Rapport intérimaire - Rapport No. 338, Novembre 2005

Cas no 2377 (Argentine) - Date de la plainte: 01-JUIL.-04 - Clos

Allegations: The complainants allege violations of the right to collective bargaining and to strike of education workers in the public sector of the Province of Buenos Aires

385. These complaints are contained in a communication from the Confederation of Education Workers of the Republic of Argentina (CTERA) and the Single Trade Union of Education Workers of the Province of Buenos Aires (SUTEBA) dated 1 July 2004, and a communication from the Confederation of Argentine Educators (CEA), the Domingo Faustino Sarmiento Federation of Educators of Buenos Aires (FEB) of 6 December 2004. The CTERA and the SUTEBA forwarded additional information in communications dated 15 October and 4 December 2004. Education International (EI) supported the complaint in a communication dated 18 January 2005. The CTERA, the SUTEBA, the CEA and the FEB submitted further allegations in the communication dated 7 July 2005.

1. 386. The Government sent its observations in communications dated 14 January, 2 May and October 2005.
2. 387. 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. The complainants’ allegations

1. 388. In their communications of 1 July and 15 October 2004, the Confederation of Education Workers of the Republic of Argentina (CTERA) and the Single Trade Union of Education Workers of the Province of Buenos Aires (SUTEBA) state their objection to resolution No. 1509 of 16 June 2004 by the Labour Undersecretariat of the Province of Buenos Aires summoning the complainant organizations to mandatory conciliation, and resolution No. 166 by the Ministry of Labour of the Nation requiring compliance with the aforementioned provincial-level resolution. (It may be noted that these resolutions have already been challenged by other trade union organizations in Argentina in the context of another case examined by the Committee.)
2. 389. In addition, the CTERA and the SUTEBA state their objection to decree No. 843/00 issued by the National Executive regarding strikes in essential services and, specifically, article 2 on the power of the Ministry of Labour to classify as an essential service an activity that is not included in the listing in the law and the possibility that it may, in the absence of agreement between the parties, impose a final decision regarding the establishment of a minimum service (the complainant organizations state that the decree remains in force following the promulgation of Act No. 25877).
3. 390. In communications of 4 and 6 December respectively, the CTERA, the SUTEBA, the Confederation of Argentinian Educators (CEA), and the Domingo Faustino Sarmiento Federation of Educators of Buenos Aires (FEB) state that, following successive demands for wage increases, the decision was taken to announce strikes for 2 and 3 December 2004. The complainants relate that, on 30 November 2004, the FEB and the SUTEBA – together constituting the Frente Gremial Docente – were summoned to the Seat of Government of the Province of Buenos Aires where officials of the Ministry of the Economy and of the Ministry of Education sought to explain that no financial proposal could be offered because the Province of Buenos Aires had not yet drawn up its budget for 2005, and that the necessary negotiations with the national Government had yet to be completed. No proposal was put forward to serve as the basis for discussions to find a means of settling the dispute or suspending direct action. The complainants allege that, in response to their confirmation of the announced direct action, the Ministry of Labour of the Province of Buenos Aires issued resolution No. 4273/04 summoning them to participate in mandatory conciliation. The complainants state that they contested the resolution and challenged the competence of the administrative authority to order mandatory conciliation; this new disagreement thus became an integral part of the dispute. Lastly, the complainants allege that the government of the Province of Buenos Aires has taken no steps to guarantee the right of collective bargaining of education workers in the public sector.
4. 391. In their communication of 7 July 2005, the CTERA, the SETEBA, the CEA and the FEB state that, in 2005, education workers in the Province of Buenos Aires continued, through direct action measures (which are lawful since they were never declared illegal), to demand the incorporation of sums of money over and above their remuneration but which would not be part of the basic wage and would not therefore be subject to payment of any additional contribution to the security system. The complainants further requested a wage review and improvements in hygiene and safety conditions. However, the State, as employer, has not responded to their demands and has shown no desire to negotiate. The complainants allege, furthermore, that the authorities of the Ministry of Labour of the Province of Buenos Aires have informed the education workers of the decision to dismiss them if they exercise their right to strike for more than three days. The complainants further state that, to date, no measures have been taken to guarantee the right of collective bargaining of education workers.
5. B. The Government’s reply
6. 392. In its communication of 14 January 2005, the Government states, in reference to the complaints submitted by the CTERA and the SUTEBA objecting to resolutions Nos. 1509 and 166, that the dispute which gave rise to the complaints was settled when the trade union bodies accepted the wage proposal made by the executive of the Province of Buenos Aires, dated 6 July 2004. Nonetheless, the Government responds to the allegations regarding the existence and application of mandatory conciliation in this particular case to the effect that the involvement of a “conciliation body” allows the administrative authority to mediate between conflicting interests and positions, thereby contributing to finding a peaceful settlement to the dispute, with the key contribution being made by the parties concerned. Conciliation provides an opportunity for independent settlement and rapprochement whereby the parties themselves act autonomously by offering reciprocal concessions to arrive at an agreement which, in principle, resolves any fundamental differences.
7. 393. The Government adds that resolution No. 1509/04, which the complainants maintain to be a violation of freedom of association, in fact examined the nature of the activity relating to the dispute, which it classified as a “collective dispute” and, on this basis, ordered mandatory conciliation which applies the principles of promptness and due process, in keeping with the procedure embodied in Act 10149, Chapter III. The Under-Secretariat of the Ministry of Labour of the Province of Buenos Aires, adhering to the provisions of Act 10149, article 20, and given the absence of any settlement of the dispute that had arisen between the provincial executive and its employees, and acting within its sphere of competence, decided that the dispute should go to mandatory conciliation in order to reach consensus and arrive at a peaceful solution. The involvement of the Undersecretariat continued for the 15-day period provided for in article 28 of this Act. During that period, the parties were not permitted to engage in direct action which, under the law, are new measures that need to be taken in view of the situation that existed before the dispute (article 29 of Act No. 10149).
