Definitive Report - Report No 355, November 2009

Case No 2647 (Argentina) - Complaint date: 05-JUN-08 - Closed

Allegations: The complainant organization alleges the suspension of the deduction of union dues, as well as acts of anti-union persecution and discrimination

1. 149. The complaint is contained in a communication from the Association of Staff of Supervisory Bodies (APOC) dated 5 June 2008.
2. 150. The Government sent its observations in a communication dated 28 August 2009.
3. 151. 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 complainant’s allegations

1. 152. In its communication of 5 June 2008, APOC states that it is presenting the complaint on grounds of violations of Conventions Nos 87, 98 and 151 in the National Cinema and Audiovisual Arts Institute, the National Electricity Regulatory Agency (ENRE), the Court of Audit of Tucumán Province and the Court of Audit of Córdoba Province.
2. National Cinema and Audiovisual Arts Institute
3. 153. APOC states that it is a first-level trade union which has been granted official trade union status by the Ministry of Labour, Employment and Social Security, and is thus authorized to represent all staff of supervisory systems and bodies and all internal audit units of organizations, companies and institutes under the executive branch of government of the Argentine Republic. By virtue of the legal effects of the granting of such status to APOC, and under the provisions of Act No. 23551, the trade union has the right to require the employers of its members to act as withholding agents for the purposes of deducting trade union dues.
4. 154. Section 38 of the Act, which governs trade union rights and obligations and is thus an implementing law under the national Constitution, provides that: “Employers have the obligation to act as withholding agents for purposes of the deduction of the amounts which workers are required to pay as membership dues or other contributions to workers’ trade unions with official trade union status. For this obligation to be enforceable, a decision must be issued by the Ministry of Labour, Employment and Social Security ordering the withholding. This decision shall be taken upon application by the union concerned. The Ministry shall issue its decision within 30 days of receiving the application, failing which the withholding shall be deemed to have been tacitly ordered. An employer who fails to discharge his or her obligation to act as withholding agent or, as the case may be, to pay the sums withheld on time, shall become the direct debtor. In this case, default shall arise by operation of law.”
5. 155. In this case, the ministerial decision giving rise to the obligation of the National Cinema and Audiovisual Arts Institute to act as withholding agent is Decision No. 26, dated 21 October 2004, of the Ministry of Labour, Employment and Social Security ordering that the deductions be withheld on behalf of APOC as follows: “Section 1. Employers of staff who are members of APOC shall withhold for the staff who are members union dues amounting to 1 per cent of the remuneration on which dues or contributions are payable for members who are in a dependent employment relationship.”
6. 156. APOC points out that, as may be seen from the above, neither the Trade Unions Act nor a decision by the administrative authority lay down a requirement as to categories of persons or geographical area covered for the withholding of dues to be carried out by state bodies. So much so that the employer itself had been meeting its legal obligation to act as withholding agent until the adoption of the administrative decision to suspend the withholding of dues for APOC, which is being challenged by the complainant. However, since the issuance of the arbitrary memorandum by the general management of the Institute giving notice of the measure at issue (stopping the deductions), this decision appears to be based on an opinion issued ex parte, without giving APOC the right to a defence, in violation of article 18 of the national Constitution. This opinion arose in response to a request for clarification by another trade union operating in the Institute, the National Civil Servants’ Union (UPCN), and an opinion dated 9 April 2008 by the National Directorate of Trade Unions, signed by the Assistant Director for Trade Unions, which maintained that the Institute did not have any members of APOC among its workers.
7. 157. APOC reiterates that there is no constitutional, legislative, regulatory or administrative provision laying down a requirement as to categories of persons or geographical area covered for the withholding of union dues, and that Decision No. 26 was issued by a higher ranking official, the National Director for Trade Unions. By way of explanation, it is pointed out that if a trade union has official trade union status in any sphere, an employer cannot refuse to act as withholding agent if this has been authorized by the labour administration authority. In the case of APOC, it is clear that Ministerial Decision No. 26 orders the employer to withhold union dues, subject to the sole requirement that the workers for whom the deductions are made must be members of the union. Hence the Institute’s decision is absolutely unlawful, as it incorrectly maintains that the employees of that organization are not included in the scope of representation set forth in its official trade union status, which is completely erroneous.
8. 158. APOC points out that it was maintained, without going into the matter in depth, that the Institute had no staff who could be represented by the union, which is not true, since Decision No. 1037/05 awarding official trade union status specifies that the union, as a first-level union, represents all the staff of oversight systems and bodies and all internal audit units. The complainant states that the tasks of the Institute include promoting and regulating cinematographic activity nationwide. It also awards grants, provides loans, is funded by taxes and receives 40 per cent of the revenues collected by the Federal Broadcasting Committee (CONFER), as well as the proceeds from ticket sales in three movie theatres. Its organizational structure includes an internal audit office, and it has a duty to review property purchases and recruitment, as well as monitoring grants and credits awarded by the Institute to ensure compliance with their stated objectives. In fact, all state bodies, and especially state companies and institutes, have auditing and supervisory tasks, which are carried out by all the employees and their managers, as they both supervise and are supervised, and thus come within APOC’s scope of representation.
