Interim Report - Report No 360, June 2011

Case No 2809 (Argentina) - Complaint date: 31-JUL-10 - Closed

Allegations: The complainant organization objects to the decision of the administrative authority to refuse to grant it trade union status

1. 246. The complaint is contained in a communication of the Association of Banks’ Senior Staff Officers (APJBO) dated July 2010.
2. 247. The Government sent its observations in a communication dated 1 February 2011.
3. 248. 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. 249. In its communication of July 2010, the APJBO states that it is a first-level entity with trade union registration granted by resolution No. 483 of 11 April 1994, registered number 1800. It covers the whole country and its membership consists of all managerial staff in national official banks, their successors or organizations which replace them or provide equivalent services, irrespective of their legal form, in the administrative, professional, technical and specialist branches, equipment and services from deputy head of division, head of area or general manager and/or equivalent in the various branches, in post or who on retirement were members of the organization. The complainant organization adds that it is a trade union with nationwide coverage in Argentina which seeks trade union representative status (to be able to engage in collective bargaining) in the Bank of the Argentine Nation.
2. 250. It indicates that this bank is the biggest in the country and its trade union is the Banking Association, whose representative status covers all workers in that activity. This association has a monopoly of collective bargaining. Thus the APJBO does not have even the possibility of having a joint member in the bargaining body. The APJBO has 1,813 paying members, it is affiliated to the Confederation of Argentine Workers (CTA) and has carried on a variety of trade union activities since its foundation. It has been most active in the Bank of the Argentine Nation. All its members are workers in that institution, although the “trade union registration” covers all official banks (meaning those owned by the State at national, provincial or municipal level).
3. 251. The complainant organization states that in order to obtain the maximum recognition allowed under Argentine law, and thus to have full legal capacity as a trade union, the application for representative status as a trade union was begun on 23 March 2004. By an order dated 13 August 2004, it was held that the registration requirements set out in article 23(a) of Act No. 23551 had been fulfilled and the trade union was thereby duly registered. In the framework of the application, it was stated that “… the precise context in which it is sought to obtain trade union representative status is the Bank of the Argentine Nation”. By an order of 12 September 2005, the APJBO was required to specify the differentiated trade union interests which justified specific representation of the segment of workers which it claimed to represent.
4. 252. On 19 September 2005, a further order was made to send an official letter to the Bank of the Argentine Nation requesting it to inform the relevant authority (the Ministry of Labour, Employment and Social Security – MTEySS) of the number of managerial staff employed by the bank in the six-month period prior to the application. It was also sent to the Banking Association, which requested that the APJBO’s application should be refused at the outset.
5. 253. By an order of 31 July 2006 of the MTEySS, it was suggested that the requirement should be deemed to be fulfilled and a verification hearing under article 25 of the Trade Unions Act (LAS) was fixed, in order to ascertain the number of paying members of the organization in the claimed context. This process was completed on 19 March 2008. Considering the delay and the constant prevarications of the administration, on 26 April 2010, an action for amparo for administrative delay was filed in the National Labour Court of First Instance No. 79. On 7 June 2010, the court issued a judgment in the case, No. 14524/10, Banks’ Senior Staff Officers v. Ministry of Labour, Employment and Social Security, amparo, which expressly ordered that “pursuant to article 28 of Act No. 19549, the National Executive Power, the Ministry of Labour, Employment and Social Security, is required within ten days to inform the court of the reasons for the delay alleged in the complaint, a copy to be attached in relation to administrative proceeding No. 1985795/04, failing which, the findings in the case will be determined on the evidence before the court …”.
