Report in which the committee requests to be kept informed of development - Report No 358, November 2010

Case No 2732 (Argentina) - Complaint date: 31-AUG-09 - Closed

Allegations: The complainant organization alleges the dismissal of a trade union leader further to the establishment of a trade union in a mining company

1. 220. The complaint is contained in a communication from the Confederation of Argentine Workers (CTA) dated August 2009.
2. 221. The Government sent its observations in communications dated November 2009, June, August and 3 November 2010.
3. 222. 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. 223. In its communication of August 2009, the CTA states that the present complaint is being brought against the Government of Argentina for multiple violations of freedom of association and the rights of workers’ organizations and representatives, as guaranteed by Conventions Nos 87, 98 and 135 and Recommendation No. 143, committed in the form of acts of discrimination and dismissals of trade union leaders, delegates and activists. The CTA points out that the case covered by the present complaint is just one of many in which the rights of workers and their organizations have been violated. The CTA notes with concern the systematic repetition of practices harmful to freedom of association. Consequently, the present complaint is being brought against the Government of Argentina for failure to guarantee the exercise of the rights of members, officials and delegates of unions, whether already registered or applying for registration, because they do not belong to unions which enjoy legal recognition.
2. 224. The CTA alleges that the Government, which has been reluctant to adapt national law to the minimum standards of freedom of association established by ILO Conventions Nos 87 and 98 and the extensive doctrine originating from the opinions of its supervisory bodies, gave rise by omission to the acts of anti-union discrimination and conduct against Mr José Vicente Leiva, representative of the CTA and founder of a union.
3. 225. The CTA states that the Barrick Gold Corporation is the biggest gold-mining multinational in the world, with its headquarters in Toronto. It has more than 27 mines operating in Argentina, Australia, Canada, Chile, Peru, United Republic of Tanzania, and United States. In 2001, the company merged with Homestake and thus established its presence in Argentina, which was marked by the acquisition of Veladero in San Juan province. Apart from the current operations and projects, South America is a strategic area for the future growth of the company.
4. 226. The CTA states that Mr José Leiva is a worker with many years of service in the company who, in addition to demonstrating leadership qualities and engaging in union activism, is a member of the executive committee of the Argentine Miners’ Union (OSMA–CTA), whose application for registration as a union is currently being processed by the Ministry of Labour, Employment and Social Security, file No. 1340646. Veladero employs more than 1,500 persons, of which 850 are permanent staff while the rest are subjected to various forms of labour malpractice through the subcontracting of services. The work at the mine face, currently at an altitude of 4,600 metres, is carried out under appalling conditions (in winter temperatures fall below minus 20°C). As a result of the lack of oxygen and the dust raised by the excavations, the air is full of silica particles, which lodge in the lungs and cause the incurable disease of silicosis. The lack of oxygen is also damaging inasmuch as it causes serious circulatory problems, which lead to heart disease and neurological disorders.
5. 227. Even under these working conditions the workers are not provided with suitable medication or preventive medical treatment, let alone special clothing to provide protection against the low temperatures of the high mountains. The monthly work schedule is 14 days’ work followed by 14 days’ leave. Daily working time exceeds 12 hours, calculated from arrival at the mine gallery entrance. To this must be added another two hours for travel to and from the hotel in which the workers stay while employed at the mine. The food provided both at the workplace and later at the lodgings is inadequate in view of the physically demanding nature of the work and the prevailing climatic conditions at high altitude.
6. 228. One year ago, the workers conducted a work stoppage in protest against the death of two workers in the mountains. When the death of the two workers was confirmed, an immediate search for the bodies was launched, against a background of shock that the deaths were certainly the result of non-existent safety measures and inappropriate working conditions for mining. The body of Mr Muñoz Leonardo was found but there were obstacles to recovering the body of Mr Aguilera Mauricio. The company therefore sent a representative, who held a meeting with the workers and ordered them to call off the search and resume work immediately, since the stoppage was causing the mine to lose revenue. The outrage that this provoked resulted in Mr José Vicente Leiva informing the representative of the multinational on behalf of the workers that nobody would return to work until the missing body was found.
7. 229. The CTA states that because of the loss of purchasing power and the company’s refusal to award a pay rise on the pretext that negotiations were being held with the AOMA, a meeting was convened in 2008 and it was decided to take vigorous action in the form of a strike with the downing of tools and pickets posted near the mine entrance. The strike lasted 48 hours. These events precipitated the need to form a new type of trade union in view of the lack of response from the branch trade union.
8. 230. Given the lack of response to the abovementioned complaints regarding working conditions, the workers decided to organize and form the Argentine Miners’ Union (OSMA), with Mr José Vicente Leiva the focal point for the workers. More than 200 workers met in various groups to decide on the structure of the union, which was finally established on 30 June 2009 with Mr José Vicente Leiva appointed as general secretary. At the same assembly the workers decided to affiliate to the CTA.
9. 231. The CTA alleges that at the same time that the certification of the constituent documents in the presence of a notary was taking place, on 24 July 2009, the company, having learned of the establishment of the OSMA–CTA, ordered the wrongful dismissal of Mr José Vicente Leiva on account of his status as focal point in the conflict at the mine and his election as general secretary of the new union. The company, violating the principle of trade union autonomy and its obligation of non-interference, was proactive in imposing a different representative body on the union from the one that had been elected.
10. 232. According to the CTA, it is clear that the grounds for the dismissal of union leader Mr José Vicente Leiva were his union activity and his constant demands for improved working conditions, as well as the establishment of the Argentine Miners’ Union. This is also a clear abuse of power designed to have a disciplinary and inhibitory effect on the exercise of collective rights by all the workers and constitutes a discriminatory dismissal prohibited by law.
11. 233. On 11 August, in relation to the conduct of the company, representatives of the CTA held a joint press conference with Mr José Vicente Leiva and decided to institute proceedings for reinstatement in the labour court and also, in connection with the anti-union dismissal, to lodge a complaint with the Labour Commission of the Chamber of Deputies of the Nation, with the ILO and with the OECD, since a multinational corporation is concerned.

