Report in which the committee requests to be kept informed of development - Report No 324, March 2001

Case No 2037 (Argentina) - Complaint date: 11-MAY-00 - Closed

Allegations: Provincial decree restricting trade union rights - Replacement of strikers

1. 89. The complaint was submitted in a communication from the Congress of Argentine Workers (CTA) and the Association of State Workers (ATE) dated June 1999. The Government sent its observations in a communication dated 11 May 2000.
2. 90. 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. The complainants' allegations

1. 91. In their communication dated June 1999, the Congress of Argentine Workers (CTA) and the Association of State Workers (ATE) state that as from 1995 the Government of the Province of Tierra del Fuego, Antártida e Islas del Atlántico Sur began a series of attempts to restrict freedom of association. The complainant organizations explain that Provincial Act No. 278 respecting the reorganization of the structure of the provincial government was issued in 1996, followed by Provincial Decree No. 1865/98 and Decree No. 2441/98, the latter repealing the former and being the source of the complainant organizations' criticism.
2. 92. The complainant organizations state that Provincial Decree No. 2441/98 relates to freedom of association and that the ATE has lodged an action of unconstitutionality before the judicial authorities on which no decision has yet been handed down. They indicate that the decree in question contains provisions to regulate the holding of assemblies in workplaces and during working hours. They explain that article 5 of Annex I to the decree establishes that the right to hold meetings or assemblies established in Act No. 23551 respecting trade union associations can only be exercised at the end of the working day and in a location assigned by the employer. Only in exceptional circumstances may the corresponding authorization be requested for meetings to be held during working hours, in which case - if the grounds are acceptable - the administrative instrument to authorize the meeting will be issued. The complainants consider that the rule prevents the exercise of the right of assembly during working hours and affects communication between the trade union and the workers. They are also of the view that the criticized provision implies undue interference in the life of the trade union association, given the requirement for permission to be requested in order to hold meetings during working hours.
3. 93. The complainant organizations go on to refer to a conflict that ended in an open-ended strike being called in conjunction with the submission of a complaint relating to maintenance and service workers employed by the public administration of the Province of Tierra del Fuego, Antártida e Islas del Atlántico Sur. The complainants explain that the main duties of these workers, as established by way of collective agreement, are to fully clean school premises, carry out specific tasks involved in the preparation of daily meals, supervise and oversee the work of kitchen hands, serve meals in school dining-rooms, serve breakfast and/or tea to pupils, supervise and oversee hygiene measures in kitchens and dining-rooms and general kitchen work, order the necessary ingredients for the weekly menu, assist in the preparation of ingredients for meals, do the washing up, ensure kitchens and dining areas are kept scrupulously clean, etc. Most of the staff in question work in schools governed by the public administration in the Province of Tierra del Fuego, Antártida e Islas del Atlántico Sur.
4. 94. The complainant organizations state that as from 1997 the provincial government made a number of attempts to privatize the abovementioned sector. In addition, there are also people working in the sector not covered by the standard labour agreements (under so-called work or labour schemes) who perform the same tasks as maintenance and service workers; this form of contracting workers has come under heavy criticism. The complainants add that in November 1998 the ATE announced its decision to go on strike, calling for a wage increase for the entire central administration and for the repeal of all rules that adversely affect the development of freedom of association; the compulsory conciliation procedure was then initiated. Following a number of negotiations, on 20 May 1999 it was finally decided that a full-time strike and industrial action would begin until further notice for all shifts as from 21 May 1999. According to the complainant organizations, immediately the measure was taken the authorities announced that they would contract cooperatives to replace the strikers and on 25 May the strikers were told to return to work or the appropriate sanctions would be applied. On 26 May members of the police force of the Province of Tierra del Fuego, Antártida e Islas del Atlántico Sur went to a school in Ushuaia to detain the staff involved in the strike action and demanded that the authorities establish a list of staff involved in the strike. As cooperatives had been contracted to perform the work of the strikers, they tried to stop the cooperative members doing the work, explaining the reasons for this measure of trade union action. The complainants state that judicial proceedings were initiated on the grounds that it was a criminal offence for staff from the ATE to prevent the access of staff from the Work Cooperative of Tierra del Fuego and that by the time the complaint was submitted 12 named strikers had been investigated in connection with the incident. The legal situation of those charged has not yet been resolved. Similarly, the complainant organizations allege that the provincial government used trade union action as a reason to replace the strikers by workers contracted under the abovementioned work schemes.