6. 254. The complainant organization states that on 26 June, resolution No. 659/10 was issued, refusing the application for trade union representative status. The grounds indicate “that the application would mean that the exercise of trade union representation would alter the classification adopted by the trade union, overstepping the bounds of the classifications defined by law and the will of the general meeting to be constituted as a category trade union determined by this authority as applying at the time when it obtained trade union registration”. It also alludes to the provisions of articles 29 and 30 of the Trade Unions Act but, in justifying the refusal, relies only on article 29 and the related articles of the Act.
7. 255. The complainant organization adds that the restrictions imposed by Act No. 23551 on the granting of representative status to trade unions for an office, category, profession or company had led the ILO Committee of Experts to observe that they were incompatible with Articles 2 and 7 of Convention No. 87. The complainants state that the ILO supervisory bodies had, for many years, been making observations concerning Argentine law with respect to certain restrictions on some types of trade union, such as those for a company, office, profession and category. The CEACR has commented on many occasions on the incompatibility of articles 29 and 30 of Act No. 23551 with Article 2 of Convention No. 87. The objections of the ILO Committee of Experts highlight the obstacles which bar access to trade union representative status to trade unions of workers in a single company and workers in a same office, profession or category (articles 29 and 30 of the Act). The complainant organization recalls that article 29 of Act No. 23551 allows the granting of trade union representative status to a trade union of workers in a single company only exceptionally, on the grounds of the lack of another union which has that status in both geographical terms and the activity or category. For its part, article 30 prevents recognition as “most representative” to a “trade union representing an office, profession or category” when there is a pre-existing “activity trade union” which has that status. By that last condition alone, which it is impossible to fulfil in practice, any possibility of workers grouped according to their office effectively exercising collective defence of their rights and interest is rendered merely theoretical. Article 30 adds a second requirement, which is devoid of any objectivity: the clause which requires the existence of “differentiated trade union interests to justify specific representation”.
8. 256. The complainant organization indicates that the impossibility of exercising collective representation is yet one more of the rights denied to organizations which are merely registered. This case is one of many which show that the Government has made no effort with regard to the urgent requests of the ILO supervisory bodies. In this regard, all have pronounced in the same vein over all the issues raised, namely, amendment of the Trade Union Act, applications for trade union representative status and observations on the social situation. The Argentine Government has not made any comments concerning any of these. The complainant organization alleges that the Government drags out the proceedings which it knows will go against it in the courts, following the precedent of the “ATE” and “Rossi” cases in the Supreme Court of Justice of the Nation, which were the subject of comments by the CEACR in its last report in 2010. This case is evidence of this modus operandi: the prevarication method. Although it could have refused the application immediately on its submission giving the same reasons, it preferred to wait almost six years to refuse representative status and, as indicated above, then made it necessary to take legal action to force the administration to resolve the matter (amparo for administrative delay).
9. 257. The complainant organization indicates that a special appeal was filed against the decision which refused trade union representative status in the National Labour Appeals Tribunal. As the proceedings justifying the highest number of paying members of the complainant organization have not been completed (article 28 of Act No. 23551), the Tribunal can only decide to continue the proceedings, but cannot make a ruling, even if the application for trade union representative status is decided favourably.

