Informe definitivo - Informe núm. 356, Marzo 2010

Caso núm. 2691 (Argentina) - Fecha de presentación de la queja:: 31-DIC-08 - Cerrado

Allegations: The complainant organization alleges that even though its affiliate organizations, the Argentinean Teachers’ Federation (UDA) and the Association of Technical Teachers (AMET) have official trade union status, the administrative authorities in the Province of Santa Fe excluded them from collective bargaining

1. 226. The present complaint is contained in a communication from the Federation of Education Workers (FETE) of December 2008.
2. 227. The Government sent its observations in a communication in September 2009.
3. 228. 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 complainant’s allegations

1. 229. In its communication of December 2008, the FETE indicates that it is presenting this complaint against the Government of Argentina on the grounds of the violation of the freedom of association of trade union associations affiliated to the FETE, the Argentinean Teachers’ Federation (UDA), a workers’ organization with official trade union status No. 1477, and the Association of Technical Teachers (AMET), with official trade union status No. 1461.
2. 230. The complainant organization alleges that the Government of the Province of Santa Fe is adopting an anti-union attitude, consisting of failing to give effect to the domestic provisions in force in the Republic of Argentina, Conventions Nos 87, 98 and 154 and the recommendations of the Committee on Freedom of Association. According to the FETE, the provincial authorities have prejudiced, restricted, undermined and prevented the exercise of freedom of association and the right to collective bargaining of the UDA and the AMET.
3. 231. The complainant organization indicates that in the Province of Santa Fe there are a large number of trade union organizations in the teaching sector which represent the sector as a whole. At least four representative organizations or trade unions in the teaching sector exist and carry out their programmes of action, namely: the UDA, the AMET (both affiliated to the FETE), the Argentine Trade Union of Private Teachers (SADOP) and the Association of Teachers of Santa Fe (AMSAFE). The FETE alleges that the practice of the representation of all teachers and the other trade union associations in the Province was severely prejudiced when the Government of the Province of Santa Fe issued, without previous dialogue or consensus with the social partners concerned, Decree No. 332/2008 of 8 February 2008.
4. 232. This Decree provided, in the context of the Province, for the establishment of a negotiating commission with a view to developing machinery for effective participation, consensus and social dialogue for the formulation of education policies, under the terms and within the scope of National Act No. 26026. The spirit of Decree No. 332/2008 is to create and establish collective bargaining machinery between the Ministry of Education of the Province of Santa Fe and teachers’ unions that are representative at the level of the Province. The negotiating commission has been established according to a system for its composition that is set out in section 5 of the Decree, namely consisting of trade union associations in the education sector with official trade union status under the terms of Act No. 23551 and geographical representation within the Province of Santa Fe, which must cover at least 20 per cent of all those to be represented. The provisions of the Decree are in violation of the constitutional guarantees at both the national and provincial levels, as well as of all the provisions regulating education in the Province of Santa Fe.
5. 233. The complainant organization emphasizes that, through its two affiliate organizations, the UDA and the AMET, it applied in due time and in the required form for inclusion in the negotiating commission. The provincial executive authorities ignored this legitimate claim, as no reply was received until 21 February 2008. In this regard, in view of the fact that 21 February 2008 had been set as the date on which the negotiating commission established by Decree No. 332/2008 would start to operate, the FETE, maintaining its purpose of conciliation and negotiation which has characterized its bargaining record with the respective authorities, approached the Ministry of Education so that the latter authority could explicitly and tangibly manifest its position in relation to the inclusion or not of the above organization. Up to then, there had been no formal statement, nor had the corresponding invitation to participate been sent. The FETE adds that, envisaging the possibility of its exclusion, it was accompanied by a notary so that it could be authenticated that the UDA had been excluded from the negotiating commission.
6. 234. The FETE indicates that in this context it questioned the private secretary of the Minister of Education of the Province as to whether or not the UDA had been excluded from the current process of collective bargaining. The official indicated that the UDA and the AMET were indeed excluded. The grounds for such exclusion were laid out in technical terms in note No. 11/2008, signed by the Minister of Labour. Note No. 11/2008 indicates in the first place, in clause (a), that the UDA has official trade union status and its geographical coverage consists of the territory of the Province of Santa Fe. Furthermore, according to a register or database, administered by the Ministry of Education, to which the FETE does not have access, it has been concluded that the organization does not attain the minimum percentage established by Decree No. 332/2008 in section 5, based on an estimate according to which neither the UDA nor the other trade union organization are included in the composition of the negotiating commission.