9. 159. The decision of the Institute to suspend the withholding of deductions from members’ remuneration as union dues for APOC, which it had been carrying out as the employer, is absolutely arbitrary in the light of the provisions of Act No. 23551 and the abovementioned ILO standards. Clearly, the decision at issue, in the light of Convention No. 151, subjects the freedom of association of unionized workers to conditions and unlawfully prevents APOC from carrying out its representative function. The arbitrary decision to stop acting as withholding agent, which is an inalienable right of any trade union with official trade union status with regard to its members’ dues and an irrevocable right of the employer, is a measure that undermines the independence which public employees’ organizations should enjoy vis-à-vis the administrative authority. Under Article 5(2) of Convention No. 151 the decision at issue constitutes obvious interference by the employer in the functioning of this trade union. APOC states that it is obvious that the decision to stop withholding the deductions from its members was intended to favour another trade union operating in the Institute. This constitutes an unfair labour practice and a violation of freedom of association.
10. Court of Audit of Tucumán Province
11. 160. The complainant states that two unions had been established in the Court of Audit of Tucumán Province without having official trade union status under Act No. 23551, and this had been used as a pretext to disregard the legitimate demands put forward by these unions. APOC, Tucumán branch, was thus established, and elected its current executive committee, presided over by Mr Oscar Armando Suárez, in legitimate elections held on 1 November 2007. This prompted the president of the Court of Audit of Tucumán to launch an active campaign of abuse of authority and anti-union persecution against APOC officers and members.
12. 161. APOC reports that complaints were filed at the time with the competent state bodies against the discrimination, obstruction, political and anti-union persecution and workplace violence against its officers, for which it holds the President of the provincial Court of Audit responsible, but that to date no reply has been received that might put a stop to the enormous violence perpetrated against its members. The Court has refused to meet with APOC members and officers so that they might present their demands. It has not replied to any of the requests submitted, and has adopted measures obstructing trade union activities. APOC refers specifically to the following:
13. A. Instructions containing the rules for opting into the retirement scheme posted by APOC where all the employees could see them were virtually destroyed and removed from the glass display cases used for the purpose, denying the workforce access to information on benefits under the option.
14. B. The President of the Court refuses to provide a space to keep members informed of trade union issues, although this is provided for in the relevant legislation itself.
15. C. The Court has not responded to the union’s need to have access to the current wage regulations, in particular those relating to evening overtime.
16. D. Through its silence, it has tacitly denied their request for housing shares to be obtained for all employees in the Lomas de Tafí housing development.
17. E. By remaining silent, it tacitly denied APOC’s request to help it apply to the Tucumán Tourism Autonomous Agency for a piece of land in El Cadillal for the construction of a housing complex similar to that in Huerta Grande-Córdoba, as included in the list of objectives approved by the assembly of APOC, Tucumán branch, in May 2007. APOC has some 8,000 members nationwide.
18. F. By remaining silent, it tacitly denied APOC’s request to help it apply for inclusion in the 82 per cent flexible retirement scheme.
19. G. It has failed to comply with article 14bis of the national Constitution, by discriminating between union members and other court employees in the payment of remuneration, creating resentment among the entire workforce through its indifference.
20. H. The President of the Court disregards union proposals for a wage adjustment for all of its employees and had instead taken an approach over the years which undermines wages. In contrast, magistrates’ salaries have been aligned with those of members of the judiciary, who currently receive over 15,000 pesos per month in gross remuneration.
21. I. Its pursuit of this destructive aim reached absurd proportions when it delayed by some five months the payment of the differential for the first annual salary supplement of 2007 granted by executive decree, merely because the record signed by the unions had also been signed by APOC.
22. J. An arbitrary and discriminatory decision was taken to exclude union members Mr Rodolfo Torasso and Ms Olga Villalva from the evening overtime granted to other court employees carrying out the same duties.
23. K. Ms Olga Villalva complained of persecution, with medically proven physical and psychological consequences. She received treatment based on a diagnosis of workplace harassment.
24. L. The President of the Court had Mr Oscar Juárez and Mr Miguel Shedadi transferred from their statutory duties as tax accountants to the task of carrying out social surveys in Trancas and Juan Bautista Alberdi, which resulted in their filing an action for physical and psychological injuries, having received treatment on the basis of a diagnosis of workplace harassment issued by a medical commission.
25. M. In an abuse of authority, the President of the Court denied all the requests submitted by APOC members and officers to work in the 2008 annual fair, favouring other workers who were not members of the union. The court authorities are promoting a staff association (APeTCRA) that does not have official trade union status, and recently met with its officers, while refusing to meet with APOC’s officers.
26. N. As part of his persecution campaign, the President of the Court ordered a change in evening overtime without prior consultation.
27. O. The President of the Court has attacked the dignity of professional employees by ordering the use of magnetic cards for clocking in and out to replace the timekeeping forms.
28. P. In an abuse of authority, the President of the Court ordered discretionary wage increases, disregarding the wage pyramid. He ordered increases for professionals which were lower than those for the rest of the staff.
29. Q. Either explicitly or tacitly, the President of the Court has repeatedly denied trade union leave requested by the officers of the Tucumán branch, violating the provisions in force, not only of section 48 of Act No. 23551, but of section 1 of Act No. 6107, which provides that: “Staff of the centralized and decentralized provincial public administration and autonomous bodies who are members of executives or committees of trade unions with official trade union status shall be entitled to leave with pay during their term of office, provided that they do not receive compensation from the organization concerned. One leave shall be granted for every 1,000 employees, up to a maximum of five per organization.”
30. R. As regards the complaints of workplace harassment, the medical commission of the occupational risk insurer diagnosed the APOC members referred to above as suffering from symptoms of harassment.
