Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) and the Confederation of Workers of Argentina (CTA Autonomous), both received on 1 September 2015, and of the General Confederation of Labour of the Argentine Republic (CGT RA), received on 2 September 2015. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature.

Articles 2, 3 and 6 of the Convention. Autonomy of trade unions and the principle of non-interference of the State. The Committee recalls that for many years its comments have referred to the following provisions of Act No. 23551 of 1988 on trade union associations (LAS) and of the corresponding implementing Decree No. 467/88, which are not in conformity with the Convention:

• -Trade union status: (i) section 28 of the LAS, 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 providing that the association claiming trade union status must have at least 10 per cent more dues-paying members than the organization that currently has the status; (ii) section 29 of the LAS, 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 (iii) section 30 of the LAS, 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, and that the latter’s status must not cover the workers concerned.
• -Benefits deriving from trade union status: (i) section 38 of the LAS, under which the check-off of trade union dues is allowed only for associations with trade union status, and not for those that are merely registered; and (ii) sections 48 and 52 of the LAS, which give special protection (trade union immunity) only to representatives of organizations that have trade union status.

In its previous comments, after noting the decisions of the Supreme Court of Justice and of other national and provincial courts which have found unconstitutional various sections of the above legislation, particularly with regard to trade union status and protection, the Committee urged the Government to draw all the consequences of these judicial decisions, with the aim of bringing the legislation into conformity with the Convention.

The Committee notes the information provided by the Government in its report on a number of legislative initiatives to reform the LAS, which cover provisions referred to in the comment. Reaffirming its willingness to use the necessary institutional channels to seek greater conformity between national legislation and the provisions of international labour Conventions, the Government considers that these legislative initiatives show the emergence of a broad new situation regarding the need to adapt the LAS, reflect the favourable institutional environment created by the Government and constitute a positive step towards building the necessary consensus for the reform. However, emphasizing the need for the consensus to include all actors in the industrial relations system, the Government indicates that progress still needs to be made in some trade union and enterprise sectors in order to achieve a consensus-based reform.

The Committee also notes CTA Autonomous’ indication that the social partners were not invited to attend a tripartite meeting to prepare draft amendments to bring the legislation into conformity with the Convention, and the ITUC’s indication that CTA Autonomous was excluded from the meeting and from other consultation forums.

While taking due note of this information, and in particular the existence of certain ongoing legislative initiatives, the Committee observes with concern the delay in bringing the legislation into conformity with the Convention, despite the many years that have passed, the repeated requests for amendments and the technical assistance provided by the Office on several occasions. The Committee once again firmly urges the Government to take the necessary measures, without delay, and following tripartite examination of the pending issues with all of the social partners, to bring the LAS and the corresponding implementing Decree into full conformity with the Convention.

Article 3. Interference by the administrative authorities in trade union election processes. The Committee notes that CTA Autonomous reports interference by the Government in trade union elections, and refers to a recent example and the conclusions of the Committee on Freedom of Association on this matter. Observing with concern that these allegations have been the subject of cases before the Committee on Freedom of Association (in particular Cases Nos 2865 and 2979), the Committee requests the Government to provide its comments in this regard and trusts that the issue of non-interference of the administrative authorities in trade union elections will be part of the tripartite review carried out to amend the LAS.

Application in practice. The Committee notes that the ITUC and CTA Autonomous report unjustified delays in the administrative procedure to register a trade union or obtain trade union status, and cite examples of delays lasting between five and ten years. Recalling that allegations of undue delays have been the subject of several cases before the Committee on Freedom of Association (for example, Cases Nos 1872, 2302, 2515 and 2870), and referring to the recommendations of the latter in this regard, the Committee requests the Government to take all the necessary measures to avoid unjustified delays in the procedures to register a trade union or obtain trade union status, and to report on progress made in reducing such delays.

The Committee welcomes the information provided by the Government and CTA Autonomous on the completion of the process of registering the latter as a trade union. The Committee recalls that, in previous comments, it referred to the request for trade union status by the Confederation of Workers of Argentina in August 2004 and that, like the Committee on Freedom of Association and the Conference Committee on the Application of Standards, it urged the Government to make a decision in the near future. In this regard, the Committee notes the Government’s indication that, when the Confederation of Workers of Argentina separated into two trade unions (CTA and CTA Autonomous), both were able to register and neither required recognition of their trade union status.

The Committee is raising other matters in a request addressed directly to the Government.