Definitive Report - Report No 116, 1970

Case No 541 (Argentina) - Complaint date: 31-OCT-67 - Closed

1. 63. The Committee examined this case previously in its session in May 1968, when it submitted to the Governing Body a report which is contained in paragraphs 7-19 of its 106th Report, which was approved by the Governing Body at its 172nd Session (May-June 1968).
2. 64. The Committee had reached a number of final conclusions on the complaint submitted by the United Unions of Workers in the State Oil Industry, contained in paragraph 19 of its 106th Report. After this Report had been communicated to the Government and to the complainants, the latter sent a further communication on 19 July 1968, in which they made observations on specific aspects of the case. After the Government had been informed of those parts of the communication which contained new points concerning the exercise of trade union rights, it furnished its comments in a letter dated 20 November 1969.
3. 65. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 66. In its observations on the original complaint presented by the complainants, the Government had stated (see paragraph 11 of the 106th Report) that its respect for Convention No. 98 had been demonstrated by its promulgation of Act No. 17494 of 1967 (respecting the organisation of labour in state undertakings), which provided for the introduction of methods and systems of rationalisation with the participation of the unions. As a result of this Act, the Government stated, the organisations concerned played a direct part in rationalising state undertakings, and it was the United Unions of Workers in the State Oil Industry which had signed the first rationalisation agreement under the terms of the Act. In its conclusions the Committee recommended the Governing Body to take note of this fact.
2. 67. In their subsequent communication, the complainants stated that the effect of Act No. 17494 was to compel the unions of workers in state undertakings to discuss changes in the existing systems of work, to impose the agenda for negotiations and to reserve for the Government the right to arbitrate without benefit of appeal. Any unions which refused to discuss work systems on the terms laid down in the Act would be obliged to accept regulations drawn up unilaterally by the Secretary of State for Labour, " all of which constitutes a further infringement of Convention No. 98 ". The complainants add that Act No. 17494 is a coercive measure since it does not allow collective bargaining to take its natural course. They point out that " in the atmosphere of social disquiet existing in our country, and having no legal support whatsoever, our organisation chose the lesser evil, that is to say of going to the conference table as provided under Act No. 17494, in the hope of avoiding a unilateral enforcement of a system of work which, by any standards, would be aimed at undermining all the social gains won over years of trade union activity ".
3. 68. The Government replied to these arguments by stating that Act No. 17494 was passed " as a consequence of the undeniable need to give state undertakings adequate means of improving methods of work and of making full use of them, in order to attain the highest possible output from their human resources and to fulfil the operational requirements of each undertaking at high levels of production and efficiency ". The Government also refers to the machinery introduced by the Act, whereby the managements of state undertakings must inform the Secretary of State for Labour of their rationalisation requirements, whereupon collective bargaining is begun with the unions representing the workers concerned. This bargaining is designed to secure " the determination of methods of work adapted to the requirements of efficiency and economy ". In order to overcome differences of opinion that may arise between the parties during collective bargaining, provision is made for arbitration.
4. 69. The Government adds that the negotiations which took place in compliance with Act No. 17494 were completely free and that the complainant organisation negotiated of its own free will, no recourse being made to the special arbitration procedure provided under the Act. As regards the allegation concerning the unilateral imposition of conditions of work by the Government, this applies only to a specific branch when no trade union organisation exists to negotiate directly.

B. B. The Committee's conclusions

1. 70. The Committee observes, in the light of the text of Act No. 17494, that this applies to state undertakings, state-owned undertakings, joint state-privately-owned undertakings and the electricity and telephone companies, which must formulate their requirements in the field of the rationalisation of labour (section 1). Once it has been informed of these requirements, the Secretariat of State for Labour passes them on to the relevant trade union organisations for them to submit their observations (section 2). Having heard the parties, the Secretariat decides the points that should be settled by collective bargaining, which must not take more than 60 days (section 3). Points on which no agreement is reached during the bargaining procedures must be submitted to the arbitration of the Secretary of State for Labour, whose award is not subject to appeal (section 4). If any of the trade union organisations does not accept the procedure or withdraws from it, the Secretariat must prepare a draft work scheme for the undertaking concerned, which is then submitted to the Executive for approval. In cases where the need for the introduction of a new set of working methods and the characteristics of the existing trade union situation involve a new approach, which hinders the bargaining procedure that has been instituted, the working conditions to be, applied will be established by the Executive (section 5).
2. 71. The Committee considers that the use of collective bargaining for the purpose of settling problems of rationalisation in undertakings and improving their efficiency may yield valuable results for both the workers and the undertakings. There are examples of this in various countries where certain conditions of employment have been regulated through collective bargaining in the light of rationalisation needs.
3. 72. The Committee notes that in the present case this type of collective bargaining has to follow a special pattern which amounts to imposing bargaining on the trade organisations; this bargaining in fact has to bear on those aspects determined by the labour authority; the period of negotiation must not exceed a specified time; and failing agreement between the parties, the points at issue must be settled by arbitration by the said authority. In the Committee's opinion this statutory system does not conform to the principle of voluntary negotiation. This, however, is the guiding principle of Article 4 of Convention No. 98, ratified by Argentina, whereby measures appropriate to national conditions must be taken, when necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreement.

The Committee's recommendations

1. 73. In the circumstances the Committee recommends the Governing Body (a) to draw the Government's attention to the considerations and the principles outlined in the preceding paragraph and to suggest that it review its legislation with a view to bringing it into line with the provision contained in Article 4 of Convention No. 98; and (b) to bring these conclusions to the attention of the Committee of Experts on the Application of Conventions and Recommendations.