obliged to exchange information relating to the distribution of the benefits of productivity and recent and future changes in employment.
13. (d) Making genuine efforts to reach agreements.
14. 4. In collective bargaining begun at the enterprise level, where the enterprise employs more than 40 workers, this exchange will extend to information relating to the following issues:
15. (a) the economic situation of the enterprise, the sector and the environment in which the enterprise performs;
16. (b) unit labour costs and absenteeism indicators;
17. (c) technological innovation and plans to realize this;
18. (d) the organization, duration and distribution of working hours;
19. (e) the occupational accident rate and prevention measures;
20. (f) plans for and action with regard to vocational training.
21. [...]
22. 7. Without prejudice to that which is laid down in articles 53-54 of Law No. 23551, the unwarranted refusal to bargain collectively in good faith, by the employers, the professional associations that represent them or trade union associations, with the trade union organization, the employer or the competent employers’ organization, or to provoke delays that obstruct the collective bargaining process, shall be considered unfair practice and contrary to the ethics of professional labour relations.
23. In such cases, the party affected by this non-compliance will be able to lodge a claim for unfair practices with the competent court, in extraordinary summary proceedings provided for in the Argentinian Civil and Commercial Procedural Code. The court shall rule that the behaviour which obstructs the duty to negotiate in good faith cease immediately and shall, moreover, impose a careful and reasoned penalty to the non-complying party of a fine of up to, but not exceeding, 20 per cent of the total monthly wage at the time of the occurrence, of those workers involved in the negotiations. If the party in breach of the law maintains its attitude (reoccurrence), more severe penalties shall be considered.
24. 293. The Government indicates that, in accordance with the legislation, the obligation to negotiate in good faith also exists in cases of procedures to prevent crises in enterprises and in bankruptcy proceedings, and for unfair practices there is also a similar legal procedure described with the possibility of penalties.
25. 294. The Government concludes by indicating that the complainant trade union should turn to the appropriate court and lodge a complaint of alleged bad faith with regard to collective negotiations by the other party, as it is the legal authorities, rather than the Ministry of Labour, that are responsible for resolving the issue. All this is in accordance with international standards and, therefore, the Government believes that the present case, in accordance with its previous statements, does not merit further examination.

C. The Committee’s conclusions

1. 295. The Committee notes that the complainant organization alleges that since the negotiating committee was established in the private teaching sector in 1999, the employers, in violation of the duty of good faith and the duty to make every effort, laid down in legislation, have resorted to unfair practices (the refusal to attend meetings, delaying measures, the denial of the right of teachers to bargain collectively in the private teaching sector) in order to avoid negotiating a collective agreement in the private teaching sector. The complainant organization also alleges that, with regard to this situation, the Ministry of Labour has been unhelpful and has not acted in any way, ignoring its obligation to encourage and promote collective bargaining in accordance with Conventions Nos. 98 and 154, and has not penalized the employers in spite of their non-compliance with the legislation and in spite of trade union appeals.
2. 296. The Committee notes that the Government highlights that: (1) the legal authorities, rather than the administrative authorities, are responsible for examining and possibly penalizing unfair practices, among which the legislation includes bad faith in collective bargaining and, more specifically, the non-attendance of the negotiating parties at meetings, the unwarranted refusal to negotiate in good faith or provoking delays; (2) the legislation provides for penalties equivalent to large fines; (3) the administrative authorities have summoned the parties to begin a collective bargaining process, encouraging this by providing them with an environment in which they can bargain collectively on a voluntary basis, according to the provisions of the ILO Conventions (the Government attaches to its response a copy of the minutes of the meetings which had taken place).
3. 297. In this respect, the Committee observes that the following emerges from the minutes of the meeting held between SADOP and representatives of the employers’ sector at the Ministry of Labour on 26 December 2002:
   • First, both parties confirmed their willingness and broad spirit of dialogue and agreement under the provisions of the rules concerning the procedure of negotiations adopted on 19 September 2002 in accordance with Decision S.S.R.L. No. 376/99.
   • Second, as agreed at the meeting of 18 December, the trade union representatives present a draft General Negotiating Agreement and hand a copy to the employers’ institutions who are present and who undertake to analyse it and express a formal opinion or make a counter-proposal in writing, at the meeting which is scheduled to this effect, on 7 February 2003, at 4.30 p.m., at the Ministry of Labour, Employment and Social Security.
4. 298. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relationships, and that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 814 and 815].
5. 299. In these circumstances, the Committee requests the Government to continue to make every effort so that the parties can conclude a collective agreement for the private teaching sector, pursuant to the agreement reached in December 2002.

The Committee's recommendations

1. 300. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to continue to make every effort so that the parties concerned can conclude a collective agreement for the private teaching sector, pursuant to the agreement reached in December 2002.