Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of: the Confederation of Workers of Argentina (CTA Autonomous) and the Confederation of Workers of Argentina (CTA Workers), received on 13 July 2017, and the Government’s response; CTA Autonomous and CTA Workers, both received on 1 September 2017; the General Confederation of Labour of the Argentine Republic (CGT RA), received on 31 August 2018; the International Trade Union Confederation (ITUC) and CTA Autonomous, both received on 1 September 2018; the International Transport Workers’ Federation (ITF), received on 4 September 2018; and CTA Workers, received on 12 September 2018. The Committee notes that some of the issues raised by the social partners are the subject of cases before the Committee on Freedom of Association (particularly Cases Nos 3229, 3257 and 3272), and it refers to the examination, recommendations and follow-up of the Committee on Freedom of Association on these issues.

The Committee notes that the remaining observations pertain to issues addressed in this comment and further notes the following serious allegations of violations of the Convention in practice: the violent suppression of trade union protests, anti-union physical assaults and threats to workers and the detention, prosecution and imprisonment of trade unionists; attacks on trade union premises; obstacles to and the prohibition of the organization of strikes, with the sanctioning, replacement and dismissal of strikers; undue interventions and interference by the authorities in trade union activities; obstacles to the collection of union dues and disproportionate fines for direct action during compulsory arbitration; and verbal attacks by the Government on the trade union movement.

The Committee also notes that the Government, in its responses to the 2016 allegations of CTA Autonomous and CGT RA, indicates that it needs further information in order to investigate some of the allegations raised previously. The Committee also notes that the Government: (i) affirms that, in some sectors in the country, labour disputes tend to go hand-in-hand with disregard for the rights of other citizens and the institutions of the Republic; (ii) considers that social protest involves the questioning of political governance, which goes beyond the exercise of freedom of association; and (iii) provides a copy of the Protocol on action by state security forces in public demonstrations of 17 February 2016, which the workers’ organizations allege limits picketing, and indicates that the sole purpose of the Protocol is to protect the rights of all citizens, such as the right to freedom of movement and work, thereby rendering the development of the dispute more predictable and preserving social harmony. The Committee also notes that the Government emphasizes that the country often appears before the ILO supervisory system due to: the esteem accorded to the ILO in the country and among its social partners; the active presence of the Organization in the social, political and institutional life in the country; and the support that Argentina, as a founder Member, has always given to all ILO bodies. In this context, the Government proposes the establishment of two tripartite committees with the assistance of the ILO to address pending issues or those that may arise in the future in relation to compliance with international labour standards, in conformity with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144): (i) one committee to address issues raised by the regular supervisory system under articles 19, 22 and 23 and representations under article 24 of the ILO Constitution; and (ii) a second committee on the special procedure for complaints relating to freedom of association.

While noting that both the Government and the social partners express concern at the growing levels of conflict and protest, the Committee trusts that the initiative proposed to promote social dialogue will materialize in the near future in consultation with the social partners. The Committee encourages the Government to submit to these new tripartite committees the issues raised in this comment as well as the allegations presented in the observations of the workers’ organizations, and invites the workers’ organizations to provide the necessary information to address pending issues regarding the application of the Convention in practice. The Committee requests the Government to report any developments in this respect.

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 it has been requesting the Government to take measures to amend 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, the Committee noted the decisions of the Supreme Court of Justice and of other national and provincial courts which found unconstitutional various sections of the above legislation, particularly with regard to trade union status and protection. The Committee also noted that the Government had provided information on a number of legislative initiatives to reform the LAS.

The Committee notes that the observations of CTA Autonomous and CTA Workers reiterate the need to amend the LAS and allege that the Government has taken no action in this regard, despite the judicial decisions handed down. They emphasize that the Government has not held any tripartite roundtables and has not made any amendments to the legislation in force nor supported any of the bills that have been submitted to the National Congress on this matter by legislators from various groups, and they blame the Government for the absence of parliamentary debate.

