Report in which the committee requests to be kept informed of development - Report No 346, June 2007

Case No 2459 (Argentina) - Complaint date: 30-NOV-05 - Closed

Allegations: The complainant organizations allege that the APSE has, in an arbitrary and discriminatory fashion, been excluded by law from the works council, a collegiate consultative and advisory body for the Córdoba Province Power Corporation

193. The present complaint is included in a communication from the Senior Staff Association of the Córdoba Province Power Corporation (APSE) and the Argentinian Federation of Senior Staff of the Electrical Supply Sector (FAPSEE) dated November 2005.

1. 194. The Government sent its observations in a communication dated 1 March 2007.
2. 195. 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. 196. In their communication of November 2005, the APSE and the FAPSEE state that the APSE is a primary trade union organization with trade union status granted by the Ministry of Labour of the Republic of Argentina, and which provides union representation for senior staff and officials with special technical and/or administrative functions serving within the Córdoba Province Power Corporation (EPEC). The complainants indicate that the APSE has concluded a collective agreement with the EPEC management governing the labour relationships of senior staff and officials undertaking special technical and/or administrative tasks, which has been duly approved by the Ministry of Labour.
2. 197. The complainants state that the EPEC is an enterprise dependent on the Government of Córdoba Province and run according to a structure laid down in provincial Act No. 9087/03. Article 27, paragraph 2, of this Act expressly recognizes the APSE as one of the trade unions to have concluded a collective labour agreement, together with the Light and Power Workers’ Union of the City of Córdoba, the Villa María Regional Light and Power Workers’ Union and the Río IV Regional Light and Power Workers’ Union, trade unions that are of equal rank to the APSE and which represent different segments of the EPEC workforce. Article 22 of provincial Act No. 9087/03, mentioned above, created and established the works council, a collegiate consultative and advisory body of the EPEC, whose purpose is to monitor progress towards completion of a “management plan”, mapping out objectives and investment within the Córdoba Province energy policy, which entails the preparation of quarterly reports for consideration by both the EPEC Board of Directors and the provincial executive authority.
3. 198. The complainants allege that, to their surprise and with no explanation given, provincial Act No. 9087/03 provides, in relation to the composition of the abovementioned works council, for participation by the highest ranked representatives (secretaries-general) of the Light and Power Workers’ Unions of Córdoba, Villa María and Río IV, excluding from the council the chairperson of the APSE Executive Committee, who enjoys identical trade union rank to that of the trade union secretaries. The complainants consider that this arbitrary exclusion constitutes a clear violation of the right to equality enshrined in article 7 of the Constitution of the Province of Córdoba and article 16 of the National Constitution of Argentina, also running counter to the very same principles that have for so long been enshrined by the International Labour Organization in Conventions Nos 87, 98 and 111, as ratified by the Republic of Argentina and incorporated into the National Constitution of Argentina as laws regulating the exercise of the principles in question, given that this deliberate exclusion by the Government of Córdoba Province is barring a significant segment of the EPEC workforce from participating, via the appropriate representative, in the works council and in political and economic decisions concerning the way in which the employer operates.
4. 199. The complainant organizations make clear that the exclusion in question is without doubt an act of intolerable discrimination and constitutes a clear limitation on the exercise of freedom of association, in that it limits the full and effective exercise of trade union functions in defence of the interests of the workers represented by the APSE. They add that it would be opportune to cite in this case legal opinion No. 193-05, issued by the National Institute to Combat Discrimination, Xenophobia and Racism (INADI), a body reporting to the Argentine Interior Ministry, which, on being consulted by the APSE, expressed the view that “with regard to the composition of the works council set forth in Act No. 9087/03, which does not provide for participation by the APSE … this Institute is of the opinion that every association of EPEC workers should be represented proportionally within the aforementioned council, in order to guarantee the exercise of rights under equal conditions”.
5. B. The Government’s reply
6. 200. In its communication of 1 March 2007, the Government states that it wishes to provide a brief description of the parties involved in the dispute and their functions, in order to clarify the extent and aim of the complaint. The APSE is the Senior Staff Association of the Córdoba Province Power Corporation. It represents all senior staff members employed by that enterprise and officials with special technical and/or administrative functions who are not represented by other workers’ trade union organizations. The EPEC is the provincial power corporation, an enterprise dependent on the Government of Córdoba Province and run according to a structure laid down in provincial Act No. 9087 which establishes that it shall be run by a Board of Directors made up of a chairperson and two members of the Board; the general management; a works council; managers, sub-managers and area heads. The said Act recognizes the APSE as a trade union included in the collective labour agreement. The works council, also provided for under article 2 of this Act, is a consultative and advisory body for the EPEC, whose purpose is to monitor progress regarding completion of a “management plan”, mapping out objectives and investment within the Córdoba Province energy policy. This entails the preparation of quarterly reports for consideration by both the Board of Directors of the EPEC and the provincial executive authority.
