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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Argentina (RATIFICATION: 1956)

The Committee notes the report supplied by the Government. It also notes the observations made on the application of the Convention by the Union of United Maritime Workers (SOMU) on 20 November 1996 and 6 January 1997, and by the Bank Association (AB) on 20 November 1996. Similarly, the Committee notes that in December 1996, Decrees Nos. 1553/96 and 1554/96 on collective labour agreements were issued.

1. Article 1 of the Convention. The Committee observes that the Bank Association states that the Government is not complying with the provisions of Act No. 23523 of 28 September 1988 which grant preferential treatment for admission to previous employment for bank workers who were dismissed on political or trade union grounds between 1 January 1959 and 10 December 1983. In this respect, the Committee observes that the Committee on Freedom of Association has already taken a decision on this matter and refers to this Committee's conclusions of March 1997 in which it indicated the following: "recalling once again the importance it attaches to the effective implementation of Act No. 23523, the Committee requests the Government to continue to make all efforts to find a negotiated solution as quickly as possible" (see 306th Report, Case No. 1723, paragraphs 12, 13 and 14).

2. Article 4 of the Convention. The Committee recalls that for many years it has criticized the legal provisions relating to the granting of official approval by the Ministry of Labour for the validity of collective agreements which go beyond enterprise level; for the purposes of official approval consideration must be given not only to whether a collective labour agreement contains clauses violating the public order standards of Acts Nos. 14250 and 23928, but also whether it complies with the following criteria: productivity, investment, and the introduction of technology and vocational training systems (section 3 of Act No. 23545, section 6 of Act No. 25546 and section 3ter of Decree No. 470/93).

In this respect, the Committee notes that the Government states that the question relating to the approval to be granted by the labour authorities, together with the contents of the collective agreements analysed prior to the granting of approval, should be dealt with in a draft legislative reform. Similarly, the Committee notes that the Government states that the influence of the State, through the granting of approval, has been significantly reduced as a result of the increase in collective bargaining at enterprise level, and that Decree No. 1334/91 which links wage negotiation to an increase in productivity is virtually revoked by Decree No. 470/93 for a wide range of conventional activities.

In these circumstances, the Committee expresses the hope that the draft reform on collective bargaining to which the Government refers will eliminate the provisions which place conditions on the official approval necessary from the administrative authorities for collective agreements going beyond enterprise level, and which are linked to criteria of productivity, investments and the introduction of technology and vocational training systems. The Committee requests the Government to send it a copy of the draft legislation with its next report.

3. The Committee observes that in December 1996 the Government issued Decree No. 1553/96 which authorizes the Ministry of Labour and Social Security to revoke, in part or in whole, the official approval of a collective agreement if the provisions thereof conflict with the legal rules issued after approval has been granted and if, once the agreed period has expired, the Ministry considers that the validity of the agreement no longer meets the requirements of section 4 of Act No. 14250. The Committee considers that this Decree confirms and expands the intervention of administrative authorities in collective bargaining, something which has already been criticized under point (2).

Furthermore, the Committee observes that in December 1996, Decree No. 1554/96 was also issued and provides that in cases where parties do not reach agreement on the sectors to be covered by negotiations of a collective agreement, this shall be decided by the Ministry of Labour which must not exceed the minimum scope proposed. In the Committee's opinion, this implies that between a proposal for negotiation at the level of industry or branch of activity and a proposal for negotiation at enterprise level, in the absence of an agreement between the parties, a decision is taken within the enterprise sector and is imposed by the administrative authority concerned. In this respect, the Committee emphasizes that in drawing up the Convention, the principle of voluntary collective bargaining and the level of negotiation should not be conditioned or imposed by legislation or by a decision of the administrative authority, but should depend essentially on the will of the parties concerned.

The Committee has learnt that certain provisions of the Decrees referred to appear to have been declared as unconstitutional by courts of first and second instances and that a decision is currently expected from the Supreme Court of Justice. The Committee notes that in its report the Government states that the General Confederation of Workers (CGT) (as part of a complaint made to the Committee on Freedom of Association on the same question (Case No. 1887)) and the Ministry of Labour and Social Security have requested that the legal proceedings be suspended for a period of 120 days, a request which has been accepted by the judicial authority; it also notes that the Decrees have not been applied.

The Committee requests the Government to take measures to amend the legislation in order to bring it into full conformity with Article 4 of the Convention and to provide information in its next report on all measures adopted in this respect.

4. Finally, the Committee observes that the Union of United Maritime Workers (SOMU) states in its observations that, following the repeal of 62 collective agreements in 1992 under Executive Authority Decrees Nos. 817/92 and 1264/92, from 1994 onwards it has endeavoured to conduct negotiations with a view to concluding collective agreements in the sector (with the enterprise United Tugs of Argentina for crew members of vessels sailing under flags of convenience and for those continuing to sail under the Argentine flag; with the Buenos Aires sand and stone sector and the coastal river navigation sector; and with the Argentine Chamber of Owners of Freezer Fishing Vessels), but that the employer in this sector refuses to negotiate without the administrative authorities having adopted measures in this respect. In this connection, the Committee recalls the principle of good faith in negotiations and requests the Government to mediate between the parties in order to help them find common ground.