7. 235. The complainant organization indicates that the UDA lodged an appeal for amparo (for the protection of its constitutional trade union rights), which was referred to the Labour Court of first instance, third circuit of judicial district No. 1, City of Santa Fe, Province of Santa Fe, under the claims brought by the UDA, C/ Province of Santa Fe, S/ amparo (file No. 78/2008), which issued the following injunction:
8. Santa Fe, 14 March 2008. Whereas … Considering … I hereby find: issuing the injunction guaranteed by the amount indicated in the introductory paragraphs, providing for the inclusion of the Argentinean Teachers’ Federation as from notification of the present ruling, in each and every activity undertaken in the negotiating commission established by Decree No. 332/2008, which involves the discussion, modification, establishment or extension of the rights of teaching staff transferred to the Province of Santa Fe in collective bargaining undertaken now or in the future until the substantive issue is resolved. May this be known, the original registered, a copy sent to the parties, notified and placed on the file. Signed: Dr Alfredo José Binetti, Judge; Dr Mario S. Ruiz, Secretary.
9. That is, the court ordered the higher authorities of the Province of Santa Fe to include the UDA in collective bargaining in the Province of Santa Fe.
10. 236. The only response obtained was the submission by the executive authorities of the Province of Santa Fe of a bill respecting collective labour agreements for the teaching sector. It should be noted that the trade union associations which participated in the formal negotiations in the context of the negotiating commission in February 2008 agreed to work on the approval of an act respecting collective labour agreements for the teaching sector; this was not the subject of agreement with the UDA and the AMET. Those signing the agreement were the AMSAFE and the SADOP.
11. 237. The FETE adds that, at the beginning of the month of September 2008, the authorities of the provincial government submitted a bill on collective labour agreements to be examined by the legislature of the Province, following prior dialogue with all parties concerned, including the UDA and the AMET. The bill was taken up by the Parliament in the middle of September and the legislative procedure was commenced for its adoption as provincial legislation. The bill was examined principally in the Commission on Legislation, Labour Affairs and Social Welfare of the Chamber of Deputies of the Province, with all the trade union organizations being invited to indicate their position to the Commission.
12. 238. The FETE reports that while the bill was being processed and even before it had passed through the Education Commission of the Chamber of Deputies, on 27 November 2008, it was tabled outside the normal agenda in the Chamber of Deputies itself, with only the opinion of the Commission on Labour Affairs and Social Welfare, and without that of the Education Commission. The opinion issued by the Commission on Labour Affairs and Social Welfare of the Chamber of Deputies contained a majority report and a minority report, which is illustrative of the controversy existing with regard to the contents of the act respecting collective labour agreements for the teaching sector. The vote on the bill gave rise to marked differences between teachers’ unions, which indicated their opposition to the text. The criticism concerned manifest partiality and restrictions on the participation of all the trade union actors in the context of the negotiating commission.
13. 239. According to the complainant organization, if the bill is approved by the Senate, the trade union organization AMSAFE will be the only actor entitled to inclusion as a joint member of the negotiating commission to be established under the Act. The legislators who support the executive authorities of the Province managed to produce a text which leaves the UDA, the AMET and the SADOP out of collective bargaining. The draft legislation that was put to the vote in the Chamber of Deputies introduced the requirement of membership of 10 per cent of all the teachers to be represented for inclusion in the negotiating commission. Decree No. 332/2008 contained the requirement of 20 per cent, and that Decree was set aside by the courts, thereby upholding the position of the UDA, one of the most representative trade unions.
14. 240. The complainant organization observes that recourse to any other effective administrative and/or legal remedy is impossible in the present situation for the organizations that are members of the FETE. It should be recalled that the provisions of Decree No. 332/2008 required intervention by a court order to amend the political will of the current Government of the Province of Santa Fe to exclude the UDA and the AMET. Moreover, recourse to administrative appeal machinery in the capital of the Province is not feasible, as the current Ministry of Labour of the Province is a body that reports to the Government and does not offer the necessary guarantees of impartiality and independence to settle the dispute that has arisen, particularly as the fundamental right to collective bargaining is at stake. Nor is it possible to lodge a complaint with the national Ministry of Labour, Employment and Social Security, as the question concerns the provincial level, which does not lie within the jurisdiction of that national authority. The FETE adds that it is not possible to refer the matter to the courts as the legislation that it is challenging had not been approved when it lodged the present complaint.