31. S. In unquestionable acts of anti-union persecution and discrimination, the President of the Court granted some 40 promotions, which excluded all the members of APOC, whose circumstances were identical to those of the workers who received promotions. This was the case of the members of the branch executive committee, one of whom was told that she would have to withdraw from membership of APOC in exchange for her promotion, which she had no choice but to accept, driven by basic need. This was Ms Patricia Escudero, who withdrew from the organization and from her office as substitute member of the executive committee, and was promoted from administrative assistant, category 18, level II, to official, category 19, level II. This is described as an unfair employer practice in section 53(c) of Act No. 23551.
32. T. The provincial Ministry of Labour issued Decision No. 061 of 2008 rejecting the demands put forward by APOC and denying the official trade union status of the organization. This administrative act is not only a further instance of abuse of authority, but a blatant violation of the provisions in force, since it is the national Ministry of Labour which grants official trade union status and must issue the final decision in the matter.
33. 162. APOC states that, for the above reasons, complaints were filed with the provincial Secretariat for Labour, the national Ministry of Labour, the provincial Secretariat for Human Rights, the Human Rights Commission of the Tucumán legislature, the Tucumán Office of the Public Defender, the national Secretariat for Human Rights and the Tucumán offices of the National Institute against Discrimination, Xenophobia and Racism (INADI). It adds that if all the acts of discrimination and workplace violence mentioned were not enough, the court authorities repeatedly changed the duties of Mr Héctor Vázquez Villada, Financial and Minutes Secretary of APOC–CPN. This reached absurd proportions when the Court amended its internal regulations to establish a tax and planning advice department with only one employee under his supervision, confining him to an office that used to contain a toilet, without light or ventilation; a complaint to that effect was filed with the occupational risk insurer, which intervened, recommending that the employer take measures to provide minimum sanitary conditions. Moreover, in strict compliance with his professional duties as head of the tax department, on 3 December 2007 the abovementioned trade union officer sent a note expressing his doubts as to the legality of the administrative acts carried out by the provincial Court of Audit in regard to exemption from income tax, and as a reprisal he was excluded from the “evening overtime” scheme enjoyed by all the other managers in the court. This entailed a 30 per cent reduction in his earnings, without grounds or justification, in blatant violation of the provisions of section 52 of Act No. 23551. This resulted in physical and psychological symptoms, requiring that Mr Héctor Vàzquez Villada undergo lengthy treatment for workplace harassment.
34. Court of Audit of Córdoba Province
35. 163. APOC alleges that in an arbitrary and illegal decision, the Court of Audit of Córdoba Province has refused to withhold union dues from members of the trade union.
36. National Electricity Regulatory Agency (ENRE)
37. 164. APOC states that it had been representing its members and the workers in general in the bargaining committee for the collective agreement in ENRE. It alleges that after an erroneous opinion was issued as to the official trade union status of APOC, the National Civil Servants’ Union (UPCN) and the Association of State Workers (ATE), the Bureau for Trade Unions, without any competence or justification, maintained that APOC was not in a position to represent the workers in ENRE. Without going into the matter, it was maintained that ENRE did not have workers among its staff who could be represented by APOC. This is not correct, since Decision No. 1037/05 granting official trade union status to APOC specifies that it is a first-level trade union whose membership covers all employees of supervisory systems and bodies and all internal audit units. APOC points out that Act No. 24065 sets out the tasks and competence of ENRE as follows: ensure compliance with the law; prevent anti-competitive, monopolistic or discriminatory practices; publish the general principles to be applied by transmission companies; determine the criteria for granting concessions; hold public hearings; ensure environmental protection and regulate procedures for the application of penalties and apply penalties. The tasks of the board of directors of ENRE include reviewing legal provisions and preparing the budget; by the nature of the body, its financial management is self-regulated. The complainant emphasizes that it is clear from all the regulations that its objective is supervision and oversight, and therefore it falls within the scope of APOC’s official trade union status. Lastly, APOC states that the National Directorate for Trade Unions has confined itself to reporting, and to date no decision has been forthcoming either from the Secretariat for Labour or from the Ministry of Labour, Employment and Social Security.
38. B. The Government’s reply
39. 165. In its communication of 28 August 2009, the Government states that an examination of the situations described by the complainant trade union shows that the latter did not have representative status based on categories of persons or geographical area covered, depending on the case, as there was another more representative trade union at the time which enjoyed certain rights under national legislation, such as the right to collective bargaining or the check-off facility. In these cases, therefore, although the complainant trade union may represent its members and receive their dues, it cannot exercise the rights it claims to have, as it lacks the necessary degree of legal capacity – being merely registered and not having official trade union status.
40. 166. The scope of official trade union status No. 534 granted to APOC covers all staff of internal and external oversight and regulatory systems and bodies responsible for supervising the financial economic activity of the State, within the remit of the Office of the Auditor-General, the Office of the Comptroller-General and all the internal audit units operating in the city and Province of Buenos Aires and the Province of Santa Fe. Within the limits of this coverage, the complainant organization has full collective bargaining and check-off rights as the most representative organization.
41. 167. The Government points out that the complainant organization does not call the national legislation on trade unions into question; rather, it has availed itself of the protection afforded by that legislation through its official trade union status, as has been seen. Neither does it question the decision referred to, with the scope indicated. The object of its complaint comes down to an administrative issue: if it believes itself to be the most representative organization, it should apply for extension of its trade union status as to both categories of persons and geographical area covered.