B. The Government’s reply

1. 258. In its communication of 1 February 2011, the Government states that the Department of Legal Affairs of the MTEySS was consulted about the alleged refusal of the application for trade union representative status. The Department gave the following indications: (1) case No. 1085795/2004 began with the application for trade union representative status submitted by the Association of Banks’ Senior Staff Officers, a first-level trade union registered No. 1800; (2) by decision of the MTEySS No. 659 of 23 June 2010 (the Government attached a copy of the decision to its reply) it was decided to refuse the application submitted by the trade union concerned, based on the jurisprudence of the Attorney General and the provisions of articles 29 and 30 of Act No. 23551; (3) the trade union appealed directly against this decision pursuant to article 62 of Act No. 23551, requesting that articles 29 and 30 of the Act should be declared unconstitutional; (4) the appeal was registered at the National Labour Appeals Tribunal on 18 August 2010, and the case was heard in Court III of the Tribunal (case No. 32284/10); and (5) on 26 October 2010, notice of the proceedings was served on the prosecutor’s office. The Government indicates that it considers it appropriate to await the corresponding judicial decision.

C. The Committee’s conclusions

1. 259. The Committee observes that in this case, the complainant organization (which states that it has 1,813 members) is challenging the decision of the administrative authority to refuse its application for trade union representative status (application of 23 March 2004) in the Bank of the Argentine Nation, in order to be able to bargain collectively.
2. 260. The Committee notes that the Government states that: (1) the Ministry of Labour and Employment refused the application for trade union representative status submitted by the complainant organization on 23 June 2010, based on the jurisprudence of the Attorney General’s Office and the provisions of articles 29 and 30 of the Trade Unions Act No. 23551 of 1988 (the Government sent a copy of the decision which is reproduced as an annex); (2) the complainant organization appealed, seeking a judgment that articles 29 and 30 of Act No. 23551 should be declared unconstitutional; (3) the appeal was registered at the National Labour Appeals Tribunal on 18 August 2010, and on 26 October 2010, notice of the proceedings was served on the prosecutor’s office; and (4) it considers it appropriate to await the corresponding judicial decision.
3. 261. Firstly, the Committee regrets the long period of time that has passed (over five years) since the complainant organization requested trade union representative status (a status which grants exclusive rights, such as concluding collective agreements) and emphasizes the importance of reaching decisions in such matters within a reasonable length of time. With regard to the substance of the question, to grant or not to grant the trade union representative status to the complainant organization (which requires a comparison of the representativeness of the trade unions existing in the Bank), given that the procedure for determining the representativeness of the trade union concerned via the comparison of its relevant affiliates had not yet been completed, the Committee will examine the substance of the question when it has the judicial decision issued by the National Labour Appeals Tribunal where the appeal filed by the complainant organization is being heard. In these circumstances, the Committee hopes that the judicial authority will shortly pronounce its judgment and requests the Government to send it a copy of the judgment as soon as it is issued.

The Committee's recommendations

1. 262. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee hopes that the judicial authority will shortly pronounce its judgment in the appeal filed by the APJBO against the administrative decisions which refused trade union representative status and, for the purposes of pronouncing on the substance of the case, requests the Government to send it a copy of the judgment as soon as it is issued.

Z. ANNEX

• Appendix
• Buenos Aires, 23 June 2010
• Taking into account case No. 085795/2004 of the Ministry of Labour, Employment and Social Security, Act No. 23551 as amended by Act No. 25674 and Act No. 26390, and regulatory decrees Nos 467/88 and 514/03; and
• Considering:
• That the aforementioned case concerns the application for recognition of trade union representative status by the Association of Banks’ Senior Staff Officers dated 23 March 2004.
• That by decision No. 438 of 11 April 1994 of the Ministry of Labour and Social Security, the aforementioned entity obtained trade union registration, and is registered under No. 1800.
• That the recognized scope of the entity under its trade union registration comprises workers in National Official Banks in the managerial staff category in the administrative, professional, technical and specialized areas, equipment and services, from deputy head of division, head of area or general manager and/or equivalent in the various branches, operating throughout the Republic of Argentina, in which the National Official Banks have a branch, agency, office or head office.
• That according to the grouping defined in the applicant’s trade union registration, it adopted the classification set out in article 10(b) of Act No. 23551.
• That the applicant had circumscribed the scope of its application to the managerial staff of the Bank of the Argentine Nation.
• That the application would mean that the exercise of trade union representation would alter the classification adopted by the trade union, exceeding the classifications defined by law and the will of the general meeting to be constituted as a category trade union determined by this authority as applying at the time when it obtained trade union registration.
• That the Attorney General’s Office, in a similar case, issued an opinion binding on this department in decision No. 86 of 26 April 2007, from which it is inferred that the application for trade union representative status cannot override the classification adopted by the entity and recognized at the moment when it is constituted as a legal person.
• That the stated justification must be taken in conjunction with the provisions of articles 29 and 30 of Act No. 23551.
• That the legal decision of the National Department of Trade Unions, on being requested, advised that this application should be refused.
• That consequently, pursuant to articles 29 and relevant articles of Act No. 23551, the applicant should be refused trade union representative status, and it should be so recorded and published in the Official Bulletin.
• That this judgment be issued under the powers conferred by article 23(7) of the Ministries Act, No. 22520 (text regulated by Decree No. 438/92) as amended, and pursuant to the provisions of Decree No. 355/02.
• Thus, the Ministry of Labour, Employment and Social Security
• Resolves:
• Article 1. To refuse the application for trade union representative status submitted by the Association of Banks’ Senior Staff Officers, address at 311 Bartolomé Mitre Street, 3rd floor, Buenos Aires.
• Article 2. To effect the summary publication without charge of its statutes and the present resolution in the Official Bulletin, in the form indicated by resolution No. 12/01 of the National Department of Trade Unions.
• Article 3. To register this resolution and communicate, publish and convey it to the National Official Registry, and to file it.
• MTEySS resolution No. 659.