Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the comments made in 2013 by the International Trade Union Confederation (ITUC) and the Confederation of Workers of Argentina (CTA), which refer principally to legislative matters already raised by the Committee. The Committee notes the Government’s reply to certain comments made by the ITUC and the CTA in 2012 and 2013 relating to allegations of violations of trade union rights in certain specific cases (some of the alleged acts are being examined by the Committee on Freedom of Association). The Committee also notes the 2013 comments of the General Confederation of Labour (CGT), and particularly its indication that trade union pluralism is practised regularly, that trade union associations are registered based on a mere application for registration and that trade union status has been granted without difficulties. The Committee notes the Government’s indication that between January and October 2013 trade union status was granted on 298 occasions and that 682 trade unions were registered.

Application by the CTA for trade union status

The Committee recalls that since 2005 it has been noting in its comments that the response is pending to the application made by the CTA in August 2004 for “trade union status” (a status which confers certain exclusive rights, such as the conclusion of collective agreements, the protection of union officers, the receipt of trade union dues through deductions from wages by the employer, etc.). The Committee notes the CTA’s indication that there has been no change in the processing of the application by the administration and that the Ministry of Labour has still not made a decision on its application for trade union status. In this regard, the Committee deeply regrets the time that has passed – almost ten years – without the administrative authorities reaching a decision and firmly urges the Government, as the Conference Committee on the Application of Standards and the Committee on Freedom of Association have done, to take a decision in the near future. The Committee requests the Government to provide information on this subject.

Act on trade union associations and its implementing Decree

The Committee recalls that for many years it has been referring in its comments to the following provisions of Act on trade union associations No. 23551 of 1988 and its implementing regulations issued by Decree No. 467/88, which are not in conformity with the Convention:

Trade union status

• -section 28 of the Act on trade union associations, under which, in order to challenge an association’s trade union status, the petitioning association must have a “considerably larger” membership; and section 21 of implementing Decree No. 467/88, which qualifies the term “considerably larger” by laying down that the association claiming trade union status must have at least 10 per cent more dues-paying members than the organization which currently holds the status;
• -section 29 of the Act, under which an enterprise trade union may be granted trade union status only when no other organization with trade union status exists in the geographical area, occupation or category; and section 30 of the Act, under which, in order to be eligible for trade union status, unions representing a trade, occupation or category have to show that they have different interests from the existing trade union or federation, and that the latter’s status must not cover the workers concerned.

Benefits deriving from trade union status

• -section 38 of the Act on trade union associations, under which the check-off of trade union dues is allowed only for associations with trade union status, and not for associations that are merely registered; and sections 48 and 52 of the Act, which give special protection (trade union immunity) only to representatives of organizations that have trade union status.

The Committee notes the CTA’s indication that the Government is continuing to postpone the revision of the Act, that the CTA has not been convened to address the adaptation of the legislation to the Convention and that the jurisprudential trend initiated by the Supreme Court of Justice has continued, with sections 28, 29, 30 and 38, followed in 2013 by section 31(a) of the Act, being declared unconstitutional in various rulings. The CGT considers that the judicial rulings have resulted in the de facto situation being by and large in conformity with the Convention and that, in light of this situation, the social partners are faced with a significant challenge in light of the rulings of the Supreme Court of Justice on freedom of association. The Committee notes the Government’s indications that: (i) the country has an industrial relations system which, without prejudice to the necessary amendments that have to be made, is of an inclusive nature and provides a fundamental tool for improving terms and conditions of employment (the Government provides statistics on the collective agreements registered between 1991 and 2012 and the workers covered by them, and refers to the improvement in wages based on compliance with this Convention and Convention No. 98); (ii) the legislation needs to be amended in compliance with the principles of social justice, although any individual initiative would be inadequate, as it is not only a question of the Government and the social partners, but depends on all the actors in the industrial relations system working together; (iii) it is continuing to seek tripartite social dialogue so that progress can be made in achieving the necessary consensus for greater compatibility with the comments of the ILO supervisory system; and (iv) the rulings of the Supreme Court of Justice relate to specific cases.

While observing that rulings of the Supreme Court of Justice of the Nation and other national and provincial judicial bodies have been made in the sense of addressing in part the problems under examination, in accordance with the Convention, the Committee firmly urges the Government to take the necessary measures without delay, and following tripartite examination of the pending issues with all the social partners, to bring the Act on trade union associations and its implementing Decree into full conformity with the Convention. The Committee trusts that the Government will provide information in its next report on the specific results achieved in this regard.

[The Government is asked to reply in detail to the present comments in 2014.]