Definitive Report - Report No 396, October 2021

Case No 3338 (Argentina) - Complaint date: 27-JUN-18 - Closed

Allegations: Exclusion of the Association of State Workers from the central joint negotiating committee in the context of collective bargaining for workers of the Autonomous City of Buenos Aires

1. 120. The complaint is contained in communications from the Confederation of Workers of Argentina, the Independent Confederation of Workers of Argentina and the Association of State Workers (ATE) dated 3 July 2018 and 18 January 2019.
2. 121. The Government sent its observations in a communication of May 2019.
3. 122. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 123. In their communications, the complainant organizations allege that the ATE has been excluded from the collective bargaining process for public employees of the Autonomous City of Buenos Aires, and in particular from the central joint negotiating committee.
2. 124. In their communication of 27 June 2017, the complainants state that the ATE has the trade union status and representative capacity to bargain collectively in the Autonomous City of Buenos Aires and has engaged in collective bargaining in the past with the authorities in this context. The complainants refer in particular to a collective agreement reached between the ATE and the Government of the City of Buenos Aires (GCBA) in 2010, after the courts had mandated the recognition of the ATE in 2008 (in a ruling acknowledging the ATE’s right to be involved in the city's general collective bargaining processes and ordering its inclusion in the central joint negotiating committee). The complainants point out in this regard that, in the public sector in general, and in the Autonomous City of Buenos Aires in particular, as established under Act No. 471 on industrial relations in the public administration of the Autonomous City of Buenos Aires, there are multiple trade unions that have trade union status. In respect of the central joint negotiating committee for public employees in the executive branch of the Autonomous City of Buenos Aires, the complainants state that the unions with trade union status in the context of the general job classification structure are the ATE, the National Civil Servants’ Union (UPCN) and the Union of State Workers of the City of Buenos Aires (SUTECBA). The complainants provide additional information to illustrate how the system of trade union pluralism works in other public sectors, for example pointing out how, in the education and health sectors, several unions participate at a single negotiating table.
3. 125. The complainants allege that the GCBA has nevertheless been excluding the ATE from collective bargaining in the context of the general job classification structure, by including only SUTECBA in the central joint negotiating committee. In this regard, the complainants state, to support this allegation, that: (i) in response to the ATE’s request of 24 February 2017 calling on the authorities to convene the central joint negotiating committee, the GCBA did not go ahead and convene the parties, but instead, on 9 March 2017, belatedly announced that the various associations with trade union status would be “called on to participate in the forthcoming bargaining process”. The complainants consider this response to be a stalling tactic that circumvents the right to collective bargaining; and (ii) in the light of this response from the authorities, the ATE, by a communication of 14 March 2017, one last time called on the GCBA to convene the central joint negotiating committee within 48 hours with all the competent organizations and to refrain from bargaining without the participation of the ATE, failing which it would consider stepping up the corresponding trade union and legal action. Consequently, the complainants conclude their initial communication by calling for the convening of the GCBA's central joint negotiating committee. They consider that the delays by the authorities in setting up the committee are inconsistent with the recognition that is given in other sectors – such as the education or health sectors – to joint bargaining with different organizations with trade union status. They refer to the recognition that is given to this model of trade union pluralism in the bargaining process in other legal systems, at both the national and the provincial levels, and claim furthermore that such pluralism is customary in the sector. The complainants also consider that the implementing authority is both judge and party to the dispute and they claim that, further to the request that was made, the Office of the Undersecretary of Labour, Industry and Trade did not convene the joint meeting, as the implementing authority for collective disputes and bargaining, thereby neglecting one of its duties and responsibilities and becoming complicit in the administration's bad faith in respect of bargaining.
4. 126. In their communication of 18 January 2019, the complainants add to their allegations by stating that: (i) the Government of the Argentine Republic and the GCBA, which share the same political affiliations, are not respecting the principles of freedom of association, by developing a systematic plan against the ATE aimed at undermining its representative status – a systematic plan that has various manifestations: the dismissal of trade union delegates, the seizure of union premises, challenges to union elections and exclusion from bargaining; (ii) throughout 2018, the authorities engaged in bargaining processes from which the ATE was systematically excluded and they refused to provide the information requested by the ATE (they did not answer the letters from the ATE requesting that it be sent the minutes of the joint negotiations and informed of the arrangements for the convening of the negotiating committee); (iii) the exclusion has not been limited to collective bargaining on the general job classification structure but has extended to the negotiating committee for health professionals of the Autonomous City of Buenos Aires; and (iv) on 20 September 2018, by resolution No. 1697/MEFGC/18, Joint Agreement No. 27/18 on wage increases for workers of the GCBA was put into effect exclusively with SUTECBA. The complainants call for the convening of the central joint negotiating committee of the GCBA and the central joint negotiating committee for health professionals of the GCBA with all competent parties, including the ATE.

