Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Argentina (Ratification: 1960)

The Committee notes the Government’s report. It also notes the comments made by the Congress of Argentinian Workers (CTA) and the Government’s reply in this respect.

I. The Committee recalls that for a number of years its comments have been referring to Act No. 23551 of 1988 respecting trade union associations and implementing Decree No. 2184/90, as follows.

1. Section 28 of the Act requires a petitioning association, in order to contest the trade union status of an association, to have a "considerably higher" number of members; and section 21 of implementing Decree No. 467/88 qualifies the term "considerably higher" by laying down that the association claiming trade union status should have at least 10 per cent more dues-paying members than the organization which currently has that status. The Committee notes the Government’s statement that: (1) the Bill to reform section 28 of Act No. 23551, which it noted in its observation of 2001, deletes the phrase "considerably higher" and establishes an objective criterion for reversing the granting of trade union status by providing that the petitioning association must have 5 per cent more dues-paying members than the existing association with trade union status, and that the Bill is before Parliament and ready to be examined by the National Legislative Authority, in accordance with the schedule of parliamentary work; and (2) the Government is currently assessing whether it is appropriate and timely to issue a Decree amending section 21 of Decree No. 467/88 to reduce the envisaged percentage from 10 to 5 per cent. In this respect, the Committee considers that, while the amendment of Decree No. 467/88 would constitute a positive step in bringing the legislation into conformity with the provisions of the Convention, it is necessary to amend Act No. 23551 respecting trade union associations. In these conditions, the Committee hopes that the Bill to amend Act No. 23551 will be adopted in the near future and requests the Government to provide information in its next report on any developments in this respect (including the amendment of Decree No. 467/88, if it is adopted).

2. Section 29 of the Act provides that a "trade union at the enterprise level may be granted trade union status only when another first-level association and/or trade union does not already operate within the geographical area or the activity or category concerned", and section 30 imposes excessive conditions (existence of a difference of interests justifying separate representation and the lack of representation of the workers concerned under the status of the existing association or trade union) for granting trade union status to unions representing a craft, occupation or category of workers. The Committee notes the Government’s statement that: (1) with regard to section 29, the legislation permits the existence and operation of enterprise trade unions, and of unions representing a craft, occupation or category of workers, and that the granting of trade union status is only conditional upon the absence of a first-level trade union association or union in the geographical area, activity or category concerned (the Government adds that there is a significant increase in collective bargaining at the enterprise level); and (2) with regard to section 30, this endorses the principle of the differentiated representation of sectors within the same world of workers, discharged by trade union associations which are also differentiated, and that trade unions representing a craft or occupation have continually concluded collective agreements representing their category of workers. The Committee once again points out that these provisions are not in conformity with Article 2 of the Convention with regard to the right of workers to establish and join organizations of their own choosing. Indeed, although the legislation allows the establishment of trade union associations at the enterprise level and trade unions representing a trade, occupation or category of workers, no workers’ organization, even if it has demonstrated that it is the most representative, in accordance with section 28 of the Act, can acquire trade union status which, among other benefits, grants the exclusive right to collective bargaining, if there is already a trade union with trade union status representing the activity in the field concerned. In this regard, the Committee requests the Government to provide information in its next report on any measure that it is considering adopting to amend the above sections.

3. With regard to the abovementioned situations where legislation in Argentina distinguishes between trade unions with "trade union status" and trade unions that are merely "registered", with the former being granted certain preferential rights in law, the Committee for a number of years has commented on the following points:

(a)  Section 38 of the Act only permits associations with trade union status, and not associations which are merely registered, to benefit from the check-off of trade union dues. The Committee notes the Government’s statement that: (1) following the technical assistance mission which visited the country in May 2001, it issued Decree No. 758/01 establishing that associations which are merely registered can apply for the check-off of dues to the banking establishment which pays the wages, but that the above Decree was repealed shortly afterwards by Decree No. 922/01; (2) even though the emergency measures adopted in the context of the financial crisis have given rise to a general refutation by the population of the banking system, the Government plans to implement this system, as approved by the social partners in the Joint Tripartite Commission established by Decree No. 10/2001; and (3) federations with trade union status to which the majority of trade unions are affiliated by simple registration have authorized them to receive trade union dues through the second-level association, and even associations which have merely been registered have been able to agree with employers concerning the check-off of trade union dues. In this respect, the Committee considers that this inequality of treatment between trade union associations with trade union status and trade union associations which are merely registered is not justified and that an appropriate arrangement should be found to overcome this inequality, which does not necessarily have to involve the banks. The Committee therefore requests the Government to take measures to amend section 38 of the Act to place all trade union associations on an equal footing, permitting them to benefit from the check-off of the dues of their members, and to provide information in its next report on any measure adopted to this effect.