42. 168. As regards each situation at issue in the complaint, the Government states the following. Concerning the complaint against the National Cinema and Audiovisual Arts Institute (INCAA), the Government states that, as pointed out above, APOC’s trade union status does not cover the employees of this Institute, as the latter is not a body charged with overseeing the financial economic activity of the State, within the remit of the Office of the Auditor-General, the Office of the Comptroller-General and all the internal audit units. Under the law, the requested check-off facility must correspond exactly to the category of persons and geographical area covered, as any deductions from workers’ wages must be subject to restrictions aimed at protecting wages, and may only be made in the case of the most representative trade union. Accordingly, the Government considers that there cannot be said to have been any violation of freedom of association in applying this requirement as to category of persons and geographical area covered, in which the organization must be most representative. It is not true, as maintained in the allegation, that the ability to act as withholding agent is independent of the category of persons and activity covered according to the organization’s by-laws.
43. 169. The Government points out that to argue to the contrary would mean that any employer could be obliged to withhold dues regardless of the union membership giving rise to them, which could lead to a worker’s wages being confiscated without the latter’s consent, or without his or her being a trade union member, which does not bear analysis from the standpoint of freedom of association, irrespective of the stance taken on section 38 of Act No. 23551.
44. 170. As regards the allegations concerning the Court of Audit of Tucumán Province, the Government points out that APOC, Tucumán branch, is merely registered and does not have official trade union status in this Province. Given that the Court of Audit is an autonomous provincial body, the Ministry of Labour, by virtue of the constitutional principles of division of powers and the federal system of government, informed the Court of the complaints made by the complainant organization and invited it to respond to the allegations as it deemed necessary. In a note dated 16 June 2009, the President of the Court of Audit of Tucumán responded to each of the accusations levelled by APOC, as follows.
45. 171. The Court of Audit denies all of APOC’s allegations and states that the complaint lacks substance or merit that might give it any semblance of seriousness, as it consists entirely of generic allegations relating to subjective situations. The Court states that APOC Tucumán does not have official trade union status, and is a local administrative office of the national APOC. It draws attention to the conduct of some members of APOC in Tucumán, as well as the national authorities of that organization, which it describes as malicious, contrary to good faith and deceptive, in that they misled and confused the authorities of the Court of Audit of Tucumán, firstly by claiming trade union status which they did not have for that Province and, secondly, by requesting trade union leave although they were fully aware that they were not entitled to such leave, as the Court later found out. In order to ascertain the legal status of these employees who were members of APOC, the Court requested information from the competent bodies, which indicates that APOC Tucumán does not have the necessary trade union status to operate in Tucumán Province.
46. 172. The fact that APOC Tucumán does not have trade union status is incontestably reflected in the report, contained in file No. 1-236-631848-2008, prepared by the National Directorate of Trade Unions of the Ministry of Labour, Employment and Social Security, dated 18 April 2008, which states that: “(2) the organization – the Association of Staff of Supervisory Bodies – is neither registered nor has trade union status for the Province of Tucumán, and is thus not authorized to represent, individually and/or collectively, the workers employed by economic financial oversight bodies of the Province.” From the information provided by the Ministry of Labour, which is the body responsible for applying the Act on trade unions, it is clear that APOC Tucumán lacks legal status for the geographical area of Tucumán Province, and although it does have national coverage according to its by-laws, this only allows it to have workers as members, but does not mean that its members enjoy the immunities and privileges conferred by the Act on trade unions on the officers of trade unions with official trade union status. The report confirms that APOC Tucumán lacks official trade union status and hence its officers are not covered by the trade union immunity afforded by the Act on trade unions to officers of trade unions that do have such status.
47. 173. According to the Court, the ministerial decision granting official trade union status to APOC clearly defines its scope as to categories of persons and geographical area covered, and it is precisely the latter which is lacking in the case of APOC Tucumán, as Decision No. 511 of the Ministry of Labour expressly states that official trade union status is granted to the organization “... which is composed exclusively of the employees of the National Court of Audit, with its area of operation in the Federal Capital” (section 1). The Court reports that after a number of administrative procedures, on 6 May 2008 the Ministry of Labour issued Decision No. 451, granting “... to the Association of Staff of Supervisory Bodies an extension of its scope, for purposes of registration, to all workers employed in a dependent relationship by: the Court of Audit of Jujuy Province; the Court of Audit of San Juan Province; and the Court of Audit of Tucumán Province, with its area of operation in Jujuy, San Juan and Tucumán Provinces” (section 1). The same decision provides that “this does not imply any modification of the scope as to categories of persons and geographical area covered that was recognized at the time for purposes of official trade union status by this implementing authority” (end of section 1). In this regard, it points out that if APOC Tucumán had official trade union status, it is not clear why on 6 May 2008 the Ministry of Labour granted an extension of its scope for purposes of trade union registration, expressly stating that “this does not imply any modification of the scope as to categories of persons and geographical area covered that was recognized at the time for purposes of official trade union status by this implementing authority”. It also states that the Court of Audit of the Province was never informed of this decision, a task which is incumbent on the trade union under the Act on trade unions.
