Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 409, Marzo 2025

Caso núm. 3324 (Argentina) - Fecha de presentación de la queja:: 09-AGO-17 - En seguimiento

Allegations: The complainant organization alleges a systematic practice by a public enterprise in the nuclear sector that prevents the exercise of trade union rights and persecutes trade union representatives

1. 68. The complaint is contained in communications dated 9 August 2017 and 4 April 2018 presented by the Confederation of Workers of Argentina (CTA Autonomous).
2. 69. The Government sent its observations in communications dated 25 March 2019 and 14 January 2025.
3. 70. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 71. In its communication of 9 August 2017, CTA Autonomous reports the attempted poisoning with radioactive material, on 9 May 2017, of the Deputy Secretary of the Light and Power Workers’ Union of Zárate, Mr Néstor Straschenco, an employee of the public enterprise, Nuclear-electric Argentina, (Nucleoeléctrica Argentina S.A.), the managing enterprise of the Atucha I and II nuclear plants (henceforth the enterprise). For the complainant organization, this was a deliberate attempt on the life of the union representative, given that the contaminant was in a plastic container used for drinks in the union office assigned to the union by the enterprise, on its premises. A criminal complaint was therefore filed with the Federal Court in May 2017 and, as the complaint was not admitted on the grounds of a lack of a tangible hypothesis, an appeal was lodged with the Federal Appeal Court of San Martín.
2. 72. The complainant alleges that prior to this, Mr Straschenco had been persecuted and prevented from exercising his rights as a union representative. In February 2015, he was prevented from entering the enterprise on the grounds that he was on compensatory leave, and in September 2015 the enterprise brought a case for exclusion from union protection, with a precautionary measure of a post transfer, before the Federal Court of Campana.
3. 73. The complainant also alleges that, on 30 May and 1 June 2017, the enterprise requested that the Federal Court change the workplace of a number of union representatives who had access to the trade union office; on 8 June 2017, the workers were removed from their workplaces and working hours, which, according to the complainant, amounts to an anti-union act by the enterprise. The complainant indicates that, subsequently, the enterprise attempted to force several trade union representatives of the enterprise (Nelson G. Carriego, Ramón H. Almirón, Alexis Picapietra and Néstor Straschenco) to use unused compensatory leave, with the sole aim of removing them from the workplace, thereby preventing them from exercising their trade union rights. The complainant indicates that, with regard to this last act, in July 2017, the Federal Court of Campana issued a precautionary measure, suspending the application of the compulsory leave referred to above.
4. 74. In its communication of 4 April 2018, the complainant alleges that, while the criminal case for the attempt on Mr Straschenco’s life was under way, a ruling was handed down as a result of proceedings for exclusion from union protection brought by the enterprise (Case No. 549119/2015, the Federal Court of Campana, August 2017). In this ruling, the enterprise was authorized to carry out internal administrative procedures to determine whether Mr Straschenco was responsible for a series of events that occurred in the enterprise. The complainant indicates that the enterprise then dismissed him, thereby violating his right to job stability and trade union representation and, on that basis, filed an appeal before the court.
5. 75. According to the complainant, the above is evidence of the enterprise’s systematic practice of preventing the exercise of union rights and persecuting representatives, with the sole aim of limiting or hampering their functions.