(b)  Section 39 of the Act only exempts associations with trade union status, and not associations which are merely registered, from taxation and other levies. The Committee takes due note of the information provided by the Government that, in accordance with the national legislation, the scope of section 39 now covers all Argentinian trade union associations.

(c)  Sections 48 and 52 of the Act provide that only the representatives of associations which have been granted trade union status may benefit from special trade union protection (fuero sindical). The Committee notes the information provided by the Government that: (1) the National Constitution in article 14bis provides that trade union representatives shall enjoy the necessary safeguards to discharge their trade union functions and that section 47 of the Act respecting occupational associations provides that all workers (without exclusion) who are impeded or prevented from the regular exercise of the rights of freedom of association guaranteed by the law may seek the protection of these rights through the competent judicial tribunal, by express summary procedure; (2) national case law has found that the criteria for the interpretation of the rights of freedom of association must be broad, although the provisions of Act No. 23551 are not self-standing, but are derived from article 14bis of the Constitution; (3) the range of constitutional provisions, the provisions of Act No. 23551 and of Act No. 23592 on the exercise of constitutional rights and guarantees/measures against discriminatory acts mean that any person who arbitrarily impedes, obstructs, restricts or in any way prejudices the full exercise of the fundamental rights and guarantees recognized in the National Constitution shall be compelled, at the petition of the victim, to end the discriminatory act or nullify it, and to compensate the victim for any moral or material damage caused, with particular reference to discriminatory acts or omissions on grounds such as political or trade union opinion, with the above measures constituting adequate protection for each worker in the exercise of their trade union activities; and (4) the trade union representatives of an association that is merely registered, but is affiliated to a federation with trade union status, enjoy the protection set out in sections 48 and 52 of Act No. 23551. The Committee considers that, even though the legislation provides for general protection against acts of anti-union discrimination, the trade union leaders of associations with trade union status enjoy special protection in addition to that available to the leaders or representatives of associations which are merely registered. Furthermore, the Committee notes that the general protection afforded by Act No. 23592 is of a limited nature with regard to the exercise of trade union rights, as it is confined to discriminatory acts or omissions on grounds of trade union opinion. The Committee considers that such discrimination is not compatible with the requirements of the Convention. In this respect, the Committee requests the Government to take measures to amend the provisions in question and to indicate in its next report any measure adopted to this effect.

II.  Decree No. 843/2000

The Committee also notes that the Government refers in its report to Decree No. 843/2000 which permits strikes in essential services in the strict sense of the term, and adds that it is assessing the possibility of providing greater guarantees for the system than those envisaged in the Decree by including the consultation of an impartial commission composed of persons of recognized technical expertise with a view to determining the essential nature of a service which is not included in the services strictly defined as such and which by its characteristics could be assimilated to them. In this respect, the Committee suggests that the Government, if it is planning to make amendments to the Decree, should examine the possibility that the determination of the minimum services to be maintained during a strike, where the parties do not reach agreement, should not be the responsibility of the Ministry of Labour, but of an independent body. The Committee requests the Government to keep it informed of any measure that it is considering adopting in relation to Decree No. 843/2000.

Finally, the Committee notes with interest the Government’s indication of its intention to continue making progress in harmonizing national legislation with the provisions of the Convention, and that significant progress has been made at the institutional level, reflecting the firm will of the Government to promote the coexistence of the various actors (the Government emphasizes the official participation of the Congress of Argentinian Workers in all the socio-labour bodies of MERCOSUR and in the tripartite consultation body envisaged in Convention No. 144). The Committee hopes that the Government’s intentions in this respect will be reflected in the amendment of the legislative provisions referred to above and calls upon the Government and the social partners to bring the legislation into full conformity with the Convention by means of the strengthening of the debate which has been commenced.