7. 201. The Government states that, prior to the complaint presented to the Committee on Freedom of Association, the APSE brought its case before the Conciliation and Arbitration Unit of the Ministry of Labour of Córdoba Province (file No. 0472-069743/04). The provincial labour authority organized a conciliation session (held on 30 July 2004) to address the issue raised. No agreement was reached at that time and therefore the conciliation process was deemed to have been exhausted, leaving the complainant organization free to turn to legal channels in order to resolve the conflict. Likewise, prior to bringing the complaint before the ILO, the APSE made an official submission to the INADI which came within the scope of INADI’s mandate and also complained of discrimination owing to the opinions and trade union membership of APSE members Walfrido Tomás Vergara (APSE President), Ricardo Alberto Merlino and José Luis Jiménez, who were also allegedly discriminated against with the unilateral amendment of their employment contracts, seriously damaging freedom of association. The Institute did not issue an opinion regarding the situation of the complainant Vergara, stating that legal proceedings were ongoing pending a ruling and that, given that both individual and collective employment relationships fall within the competence of the administrative authorities responsible for the regulation of work and the law courts, issuing an opinion in this respect would only lead to legal controversy.
8. 202. The Government states that, with regard to the legal proceedings linked to the APSE’s complaint to the ILO, it is necessary to take into account the judicial proceedings in the case of “Vergara Walfrido T. and others Versus EPEC – reinstatement action” (appeal for the protection of constitutional trade union rights – amparo sindical, for a change of functions and transfer). This action was first brought before the Conciliation Court of the Seventh District of the City of Córdoba on 15 October 2004. An appeal was then lodged with the Eighth Division of the Labour Court of the City of Córdoba and the case is currently being examined by the Higher Court of Córdoba, pending a ruling by that court on an application for judicial review lodged by the APSE. The Government states that in the first instance the reinstatement claim was upheld, that the said claim was rejected in the second instance and that an appeal to annul is currently pending in this respect.
9. 203. As to the exclusion of the APSE from the works council of the EPEC and the inclusion of the Light and Power Workers’ Union, the Government states that article 22 of provincial Act No. 9087, which regulates the running of the EPEC, established the works council, and the failure to include the APSE in the council should have been denounced before the legislature of Córdoba Province prior to the adoption of the Act, or in any case Parliament should have been urged to amend the Act. There is a specific procedure governing the amendment of an act which is in force and the relevant mechanisms provided for under the Provincial Constitution must be activated. The Government adds that it should be remembered that the national authorities have received no complaints whatsoever in this regard, this being the first claim brought to their attention regarding the alleged violation of the principles of the freedom of association that this Act represents. According to the Government, the complaint made is based on differences between the trade unions (both have trade union personality) and the EPEC cannot serve as a mediator in this regard. Furthermore, none of the issues can be considered to be violations of rights related to freedom of association. All the measures taken are provided for under Act No. 9087, which lays down the structure according to which the EPEC is run, and under the collective agreement governing relations between the EPEC and the APSE (for example, article 42 of the agreement permits the Board of Directors to order the temporary transfer of staff without their agreement for up to six months). Therefore, the complainant has not suffered from any concrete prejudice. Furthermore, as can be seen from Title VIII, article 17, of the said Act on the duties and competences of the Board of Directors, the Board has complete freedom regarding decision-making, and thus the complaint is inaccurate when it states that “the possibility of participating in the process of taking significant decisions regarding the progress and the future of the public enterprise employer is being reduced”. Under article 22, Title XI, of the Act, the works council is described as a collegiate consultative and advisory body. The last paragraph of this article reads as follows: “The conclusions reached by the council will be reported. In cases where there is disagreement, each member shall prepare a separate report, to be transmitted to the Board of Directors and the Provincial Executive, as appropriate.” From the wording of the article it appears that the conclusions reached by this works council are not definitive in nature, but merely reports. The Board of Directors is completely independent and the council is an advisory body. The Government concludes that the complainant has not suffered from any concrete prejudice, and neither has the freedom of association been violated or damaged in any way whatsoever.