On the other hand, the Committee notes the Government’s indications that: (i) legislators from the governing party have presented the majority of the bills to amend the LAS; (ii) however, it has not been possible to move forward in this debate for some time, despite new political conditions; (iii) the situation is much more difficult for the current Government, which took office in 2015, as this delicate legislative reform requires parliamentary intervention and the Congress currently descends into conflict each time a social issue is debated, in which the methods used by some trade unions are accompanied by an attitude that violates and restricts governability; (iv) this political context does not provide the necessary conditions for social dialogue as defined by the ILO; (v) under these conditions, the efforts that could currently be taken by the Government to apply in practice the amendments proposed by the ILO would be ineffective; and (vi) the Government proposes the establishment of a tripartite committee to address the issues raised by the regular supervisory system of the ILO, including the amendments to the LAS, in so far as the social partners are prepared to participate in that committee and are committed to its outcomes.

While recalling that it has been requesting the Government for many years to take the necessary measures to bring the legislation into conformity with the Convention, the Committee firmly hopes that the tripartite committees envisaged by the Government will provide a suitable forum for social dialogue to examine the pending issues with the social partners. The Committee once again firmly urges the Government, immediately following this tripartite examination, to take the necessary measures to bring the LAS and its implementing Decree into full conformity with the Convention and reminds the Government that it may avail itself of the technical assistance of the Office in this respect.

Article 3. Right of trade unions to elect their representatives in full freedom and to organize their administration and activities. In its previous comments, the Committee noted the allegations of the workers’ organizations concerning interference by the Government in trade union elections and noted with concern that these allegations had been the subject of the recommendations of the Committee on Freedom of Association (in particular in Cases Nos 2865 and 2979). The Committee notes that, in their observations, the CGT RA and CTA Autonomous make new allegations of interference in elections and that these organizations, together with the ITUC allege the emergence of new forms of undue Government interference in trade union activities, alluding in particular to interventions in trade unions, including the appointment of external administrators, and to unjustified delays in the certification of trade union officials by the administrative authorities, which they allege prevent the affected workers’ organizations from conducting their activities. The CGT RA and CTA Autonomous also refer to the publication of Provision No. 17-E/2017 by the National Directorate of Trade Union Associations, which orders the exclusion from the trade union register of organizations that have not confirmed their operational activity within three years, in compliance with the periodic legal requirements set out in the LAS. The CTA Autonomous alleges that this Provision confers immense discretionary power to sanction principal trade unions. The Committee also notes that the Government refers to these issues being dealt with by the proposed tripartite committees. Recalling the importance of ensuring non-interference by the administrative authorities in trade union elections, of avoiding undue delays in the accreditation of trade union officials, and of ending any other interference that undermines the right of trade unions to elect their representatives in full freedom and to organize their administration and activities, the Committee firmly hopes that the issues raised by the workers’ organizations will be examined by the new tripartite committees, with a view to taking the necessary measures, and requests the Government to provide information on any developments in this respect.

Administrative procedure to register a trade union or obtain trade union status. The Committee recalls that, in its previous comments, it requested the Government to take the necessary measures to avoid unjustified delays in the procedures to register a trade union or obtain trade union status. The Committee notes that the ITUC, CTA Workers and CTA Autonomous once again allege persistent delays and refusals by the administrative authorities to register trade unions and to grant trade union status (they cite numerous examples, highlighting that trade union status still has not been granted to the Federation of Energy Workers of the Argentine Republic (FeTERA) or CTA Workers, the initial requests for which were submitted 18 and 14 years ago, respectively). The Committee also notes the Government’s indication that these issues could also be addressed by the proposed tripartite committees. Recalling that similar allegations of undue delays have been the subject of several cases before the Committee on Freedom of Association, which referred the legislative aspects of this issue to the Committee of Experts, the Committee is once again bound to urge the Government to take all the necessary measures, including those that may arise out of the above tripartite discussions, to avoid unjustified delays or refusals in the procedures for the registration of trade unions or the granting of trade union status, and to report on any progress made in this respect.