B. The Government’s reply

1. 76. In a communication of 25 March 2019, the Government states, in relation to the report of the poisoning of Mr Straschenco that the Superintendence of Labour Risks (SRT) opened a case further to a complaint of an occupational accident that occurred on 16 May 2017, in the context of which the occupational risk insurance agency (ART) reported that: (i) the worker concerned was summoned and, in the absence of injuries and symptoms, was placed under observation; (ii) the enterprise’s occupational medicine service provided information indicating that the dose that the patient received when he drank the contaminated water was the equivalent, for example, to the radiation a person receives when undergoing a thorax tomography, which is not a health risk but is sufficient to be detected by safety devices; (iii) on 2 June 2017, the worker was re-examined and was given the all-clear due to the absence of symptoms; and (iv) on 30 June 2017, the sickness benefit monitoring unit of the Superintendence of Labour Risks (SRT) requested that the case be closed: “Given that the documentation and information provided in the file demonstrate that the worker received full and timely social assistance benefits in accordance with the accident, and that there are no further benefits in kind to be granted, it is proposed that this case be closed”.
2. 77. In its communication of 14 January 2025, the Government adds that the Federal Court of Campana ruled that Mr Straschenco be brought to trial, finding him responsible for the crime of theft of radioactive material and sabotage in Case No. 47079/2017 brought by the enterprise. In this decision, dated 25 May 2018, the judge found that it was “duly substantiated” that Mr Straschenco and Mr Almirón “stole radioactive material or nuclear substances, specifically water produced by the heavy water process in its passage through the centre of the nuclear reactor”. According to the magistrate, “such water was later drunk by Mr Straschenco aimed at setting off the security alarms in the Atucha I and II nuclear power plants and in turn highlighting the weakness of such systems, to demonstrate the security flaws ...”. The Government notes that the judicial investigation, far from leading to the alleged poisoning of Mr Straschenco, points to his potential responsibility for an act of sabotage.
3. 78. Concerning Mr Straschenco’s exclusion from union protection, the Government indicates that: (i) the enterprise requested the Federal Court of Campana to exclude Mr Straschenco from protection in order to formalize an investigation aimed at determining responsibility for the irregularities committed by him in the performance of his functions; (ii) in this context, a link was established between the alleged irregularities committed by Mr Straschenco and the existence of sufficient grounds to justify the exclusion from union protection requested by the enterprise (leaving the post on several occasions and for extended periods; leaving the post to a junior employee on grounds of having to perform trade union functions at night; violating the established procedures for the control of vehicle exit and entry, and so forth); (iii) the enterprise, within the 90 days granted by the court, finalized the proceedings and dismissed Mr Straschenco, who applied to the courts. In its communication of 22 January 2025, the Government provides the ruling of the Federal Chamber of San Martín of 25 April 2018, confirming the first instance ruling which set forth that there were just grounds for the removal of trade union protection requested by the enterprise and the corresponding dismissal of Mr Straschenco, even if the employer had not observed overt or covert conduct that may have affected trade union guarantees.
4. 79. With regard to the last allegation relating to the transfer of certain trade union members, the Government indicates that, in first instance, the judge highlighted that the transfers of Nelson Gustavo Carriego, Ramón Horacio Almirón and Néstor Damián Straschenco had been carried out as a result of the measures taken to protect the health and safety of all persons with access to the area, as well as to safeguard the premises in order to conduct an investigation, given that in the place provided by the enterprise for the exercise of trade union activities, a bottle had been found containing the residue of water contaminated by the reactors and that, for safety reasons, it was necessary to evacuate the employees who were in that area. The Government also notes that the judge emphasized that the enterprise had provided the union members with a place to carry out their trade union activities, and therefore concluded that the claim could be set aside. This decision was also upheld in second instance (Federal Chamber of San Martin), in March 2022 (first and second instance rulings provided by the Government).
5. 80. The Government lastly states that this case reflects the complainant’s manipulation and misuse of the ILO supervisory system, which must be condemned.