48. 174. The Court adds that Decision No. 451 mentioned above grants “... to the Association of Staff of Supervisory Bodies an extension of its scope, for purposes of registration, to all workers employed in a dependent relationship by: the Court of Audit of Jujuy Province; the Court of Audit of San Juan Province; and the Court of Audit of Tucumán Province, with its area of operation in Jujuy, San Juan and Tucumán Provinces”. It is clear from this provision that the requirement as to contributing members under APOC’s by-laws must apply to the employees of the Court of Audit of Tucumán Province. On that basis, APOC’s by-laws themselves (of which it cannot claim to be unaware) provide that at least 30 contributing members are required to form a branch union (section 93), and according to the Court records, APOC Tucumán has not had 30 members since 22 November 2007. Section 137 of APOC’s by-laws therefore applies, as follows: “Where a branch union that has already been formed, for whatever reason, does not meet the minimum membership requirement laid down in section 93, it shall not lose its branch union status until 180 days have elapsed since the fact ...”. Section 138 adds that “once the 180 days referred to in the previous section have elapsed, if the minimum number of members required under section 93 has not been met, the branch union will become an administrative office of APOC ...” Thus, now that the prescribed period has elapsed, APOC Tucumán has only 11 members (of which neither APOC Tucumán nor the national association can be unaware). It is clear from these provisions that APOC Tucumán is only an administrative office of the national organization APOC, and therefore its members cannot claim or hold trade union office or privileges to which they are not legally entitled. The Ministry of Labour was informed of this through file No. 1.247.751/07, but no reply has been received to date in regard to this situation.
49. 175. The Court states that there is another organization in the Court of Audit which is more representative, but that freedom of association is fully observed and, as the complainant itself admits, APeTCRA, a trade union that is merely registered, is operating in the Court, as well as a professional association. Neither association has faced obstacles of any kind in its relations with the Court, and their concerns have been heard and met to the extent permitted by the circumstances of the Court.
50. 176. As regards the specific allegations, the Court states that there is no truth in the complainant’s assertions that APOC members and/or officers were not received by the authorities of the Court of Audit, that there was no response to their requests and that measures were taken obstructing their trade union activity. In particular, it points out the following:
51. A. As regards the denial of access to information on the rules for opting into the retirement scheme, which according to APOC had been posted in the display cases used for such information but had then been destroyed, the Court, through the administrative secretariat, which is the office dealing with personnel issues, sent circulars to the departmental chiefs and their staff informing them of all the matters relating to the retirement scheme, without prejudice to the information provided by the different trade unions operating in the Court.
52. B. It is not true that the trade unions do not have a space in the Court to publicize and inform members of their activities. This space is provided in the personnel office, through which all the staff pass daily in order to clock in and out. This space has been used by APOC without any problem.
53. C. Concerning the current wage regulations, these may be found in the internal regulations and staff rules of the Court of Audit, both of which are public knowledge and accessible to all the staff. The same applies to the rules governing overtime, which is granted according to the operating requirements of the court, as will be explained below.
54. D/E. As regards the allegations on these points concerning the management of housing in the Lomas de Tafi housing development and the acquisition of a piece of land through the Tucumán Tourism Autonomous Agency for the construction of a housing complex: for purely ethical reasons (which guide the individual conduct of the members of the Court and the institutional conduct of the Court) we consider it absolutely unethical to manage housing or land through departments or bodies that are subject to our oversight. An oversight body should owe no debts to the organization it oversees. In this regard, it should be pointed out that the actions of the officials referred to is in flagrant violation of express provisions of the Court’s staff rules, which, referring to the duties of staff, provides in section 37(p) that they shall “refrain from intervening in any matter which might give rise to the appearance of partiality or which involve incompatibility of any kind” and of the prohibitions laid down in section 41(i) and (f).
55. F. On this point, there is no record of the complainant having taken any steps to obtain the 82 per cent flexible retirement scheme for the staff of the Court of Audit; while this is a shared aspiration, it does not lie within the decision-making capacity of the members of the Court, since it comes under the sole remit of the President of the nation. Without prejudice to the above, and at the risk of stating the obvious, we must point out that the claims put forward by APOC in points D, E and F lie outside the specific remit of the Court of Audit and fall exclusively within the purview of trade union activities.
56. G. As regards this item, the complainants have built up a false denunciation around a partial truth, referring to article 14bis of the national Constitution, which provides for equal remuneration for equal work; the alleged wage levelling is not within our remit. The explanation for this is as follows: a group of court employees have obtained recognition through judicial channels of a salary increase which applies only to the workers named in the court ruling and does not extend to the rest of the workforce, particularly since some workers have lost their suits, while others never filed actions. It should be pointed out that the group that did win did so on a procedural technicality. The court ruling recognizing their rights became final upon expiry of the time limit for appeal by the defendant, which was not the case of the other proceedings. The principle which applies here is that of equality, laid down in article 16 of the national Constitution, which provides for equality among equals in equal conditions. This invalidates the assertion made by the complainant.
57. H. On this item of the complaint it should be pointed out that the alignment of salaries of members of the Court of Audit on those of the provincial Supreme Court is stipulated in a constitutional provision (article 79 of the provincial Constitution) and is not at the discretion of the Court, as the complainants would have us believe. Moreover, as regards salaries of court staff, as agreed with the union (APeTCRA) and the professional association, these are adjusted to keep pace with those of the provincial judiciary. In other words, far from pursuing a policy that undermines the salaries of its staff, the Court protects these salaries, guaranteeing the same increases as those awarded in the judiciary.
