Report in which the committee requests to be kept informed of development - Report No 332, November 2003

Case No 2250 (Argentina) - Complaint date: 28-FEB-03 - Closed

Allegations: The complainants object to the decision of the administrative authority to exclude the ATE from the bargaining committee negotiating a collective agreement on the grounds that there are other more representative organizations

1. 267. The complaint is contained in a communication from the Confederation of Argentine Workers (CTA) and the Association of State Workers (ATE) of February 2003. The Government sent its observations in a communication dated 21 July and 10 September 2003.
2. 268. 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 complainants’ allegations

1. 269. In its communication of February 2003, the Confederation of Argentine Workers (CTA) and the Association of State Workers (ATE) state that the Ministry of Labour, Employment and Human Resources Training decided that the ATE lacked the legitimacy to represent the workers in the sector employed by the Nucleoeléctrica Argentina S.A. (NASA) enterprise, for collective bargaining purposes.
2. 270. The complainants add that on 31 May 2000, Decision No. 63 was issued by the National Directorate of Collective Bargaining setting up the bargaining committee for the conclusion of a collective agreement in the NASA enterprise. The ATE filed an application for reconsideration of the decision, together with a subsidiary appeal to the higher administrative authority, requesting to be included in the bargaining committee, since, on the workers’ side, it only included the Argentine Federation of Light and Power Workers (FATLYF), the Villa María Regional Light and Power Workers’ Trade Union and the Paraná Light and Power Workers’ Trade Union. The Directorate responded favourably to the application for reconsideration of its decision and ordered the inclusion of the ATE in the bargaining committee.
3. 271. The complainants add that after the inclusion of the ATE, the FATLYF claimed the exclusive right to bargain in the sector and ATE maintained that it had the right to participate in the committee (without demanding exclusivity or the exclusion of the other trade unions from the committee). The matter was finally settled through administrative channels, with Ministerial Decision No. 595/02 of 3 September 2002 granting the FATLYF and its affiliates exclusive rights to represent the workers.
4. 272. The complainants explain that the ATE never denied the right of the Federation or its affiliates to participate in bargaining, given that this is a right of the workers of the NASA enterprise, and hence their representative bodies should endeavour to establish bargaining committees that represent the workers’ interests, irrespective of which trade unions represent them.
5. 273. According to the complainants, the State is denying the right of ATE to participate in collective bargaining in the enterprise, despite the fact that it has trade union status (pessonería gremial) and has a large membership, with even more members than the other organizations, on grounds that – according to Ministerial Decision No. 595/02 – decisions have been taken under which the alleged legitimate trade unions expanded the scope of their activity, displacing the ATE. The complainants point out that the decisions were adopted under procedures in which the ATE did not take part and that no comparison had been made between membership numbers which would have deprived the ATE of its representative trade union status.
6. 274. The complainants assert that the right of representation should in no case be granted to one trade union without hearing the other trade union or trade unions who would thereby lose their status, and that this is the case of the decisions underlying the administrative act which is the subject of the complaint. The workers are clearly willing to support the action and participation of the ATE in defence of their interests in the NASA enterprise. This reality can by no means be denied, restricting the freedom of the workers to express themselves through their trade union. There are two trade unions with the right to represent the workers, and both undeniably have the right to participate in collective bargaining and hence to represent the workers’ collective interests.
7. 275. Lastly, the complainants state that the ATE has more paid-up members in the sector to which the NASA enterprise belongs, both among nuclear plant workers and among administrative personnel employed under the National Atomic Energy Commission.

B. The Government’s reply

1. 276. In its communications dated 21 July and 10 September 2003, the Government states that the complaint is based on the exclusion of the ATE from the bargaining committee set up to discuss the collective agreement of the staff employed at the Nucleoeléctrica Argentina S.A. (NASA) enterprise. The Government points out that under Argentine legislation, the most representative trade unions have exclusive rights to bargain collectively. According to the Government, the Committee on Freedom of Association has considered that granting preference to the most representative trade union in collective bargaining is not contrary to the principles of freedom of association and it is commonly found in many legal systems.
2. 277. The Government states that in this case it is the Argentine Federation of Light and Power Workers and its regional affiliates, the Villa María Regional Light and Power Workers’ Trade Union and the Paraná Light and Power Workers’ Trade Union, which have the status of most representative trade unions. At no time has the ATE demonstrated that it is the most representative union in the sector. Moreover, through a number of administrative acts by the implementing authority, the staff of the Embalse Nuclear Power Plant have been assigned to representation by the Villa María Light and Power Workers’ Trade Union and the staff of the Atucha Nuclear Power Plant assigned to representation by the Paraná Light and Power Workers’ Trade Union.
3. 278. The Government states further that exclusion from collective bargaining does not imply non-recognition of the trade union rights (the right to take direct action, etc.) enjoyed by the ATE in the enterprise concerned. According to the Government, it can be inferred from the above that there has been no violation of freedom of association. Finally, in its communication of 10 September 2003, the Government states that the ATE lodged an appeal before the judiciary against the administrative acts to which it objects, and that the National Labour Court of Appeals rejected the appeal (in its decision, the judicial authority indicates that the complainant should channel its claim through the procedures of the Trade Unions Act No. 23551, on the basis of either a conflict of representativity or a dispute of representativity in a sector under articles 59 and subsequent of Act No. 23551).

C. The Committee’s conclusions

1. 279. The Committee observes that the complainants object to the decision taken by the administrative authority to the effect that the Association of State Workers (ATE) lacks the legitimacy to represent the workers in the sector employed by the Nucleoeléctrica Argentina S.A. (NASA) enterprise, resulting in the exclusion of the ATE from the bargaining committee for the conclusion of a collective agreement. The Committee also observes that the complainants state that: (1) although the ATE has trade union status – the necessary prerequisite to be able to bargain collectively – and a large membership – with, according to the complainants, even more members than the other organizations – it is being denied the right to participate in collective bargaining; (2) the ATE claims the right to participate in collective bargaining, but does not demand exclusivity or the exclusion of the other authorized trade unions; and (3) the ministerial decisions declaring that the other trade union organizations have the right to represent the workers were adopted after procedures in which the ATE did not take part and without comparing membership numbers.
2. 280. The Committee observes that the Government states that: (i) Argentine legislation provides that the most representative trade unions have exclusive rights to bargain collectively; (ii) in this case, it is the Argentine Federation of Light and Power Workers and its affiliates which have the status of most representative trade union; (iii) at no time has the ATE demonstrated that it is the most representative organization; and (iv) the judicial authority rejected the appeal lodged against the administrative acts.
3. 281. In this respect, the Committee recalls that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer’s recognition of that union for collective bargaining purposes [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 824].
4. 282. In this case, the Committee does not have sufficient information to determine whether the complainant organization ATE is the most representative organization in the Nucleoeléctrica Argentina S.A. (NASA) enterprise. However, noting that the judicial authority indicated that ATE should channel its claim through the procedures of conflict of representativity or of dispute of representativity in a sector so as to determine whether it is the most representative organization, the Committee requests the Government to keep it informed of the outcome of any judicial procedures that ATE may undertake in this respect.

The Committee's recommendations

1. 283. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee recalls that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer’s recognition of that union for collective bargaining purposes.
   • (b) Noting that the judicial authority indicated in the present case that the Association of State Workers (ATE) should channel its claim through the procedures of conflict of representativity or of dispute of representativity in a sector under the provisions of the Trade Unions Act No. 23551 so as to determine whether it is the most representative organization, the Committee requests the Government to keep it informed of the outcome of any judicial procedures that ATE may undertake in this respect.