Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee takes note of the supplementary information provided by the Government, in light of the decision adopted by the Governing Body at its 338th Session (June 2020), reporting on the measures adopted in the context of the COVID-19 pandemic regarding social dialogue and the application of the Convention (such as the extension of the terms of office of union officers and representatives). The Committee welcomes the resumption of the activities of the standards subcommission of the Social Dialogue Commission, with a view to making progress on the tripartite processing of matters relating to the ILO supervisory bodies. In this regard, the Government states that the ILO has been invited to participate in the tripartite meetings and that forums are being opened to resolve differences between the provinces, the Government and the social actors.

The Committee also notes the observations of:

• -the Industrial Confederation of Argentina (UIA), sent with the supplementary report, which underline the impetus given by the Government to social dialogue as a tool for reaching agreements to overcome the crisis and indicate that meetings have been held to move forward on pending issues;
• -the General Confederation of Labour of the Argentine Republic (CGT RA), received on 27 September 2020, which refer to the measures adopted to address the pandemic and affirm that the trade union movement has laid the foundations for a sustained dialogue with the Government and the employers (they emphasize the importance of setting up an economic and social council);
• -the Confederation of Workers of Argentina (CTA Autonomous), received on 30 September 2020, which denounce the Government’s persistence in refusing to align the trade union legislation to the Convention. The CTA highlights the efforts of the International Department of the Ministry of Labour, Employment and Social Security to keep the Social Dialogue Commission and its subcommissions active. However, it expresses regret that nothing has been done in these bodies regarding the reform of the Trade Unions Act. CTA Autonomous also submits additional allegations of violations of the Convention in practice (concerning delays and the refusal to register or grant legal personality to trade unions, crackdowns on public demonstrations in September 2019, criminalization of a strike of drivers in October 2019, espionage and political harassment at a provincial trade union office, and acts of interference in two trade union election procedures). The Committee requests the Government to send its observations on these matters.

The Committee hopes that the additional issues raised in these supplementary observations will also be examined and addressed in a tripartite manner in the context of the standards subcommission of the Social Dialogue Commission. The Committee expresses the firm hope that specific measures will be taken in the same context to address issues raised in previous observations, including bringing the legislation referenced and alluded to in this observation into conformity with the Convention.

Furthermore, the Committee reiterates the content of its comments adopted in 2019, which are reproduced below.

The Committee notes the observations of the UIA, with the support of the International Organisation of Employers, received on 30 August 2019, welcoming the creation of the Social Dialogue Commission, and particularly its subcommission on specific cases. The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019, and of the CGT RA and CTA Autonomous, both received on 3 September 2019, and of the Confederation of Workers of Argentina (CTA Workers), received on 10 September 2019. The Committee notes that some of the matters raised by the social partners are the subject of cases that are before the Committee on Freedom of Association (among others, Cases Nos 3229, 3257, 3272 and 3315). The Committee notes that the other observations relate to matters already raised, such as allegations of police repression and restrictions on the exercise of the right to strike and other violations of the Convention. The Committee hopes that the matters raised will be examined and addressed in a tripartite manner within the framework of the Social Dialogue Commission.

With regard to, and following up the matters raised in 2018, the Committee welcomes the information provided by the Government on the establishment and operation of the Social Dialogue Commission through Decision No. 225/2019. The Committee notes in particular: (i) its functions, including acting as an intermediary with the social partners to improve compliance with ratified Conventions: (ii) the creation of two subcommissions – one on labour standards (for the examination of subjects related to regular reporting under articles 12, 29 and 23 of the ILO Constitution, as well as representations under article 24), and the other on specific cases (for the examination of complaints relating to freedom of association); and (iii) its initial activities (two plenary meetings, three meetings of the subcommission on standards and two of the subcommission on cases, which examined two cases that are before the Committee on Freedom of Association). The Committee encourages the Government to continue to reinforce this social dialogue body and requests it to continue providing information on developments in its work.

Articles 2, 3 and 6 of the Convention. Trade union independence and the principle of non-interference by 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 1998 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 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 or federation, 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 afford special protection (trade union immunity) only to representatives of organizations that have trade union status.

The Committee has noted the rulings of the Supreme Court of Justice of the Nation and other national and provincial courts finding various provisions of the legislation referred to above unconstitutional, particularly with regard to trade union status and trade union protection. Similarly, the Committee welcomes a recent opinion of 27 August 2019 of the Public Prosecutor submitted to the Supreme Court of Justice indicating that the system of the check-off of trade union dues as set out in section 38 of the LAS is prejudicial to the freedom of association of organizations that are only registered and is therefore unconstitutional.