58. I. Concerning the five-month delay in payment of the differential for the first annual salary supplement of 2007, it is pointed out that salary measures determined for the public administration in general do not apply to the Court of Audit, as an external body with functional and financial autonomy. The agreement signed by APOC thus could not be binding on the Court, which adopted the salary increase when its budgetary situation permitted. Regarding APOC’s representation of other oversight bodies in the Province, we refer to what was said at the beginning of this statement, i.e. that it does not have legal personality with regard to Tucumán Province, and the fact that it is merely registered (Decision No. 451) limits its scope to the Court of Audit of the Province.
59. J. Concerning the allegation in this point of “an arbitrary and discriminatory decision ... to exclude ... from the evening overtime” the auditors Mr Torasso and Mr Villalva, we reject this description as it is far from the truth and the reality of the overtime system. The inclusion of staff in the scheme, as well as their exclusion from it, are based on three arguments, one of which relates to form and the others to substance: (1) As to form, it is the President of the Court of Audit who has the authority to allow and to terminate overtime through a presidential decision. This is voluntary, and is based on work-related considerations and the operational requirements of the institution, and is granted at the request of departmental chiefs. The system of payment for overtime was introduced in the Court of Audit through Agreement No. 111 HTC-1994, and its implementation falls solely and exclusively within the competence of the President of the Court, whose discretionary powers are governed by Chapter III, section 7(d), of the staff rules. The assessment of service requirements and the conditions, efficiency, etc. of those who shall perform the work is carried out on an extraordinary basis, and is reserved by law for the President of the Court, who bases his assessment on the prior opinion of the departmental chiefs. (2) As to substance: (a) in budgetary terms, overtime comes under sub-item 130 (extraordinary services), for which the legislator may or may not assign a budget allocation in the general budget. If such an allocation is assigned, it is not necessarily related to staff, as the reason for its inclusion is to meet extraordinary needs of the institution. Thus, overtime does not constitute salary and therefore does not give rise to any acquired rights, as the item on overtime is extraordinary by its very nature in budgetary terms; (b) As the needs of the service and available resources changed over time, successive presidents of the Court granted and terminated overtime, and even varied the percentage of staff affected. For operational reasons, out of a total workforce of 266 employees, 55 are currently not covered by the overtime scheme, making up more than 20 per cent of staff. Thus, the exclusion of the employees mentioned from the overtime scheme cannot by any means be described as an arbitrary and/or discriminatory act; it is dictated solely by the operational requirements of the institution.
60. K. As regards the complaint of persecution made by Ms Olga Villalva, an administrative inquiry was instituted to investigate the allegations, culminating in Decision No. 436/2009 closing the case without any charges being brought, for lack of sufficient evidence.
61. L. On this point, the Court states that the assignment of tasks and/or duties lies within the sole competence of the departmental chiefs within whose remit the court auditors, including Mr Juárez and Mr Shehadi, are employed. They were performing the specific duties of auditors in every case, including carrying out audits and on-site analyses, advising rural communities, acting as Court auditor in the branches of the Court of Audit in the public administration and – under the terms of the agreement signed at the time with the Federal Public Oversight Network comprising all the courts of audit and public state oversight bodies and agencies of the Argentine Republic associated with the Permanent Secretariat of the Courts of Audit of the Argentine Republic and the Office of the Comptroller-General – supervising the effective receipt of social allowances granted by the State by beneficiaries, among other tasks. In addition, section 37, paragraph O, of the staff rules of the Court of Audit expressly provides that the duties of Court employees and officials include “occasionally performing tasks for which they have special training or skills, even if they are not included in those for the post which they hold, if so instructed by their supervisors or the competent authorities in the interests of the service”. This function is one of the normal tasks carried out by auditors of the Court of Audit; what is more, it is currently being performed by other auditors, who do not regard it as a loss of status – as indeed it is not. Moreover, the assertion that this change in duties resulted in physical and psychological injuries is rejected as reckless and malicious, as the diagnosis of workplace harassment issued by an individual practitioner was invalidated by the medical commission of the occupational risk insurer (ART).
62. M. As regards the staff who worked in the 2008 annual fair, it should be pointed out that the list of staff working during fairs is drawn up by the departmental chiefs of the Court, based on needs and the areas of specialization of the staff who will perform the work; this is especially true if one considers that some 20 per cent of the staff normally take part in the annual fair.
63. N. As regards the evening shift or overtime, the fact that staff in the different audit offices were working a 2 p.m. to 5 p.m. schedule was due to the fact that this coincided with the evening shift in those departments; in the Court, some staff work a 2 p.m. to 5 p.m. schedule and others a 2 p.m. to 8 p.m. schedule, depending on operating requirements.
64. O. Concerning the use of magnetic cards for clocking in and out, this has been replaced by a fingerprint recognition system. However, it is not clear how the “dignity” of professional employees is affected by this system, which was in use not only in the provincial Court of Audit but also in a large number of departments of the public administration of the Province, as well as private enterprises, for the sole purpose of modernizing the system and making it more efficient. The choice of method of registering the exit and entry of court staff is one of the managerial powers assigned by law to the President of the Court, and thus only through tortuous and false arguments can it be claimed to involve persecution of the institution’s employees.
65. P. Concerning the questioning of the grant of wage increases differing in percentage between higher and lower earners, this is not meant to disregard the wage pyramid, but is dictated purely by solidarity and equity. The infinitesimally higher raise given to staff with lower incomes (messengers, repairmen, drivers, etc.) was an equitable way of narrowing the gap between the two ends of the wage scale in the Court, in line with the decision taken in that regard by the judiciary. This was not merely the result of a decision by the Court, but was agreed with the other organizations representing the staff, which fully supported the measure.