15. 241. The complainant organization explains that the grounds for the unlawful nature of the draft legislation lies in the fact that the UDA and the AMET have official trade union status. These unions have official trade union status and the personal and territorial scope of their activities covers the Province of Santa Fe, in accordance with the provisions of the UDA’s statutes. Clauses 1 and 5 of the statutes provide that:
16. Clause 1: The trade union association with the denomination of the Argentinean Teachers’ Federation (UDA), established on the fifteenth day of February in the year one thousand nine hundred and seventy three, groups together and represents: (1) teachers who are employed or provide services in an educational establishment irrespective of the legal nature of their designation or contractual status; (2) retirees of all levels who upon taking retirement were members of the UDA and were engaged in the functions covered by the previous subclause; (3) teachers engaged as replacement teachers during the period of their assignment and for up to six months following the completion of their assignment.
17. Clause 5: The territorial scope of the activities the Argentinean Teachers’ Federation shall cover the whole of the Republic of Argentina.
18. 242. The above statutes are supplemented by the trade union status of the UDA, approved by decision MTESS No. 809/2005, the first clause of which, for purposes of clarity, is transcribed as follows:
19. Clause 1: The scope of the representation exercised by the Argentinean Teachers’ Federation, with its headquarters at Otamendi 28, Autonomous City of Buenos Aires, includes teaching staff who are currently active, both titular and replacement, and retirees from all branches and levels who are entitled to welfare benefits being official members at the national level of educational establishments which were transferred to the provincial states under the terms of Act No. 24049 respecting the transfer of the educational services of the nation to the provinces, with the exclusion of non-managerial teaching staff engaged in the schools of the CONET in the provinces of Tucumán, Córdoba, Río Negro, Santa Fe and the District of Luján in the Province of Buenos Aires and such exclusions as are set out in decisions MT and SS No. 355/99 and MTE and SS No. 348/02.
20. 243. The complainant organization indicates that the UDA and the AMET have always represented national teachers as they were first established as unions operating at the national level and accordingly operated under the legal denomination of federations, and their membership is consequently composed of various generations of teachers throughout the country. In 1992, Act No. 24049 respecting the transfer of the educational services of the nation to the provinces was approved. In this situation, the organizations continued to exist and to represent the teaching staff who had been transferred. Their geographical scope of action was never challenged and continued to consist of the whole of the territory of the Republic of Argentina.
21. 244. According to the FETE, the motivation which gave rise to the exclusion of the UDA and the AMET appears to be their lack of trade union status which, from all points of view is arbitrary, fanciful and lacking even the minimum legal and juridical basis. The situation is aggravated by the fact that the FETE has official trade union status, which was never challenged at any time by the Province of Santa Fe. The geographical scope of representation of the UDA and the AMET is the whole of the territory of the nation. It needs to be borne in mind that the UDA and the AMET are trade union associations at the first level established as federations representing an activity. The activity that they represent is public education. In accordance with their status as national federations covering an activity at the first level, with the geographical and personal scope of their functions being the whole of the national territory, their members enjoy the same rights, without distinction as to their location or province. There is no distinction between members in the federal capital, the Province of Buenos Aires, the Pampa or, as in the present case, the Province of Santa Fe.
22. 245. The FETE also refers to the participation of the UDA and the AMET in the first collective labour agreement for the teaching sector at the national level. Two years ago, the UDA pressed for the conclusion of a collective labour agreement for teachers throughout the country. This initiative resulted in the current collective labour agreement, which is presently in force in the context of the Ministry of Labour of the nation, presided over by the current Secretary of Labour of the nation. The UDA and the AMET are included as joint titular members representing the workers. The FETE contends that, if it is really the intention of the Minister of Education of Santa Fe, as she indicated: “ … to be in accordance with the national legislation respecting joint negotiations … ”, the exclusion of the UDA and the AMET cannot therefore be understood, as they are participating in joint dialogue at the national level. It may thus be concluded that the UDA and the AMET are trade unions with official trade union status, and that they accordingly enjoy the capacity and the right to participate in collective bargaining in the context of negotiations on wages and working conditions in the Province of Santa Fe.