C. The Committee’s conclusions

1. 204. The Committee notes that the complainant organizations allege that the APSE has, in an arbitrary and discriminatory fashion, been excluded by law (Act No. 9087/03, attached to the complaint) from the works council, a collegiate consultative and advisory body for the Córdoba Province Power Corporation (EPEC) established through the said Act, which has the following functions and competences:
2. (a) advise and put proposals to the Board of Directors with regard to aspects, issues or actions related to the management plan and other questions that it considers fall within its scope; (b) carry out follow-ups to policies developed by the EPEC, as well as developing the said policies with the aim of improving and widening their referential framework; (c) report on a quarterly basis to the Board of Directors and the Executive Authority on progress regarding the management programme. The general management shall provide all the information necessary for the completion of this task; (d) propose the creation and development of management tools aimed at overcoming limitations and increasing the enterprise’s efficiency; (e) suggest to the Board of Directors that external technical, financial, general or specific audits be carried out regarding matters related to the smooth running of the enterprise; (f) give advice and information on the preparation and follow-up to the sectoral power and telecommunications programme, on the need for generation capacity growth or substitution with regard to the electricity network and, should needs be, on the terms and conditions of calls for tender and the corresponding criteria for bidding; (g) attempt to ensure and propose that any services be contracted at the lowest possible cost to the enterprise while offering optimum quality and safety; (h) request the Board of Directors to implement safety measures when situations arise that may endanger the health and safety of the workers, the community and the environment.
3. 205. In this regard, the Committee notes the Government’s statement to the effect that: (1) prior to presenting its complaint to the Committee on Freedom of Association, the APSE brought its case before the Conciliation and Arbitration Unit of the Ministry of Labour of Córdoba Province. The provincial labour authority organized a conciliation session (held on 30 July 2004) to address the issue raised. No agreement was reached at that time and therefore the conciliation process was deemed to have been exhausted, leaving the complainant organization free to turn to legal channels in order to resolve the conflict; (2) the works council was established by article 22 of provincial Act No. 9087, which lays down the structure according to which the EPEC is run, and the decision to include the Light and Power Workers’ Union in that council, while excluding the APSE, should have been denounced before the legislature of Córdoba Province prior to the adoption of the Act, or in any case Parliament should have been urged to amend the Act. There is a specific procedure governing the amendment of an act which is in force and the relevant mechanisms provided for under the Provincial Constitution must be activated. The Government adds that it should be remembered that the national authorities have received no complaints whatsoever in this regard, this being the first claim brought to their attention regarding the alleged violation of the principles of the freedom of association that this Act represents; (3) the complaint made is based on differences between the trade unions (both have trade union personality) and the EPEC cannot serve as a mediator in this regard. Furthermore, none of the issues can be considered to be violations of rights related to the freedom of association; (4) article 22, Title XI, of the said Act describes the works council as a collegiate consultative and advisory body and the conclusions reached by this works council are not definitive in nature, but merely reports. The Board of Directors is completely independent and the council is an advisory body.
4. 206. The Committee notes in this regard that, when referring to the composition of the works council, article 22 of the Act states that the council shall be composed of the general management and the general secretaries of each of the Light and Power Workers’ Unions (Córdoba, Villa María Regional and Río IV). The Committee also notes that the complainant organizations highlight the fact that the National Institute to Combat Discrimination, Xenophobia and Racism (INADI), a body established by law to examine complaints concerning discrimination, was of the opinion that, with regard to the composition of the council, “all the associations of workers present in the EPEC should be represented in proportion to their size”. Moreover, the Committee notes that the Government does not deny that the APSE should be represented on the works council. In light of this, taking into account above all the fact that the APSE has trade union personality and is therefore a representative organization of the workers within the enterprise EPEC and the fact that the works council carries out functions of direct interest to the workers (the Government also states that the council prepares reports in its role as an advisory body), the Committee requests the Government to take the necessary measures to ensure that the APSE may join the works council of the EPEC.
5. 207. Finally, the Committee notes that, in relation to the complaint lodged by the APSE, the Government refers to the legal proceedings (appeal for the protection of constitutional trade union rights – amparo sindical – for a change of functions and transfer) lodged by the chairperson of this organization against the EPEC. The Committee recalls that the complainant organization did not refer to this issue and notes that the Government states that the case is before the High Court of Córdoba, to resolve an application for judicial review lodged by the APSE. Whatever the case may be, the Committee recalls that, even if the transfer of the trade union official in question is confirmed, it is up to organizations of workers to decide on who will represent them on bodies such as the works council of the EPEC. The Committee invites the complainant organizations to comment, if they so wish, on the Government’s statement concerning the transfer of the APSE President.

The Committee's recommendations

1. 208. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures so that the Senior Staff Association of the Córdoba Province Power Corporation (APSE) may join the works council of the Córdoba Province Power Corporation (EPEC).
   • (b) The Committee invites the complainant organizations to comment, if they so wish, on the Government’s statement concerning the transfer of the APSE President.