Definitive Report - Report No 349, March 2008

Case No 2535 (Argentina) - Complaint date: 13-DEC-06 - Closed

Allegations: The complainant organizations dispute the call for compulsory conciliation and the subsequent wage deductions by the administrative authority of Río Negro Province corresponding to the days of strike action

1. 331. The complaint is contained in a communication from the Union of Education Workers of Río Negro (UNTER) and the Confederation of Education Workers of Argentina (CTERA) of December 2006.
2. 332. The Government sent its observations in a communication of 26 October 2007.
3. 333. 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. 334. In their communication of December 2006, the UNTER and the CTERA reported that, in 2005, teachers in Río Negro Province, through their trade union representatives, had called for the introduction of vouchers as part of their basic pay and for equal treatment to other workers (private teachers and other workers employed by a private enterprise) with respect to family allowances. They had also requested a wage review. According to the complainant organization, while the authorities of Río Negro Province had always recognized the legitimacy of the teachers’ claim, they did not acknowledge that the teachers’ situation definitely needed to be improved. In September 2005, a four-day work stoppage was held calling for a wage review and, on 6 October 2005, more than 3,000 teachers protested in the city of Cipolletti in Río Negro Province. The Governor of Río Negro publicly announced his decision to withhold any action until after the legislative elections on 23 October. This announcement coincided with the call by the trade union UNTER for an open-ended work stoppage.
2. 335. The complainants add that, as the election period had passed without any proposals being made, many trade union leaders began to remind the Governor of the need for dialogue. The Ombudsperson urged the Governor of the Province to adopt the necessary measures to ensure that the people of Río Negro enjoyed the right to education. Furthermore, she invited various sectors of the educational community to participate in round-table discussions or mediation forums that might be held to reach a swift settlement to the dispute with the teachers’ union UNTER. The Bishop of Viedma also became involved. Furthermore, the trade union leaders held a meeting with the legislators in an attempt to initiate dialogue.
3. 336. The complainants indicate that, while the stoppage was under way, the Ministry of Education and Culture of the Province called on retired teachers to give classes and that a representative of the UNTER requested the Minister for Labour of the Province to refrain from implementing the intended measure of calling on retired teachers to give classes. On 1 November 2005, the teachers of Río Negro demonstrated in the city of Viedma. After an impressive demonstration involving some 3,000 teachers, the Ministry of Labour of the Province ordered compulsory conciliation on 2 November 2005.
4. 337. On 3 November 2005, the Minister of Labour publicly defended the implementation of wage deductions corresponding to the days of work stoppage. On 4 November, after the issuance of the compulsory conciliation order, the Governor “indicated that sanctions would be imposed on the trade union and on the teachers who did not immediately accept the conciliation process” for failure to fulfil their duty as public officials. When the trade union indicated that it accepted the compulsory conciliation order and ended the industrial action, the Government used deductions as a retaliatory measure against the workers and in order to prevent similar action in the future, advancing pay to teachers without prior reference to the information sheets that are submitted between the 25th and the last day of each month.
5. 338. The complainants indicate that, on 9 November 2005, the governors and head teachers of educational establishments in the zone of Choele Choel publicly expressed their views, indicating that the wage deduction was not only illegal but was also “a form of harassment”. It was so indiscriminate that, by way of example, they cited the case of a head teacher who had been on leave at the time of the work stoppage and yet had been subjected to a deduction amounting to 90 per cent of her salary. This feeling of harassment was criticized at management level in several areas. In some places, head teachers were informed that the deducted money would be reimbursed if they reported the staff members who had participated in the work stoppage in the schools under their charge.
6. 339. The complainant organizations state that the direct action taken by the education workers was legitimate and was at no point declared illegal. Nevertheless, the systematic and persistent approach taken by the provincial officials towards the workers’ enjoyment of their right to strike involved threatening the workers in an attempt to instil fear into them permanently and pitting them against each other in an attempt to divide the trade union. The non-payment of wages was used as a form of punishment to prevent the enjoyment of the right to petition and the right to strike, both of which are constitutional rights.