8. 394. The mandatory conciliation procedure is not a definitive measure, and is not binding, and the merits of the matter are not examined; as previously outlined, it simply constitutes a channel of negotiation during the course of which social peace may temporarily prevail. In other words, the trade union bodies were bound only in the sense that they were required to enter into the conciliation procedure (which, as stated, was of extremely short duration), but they were not obliged to agree to any solution. As stated, conciliation lasts for a pre-established maximum period of 15 days, after which the parties are free to proceed in the manner they deem appropriate.
9. 395. As regards the right of collective bargaining, the Government states that the Collective Bargaining Convention, 1981 (No. 154), provides that the parties in bargaining process should negotiate on a voluntary basis and that states should promote this procedure in a manner consistent with national practice, and providing for special modalities for “public service”. The Government is of the view that these principles have not been breached in any way by the provincial administration, since they are irrelevant to the case in question given that resolution No. 1509/04 relates to mandatory conciliation and not to any of the principles contained in ILO Conventions Nos. 151 and 154.
10. 396. Lastly, the Government reacts to the complainants’ demand that “the full exercise of freedom of association be restored, in order to guarantee to the education workers of the Province of Buenos Aires the right to take direct action and to exercise the right to strike and to apply to an impartial and independent body with a view to settling collective labour disputes, which is the right emanating from the exercise of freedom of association”, by saying that the question is hypothetical since the dispute had effectively ceased once the offer made by the provincial executive on 6 July 2004 had been accepted.
11. 397. Moreover, the Government adds that public education in the Province of Buenos Aires is effectively an essential service in a country beset by an acute economic and social crisis and in an area such as the Province of Buenos Aires where schooling frequently serves as a form of social containment for children belonging to disadvantaged families.
12. 398. In its communication of 2 May 2005, the Government responds to the allegations relating to the dispute in the Province of Buenos Aires, and which gave rise to resolution No. 4273/04 ordering mandatory conciliation, by repeating its earlier statements that mandatory conciliation is of limited duration. It adds that it should be remembered that, in the Province of Buenos Aires, given the acute economic and social crisis, education serves as a form of social containment for school-age children, particularly for low-income families, and serves as a means of preventing child labour and other situations of high risk to children, engendered by the precarious socio-economic situation of many parents. Thus, in light of the above, the limited period of mandatory conciliation, as stated at the time, is an eminently reasonable manner of dealing with collective disputes in this sector.
13. 399. The Government notes that it is undeniable that, despite the mandatory conciliation order, the teaching union freely exercised the right to strike when it decided to do so, as is borne out irrefutably by the numerous strikes held in the Province of Buenos Aires during the course of 2004. Thus, there are no grounds for stating that the conciliation procedure in any way restricts the legitimate right to strike; indeed, on the contrary, it constitutes an alternative means of dealing with disputes, without detriment to this right which, in practice, is freely exercised. To wit, 21 strikes were held during the course of 2004: 28 May, 10 June, 16 June, 24 June, 2 July, 26 July, 4 August, 12 August, 20 August, 15 September, 29 September, 14 October, 19 October, 20 October, 4 November, 18 November, 24 November, 25 November, 26 November, 2 and 3 December. It is further noted that, subsequent to bargaining, substantial wage increases were granted to the education sector in the Province of Buenos Aires, which demonstrates that conciliation did indeed serve a useful purpose.
14. 400. The Government states that Decree No. 3087/2004 regulates the procedure to be followed in the event of collective disputes arising from collective bargaining. This decree permits the parties to opt to settle disputes between themselves. The Government considers it noteworthy that article 18 of the above decree refers specifically to this autonomous form of dispute settlement, whereby social dialogue is channelled through effective procedures that seek to achieve agreement between the parties in selecting the means to settle the dispute, as recommended by numerous ILO Recommendations. This decree is an illustration of the policy pursued by the provincial government for the public sector regime embodied in Act 10430 and similar regimes. In addition, a special joint regime is currently being negotiated with the SUTEBA for the teaching sector, which will moreover be extended to the judicial and legislative sectors likewise, contained within a legal framework agreed upon with the trade union sector.
15. 401. Lastly, the Government alludes to be federal nature of the country, whereby each province organizes its own institutions and retains all powers not delegated in the nation, including the police and dispute settlement. Thus, article 39 of the Constitution of the Province of Buenos Aires provides that the province must not only carry out an oversight function that cannot be delegated, but it is required also to settle disputes through conciliation and the establishment of special tribunals to settle labour disputes. Moreover, article 1 requires that the province must guarantee to its employees the right to negotiate and to settle disputes with the provincial administration through an impartial body provided for in law. This resulted in Act 13175 – the Ministries Act – which expressly and specifically lays down the powers of the Ministry of Labour of the Province of Buenos Aires to intervene in dealing with individual, public, provincial or municipal and private disputes, in the exercise of its powers of conciliation and arbitration, pursuant to the relevant regulations. It is a view of the Government that the legislation of the Province of Buenos Aires and, in particular, the conciliation procedure, does not infringe the principles of freedom of association, given that, far from undermining this principle, it provides it with an appropriate legal foundation whereby collective disputes may be dealt with in a manner provided for in law. In its communication of October 2005, the Government indicates that it is in the process of collecting the necessary information to elaborate its response to the allegations presented by SUTEBA, CEA and FEB in a communication of 7 July 2005.