66. Q. On this item, we would point out that it is not true that trade union leave was denied to APOC members. The authorities of the provincial Court of Audit, which respect the rule of law and freedom of association, never interfered in APOC’s trade union activities. What is more, Mr Ricardo Véliz and other APOC members were granted trade union leave for 30 November 2007 to attend the day on “violence at work” organized by APOC. But it should be made clear in this regard that the good faith of the authorities of the Court of Audit – incontestably the very basis of labour relations – was betrayed when it discovered subsequently that APOC Tucumán, contrary to its members’ claims, did not have official trade union status. This transpired from the procedure carried out under file No. 1095-270-APO-07, in which an auditor, Mr Óscar A. Juárez, requested trade union leave (after the event referred to) under Act No. 6107. In this procedure, the applicant was unable to prove that APOC Tucumán had official trade union status, and was therefore denied trade union leave. It was on that occasion, upon examining the supporting documentation provided by the applicant, that the Court learned that APOC did not have the necessary trade union status to operate in Tucumán Province, with all the attendant legal implications.
67. R. As regards the complaints of workplace harassment, this issue has been rendered moot by the findings of the medical commission issued on 11 December 2007 invalidating the diagnosis by a private practitioner attending the APOC members; the findings concluded that “... Mr Óscar Armando Juárez (national ID No. 12654356), auditor, suffers from arterial hypertension, hyperthyroidism and psychosomatic disorders, which are considered to be non-occupational diseases, according to the supporting documents and the results of the examinations carried out, as there is no direct cause and effect relationship between the specific work performed and the illnesses claimed to be occupational diseases ...”. It is also worth mentioning that an administrative inquiry was ordered under file No. 1094-270-TC-07 in order to determine whether workplace harassment had taken place in the Court of Audit, in response to the complaints filed by APOC members. Among those who gave evidence, mention should be made of the statements of the auditors Ms Olga Villalva and Mr Miguel Shehadi, to the effect that they had not issued the diagnosis of workplace harassment; rather, the term had been used by the attending physician; and that they had not filed any complaint of harassment: this had been done by the trade union of which they were members. As stated above, this diagnosis was invalidated by the findings of the medical commission. The administrative inquiry concluded that it was merely a matter of disagreement with the change in the duties of the persons concerned by their immediate supervisor. On this point, the complainants refer to symptoms of workplace harassment, whereas according to modern medical practice, in order to prove the existence of mobbing, a number of factors have to be present, not isolated symptoms such as those described.
68. S. On this point, the allegation that APOC members were sidelined or discriminated against in regard to promotions is absolutely false and fanciful; in awarding promotions, account is taken of the opinion of each department chief, who assesses the official’s performance and submits a request for promotion, which must correspond to a vacancy to which the official is to be promoted. This was the case of Ms Patricia Escudero, who was promoted not for having left APOC, but on the basis of merit, at the request of her supervisor and in view of the existence of a vacant post to which she was promoted.
69. T. As regards the complaint under this point, the Court was not involved in the decision issued by the provincial Secretariat for Labour of the Province, and therefore any request for clarification on this point should be sent to those authorities.
70. 177. Concerning the situation of Mr Héctor Vázquez Villada, the Court rejects the allegations made by the complainants, and states in regard to the changes in duties that during his years as an employee of the Court, first as auditor and later as supervisor, Mr Vázquez Villada went through many changes of department and duties without any record of objection on his part. All of these transfers were made for the simple reason that transfer or rotation is a sound practice of the Court, which enables no more and no less than the proper utilization of human resources, aimed at providing optimum oversight, which is the purpose of the Court’s existence. Such rotations and changes in duties affected not only APOC members but all the employees of the institution, within the powers vested in the departmental chiefs and with the same aim of making most efficient use of the available human resources to ensure excellence in oversight. It is not true that the auditor Mr Vázquez Villada was assigned an office that used to contain a toilet to carry out his new duties. As regards the inspection of working conditions that was requested, the occupational risk insurer (ART) PopulArt issued its report and its recommendations were carried out by the Court. Moreover, since the appointment of the Court Mr Vázquez Villada has benefited from a number of promotions which have nothing to do with persecution. Quite the contrary.
71. 178. Lastly, the Court states that it is clear from the information communicated that there has been no discriminatory treatment or persecution of any employee of the Court, and of the members of APOC in particular.
72. 179. As regards the allegations concerning the Court of Audit of Córdoba Province, the Government states that APOC is merely registered in that Province and has not requested an extension of its official trade union status to that geographical area, and therefore it is not entitled to the check-off facility.
73. 180. As regards the National Electricity Regulatory Agency (ENRE), the Government points out that APOC does not have the necessary status to represent its employees, given the status it has been granted, as there are more representative unions (ATE and UPCN) in the agency, which as such have exclusive bargaining rights, which does not in any way violate the principles of freedom of association according to the ILO supervisory bodies. The complainant organization thus does not have the right to be represented on a bargaining committee in this sector.

