Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 401, Mars 2023

Cas no 3360 (Argentine) - Date de la plainte: 07-DÉC. -18 - En suivi

Allegations: the complainant, who represents workers in the informal economy, contests a ministerial resolution granting trade union registration to organize only workers in a relationship of dependence. It also alleges that the Ministry is delaying the granting of trade union status and has therefore rejected the application for the approval of a collective labour agreement

1. 121. The complaint is contained in a communication of the Single Union of stallholders of outlets centres, street markets and shopping precincts of the Republic of Argentina (SUPOFEPRA) of 7 December 2018. SUPOFEPRA sent additional information through communications dated 10 October 2019, 26 March and 29 July 2020, 9 August 2021 and 25 July 2022.
2. 122. The Government sent its observations in communications received on 7 August 2019 and 7 February 2023.
3. 123. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 124. In its communication of 7 December 2018, the complainant indicates that: (i) on 3 August 2017, having met all the requirements under the Act on trade union associations (LAS) No. 23.551, SUPOFEPRA applied to the Directorate of Trade Union Associations of the Ministry of Labour, Employment and Social Security for registration as a trade union; (ii) on 8 February 2018, it received notification by the Ministry requesting it to amend certain administrative errors of form and pointing out that there had to be a relationship of dependence between the members and the employers that lease or rent out the stalls to them; and (iii) on 23 February 2018 it responded to this request, stating that article 14 bis of the National Constitution grants the right to establish a trade union to all workers and not only to those in a relationship of dependence, and requested the Ministry to take into account the jurisprudence established by the State concerning the recognition and registration of other trade unions that organize workers without a relationship of dependence, such as the Union of Taxi Drivers of the Federal Capital with trade union status No. 460, the National Federation of Taxi Drivers with trade union status No. 1382, the Single Union of Haulage Companies with trade union status No. 1806, the Union of Newspaper and Magazine Vendors with trade union status No. 27, the Union of Street, Beach and Coastal Vendors of the Mar del Plata Area with trade union registration No. 1270, the Union of Sports Stadium and Train Station Vendors with trade union registration No. 2268 and the Street Vendors Union with trade union status No. 1381.
2. 125. In its communications of 10 October 2019, 26 March and 29 July 2020, 9 August 2021 and 25 July 2022, the complainant indicates that by resolution 534/2019 dated 2 July 2019, the State granted trade union registration to the Single Union of Street Market Workers of the Republic of Argentina (SUTFRA) (formerly known as SUPOFEPRA), thereby becoming the first trade union organization to organize street market and stallholder workers’ activity. The complainant indicates that, according to the text of the resolution in question, only workers in a relationship of dependence in the street market, marketplace and shopping precinct sector were allowed to organize. The complainant considers that this is not logical since the issue relates precisely to activities of the informal economy and it cannot be said that in such informality there are workers in a relationship of dependence. The complainant organization, which claims to represent independent workers – workers in fairs, markets, and shopping precincts – within the informal economy, indicates that according to the master file on the basis of which it was granted trade union registration, it was demonstrated that the sector is economically subordinated. The complainant also indicates that on 13 August 2019 it requested the Ministry, through case No. EX-2019-72262421-APN-DGDMT, to allow non-waged independent workers to organize and that on 2 January 2020 it requested the Ministry, through case No. EX-2020-00228330-APN-DGDMT, to issue a resolution in this regard.
3. 126. The complainant indicates that on 2 January 2020, it also requested the Ministry to grant it trade union status (the complainant attached a copy of the request, which bears a receipt stamp of the Ministry) and alleges that the Ministry has been delaying without logical or legal grounds, in a clearly arbitrary manner, the granting of union status, despite the fact that it is urgently needed by the sector. The complainant indicates that on 16 April 2022 it informed the Ministry of the signing of a collective labour agreement with an employer in the sector and requested its respective approval to confer an erga omnes nature on the agreement. The complainant alleges that the Ministry rejected the application for the approval of the collective labour agreement submitted, arguing that the union did not have trade union status. The complainant attached a copy of a technical report of the Technical Legal Advisory Unit of the Ministry dated 21 June 2022, which indicates that SUTFRA holds only simple trade union registration, and therefore does not have sufficient capacity to negotiate the collective agreement. The report indicates that, in accordance with the Act on collective bargaining No. 14250 and the LAS, it is the organization with trade union status that has bargaining capacity. The complainant indicates that the Ministry does not consider that SUTFRA is a pioneer trade union organization that organizes workers in fairs, markets, and shopping precincts, and that there is no such other organization holding either a trade union status or simple registration.