B. The Government's reply

1. 95. In its communication dated 11 May 2000 the Government states with regard to Provincial Decree No. 2441/98, criticized by the complainant organizations, that the requirement for acceptable grounds and prior authorization to hold assemblies at the workplace and during working hours can in no way be considered as violating freedom of association. This is because no limitations are placed on the holding of assemblies or meetings, and neither are any restrictions imposed, if the assemblies and meetings are held outside working hours. Furthermore, there is no prohibition on the possibility of holding assemblies or meetings in the workplace or during working hours. The fact is that this activity is regulated in view of the unquestionable principle that the worker is at the employer's disposal during working hours, something that is particularly relevant when it comes to activities relating to the public in general, which would be seriously affected if, without any notification whatsoever, it were permitted for assemblies or meetings to be held at the workplace and during working hours.
2. 96. As regards the conflict concerning maintenance and service staff, the Government states that on no occasion was the right to strike limited, nor was the concept of essential services invoked to establish minimum services, nor was the measure declared illegal, nor was any sanction adopted against those involved in the open-ended strike. The Government adds that, as explained by the complainants, the main duties of the staff participating in the open-ended strike include fully cleaning school premises, serving food in school dining-rooms, overseeing hygiene in kitchens, preparing daily glasses of milk for pupils, serving children their breakfast and tea, etc., all of this in public schools coming under the provincial administration. In this respect the Government mentions that in accordance with the criteria established both by the Committee on Freedom of Association and the Committee of Experts, essential services are services which could endanger the life, personal safety or health of the population. On this point the Government notes that unfortunately in a number of provinces in Argentina school canteens are the principal source of nourishment for underprivileged children of school age. As a result the failure to provide cleaning services in schools (classrooms, toilets, kitchens, etc.), particularly for an indeterminate length of time, constitutes a source of infection that could endanger the health of the children and other members of the educational community. This being the case, the lack of cleaning and the closure of canteens in schools endanger the health and safety of an enormous number of children. Despite this fact, it has never been invoked as a restriction on the right to strike. Owing to the circumstances mentioned, and given the extension of the action, the most imperative duties of the striking staff were carried out by staff from labour cooperatives or participants in public employment schemes. Needless to say, the reason for this was the need to re-establish - as a form of stopgap - a service of such vital importance to the community (above all for lower-income sectors) as the abovementioned canteens and to maintain the level of hygiene of toilets, kitchens and other areas in public schools where hundreds of children congregate daily, which constitutes a basic principle of public health. It is simply a matter of balancing the right to strike with the most basic needs of the community. Given the circumstances, it is impossible to consider the situation described as one where outside manpower is being used to break an open-ended strike.
3. 97. The Government declares that as regards the charges brought against certain individuals for preventing others from entering schools and the application of article 158 of the Penal Code cited by the complainant organizations, the argument put forward in the complaint is somewhat flimsy as a worker from a workers' cooperative is manifestly a worker; whether or not there is an employment relationship, the person is a worker. For the reasons given it is considered that in the case in question the principles of freedom of association were not infringed; on the contrary, attempts were made to align the legitimate exercise of the right to strike (without either restricting or limiting it) with the most basic needs of the community as regards the protection of life, health and personal safety.