7. 340. The complainant organizations indicate that article 73 of Act No. 3803 provides: “A compulsory conciliation order implies for parties the immediate cessation of any direct action that may have been organized, restoring the conditions that prevailed the day prior to the initiation of the dispute or the day prior to the events that caused the action.” All sanctions should have been lifted, restoring the conditions that had prevailed the day prior to the start of the dispute. However, the Government decided to implement the deductions without limitation or respect for the situation of the workers. The deductions were applied to all teachers, regardless of whether or not they had worked, been on leave or participated in the stoppage. Article 46 of the abovementioned Act provides: “In any conciliation process brought before this body, the parties are obliged to negotiate in good faith. This involves, among other issues, holding hearings during established times, exchanging whatever information is needed for the most effective analysis of the issues under consideration and making every effort to reach mutually acceptable agreements, without hindering in any way the work of the body or the advancement of the negotiations.”
8. 341. The complainant organizations consider that examination of the described events reveals a serious violation of constitutional rights and furthermore highlights the biased position of the Ministry of Labour, which communicated in the media its decision to proceed to dock the pay of the teachers for exercising their right to strike and their right of petition. The Ministry confirmed its decision to dock pay at the time the compulsory conciliation order was announced. There is no question that these decisions and announcements were made by a body that is part of the employer government. It is clearly unable to retain the impartiality and neutrality which should supposedly be a characteristic of the body responsible for the conciliation process. The Government has not taken any steps to establish an impartial court to settle such collective disputes and has become both judge and party to the case, defending actions that are clearly and blatantly unconstitutional.
9. 342. According to the complainants, docking pay for the days of the strike was used as a form of punishment. Just as it is possible to use salaries to reward certain behaviour, in this case they were used to sanction those who exercised the right to petition and to strike and there is only one way to remedy such conduct, and that is to reimburse the deducted sums of money. The situation and reasons behind these deductions and the context in which they were made demonstrate that they were a punishment and that the intention was to punish. This damage is irreparable given that salaries are a source of sustenance. In this case, the perception that “wages were docked for days not worked” is unfounded, considering that there are so many examples of teachers who were on sick leave and head teachers who went to work but had their pay docked for not reporting those who had participated in the strike, as well as teachers on a low wage, all of whom had to suffer for a month without receiving any pay at all.
10. 343. The complainants emphasize that the administrative authority was liable or at fault for the cause of the claim, as it knows that salaries cannot contain non-remunerative elements, which was one of the demands of the trade union, and that it is unfair under the terms of the National Constitution that education workers should be remunerated in different ways for the same work. The difference in family allowances is clearly marked between workers in public education and those in private education, with teachers in the public sector receiving much lower allowances. The requested redistribution of income is an imperative of social justice and essential for increasing equality. Furthermore, the provincial government is responsible for prolonging the work stoppage, as its decision not to hold talks led to the open-ended work stoppage, which it thought would simply collapse in the course of time. This was the basis of its policy of doing nothing and of the impossibility of dialogue which characterized its conduct.
11. 344. The complainant organizations allege that the attitude of the provincial authorities is damaging to the principle of legality and violates the right to collective bargaining by ordering as a punishment unlimited wage deductions from the workers who exercised their right to petition and their right to strike as well as from those workers who refused to report their colleagues who participated in the strike.