B. The Government’s reply

1. 127. In its communications received on 7 August 2019 and 7 February 2023, the Government indicates that the complainant does not identify in the complaint how the exercise of its freedom of association has been restricted. The Government indicates that the complainant has sent several communications and that in each of them it has used different terms ranging from the relationship of dependence, independent work, informality, micro-entrepreneurship, economic subordination, and interdependent work, choosing and highlighting what suits it best, and making assertions without any basis and without providing any documentation to support such assertions, which makes it impossible to determine the number of members it claims to have. The Government also understands that this difficulty in understanding who are the workers that it claims to represent entails the risk of endorsing the concealment of real employment relationships that accompany processes of non-compliance with labour law.
2. 128. The Government states that: (i) in its first communication, the complainant refers to the written submission it made before the National Directorate of Trade Union Associations of the Ministry of Labour, Employment and Security, in which it stated that the trade union was made up of mostly self-employed workers with “interdependence” or “economically dependent self-employed work”, due to the large number of informal workers or what is currently called “para-subordinate workers” who, although there is economic dependence on those who benefit from their services, are not registered as workers in a relationship of dependence; (ii) in its second communication the complainant maintains that on 2 July 2019, the former Ministry of Production and Labour, now the Ministry of Labour, Employment and Social Security, issued resolution 534/2019 which granted trade union registration to the Single Union of Street Market Workers of the Republic of Argentina (SUTFRA), as a first-degree trade association to organize workers employed in fairs, shopping precincts and municipal markets, with an area of action in different cities of the country; (iii) subsequently, the complainant indicates having demonstrated a marked economic subordination in which its comrades are immersed and points out that the State must provide them with the solution that will bring them dignity and recognition as independent workers; (iv) in another communication, the complainant indicates that in the master file through which they were granted trade union registration, it was demonstrated that the sector is economically subordinated; and (v) in the context of its inaccuracies, the complainant states that it also brings together independent workers.
3. 129. The Government indicates that it would appear from the foregoing that the complainant claims to represent all workers in the country, citing a series of statistics in which the source of the information is not substantiated and that the lack of precision from the complainant makes it impossible to establish what its personal scope of representation is.
4. 130. The Government indicates that, although the complainant claims to have signed a collective bargaining agreement with employers in the sector and that the Ministry of Labour would have rejected its request for approval on the grounds that it does not have trade union status, the Government has no information other than this claim, nor a reference to the records of the workers it claims to represent. The Government indicates that SUTFRA was granted registration due to the mere registration of 83 members in a relationship of dependence and that, in order to have the power to negotiate collective bargaining agreements, it will have to compare with the organizations in the sector that claim to be the most representative based on objective criteria. The Government indicates that some trade unions have applied to the Ministry of Labour to reserve the rights of each trade union for the opportunity provided for in article 25 of the LAS (application for trade union status), requesting that the comparative representativeness assessment be carried out with SUTFRA. The LAS differentiates between trade union organizations that are simply registered and those that hold trade union status, meaning those recognized by the State as the most representative in their territorial scope. Pursuant to the provisions of article 31(c) of the LAS, trade union organizations with the trade union status are those that have the exclusive right to intervene in collective bargaining. The Government indicates that, according to the records kept by the Ministry, there is no administrative action showing that SUTFRA has submitted itself to the objective comparative assessment to represent workers in collective bargaining. The Government also indicates that, according to the National Directorate of Trade Union Associations of the Ministry of Labour, although SUTFRA has a mandate for the period from October 2019 to October 2023, the trade union is going through a serious institutional conflict within its executive committee, which is currently in leaderless.
5. 131. The Government states that it has been focusing its efforts on promoting workers’ rights as a key element in achieving inclusive and sustainable growth, with particular attention to freedom of association and the effective recognition of the right to collective bargaining as enabling rights, thereby also promoting the transition from the informal to the formal economy. The Government notes that informality is a broad concept and that “the informal economy includes wage and self-employed workers, family workers, and workers who move from one status to the other; it includes workers who are engaged in new flexible work arrangements and who are on the periphery of the core business or at the end of the production chain”. The Government indicates that in May 2020 it created the Commission for Disputes, Mediation and Proposals of the Basic Subsistence Economy with the aim of preserving social peace and guaranteeing the right of every person to have the opportunity to earn a living by means that ensure them decent living conditions, and indicates that, among other powers, this Commission prepares reports and proposals that tend to the transition from informality to formality and transparency.
6. 132. The Government also refers to Resolution No. 118/21 of the Ministry of Labour, Employment and Social Security, which establishes that persons working in the popular and basic subsistence economy may join associations and exercise the rights granted to them by the resolution, once the relevant registration has been obtained. The Government indicates that workers in the popular and basic subsistence economy are considered to be, among others, those who work individually or collectively to generate personal and family income, whether they are self-employed, casual, or occasional workers; street vendors; occupants of street stalls, small fairs, and handcraft sales; vehicle attendants; shoeshiners; or work for cooperatives.
7. 133. The Government indicates that the Registry of Associations of Workers’ Associations of the Popular Economy and Basic Subsistence has been created within the Ministry of Labour and that the resolution admitting the registration will grant social status so that the association can exercise different rights such as representing its members, individually or collectively, and promoting their participation in all activities that help the transition from informality to formality. The Government indicates that the Ministry of Labour will oversee the administration of the Registry and that the Procedural Regulations of the Registry were approved in 2022.