23. 246. The complainant organization alleges the violation of article 14bis of the national Constitution which, in its second paragraph, guarantees the right of unions to engage in collective bargaining and “to conclude collective labour agreements”. It adds that the obstruction of collective bargaining constitutes a form of attack on freedom of association as guaranteed by ILO Conventions Nos 87, 98, 151 and 154.
24. 247. According to the complainant organization, the Government of the Province of Santa Fe is endeavouring to impose a model of collective bargaining and to achieve changes in its structure, which is aggravated by it being an interested party in its capacity as employer. It has not followed a coherent system of consultations, has favoured the exclusion of certain trade unions and has abetted a single sector that is currently allied with the Government. The absence of the UDA and the AMET from collective bargaining undertaken in the future constitutes a grave violation which will certainly give rise to the possibility of various types of direct industrial action and may seriously prejudice the education system as a whole.
25. B. The Government’s reply
26. 248. In its communication of September 2009, the Government refers to the reply to the complaint provided by the Ministry of Labour and Social Security of the Province of Santa Fe.
27. 249. In its reply, the above Ministry indicates that the system of trade union model adopted by the national legislation is the “promoted unit” or “induced unit”, under which official trade union status is only granted to the most representative trade union organization and that, furthermore, it has to have been in operation for a period of not less than six months as an association that is simply registered (sections 21 and 22 of the Act respecting trade union associations No. 23551). This means that, of all the registered associations, only one, the most representative, is entrusted with representing the branch of activity (section 25 of Act No. 23551), that is, it has official trade union status. The other registered associations have functions that are not essential from the viewpoint of trade union rights, as they do not have official trade union status. Although article 14bis of the national Constitution refers to the right of workers to establish a free and democratic association, as recognized by its simple inclusion in a special register, the legislation respecting occupational associations which has governed the matter throughout history, Act No. 14455, Act No. 20615, Act No. 22105 and Act No. 23551, which is currently in force, has always adopted the system of trade union unity, granting official trade union status only to the most representative trade union and denying trade union rights to organizations that are merely registered. In brief, two types of trade unions can coexist under the legislative system: those which are simply registered and which, as indicated above, do not have trade union rights in the proper sense, and those which are granted official trade union status by the competent authority (the most representative trade union), which enjoy full trade union rights.
28. 250. With a view to applying a legislative policy for the prevention of future disputes between the parties which may arise out of contradictory interpretations, great care has been taken to avoid any confusion as to concepts. Accordingly, as in the present case, it is necessary to emphasize that, as it relates to the policy of a provincial state, the establishment of this negotiation machinery is envisaged to remain within that framework without giving up areas of competence. Starting from the basis that the employer is the State at the provincial level, it should be recalled that in principle its relationship with its employees (state employees) is of an administrative nature, which is accordingly governed by administrative law except, clearly, where the framework of rules to be signed by the parties explicitly provides that the relationship shall be governed by labour law (the Act respecting contracts of employment) which, once signed, means that all the effects of the relationship are subject to labour law and not to administrative law at the provincial level.
29. 251. The provincial authority adds that the immediate precedent, provincial Decree No. 0332/2008 establishing the negotiating commission between the Ministry of Education and teachers’ unions to determine a procedure to convene negotiations on the wages and working conditions of teachers, indicates in its introductory paragraphs that:
30. Whereas machinery with effective participation for consensus and social dialogue are central elements in the processes of formulating education policies, in accordance with national Education Act No. 26206. Whereas the establishment of negotiation machinery between the Ministry of Education of the Province and teachers’ unions representing them at the provincial level is a necessary part of the provincial education policy with a view to determining a procedure for initiating bargaining with teachers on wages and working conditions. Whereas the present measure is adopted under the terms of article 72(1) and (4) of the provincial Constitution and in accordance with section 11(b)(3) of Act No. 12817.
31. On this basis, section 4 provides that the clauses of the agreements concluded shall comply with the principles and standards of provincial administrative law and of national Act No. 13047, and section 5 provides that:
32. The negotiating commission shall be composed of ten members, five of whom shall be representatives of the provincial executive authorities designated by the latter, and five members shall be representatives of trade union associations in the education sector with official trade union status under the terms of national Act No. 23551 and with their geographical scope of action in the territory of the Province. The representation of workers in terms of their numbers shall be proportional to their membership, on condition that they account for at least 20 per cent of all those represented. In the event that during the course of negotiations there is no uniformity of views among the representatives of the teachers’ sector, those of the members of the majority shall prevail.