B. The Government’s reply

1. 345. In its communication of 26 October 2007, the Government provided the following account of the events leading up to this case: (1) the teachers of Río Negro Province requested the introduction of grocery and/or food vouchers as part of their basic pay and equal treatment to other workers in the private sector in respect of wage improvements; (2) with respect to the demands of the trade unions and, in the absence of a government response, the organizations in question decided to proceed with the direct action, consisting of a four-day work stoppage; (3) the Ombudsperson intervened, urging the Governor of the Province to take the necessary measures to ensure that all the people of Río Negro enjoyed the right to education; (4) while the work stoppage was under way, the Ministry of Education and Culture of the Province announced that retired teachers were being called on to give classes; (5) on 1 November 2005, a demonstration was held in the city of Viedma amid leaks that the provincial authorities would not acknowledge the outstanding wages relating to the work stoppage; (6) on 2 November 2005, the Ministry of Labour of the Province issued a compulsory conciliation order; (7) the trade union indicated that it accepted the issuance of Act No. 14786 on compulsory conciliation and therefore cancelled the direct action that was being taken.
2. 346. With regard to the alleged facts, the Government highlights the following: (1) the complainant organizations proceeded with the direct action, without any type of restriction in that respect from the provincial government, with the exception of the deduction of pay for the days not worked; (2) subsequent to these measures, a negotiating committee was established and the social partners agreed in the context of a negotiating process that the provincial authorities should acknowledge and/or reimburse any pay that had been deducted for days not worked.
3. 347. The Government adds that legislation in a large number of countries provides that all conciliation and mediation processes must be exhausted before a strike can be called. The spirit of these provisions is compatible with Article 4 of Convention No. 98, which is aimed at encouraging the full development and utilization of machinery for the voluntary negotiation of collective agreements. Trade union organizations should call for the initiation of negotiations before, rather than after, taking direct action to avoid disrupting the start of the academic year, giving some consideration to the implications of preventing children from attending school.
4. 348. The Government reports that, following lengthy negotiations in the context of the joint committee that was established to that effect, preliminary agreements were reached with regard to the views presented by the parties and also with regard to a list of issues to be pursued by the joint members. It is worth pointing out that the joint discussions did not focus solely on the issue of salaries but on a range of issues linked to the educational policy of Río Negro Province, such as wage policy, the occupational health department, family allowances, the issuance of certificates of service, the presentation of training projects, opportunities for recruitment and promotion, the school calendar and compliance with Act No. 3831 on student tickets. The joint negotiations were held in accordance with the provisions of Convention No. 98. As a result of the negotiations, the Ministry of Labour of the Province decided to give official status to the agreements that had been reached in a joint accord of 7 February 2006 and also in joint accords of 21 February 2006 (on wage policy, the occupational health department, family allowances, certificates of service, training, educational projects and the municipal infrastructure of educational establishments); 24 April 2006 (on the provision of compensation vouchers, the new Family Allowances Act, municipal maintenance and construction work, school transport in Río Colorado and teacher mobility); and 4 December 2006 (on increasing wages by introducing a 70 dollar bonus, on a non-remunerative basis). Furthermore, it was in this context that resolution No. 1223/2007 was issued, establishing leave of absence for union members standing as candidates in the executive elections of the Union of Education Workers of Río Negro. The social partners have taken Convention No. 98 into consideration, in the sense that collective bargaining is the most suitable way of handling differences between disputing parties and that, through such meetings, solutions will be found that will benefit not only those who are directly involved but also society as a whole.

C. The Committee’s conclusions

1. 349. The Committee observes that the complainant organizations in the present case state that, after the teachers of Río Negro Province had carried out a four-day work stoppage and a demonstration involving more than 3,000 people in September 2005 calling for a wage review, the administrative authority of the Province issued a compulsory conciliation order on 2 November 2005 and that, at the time when this administrative measure had been implemented, the provincial government proceeded to dock pay for the days of the work stoppage in an act of reprisal and intimidation.
2. 350. First of all, the Committee notes that, according to the Government: (1) the trade union organizations took direct action without any type of restriction, with the exception of the deduction of pay for the days not worked; and (2) subsequently, a negotiating committee was established between the social partners and it was agreed in the context of a negotiating process that the provincial authorities should acknowledge and/or reimburse any pay that had been deducted for days not worked by the teachers. The Committee notes with interest that the dispute was resolved and that the parties reached agreement on the various issues mentioned by the Government (wage policy, occupational health, family allowances, school transport, etc.).
3. 351. Although the dispute has been resolved, the Committee observes that it has recently had to examine various cases relating to Argentina’s public sector, involving objections to orders by the provincial authority for compulsory conciliation between the parties to a dispute, when the provincial authority is a party to the dispute. In this respect, once again the Committee reiterates that it is necessary to entrust the decision of initiating the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute [see 344th Report, Case No. 2458, para. 302; 336th Report, Case No. 2369, para. 212; 338th Report, Case No. 2377, para. 403; and 342nd Report, Case No. 2420, para. 221] and requests the Government to take measures in this regard.

The Committee's recommendations

1. 352. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee reiterates that it is necessary to entrust the decision of initiating the conciliation procedure in collective disputes, in particular in the public sector, to a body which is independent of the parties to the dispute and requests the Government to take measures in that regard.