C. The Committee’s conclusions

1. 134. The Committee notes that in the complaint submitted in 2018, the complainant, which claims to represent informal economy workers, specifically stallholders in outlet centres, street markets and shopping precincts, alleges that the process initiated a year previously to obtain its trade union registration had not been completed and that it had been notified that there had to be a relationship of dependence between the members and the employers that lease or rent out the stalls to them. The Committee notes that, in subsequent communications, the complainant contests the ministerial resolution of 2019 which, while it granted trade union registration, allowed SUTFRA to organize only workers who provide services in a relationship of dependence, which it considers illogical as it represents workers in the informal economy. The Committee notes that the complainant indicates that, although it has asked the Ministry to allow it to organize workers without a relationship of dependence, it has reportedly not received a reply in this regard. The Committee also takes note that the complainant additionally alleges that, despite being a pioneer trade union organization that brings together workers in fairs, markets, and shopping precincts, the Ministry has been delaying without any grounds the granting of union status (requested in 2020), and that, given that it does not have union status, its application for the approval of a collective labour agreement was rejected.
2. 135. The Committee notes that, the Government, for its part, points out that: (i) the complainant does not indicate in what way the exercise of its freedom of association has been limited and in the various communications sent it uses terms ranging from relationship of dependence, independent work, informality, micro-entrepreneurship, economic subordination, interdependent work, making unfounded assertions and without accompanying any documentation, with which it is impossible to establish the personal scope of representation of SUTFRA and to determine its number of members; (ii) on 2 July 2019, pursuant to Resolution 534/2019, SUTFRA was granted registration due to the mere registration of “83 members with a relationship of dependence”; (iii) in order to negotiate collective bargaining agreements, SUTFRA must be comparatively assessed with the most representative organizations in the sector based on objective criteria and in this case some unions have already presented themselves to the Ministry and have requested a comparative representativeness assessment with SUTFRA in order to obtain trade union status and there is no record that SUTFRA has presented itself for the assessment; and (iv) SUTFRA is going through a serious institutional conflict within its executive committee, which is currently leaderless. The Committee also notes the Government’s indications that it has been taking a series of measures to promote and encourage the transition from informality to formality and to guarantee the rights of informal workers. The Government refers, among other measures, to the establishment of the Commission on Conflicts, Mediation and Uprisings in the Basic Subsistence Economy and the Register of Associations of Workers’ Associations in the Popular and Basic Subsistence Economy.
3. 136. The Committee observes that the complainant and the Government concur that, by virtue of the ministerial resolution 534/2019, SUTFRA was registered as a trade union to organize workers in a dependent relationship who provide services in street markets, shopping precincts and municipal markets. The Committee notes, however, that the complainant objects to the fact that it was told there must be a relationship of dependence between the members and the employers renting the stalls and that, although it requested to be allowed to organize workers without a relationship of dependence, it did not receive a reply in this respect. While noting that the Government highlights that the trade union has not provided documentation to establish its personal scope of representation, the Committee observes that the Government has not pronounced itself on the elements that would prevent SUTFRA from being granted the right to affiliate both dependent and independent workers in the sector concerned.
4. 137. The Committee recalls that it requested a government to take the necessary measures to ensure that self-employed workers fully enjoyed freedom of association rights, in particular the right to join organizations of their own choosing and that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions, [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 388 and 502]. Further recalling that the criterion for determining the persons covered by the right to organize is not based on the existence of an employment relationship and that workers who do not have employment contracts should have the right to form the organizations of their choosing if they so wish [see Compilation, para. 330], the Committee expects the Government to take the necessary measures to ensure that workers in outlets, fairs and shopping precincts, without distinction whatsoever, have the right to establish and join organizations of their own choosing, subject only to the rules of the organizations concerned. The Committee requests the Government to keep it informed in this respect.
5. 138. As regards the trade union status that SUTFRA allegedly requested in 2020, the Committee observes that, from the documentation submitted by the Government, it appears that other trade union organizations appeared before the Ministry and requested that a comparative assessment be made in order to determine which of them is the most representative in their territorial area. The Committee observes that, while the complainant alleges that there is an unjustified delay in the processing of the application for trade union status, according to the Government, SUTFRA did not submit itself to such an assessment and, consequently, since it does not have trade union status, the approval of the collective agreement would have been denied. Noting that the above seems to indicate a lack of communication between SUTFRA and the competent ministerial authorities, the Committee requests the Government to engage in constructive dialogue with all the parties concerned to resolve the issues concerning freedom of association in the informal economy and to resolve the issues concerning representativeness of SUTFRA as soon as possible. The Committee requests the Government to keep it informed in this respect.

The Committee’s recommendations

1. 139. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects the Government to take the necessary measures to ensure that workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, subject only to the rules of the organizations concerned. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to engage in constructive dialogue with all the parties concerned to resolve the issues concerning freedom of association in the informal sector and to resolve the issues concerning representativeness of SUTFRA as soon as possible. The Committee requests the Government to keep it informed in this respect.