The Committee also notes that the CTA Autonomous and the CTA Workers once again emphasize the need to amend these provisions of the LAS, as well as sections 31(a) and 41(a), which are reported to have been found unconstitutional by the Supreme Court of Justice. The organizations denounce the lack of political will by the Government in this regard, indicating that it has not proposed any amendments to the LAS and has not supported any of the draft amendments that have been submitted for this purpose and that, although a standards subcommission has been established in the Social Dialogue Commission, the subject of the need to bring the national legislation into conformity with the Convention has not been included on its agenda. The Committee notes the Government’s indication that the reform of the labour legislation has undoubtedly not been raised for discussion in the Social Dialogue Commission because the social partners themselves have not secured the minimum level of agreement required.

The Committee expresses the firm hope that all the necessary measures will be taken without further delay to bring the LAS and its implementing Decree into full conformity with the Convention. The Committee considers that structured tripartite dialogue in the Social Dialogue Commission should provide an appropriate forum to carry out an in-depth tripartite examination with a view to the preparation of draft amendments that take into account all of the matters raised. Recalling that it has been requesting the amendment of the legislation referred to above for over 20 years, and that many of the provisions concerned have been found to be unconstitutional in specific judicial procedures, the Committee hopes and expects that it will be able to note tangible progress in the near future.

Delays in procedures for the registration of trade unions and to obtain trade union status. For many years, the Committee has been requesting the Government to take the necessary measures to avoid unjustified delays in procedures for the registration of trade unions or the granting of trade union status. The Committee notes that the ITUC, CTA Workers and CTA Autonomous once again denounce the persistence of delays and refusals by the administrative authorities to recognize trade union status and to simply register trade unions. They allege that, although the latter procedures should be completed within 90 days, the authorities paralyze the procedure for years or set out requirements not envisaged in the law, obliging the organizations concerned to operate without legal status. The organizations once again provide long lists of cases in which trade union registration has not been granted (alleging unresolved delays of up to 16 years) as well as cases of trade union status (including the applications by the Federation of Energy Workers of the Argentine Republic (FeTERA) and the CTA Workers, for which the initial applications were submitted 19 and 15 years ago, respectively), and they denounce the fact that the Government has not taken any measures to resolve the situation. The Committee also notes the Government’s indication that delays in the procedure for the registration of trade unions and the granting of trade union status are in the majority due to: (i) delays by the unions to comply with the requirements set out in the law; and (ii) the existence of pre-existing unions, which defend their position and lodge administrative and judicial appeals. The Committee recalls once again that such allegations of undue delays have been the subject of various cases brought before the Committee on Freedom of Association, both in recent complaints (Cases Nos 3331 and 3360) and more long-standing cases, and particularly the case relating to FeTERA, No. 2870, in which the Committee on Freedom of Association firmly urged the Government to take the necessary measures to grant the organization trade union status. The Committee once again firmly urges the Government to take the necessary measures 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 any progress made in this respect. The Committee trusts that this issue will also be examined by the Social Dialogue Commission with a view to finding effective solutions which take into account the concerns of all the parties concerned.

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 made by workers’ organizations concerning interference by the Government in trade union elections and delays in the registration of trade union officers. The Committee also noted with concern that some of these allegations had already been the subject of recommendations by the Committee on Freedom of Association (in particular, in Cases Nos 2865 and 2979). The CGT RA and the CTA Autonomous also referred to the publication of Provision No. 17-E/2017 by the National Directorate of Trade Union Associations, which ordered the exclusion from the trade union register of organizations that had not confirmed their operational activity within three years, in compliance with the periodic legal requirement set out in the LAS (the CTA Autonomous alleged that this Provision conferred immense discretionary power to sanction trade unions which were critical of the Government). The Committee welcomes the fact that Provision No. 17-E has been set aside by the governmental Decision No. 751/2019. The Committee also notes the Government’s indication that: (i) the registration of officers is not subject to any time limits and the principal reason for delays is the submission of applications that are incomplete or lack documentation; and (ii) the procedure allows the examination of challenges to the electoral process, thereby guaranteeing the exercise of trade union democracy. The Committee also notes that the CTA Autonomous once again denounces: (a) interference with unions by the government authorities through the designation of delegates to assume administrative functions and to replace the representatives elected by the workers (although this has diminished over the past year, since December 2015, there has been interference of this type with 23 trade unions); and (b) the failure to issue, or delays in issuing, the accreditation of trade union officials, affecting their ability to avail themselves freely of the bank accounts of the unions and their capacity to operate, as well as other acts by the administrative authorities affecting the financing of unions, such as the failure to approve the document requiring the check-off of union dues. The Committee recalls once again the importance of ensuring non-interference by the administrative authorities in trade union elections and of avoiding undue delays in the accreditation of trade union officials, as well as 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. In this regard, the Committee firmly hopes that the issues raised by the workers’ organizations will be examined in the near future by the Social Dialogue Commission with a view to the adoption of appropriate measures, including at the legislative level where necessary, and it requests the Government to provide information on any developments in this respect.