C. The Committee's conclusions

1. 98. The Committee observes that in this case the complainant organizations: (1) raise objections to Provincial Decree No. 2441/98 of the Province of Tierra del Fuego, Antártida e Islas del Atlántico Sur, in view of the fact that it does not permit - except in exceptional cases and subject to authorization - the exercise of the right to hold meetings or assemblies by trade union organizations in the provincial public administration during working hours; and (2) allege that in the framework of a strike called by maintenance and service workers employed by the public administration in the Province of Tierra del Fuego, Antártida e Islas del Atlántico Sur, the authorities employed workers from cooperatives or participating in work schemes to replace the strikers, and that some strikers were accused of having committed an offence stipulated in the Penal Code relating to the exercise of violence against third parties to oblige them to participate in a strike.
2. 99. As regards Provincial Decree No. 2441/98 objected to by the complainant organizations, the Committee notes the Government's declaration that the decree does not restrict the right to hold assemblies or meetings if they are held outside working hours, and that it cannot be considered as a violation of freedom of association to require prior authorization to hold assemblies at the workplace and during working hours. The Government considers that the decree does not prohibit assemblies or meetings at the workplace and during working hours, but instead regulates such meetings given that the activities concerned relate to the public which would be seriously affected if it were permitted, with no requirements whatsoever, to hold such assemblies and meetings in the workplace and during working hours.
3. 100. In this regard the Committee recalls that the Labour Relations (Public Service) Convention, 1978 (No. 151) - ratified by Argentina - provides in Article 6 that "Such facilities shall be afforded to the representatives of recognised public employees' organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work"; and that "The granting of such facilities shall not impair the efficient operation of the administration or service concerned". This being the case, the Committee considers that the Provincial Decree objected to by the complainant organizations does not violate the provisions contained in Convention No. 151 nor the principles of freedom of association relating to the right of workers' organizations to hold trade union meetings.
4. 101. As regards the allegation concerning the employment of workers from cooperatives or participating in work schemes to replace maintenance and service workers employed by the public administration of the Province of Tierra del Fuego, Antártida e Islas del Atlántico Sur who had called an open-ended strike, the Committee notes the Government's declaration that: (i) at no time was the right to strike restricted, nor the measure declared illegal, nor were sanctions adopted against the strikers, nor was the concept of essential services invoked to establish a minimum service; (ii) the main duties of the staff who went on strike are the cleaning of schools (classrooms, toilets and kitchens) and the serving of food in school canteens (the pupils' breakfast and tea); (iii) in various provinces of Argentina school canteens are the principal source of nourishment for underprivileged children of school age; (iv) the lack of cleaning and the closure of school canteens endangers the health and safety of an enormous number of children; and (v) given the extension of the strike, the most important aspects of the staff's duties were carried out by staff from work cooperatives or by participants in public employment schemes.
5. 102. In this respect the Committee considers that the activities performed by maintenance and service workers employed by the public administration of the Province of Tierra del Fuego, Antártida e Islas del Atlántico Sur, which have been described in similar terms by the complainant organizations and the Government, fall within the definition of essential services. In effect, the provision of food to pupils of school age - particularly in areas located away from the main urban centres - and the cleaning of schools are services which if interrupted could endanger the life, personal safety or health of pupils. As a result, the use of a group of people to carry out the functions of workers on strike in the sector in question, which is considered to be an essential service, does not violate the principles of freedom of association. In this respect, the Committee has only objected in the past to the hiring of workers to break a strike in sectors which are not essential [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 570].
6. 103. With regard to the allegation that some strikers (listed by name by the complainant organizations) from among the maintenance and service workers employed by the public administration of the Province of Tierra del Fuego, Antártida e Islas del Atlántico Sur had been charged for having committed an offence stipulated in the Penal Code of Argentina relating to the exercise of violence against third parties to oblige them to participate in a strike, the Committee notes that the Government has not sent any specific observations in this regard. This being the case, the Committee requests the Government to keep it informed about developments in the legal proceedings, as well as about the situation of the workers charged (whether they have been tried or their cases dismissed, etc.). The Committee also requests the Government to send it a copy of any decisions handed down in this respect.

The Committee's recommendations

1. 104. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to keep it informed about developments in the criminal proceedings brought for acts of violence against third parties to oblige them to participate in a strike, as well as about the situation of the workers charged (whether they have been tried or their cases dismissed, etc.). The Committee also requests the Government to send it a copy of any decisions handed down in this respect.