C. The Committee’s conclusions

1. 81. The Committee notes that the present case refers to allegations of attempts to poison with radioactive material, on 9 May 2017, the Deputy Secretary of the Light and Power Workers’ Union of Zárate, Mr Néstor Straschenco, an enterprise employee; of exclusion of Mr Straschenco from union protection so as to formalize proceedings; and of workplace transfers of certain unionized enterprise workers.
2. 82. With regard to the allegation of the poisoning of Mr Straschenco (the union’s Deputy Secretary) with radioactive material, the Committee notes that, according to the complainant organization, this was a deliberate attempt on the life of the union representative, as the contaminant was found in a plastic container used for drinks in the trade union office assigned to the union by the enterprise, on its premises. The Committee notes that the Government, for its part, denies this allegation on the grounds of two main considerations: (i) the conclusions of the Superintendence of Labour Risks (SRT), the body responsible for examining the complaint of the industrial accident that occurred on 16 May 2017, which indicate that, based on the information provided by the occupational risk insurance agency (ART) and the enterprise’s occupational medicine service, the dose ingested did not present a significant risk to the health of the person concerned; and (ii) the conclusions of the Federal Court of Campana, of 25 May 2018, in Case No. 47079/2017 brought by the enterprise, which, far from leading to the alleged poisoning of Mr Straschenco, highlighted his potential responsibility for an act of sabotage. The Committee notes that the judge ordered proceedings against Mr Straschenco, considering him prima facie to be an accomplice (with Mr Almirón) in the crime of sabotage and the perpetrator of the offences of false statements and false testimony.
3. 83. The Committee notes the conflicting information brought to its attention and observes that the trade union representative, Mr Straschenco, who applied to the courts as the victim of an attempted poisoning, has been charged with sabotage following the judicial investigation by the Federal Court of Campana. The Committee also notes that, on the one hand, a ruling has yet to be issued in the criminal proceedings against the trade union representative; and on the other hand, the complainant organization has not provided any information since its previous communication in 2018.
4. 84. In the light of the foregoing, and given the serious nature of the allegation before it, the Committee requests the Government, as well as the complainant, to provide updated information relating to the criminal proceedings brought against Mr Straschenco.
5. 85. With regard to the allegation of exclusion from trade union protection of Mr Straschenco, the Committee notes, based on information from both parties, that while the criminal proceedings for the attempt on Mr Straschenco’s life were ongoing, the Federal Court of Campana handed down a ruling, in May 2017, authorizing the enterprise to carry out internal administrative procedures to determine whether Mr Straschenco was responsible for a series of events that occurred in the enterprise. The Committee notes the complainant’s indication that, further to these procedures, the enterprise dismissed Mr Straschenco, in violation of his right to job stability and trade union representation.
6. 86. The Committee notes the Government’s information that: (i) the allegations of irregularities made against Mr Straschenco constituted sufficient grounds to justify the exclusion from trade union protection requested by the enterprise (such as leaving the post on several occasions and for extended periods; leaving the post to a junior employee on grounds of having to perform trade union functions at night; violating the established procedures relating to the control of vehicle exit and entry; (ii) the enterprise, within the 90 days granted by the court, finalized the proceedings and dismissed Mr Straschenco, who contested this decision before the courts; and (iii) the Federal Chamber of San Martín, in an appeal judgment of 25 April 2018, concluded that there were just grounds for the removal of trade union protection requested by the enterprise and the corresponding dismissal of Mr Straschenco, without having found any explicit or concealed conduct on the part of the employer likely to affect trade union guarantees. While recalling that the principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds a trade union office confers immunity against dismissal irrespective of the circumstances [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1119], the Committee notes that the complainant organization has not provided further information in this regard. In these circumstances, the Committee will not pursue the examination of this allegation.
7. 87. With regard to the change of workplaces of several trade union representatives who had access to the trade union office, the Committee notes that, according to the complainant, these transfers by the enterprise constituted an anti-union, arbitrary and illegitimate action. The Committee notes that the Government indicates that: (i) the first instance judge highlighted that these transfers had been carried out as a result of the measures taken to protect the health and safety of all persons with access to the area, as well as to safeguard the premises in order to conduct an investigation, given that in the place provided for the exercise of trade union activities, a bottle had been found containing the residue of water contaminated by the reactors and that, for reasons of safety and of investigating the leak of radioactive material, it was necessary to evacuate the employees who were in that area; and (ii) in so far as the enterprise had provided an area for the exercise of trade union activities, the judge decided that this claim should be set aside, a decision that was upheld in second instance, in March 2022. The Committee takes due note of this information and will not pursue the examination of this allegation.
8. 88. Lastly, with regard to the allegations of the obligation to use unused compensatory leave, with the sole aim of removing the workers concerned from the workplace and, as a result, preventing them from exercising their trade union rights, the Committee notes, irrespective of the absence of a reply from the Government in this respect, that the legal action brought by the interested parties has been declared well-founded (file No. 64274/2017, decision of the Federal Court of Campana of April 2021). Therefore, the Committee will not pursue the examination of this allegation.

The Committee’s recommendation

1. 89. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
2. The Committee requests the Government and the complainant organization to provide updated information relating to the criminal proceedings brought against the Deputy Secretary of the Light and Power Workers’ Union of Zárate, Mr Straschenco.