B. The Government’s reply

1. 234. In its communication of November 2009 and June 2010, the Government states that, on account of the complaint, the Ministry of Labour summoned the president of the corporation in question to a hearing. The hearing took place on 1 October 2009 and the Ministry of Labour urged the company to review the situation, proposing that a solution be sought through the administrative authority. On 19 October the company reported supposed irregularities in the establishment of the union of which Mr José Vicente Leiva is the general secretary, further to which the CTA had ten days in which to reply, but there have been no new developments in this regard. With regard to the registration of the trade union, the National Directorate for Trade Union Associations indicates that the relevant proceedings were initiated in August 2009, that it was decided in November to verify the compliance with the requirements stipulated in national legislation, and that the relevant file was requested on 23 December 2009 by the Federal Court No. 2 of the Province of San Juan and submitted to it. Moreover, aware that proceedings have been instituted in the national labour court, the Government considers it appropriate to wait for a ruling to be issued and keep the Committee informed accordingly.
2. 235. In its communications of August 2010, the Government informs that proceedings for amparo (constitutional protection) are currently ongoing before the National Labour Court of First Instance , which have been initiated by Mr Leiva and that the court decided on his preventive reinstatement in the identical grade and under the same working hour arrangements as an interim measure.
3. 236. In a communication dated 3 November 2010, the Government forwards a communication made by the Government of the Province of San Juan mentioning the following: (1) the responsibility for managing matters related to trade union organizations is a federal power; (2) no complaints have been lodged before the Provincial Administration on the issue mentioned in the request; (3) complainants may have access to judicial proceedings if they so wish; (4) the federal judge of the Province of San Juan examines a complaint (that is still pending) on issues related to the official status (personeria gremial) lodged by an organization against another organization called AOMA, which has also requested that a criminal case be initiated against Mr José Vicente Leiva.

C. The Committee’s conclusions

1. 237. The Committee observes that in the present case the complainant organization alleges the wrongful dismissal on 24 July 2009 of Mr José Vicente Leiva, the general secretary of the OSMA – whose application for registration as a union is being processed – by the Barrick Gold Corporation (which merged with the Homestake company). The Committee also notes the CTA’s claim that the union leader was dismissed on the same day that the constituent documents for the OSMA were being certified in the presence of a notary and that the grounds for the dismissal were his trade union activity and his constant claims for improved working conditions, as well as the actual establishment of the union.
2. 238. The Committee notes the Government’s statement that: (1) the Ministry of Labour summoned the president of the corporation in question to a hearing on 1 October 2009, in the course of which the company was urged to review the situation and it was proposed that a solution be sought through the administrative authority; (2) on 19 October 2009 the company reported supposed irregularities in the establishment of the union and the CTA had ten days in which to reply but has not done so to date; (3) the National Directorate for Trade Union Associations informs that the proceedings for the registration of the union were initiated in August 2009, and that the Federal Court No. 2 of San Juan requested and received the file in December 2009; (4) proceedings for amparo (constitutional protection) are currently ongoing before the National Labour Court of First Instance, which have been initiated by Mr Leiva, and the court decided on his preventive reinstatement in the identical grade and under the same working hour arrangements as an interim measure; and (5) aware that proceedings have been instituted in the national labour court, the Government considers it appropriate to wait for a ruling to be issued in this respect. According to the provincial Government, a competing trade union organization has started a civil judicial proceeding against the official status (personeria gremial) of OSMA–CTA and a criminal action against Mr José Vicente Leiva.
3. 239. In this regard, taking into account that the Government does not refer to the grounds of the dismissal of the trade union leader, the Committee requests the Government to take measures to ensure the reinstatement of union leader Mr José Vicente Leiva in his post as decided by the judicial authority in the framework of the judicial proceeding regarding his dismissal. The Committee requests the Government to inform it of the final ruling.
4. 240. Finally, observing that: (1) the complainant states that the application for registration of the OSMA is being processed by the Ministry of Labour, Employment and Social Security; (2) the Government states that it was the company in question that reported supposed irregularities in the constitution of the union, and that the file concerning the registration of the union was submitted to Federal Court No. 2 of San Juan; and (3) a trade union organization has started a civil judicial proceeding against the official status (personeria gremial) of the OSMA (pending) and a criminal action against union leader Mr José Vicente Leiva, the Committee requests the Government to proceed with the registration of the OSMA, provided no irregularities have been found and, in any case, not to prevent its functioning. Furthermore, the Committee requests the Government to keep it informed of the outcome of the abovementioned judicial proceeding.

The Committee's recommendations

1. 241. 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 the reinstatement of union leader Mr José Vicente Leiva in his post as decided by the judicial authority in the framework of the judicial proceeding concerning his dismissal. The Committee requests the Government to inform it of the final ruling.
   • (b) The Committee requests the Government to proceed with the registration of the OSMA, provided no irregularities have been found and, in any case, not to prevent its functioning. The Committee requests the Government to keep it informed of the outcome of the abovementioned judicial proceeding.