33. 252. It adds that, along the same lines, it is also necessary to recall that the current provincial Act respecting collective agreements for the teaching personnel sector of the Province of Santa Fe, No. 12958, adopted on 2 January 2009, was formulated in the light of the national Act respecting collective labour agreements No. 14250 although, for the reasons set out above, it is important to indicate that no provisions of the draft agreement establish a specific framework of rules, but are only supplementary in nature. For this reason, it has to be inferred that the effects of the agreement are strictly confined to the wording of its text and the provisions to which it refers. Accordingly, clause 2 provides that:
34. This Collective Labour Agreement shall be concluded between the Executive Authority and the representatives of the trade union associations of teachers of the Province of Santa Fe, which enjoy official trade union status under the terms of national Act No. 23551 and of which the territorial scope of action is the Province. It shall be governed by the provisions of the present Act, supplemented by national Act No. 14250 and the national laws and decrees of equal scope that are in force in relation to collective bargaining.
35. 253. Furthermore, in clause 12, the negotiating commission is established:
36. For the purposes of promoting and concluding the collective agreement, a negotiating commission shall be created composed of 14 members, seven of whom shall be representatives of the executive authorities at the provincial level and appointed by the latter, and seven members shall be representatives of the trade union associations of teachers under the terms of clause 2 of the present act. The parties may appoint advisers to intervene in the hearings without the right to speak or to vote, and shall do so in writing with notification to the other party. During the sessions of the negotiating commission, up to two advisers for the executive authorities and two for each trade union association of teachers may participate simultaneously under the terms of clause 2 of the present act …
37. And clause 13 respecting its composition provides that:
38. The composition of the representatives of workers in terms of their numbers shall be proportional to the number of contributing members, certified by the registering official, which each of the trade union associations concerned had at the outset of the collective agreement. The participating trade union associations shall as a minimum account for 10 per cent of the total workers to be represented, in accordance with clause 2 of the present act. In the event that, during the course of negotiations, there is no uniform view among the representatives of the teachers, the vote of the sectoral union with the majority representation in the negotiating commission shall prevail.
39. 254. The provincial authorities indicate that, for a better understanding of the principles on which the provincial text is established, it is merely necessary to reproduce the reasoning indicated for the law:
40. The attached Bill providing that industrial relations for teachers of the Province of Santa Fe shall be regulated by means of the system of collective labour agreements is submitted for your consideration. It is explicitly provided that the effects of the agreements concluded to give effect to the present Act shall be extended to the industrial relations of all teaching staff.
41. It is emphasized that the present Collective Labour Agreement will be concluded between the executive authorities and the representatives of the trade union associations of teachers of the Province of Santa Fe, which have official trade union status under the terms of national Act No. 23551 and with geographical scope of action in the Province. It will be governed by the provisions of the latter Act, supplemented by national Act No. 14250 and the national laws and decrees of equal scope that are in force respecting collective bargaining.
42. Its objectives shall be to: (a) regulate the characteristics and particular features of the administrative and/or labour relationship of teachers in the education services of the Province; (b) establish the working conditions and wages applicable to the employment relationship referred to in the previous subparagraph; (c) propose methods for the settlement of any collective disputes in accordance with their type and purpose; (d) grant social and trade union benefits; (e) adopt measures to facilitate the implementation of the points enumerated above; and (f) no agreement arising out of the collective agreements made may prejudice or disregard the principles and rights recognized by national Acts Nos 26061 and 26206, or such texts as may amend or replace them in future.
43. It should be noted that Decree No. 332, of 8 February 2008, established a negotiating commission composed of the Ministry of Education and the trade union associations of the education sector, in which the negotiations resulted in the conclusion of a first agreement consisting of 13 points respecting wages and working conditions and, in accordance with one of these points, a preliminary draft of a bill respecting collective labour agreements in the teaching sector of the Province of Santa Fe was formulated and referred to the legislature.
44. The introductory paragraphs of Decree No. 332/2008, referred to above, indicate that the “provincial government shall promote policies of educational dialogue, in which the shared outcomes shall not be imposed, but agreed upon starting from the different positions” and that “education policy and the relationship between the government and teachers shall be founded on broad consensus and, on this basis, the agreements shall be extended as State policy”.