C. The Committee’s conclusions

1. 402. The Committee notes that the complainants are challenging: (1) resolutions Nos. 1509 of 16 June 2004 and 4273 of 2 December 2004 (together with resolution No. 166 issued by the Ministry of Labour of the Nation ordering compliance with resolution No. 1509) issued by the Ministry of Labour of the Province of Buenos Aires imposing mandatory conciliation on the complainants in connection with the dispute to demand a wage increase, among other things; and (2) Decree No. 843/2000 issued by the national executive in regard to strikes in essential services and Act 25877 regulating collective labour disputes. The complainants further allege that: (1) in light of their continued wage demands through direct action in 2005, the Ministry of Labour of the Province of Buenos Aires informed education workers of the decision to dismiss them should they exercise their right to strike for over three days; and (2) to date, no steps have been taken to guarantee the right of collective bargaining of education workers in the Province of Buenos Aires.
2. 403. As regards the contested resolutions (Nos. 1509 of 16 June 2004 and 4273 of 2 December 2004, and resolution No. 166 issued by the Ministry of Labour of the Nation ordering compliance with resolution No. 1509) by the Ministry of Labour of the Province of Buenos Aires whereby the complainants were summoned, on several occasions during the course of 2004, to participate in mandatory conciliation in connection with collective disputes, the Committee notes the series of arguments put forward by the Government in support of mandatory conciliation and, in particular, the fact that it suspends strike action only temporarily. However, the Committee draws attention to the fact that, in the context of its consideration of another complaint against the Government of Argentina (Case No. 2369), presented by other trade union organizations, it has already given its opinion on the mandatory conciliation procedure and, specifically, on resolution No. 1509 of 16 June 2004) issued by the Ministry of Labour of the Province of Buenos Aires, (together with resolution No. 166 issued by the Ministry of Labour of the Nation ordering compliance with provincial resolution No. 1509. Consequently, the Committee restates its conclusions in that connection, as follows [see 336th Report, para. 213].
3. In the particular circumstances of this case, the Committee emphasizes that it would be desirable to entrust the decision of opening the conciliation procedure to an organ which is independent of the parties to the dispute and requests the Government to bring its law and practice into line with Conventions Nos. 87 and 98.
4. 404. The Committee notes that the Government has not commented on the contested provisions of Decree No. 843/00 issued by the national executive on strikes in essential services (specifically in connection with the possibility that the administrative authority may classify as essential an activity that is not included in the listing contained in the decree and stipulate the minimum service that must be guaranteed in the event of non-agreement between the parties) which, according to the complainants, had not been derogated by the new Act No. 25877 of the 2004 labour scheme. The Committee meanwhile notes that Act 25877 has amended the contested provisions of Decree No. 843/00, article 24 of which provides that:
5. When, during the course of a labour dispute, any party decides to adopt legitimate direct action measures involving activities that may be considered to be essential services, uninterrupted minimum services must be guaranteed.
6. The following services are considered to be essential: sanitary and hospital services, production and distribution of drinking water, electricity and gas and air traffic control.
7. An activity that is not included in the previous paragraph may be classified, exceptionally, as an essential service by an independent commission constituted in a manner required by regulations, after the initiation of the conciliation procedure provided for in legislation, under the following circumstances:
8. (a) when the duration and territorial extension of the activity’s interruption through execution of the direct action measures may jeopardize the life, security or health of all or part of the population;
9. (b) when the public service is of transcendental importance, according to the criteria of the International Labour Organization’s supervisory bodies.