B. The Government’s reply

1. 127. In its communication of May 2019, the Government denies the allegations made and submits the GCBA’s observations in this regard.
2. 128. The authorities first recall the position of trade union law in the framework of public administration, pointing out: (i) that in the public administration there may be several trade union associations with overlapping trade union status, in other words trade unions that cover some or all of the same categories of persons and geographical areas in the context of collective bargaining – this is a situation that is codified in various laws, including National Act No. 24185 and Act No. 471; (ii) more than 60 trade union associations are operating in the area covered by the Autonomous City of Buenos Aires, and more than 20 of them have trade union status to represent, depending on the case, all or some of the workers of the GCBA; and (iii) there are three associations that have been granted trade union status to represent all the workers of the GCBA. These are: SUTECBA, with a membership comprising approximately 50 per cent of the workers in the general job classification structure; the ATE, with a membership of approximately 5.3 per cent; and the UPCN, with a membership of 2.5 per cent (the Government specifies that these percentages have been obtained by taking into account single memberships and leaving out dual memberships, and explains that, in any case, even if the dual memberships were added, the final percentages would not change significantly).
3. 129. The Government rejects the accusations made by the complainants and states that not only has the right to freedom of association has been fully respected, but that the ATE has always been accorded all the rights associated with its trade union status, even though it is far from being the union with the most representative status according to its membership figures, and that it has done nothing to prevent the ATE from exercising its right to bargain collectively. Indeed, the ATE itself acknowledges that it signed a collective agreement with the GCBA in 2010, but what it fails to acknowledge is that the GCBA has acted consistently since that time. In this regard, the GCBA sends copies of the collective agreements signed with the ATE up to 2016.
4. 130. The authorities point out that, in 2017 and 2018, it was of its own accord that the ATE did not sign any collective agreement, and they deny that the GCBA has not summoned the ATE. The GCBA emphasizes that it has never disregarded the right of the ATE to participate in collective bargaining and neither has it objected to entities banding together in a common cause to represent the collective interests of all workers. However, the trade union organizations with trade union status, far from making common cause, have chosen to express their views and to work separately, without harmonizing their actions. Consequently, the GCBA has been reaching agreements with some of the associations, and has never refused to engage in bargaining through the different forms that these associations have decided to take.
5. 131. In this context, the Government points out that the ATE did not make the slightest effort to establish collective representation before issuing its unilateral request to initiate a collective bargaining process (the first criterion under law for the determination of common cause is the existence of an agreement between the various trade union associations that wish to participate in the negotiating committee). On the contrary, the ATE has been responsible for many cases of direct action, including in parallel to its calls to negotiate, demonstrating its contempt for the idea of holding a broad and organized dialogue. In this regard, the Government provides detailed information on 40 cases of direct action staged by the ATE between February 2017 and January 2019, including acts of intimidation – including the seizure of public buildings and unlawful occupations – carried out at the same time as it was calling for the urgent convening of the central joint negotiating committee. The Government highlights how the ATE failed in this regard to follow the procedure for the prevention of collective disputes that had been agreed upon in article 35 of the collective agreement under resolution No. 2779/MHGC/2010 and specifies that many of these cases of direct action involving work stoppages in the GCBA were based on facts that were partially or totally unconnected to industrial relations.
6. 132. The Government adds that despite all this, it acted entirely in good faith and tried to stay out of the evident disputes between the various trade union associations (SUTECBA, the ATE and the UPCN), so that they could take a position on the proposal to close the pay scale for 2017 and draw up a schedule for pay increases for 2018. In this regard, denying the allegation that the ATE was systematically excluded during 2018, the authorities submit a copy of a communication sent to the ATE on 7 February 2018, calling a meeting, including with ATE members, to discuss, among other issues, collective bargaining for 2018. The Government stresses that the convocation letter was in no way discriminatory and that SUTECBA and the UPCN – which together represent 52.5 per cent of the contributing members – accepted the invitation. Nevertheless, before providing a formal reply, the ATE (which represents 5.3 per cent of contributing members) began publicly to issue calls to direct action. In this context, with the signing of agreements between the GCBA and SUTECBA and the UPCN, and the tacit refusal of the ATE as shown by the direct action it took unilaterally, the negotiations between the Government and the workers’ organizations naturally drew to a close. For its part, the ATE, finding itself in disagreement with the other organizations, unilaterally decided to call numerous work stoppages without invoking the aforementioned dispute prevention procedure. The Government considers it paradoxical that the ATE is belatedly – in other words, after the negotiations have ended – calling for the establishment of a single negotiating table with all the other trade union associations, while showing a marked disregard for the position that these other associations have already taken and trying, without success, to impose its own will. Consequently, the Government considers it prudent to call on the ATE to reflect and modify its intransigent position and offers to continue to make every effort through the GCBA to improve collective bargaining methods and labour relations in general through dialogue.
7. 133. Furthermore, the Government maintains that the allegations of a systematic plan against the ATE in order to undermine its representative status , including the dismissal of delegates, the seizure of trade union premises and challenges to trade union elections are false, reckless and malicious. The Government stresses that these allegations are not backed up by any facts or evidence, and neither are they supported by any reference to their circumstances or to the persons allegedly affected by them. This even precludes the Government from defending itself. The authorities concerned add that it is totally untrue that ATE delegates have been dismissed and they state that the trade union officials elected by the ATE have at all times been granted unpaid leave and the corresponding special trade union protection. The Government also states that it is untrue that the ATE has been deprived of premises and maintains that the GCBA has been respectful of the mandates of the elected delegates and only challenges calls for elections that are made in blatant violation of the regulations in force.