45. Those currently responsible for education believe it essential to promote collective bargaining with a view to addressing and incorporating the various aspects of teaching, including the whole range of working conditions and the determination of wages through negotiation, as well as the form and manner of organizing work in schools, with a view to ensuring appropriate conditions for teaching and learning, as an essential basis for education.
46. This position has its basis in the contract theory of labour law relating to the form and content of the relationship that is established between the administration and its employees, which includes collective bargaining as a consequence of a process of democratization in public employment relationships.
47. This has been endorsed by the International Labour Organization (ILO) in successive Conventions: the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which provides in Article 4 that “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and ultilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”. The Labour Relations (Public Service) Convention, 1978 (No. 151), provides in Article 7 that “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters”.
48. Finally, the Collective Bargaining Convention, 1981 (No. 154), of the ILO, ratified by our country by Act No. 23544 of 1988, provides in Article 1, in defining the meaning of collective bargaining, that it “extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisations, on the other, for … determining working conditions and … regulating relations between employers and workers”. Article 7 of the Convention provides that “Measures taken by public authorities to encourage and promote the development of collective bargaining shall be the subject of prior consultation and, whenever possible, agreement between public authorities and employers’ and workers’ organisations”. The theory of collective bargaining is clearly expressed in this latter Convention, with a view to ensuring its effective and equitable implementation. Its importance in relation to the present text lies in the fact that it includes public employees, who undoubtedly include teachers, by establishing their rights through the conclusion of a collective labour agreement.
49. In the Province of Santa Fe there are legislative precedents that are in force for other state labour sectors, such as Act No. 10052 respecting collective labour agreements for the personnel of the public administration and Act No. 9996 for the personnel of municipal and communal authorities.
50. Reference should also be made to the recent approval of national Act No. 26075, entitled the “Act respecting the financing of education”, which provides in section 10 that “The Ministry of Education, Science and Technology, together with the Federal Council on Culture and Education and the sectoral teachers’ bodies with national representation, shall agree upon a framework agreement which includes general guidelines in respect of: (a) working conditions; (b) the education calendar; (c) the minimum wage for teachers; and (d) teachers’ careers. Regulations were subsequently issued under this section by Decree No. 457 of 2007 of the national executive authorities, thereby making it possible to conclude the framework agreement referred to above. Section 1 of the Decree provides that the framework agreement referred in section 10 of Act No. 26075 shall apply to all teachers providing services in the context of the national education system who are governed by provincial jurisdictions and the Autonomous City of Buenos Aires, that is education workers bound by a public employment relationship with those states.
51. Also of relevance in the analysis of the Bill is the agreement signed in the Autonomous City of Buenos Aires, on 5 February of the present year, in the Ministry of Labour, Employment and Social Security, by the Ministry of Education, Science and Technology and the representatives of the executive committee of the Federal Education Council, the Confederation of Education Workers of Argentina (CTERA), the Association of Technical Teachers (AMET), the Confederation of Argentine Educators (CEA), the Argentinean Teachers’ Federation (UDA) and the Argentinean Union of Private Teachers (SADOP), in the context of the National Joint Discussions for Teachers, established by Decree No. 457/07. The above agreement established the Federal Mediation Commission, with competence to collaborate in the settlement of jurisdictional disputes between branch associations and the respective governments, and was approved by the Ministry of Labour, Employment and Social Security. This agreement has been included in the legislative text under examination in sections 16 and 17.
52. It is considered that national Decree No. 457/07 is of fundamental importance in regulating the “minimum conditions” of teachers throughout the country. The proposed text constitutes an adaptation of the national standard to the real situation in the Province.
53. The adoption of this system will ensure the access of teachers to egalitarian and good conditions of work, in accordance with their dignity and with a view to improving their living standards.
54. The present text is accordingly of great importance and in conformity with the constitutional mandate set out in article 14bis of the national Constitution, the Collective Bargaining Convention, 1981 (No. 154), of the ILO, ratified by national Act No. 23544, and the provisions of articles 20 and 113 of the Constitution of the Province.