T. The Committee's conclusions

• C. The Committee’s conclusions
  181. 181 The Committee observes that in this case APOC alleges that: (1) the authorities of the Cinema and Audiovisual Arts Institute and of the Court of Audit of Córdoba Province stopped withholding the union dues of its members; (2) the authorities of the Court of Audit of Tucumán Province adopted anti-union measures against its members; and (3) although it has official trade union status, the National Directorate of Trade Unions issued an erroneous opinion stating that APOC was not in a position to represent the workers of ENRE on the bargaining committee for the collective agreement in which it had been participating.
  182. 182 The Committee notes, firstly, that the Government states in general terms that an examination of the situations described by the complainant trade union shows that the latter did not have representative status based on categories of persons or geographical area covered, depending on the case, as there was another more representative trade union at the time which enjoyed certain rights under national legislation, such as the right to collective bargaining or the check-off facility. In these cases, therefore, although the complainant trade union may represent its members and receive their dues, it cannot exercise the rights it claims to have, as it lacks the necessary degree of legal capacity – being merely registered and not having official trade union status. The scope of official trade union status No. 534 granted to APOC covers all staff of internal and external oversight and regulatory systems and bodies responsible for supervising the financial economic activity of the State, within the remit of the Office of the Auditor-General, the Office of the Comptroller-General and all the internal audit units operating in the city and Province of Buenos Aires and the Province of Santa Fe. Within the limits of this coverage, the complainant organization has full collective bargaining and check-off rights as the most representative organization. The Government points out that the complainant organization does not call the national legislation on trade unions into question; rather, it has availed itself of the protection afforded by that legislation through its official trade union status, as has been seen. Neither does it question the decision referred to, with the scope indicated. The object of its complaint comes down to an administrative issue: if it believes itself to be the most representative organization, it should apply for extension of its trade union status as to both categories of persons and geographical area covered.
• Cinema and Audiovisual Arts Institute and the Court of Audit of Córdoba Province
  183. 183 As regards the allegation that the authorities of the Cinema and Audiovisual Arts Institute and of the Court of Audit of Córdoba province stopped withholding the union dues of APOC members, the Committee notes that the Government states that: (1) APOC’s trade union status does not cover the employees of this Institute, as the latter is not a body charged with overseeing the financial economic activity of the State; and (2) as regards the Court of Audit of Córdoba Province, APOC is merely registered in that province and has not requested an extension of its official trade union status to that geographical area, and therefore is not entitled to the check-off facility.
  184. 184 As regards the Cinema and Audiovisual Arts Institute, in view of the contradiction between the allegations and the Government’s reply, the Committee is unable to determine whether, as the complainant avers, the workers come within its scope. While it observes that according to the complainant, the union dues were being deducted, the Committee considers that this controversy should be resolved in the last instance by the national judicial authority.
  185. 185 As regards the Court of Audit of Córdoba Province, the Committee observes that the reason for the refusal to deduct union dues was that APOC was merely registered in that Province and did not have official trade union status. The Committee recalls that it has already had occasion to examine allegations of refusal to deduct union dues on the grounds that an organization was merely registered and did not have trade union status, and refers to its conclusions formulated on that occasion in which, having examined the legislation, the Committee requested the Government to take measures to ensure the deduction of trade union dues for organizations that are merely registered [see 320th Report, Case No. 2054, para. 142]. Accordingly, the Committee requests the Government in this case to take measures to ensure that union dues are withheld from the wages of APOC members in the Court of Audit of Córdoba Province.
• Court of Audit of Tucumán Province
  186. 186 Concerning the allegation that the authorities of the Court of Audit of Tucumán Province took anti-union measures against APOC members (the complainant organization refers to acts of persecution against its members, transfer and change of duties of a union officer, pay discrimination, denial of union leave and other entitlements, etc.), the Committee notes that the Government has sent a detailed report from the Court of Audit expressly denying all of the allegations.
• National Electricity Regulatory Agency (ENRE)
  187. 187 Concerning the allegation that the National Directorate of Trade Unions issued an erroneous opinion stating that APOC was not in a position to represent the workers of ENRE on the bargaining committee for the collective agreement (the complainant organization states that the authorities wrongly consider that ENRE does not have any staff that can be represented by APOC), the Committee notes that the Government states that APOC does not have the necessary status to represent the staff of ENRE, as there are more representative organizations (ATE and UPCN) in the agency, which as such have exclusive bargaining rights, and the complainant organization thus does not have the right to be represented on a bargaining committee. In this regard, in view of the contradictions between the allegations and the Government’s reply, and observing that APOC has trade union status (recognition as one of the most representative organizations, which – among other entitlements – confers the right to collective bargaining) on an equal footing with the trade unions ATE and UPCN, and that it has been participating in the bargaining committee (which has not been denied), the Committee requests the Government to verify once more whether the union lacks significant representativeness in ENRE. Moreover, given that what is at issue is the real representativeness of APOC, the Committee recalls that it is ultimately for the judicial authorities to take a decision in the matter.

The Committee's recommendations

1. 188. 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 measures to ensure that union dues are withheld from the wages of members of APOC in the Court of Audit of Córdoba Province.
   • (b) As regards the allegation that the administrative authority considered that APOC was not in a position to represent the workers in the negotiation of the working conditions of its employees in ENRE, in view of the contradictions between the allegations and the Government’s reply, and the fact that APOC has trade union status and has been participating in the bargaining committee, the Committee requests the Government to verify once more whether the union lacks significant representativeness in ENRE. Moreover, given that what is at issue is the real representativeness of APOC, the Committee recalls that it is ultimately for the judicial authorities to take a decision in the matter.