C. The Committee’s conclusions

1. 134. The Committee notes that the complaint concerns the alleged exclusion of the ATE from collective bargaining for state workers of the Autonomous City of Buenos Aires, in particular in the central joint negotiating committee.
2. 135. The Committee notes that each of the parties claims that the other did not act in good faith to promote collective bargaining in the Autonomous City of Buenos Aires. The complainants accuse the Government of exclusion from the bargaining process and the Government claims that the ATE, despite being representative only to a limited extent, did not follow the agreed dispute prevention procedure and chose to apply unilateral confrontational strategies instead of trying to reach agreements between the parties, which included other unions that, with approximately ten times the membership of the ATE, did participate in the bargaining process and reached an agreement with the Government.
3. 136. In this regard and more broadly, the Committee recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Compilation of decisions of the Committee on Freedom of Association, Sixth edition, 2018, para. 1328].
4. 137. With regard to the specific case, and although it does not have the elements to examine each of the allegations made between the parties, the Committee notes that, with regard to the allegations of systematic exclusion of the ATE from collective bargaining in the Autonomous City of Buenos Aires, the Government does not deny, but rather repeatedly acknowledges, the rights of participation that the ATE is calling for, and maintains that, even though it is representative only to a limited extent (5.3 per cent of contributing members – compared to 50 per cent of the contributing members that are represented by SUTECBA), it is one of the three associations that have been granted trade union status (out of more than 60 that are operating in the Autonomous City of Buenos Aires) to represent all the workers of the GCBA. The Committee also notes that the Government provides evidence of having signed several agreements with the ATE resulting from collective bargaining in 2016 and 2017 (by submitting the relevant minutes) and, with regard to the main allegation of exclusion in 2018, the Government demonstrates that it summoned the ATE to a meeting of the central joint negotiating committee in order to discuss, inter alia, collective bargaining for 2018.
5. 138. With regard to the allegation that there is a systematic plan against the ATE aimed at undermining its representative status, which includes the dismissal of delegates, the seizure of trade union premises and challenges to trade union elections, the Committee observes that, as pointed out by the Government, these are general allegations that are unfounded and not backed up by documentary evidence that would enable the Government to respond adequately and the Committee to examine them. In this respect, the Committee wishes to recall that, in order to be able to examine allegations of violations of the principles of freedom of association and collective bargaining, these should be specified in detail and, as far as possible, accompanied by evidence. In these circumstances, the Committee will not proceed with the examination of this allegation.
6. 139. In the light of the foregoing (while welcoming the Government’s call for dialogue in order to continue to promote the improvement of collective bargaining methods and industrial relations), the Committee invites the competent authorities to continue to promote collective bargaining in good faith in the Autonomous City of Buenos Aires with the different organizations that have recognized trade union status, which is the case of the ATE, in accordance with the applicable legislation and with a view to fostering harmonious industrial relations.

The Committee’s recommendations

1. 140. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the competent authorities to continue to promote collective bargaining in good faith in the Autonomous City of Buenos Aires with the different organizations that have recognized trade union status, such as the Association of State Workers (ATE), in accordance with the applicable legislation and with a view to fostering harmonious industrial relations.
   • (b) The Committee considers that this case does not call for further examination and is closed.