55. 255. The provincial authorities attest that in the administrative file in the register of the Ministry of Labour and Social Security of the Province of Santa Fe, No. 01601-0070578-5, opened on 10 February 2009, there is a record of the participation of the UDA and the AMET during the joint meetings in the teaching sector, in accordance with section 14 of provincial Act No. 12958. On the basis of the above, it is the understanding of the provincial government that the wording of the Act on collective labour agreements for the teaching personnel of the Province of Santa Fe, registered as No. 12958 and enacted on 2 January 2009, ensures that the system of official trade union status is compatible and in accordance with the principle of freedom of association and collective bargaining.

C. The Committee’s conclusions

1. 256. The Committee observes that in the present case the complainant organization alleges that even though its affiliate organizations, the UDA and the AMET, have official trade union status at the national level, they were excluded from the negotiating commission established in the Province of Santa Fe by Decree No. 332/2008 for the teaching sector (under the terms of the Decree, to be able to participate in the negotiating commission trade union organizations have to represent at least 20 per cent of all the workers to be represented). The Committee also notes that, following an appeal by the complainant organization, the judicial authorities issued an injunction ordering the inclusion of the UDA in each and every activity undertaken in the negotiating commission until the substantive issue is resolved. The Committee further notes the allegation by the complainant organization that, in response to the judicial appeal, the executive authorities of the Province submitted to the legislative authorities a bill on collective labour agreements for the teaching sector, which established the requirement for inclusion in the negotiating commission of membership of 10 per cent of all the teachers to be represented. According to the complainant organization, if the bill is approved by the Senate, the trade union AMSAFE will be the only partner in a position to be included as a joint member of the negotiating commission.
2. 257. The Committee notes that the Government refers to the response of the Ministry of Labour and Social Security of the Province of Santa Fe, which indicates that: (1) the system of the trade union model adopted by the national legislation is that of the promoted unit, under which official trade union status is granted to the most representative trade union organization; (2) this means that, of all the registered associations, only one, the most representative, exercises the official trade union representation of the activity and the other registered trade unions have functions that are not essential from the viewpoint of trade union rights; (3) Decree No. 332/2008 establishing the negotiating commission provided that the establishment of negotiating machinery between the Ministry of Education of the Province and teachers’ unions representing them at the provincial level is a necessary part of the provincial education policy with a view to determining a procedure for initiating bargaining with teachers on wages and conditions of work. The Committee notes that the Government emphasizes that the current provincial Act respecting collective agreements for the teaching personnel sector, No. 12958, of 2 January 2009, was formulated in the light of the national Act respecting collective labour agreements No. 14250, and that it provides in sections 12 and 2 for the establishment of a negotiating commission for the purposes of promoting and concluding the collective agreement, which shall be composed of 14 members, seven representing the provincial executive authorities and seven representing the trade union associations of teachers with a membership of at least 10 per cent of all those to be represented. Finally, the Committee notes that the Government emphasizes that the administrative file in the register of the Ministry of Labour and Social Security of the Province of Santa Fe, No. 01601-0070578-5, opened on 10 February 2009, contains a record of the participation of the UDA and the AMET in the joint meetings in the teaching sector.
3. 258. The Committee observes that, since the presentation of the complaint challenging provincial Decree No. 332/2008, Act No. 12958 has been adopted reducing from 20 to 10 per cent the required percentage for the representation of teachers to be able to participate in the negotiating commission. The Committee notes from the Government’s report that, in the month of January 2009, the AMSAFE had 27,186 members, the AMET had 862 members and the UDA had 731 members, and that the administrative authorities of the province decided that neither the AMET nor the UDA attained the minimum percentage necessary for inclusion in the negotiating commission, which does not prevent them from being in the advisory committee of that commission. The Committee recalls that on various occasions it has emphasized that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. The Committee also recalls that where the law of a country draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances, [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 950 and 974]. The Committee considers that the percentage of membership required by Act No. 12958 is not in violation of the principles of freedom of association and collective bargaining. The Committee further notes that the documentation provided by the Government attached to its reply indicates that the Government of the Province of Santa Fe convened joint discussions for the purposes of formulating the collective labour agreement for the sector on 10 February 2009, that it decided that the negotiating commission would be established with five members of the AMSAFE and the SADOP representing the workers and that it also convened the advisory committee envisaged in section 20 of Act No. 12958 (the representatives of the AMET, in their capacity as members of the advisory committee, proposed subjects for examination to the members of the negotiating commission in a communication of 24 February 2009).
4. 259. In the light of all this information, the Committee will not pursue its examination of the present case.

The Committee's recommendations

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