10. THE NATIONAL EXECUTIVE, in conjunction with THE MINISTRY OF LABOUR, EMPLOYMENT AND SOCIAL SECURITY and after consultation with the employers’ and workers’ organizations, will enact this article within a period of NINETY (90) days, consistent with the principles of the International Labour Organization.
11. 405. The Committee considers that article 24 of Act 25877 is in compliance with the principles of freedom of association. However, the Committee notes that article 44 of this Act provides that: “Until such time as the NATIONAL EXECUTIVE enacts article 24 of the Act, Decree 843/00 will provisionally remain in force”. This being so, the Committee requests the Government to provide information as to whether regulation have been issued for implementation of article 24 of Act 28577 within the 90-day period required by the law and, if not, to take the necessary measures to do so.
12. 406. As regards the allegation that the education workers in the public sector of the Province of Buenos Aires do not enjoy the right to collective bargaining, the Committee notes the Government’s statements that: (1) Convention No. 154 provides that the bargaining parties must negotiate on a voluntary basis and that states must promote this procedure in compliance with national practice, developing specific application modalities for the public services; (2) article 1 of the Constitution of the Province of Buenos Aires provides that workers must be guaranteed the right to bargain and settle disputes between the provincial government and workers through an impartial body designated by law; and (3) consequently, Act 13175 was enacted which expressly gives the Ministry of Labour of the Province of Buenos Aires competence to intervene in handling individual public, provincial or municipal and private disputes, using powers to conduct conciliation and arbitration. In this regard, the Committee notes that Act 13175, article 25, paragraph 3, of February 2004, of the Province of Buenos Aires, provides that the provincial Ministry of Labour has competence to intervene in connection with collective bargaining and collective labour agreements throughout the province. Consequently, the Committee requests the Government to guarantee the exercise of the right of collective bargaining, in practice, to education workers of the public sector in the Province of Buenos Aires.
13. 407. Lastly, the Committee notes the Government’s statement that it is in the process of collecting the information necessary to prepare a reply on the most recent communication received from the complainants (7 July 2005), alleging that, as a result of continued wage claims backed by direct action in 2005, the authorities of the Ministry of Labour of the Province of Buenos Aires have informed education workers of the decision to dismiss them if they exercise their right to strike for a period exceeding three days. The Committee requests the Government to communicate its observations in this respect.

The Committee's recommendations

1. 408. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the contested resolutions (Nos. 1509 of 16 June 2004 and 4273 of 2 December 2004 – together with resolution No. 166 by the Ministry of Labour of the Nation ordering compliance with resolution No. 1509) issued by the Ministry of Labour of the Province of Buenos Aires, pursuant to which – on several occasions during the course of 2004 – the complainants were summoned to mandatory conciliation in connection with a collective dispute, the Committee restates that it would be desirable to entrust the decision of opening the conciliation procedure in collective disputes to a body that is independent of the parties to the dispute and requests the Government to bring legislation and practice into conformity with Conventions Nos. 87 and 98.
   • (b) The Committee requests the Government to provide information as to whether regulations have been issued for implementation of Act 25877, article 24, on collective labour disputes, within the 90-day period provided for in the Act and, if not to take necessary measures to do so.
   • (c) The Committee requests the Government to guarantee the exercise of the right to collective bargaining, in practice, to education workers of the public sector in the Province of Buenos Aires.
   • (d) The Committee requests the Government to communicate its observations on the most recent communication received from the complainants (7 July 2005) alleging that, as a result of continued wage claims backed by direct action in 2005, the authorities of the Ministry of Labour of the Province of Buenos Aires have informed education workers of the decision to dismiss them if they exercise their right to strike for a period exceeding three days.