Report in which the committee requests to be kept informed of development - Report No 371, March 2014

Case No 2979 (Argentina) - Complaint date: 21-AUG-12 - Follow-up

Allegations: the complainant organization alleges interference by the administrative authorities in the election for the renewal of its officers, as well as acts of disqualification and interference in the organization’s activities, demonstrating a clear anti-union policy against its secretary-general and the imposition of a very heavy fine on the National Federation of Truck Drivers and Workers in the Road Transport of Loads, Logistics and Services (FNTCOTACLS) for calling a general strike

1. 134. The complaint is contained in communications of the General Confederation of Labour of the Republic of Argentina (CGTRA) dated 21 August 2012. The CGTRA presented new allegations in a communication dated 27 December 2012.
2. 135. The Government provided its observations in communications dated October 2013 and 11 March 2014.
3. 136. 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. 137. In its communication of 21 August 2012, the CGTRA indicates that it is presenting a complaint against the Government for the violation of Convention No. 87 in the context of the procedure for the renewal of its officers, who were elected on 12 July 2012 for a period of four years (14 July 2012 to 14 July 2016), in accordance with its statutes. The complainant reports that the process of the renewal of its officers was undoubtedly the most pluralistic, democratic and transparent undertaken in recent years by the Confederation. The electoral process, initiated by the meetings of the executive council of 27 March and 24 April 2012, in accordance with the procedure set out in the statutes, was also approved by the Central Committee of the Confederation on 23 May that year.
2. 138. The complainant indicates that, first, with regard to the quorum set out in the by-laws, the extraordinary general congress was constituted and 47 first-level organizations were affiliated. Then, in constant compliance with the precautionary measures and requirements set out in the by-laws, and to prevent gaps and interruptions in terms of office, the ordinary congress envisaged by the statutes was held for the renewal of the officers of the Confederation. The complainant emphasizes that over 1,000 participants at the congress, through a direct and secret ballot, elected the leadership of the CGTRA for a period of four years. The CGTRA alleges that the Government interfered in this electoral process, in violation of freedom of association and the independence of trade unions, and particularly the right to elect representatives in full freedom. According to the complainant, the interference extended to the highest levels of the executive authorities, which not only made public their preferences for candidates other than the secretary-general of the National Federation of Truck Drivers and Workers in the Road Transport of Loads, Logistics and Services (FNTCOTACLS), who was elected to guide the destiny of the Confederation, but also took the form of specific pressure on leaders and affiliates to withdraw their support. According to the CGTRA, this situation was denounced both before and after his re-election as secretary-general. The complainant adds that, despite the multiple requests made for a meeting, the President of the Nation did not receive the secretary-general.
3. 139. The CGTRA claims that the Ministry of Labour, Employment and Social Security does not have the competence to intervene in the intra-union conflict in the Confederation, as the procedure set out in the Act respecting trade unions has not been exhausted (the complainant is referring to section 60, which provides that “without prejudice to the provisions of the statutes, the provisions of the previous section shall apply to disputes which may arise between affiliates of a trade union association of workers and the latter, or between a lower-level and a higher-level association”. In this regard, section 59 provides that: “Before referring issues of trade union governance to the administrative authorities, the associations concerned shall have first exhausted the remedies available within the association, through a decision of the union organization of the level higher than the organization to which they are affiliated, or to which their federations are affiliated”). According to the CGTRA, the administrative authorities remedied weaknesses in the challenges made by the group of leaders who described themselves as being close to the Government, with the clear intention of intervening in and undermining the electoral process in the CGTRA. Accordingly, the independence of the organization was violated, in breach of its statutes and of jurisprudence, which has reiterated on numerous occasions that issues relating to trade union elections, particularly in the case of the most important trade union confederation in the country, shall be determined by the judicial authorities or an independent mediator without the intervention of the public authorities.
4. 140. The complainant adds that the administrative decision of 6 July 2012, which concluded that “a sufficient and valid quorum had not been reached for the meeting of the executive council of the CGTRA on 24 April 2012, and that its procedure and decisions were therefore null and void, and that the same body has to be reconvened to confirm the decisions taken or a new electoral process organized for the renewal of the officers”, was drawn up prior to the meeting of the extraordinary congress of the Confederation on 12 July 2012. The CGTRA adds that only a few minutes after the arbitrary and unlawful decision referred to above had been issued, the authorities of the Ministry held a press conference in which they announced in public the decision taken by the Ministry, even though no final decision had been taken on the appeals that were before the National Directorate of Trade Union Associations, or the appeal to the higher authority that was to be decided by the Minister. The administrative action implied a political decision by the authorities to intervene in the election for the renewal of the officers of the CGTRA.
5. 141. In its communication of 27 December 2012, the CGTRA alleges that the national Government is persisting in the unlawful and arbitrary acts of disqualification and interference in the life of the organization, thereby demonstrating a clear anti-union policy against the secretary-general, Hugo Antonio Moyano, as well as against other unions. The complainant reports that acts of vandalism and looting broke out in the provinces of Río Negro, Santa Fe and Buenos Aires on 20 and 21 December 2012, and that shortly after the looting began, as if the Government were pursuing a policy of persecution, government officials brought criminal charges against the trade union leaders Hugo and Pablo Moyano for a general strike called by the FNTCOTACLS. Even though the charges were set aside, the administrative labour authorities imposed a very heavy fine (of over 1 million pesos), without guaranteeing the right of legitimate defence. That decision has now been sent back to the labour administration, as Chamber X of the National Labour Court of Appeal found that the Minister of Labour had not complied with the necessary administrative procedures. According to the complainant, it can clearly be seen that the Government has a history of defamation and criminalization of union leaders that are critical of its action. The complainant also alleges that on 21 December 2012 the authorities of the Ministry of National Security accused Hugo Moyano and Pablo Micheli of excesses which resulted in two fatal victims, and that the Chief of the Cabinet of Ministers of the National Government implicated various unions. In this case, the public statements gave rise to a forceful riposte from the workers’ movement in a press conference, in which it was emphasized that the purpose of the defamation through the press was clearly to intimidate union leaders who were engaged in a plan of action to combat the Government’s economic and social policy.

B. The Government’s replies

1. 142. In its communication of October 2013, the Government denies each and every denunciation contained in the complaint and reaffirms that the claims are false and reckless. The Government emphasizes that it is not a question of partiality, but that the Ministry of Labour acted in defence of international guarantees which had objectively been prejudiced through failure to comply with clear statutory provisions, and which resulted in the exclusion of the representatives of important organizations from the executive council of the CGTRA. The claim that international standards have been violated is therefore unfounded. Indeed, on the contrary, the Ministry of Labour acted in defence of the principles of freedom of association and of international treaties against those infringing them.
2. 143. The Government totally refutes the accusation that the State’s action amounts to a violation of Articles 3 and 6 of Convention No. 87, and reaffirms that the Ministry acted at the request of one party whose international and constitutional guarantees had been prejudiced, through what may be summarized as violations of the right of expression, equality before the law and the exercise of the right to vote. In other terms, it was an objective case of exclusion of union representatives of affiliates from the leadership of the CGTRA, in a context of politicization of the electoral process, in which one party had the intention of taking over the leadership of the CGTRA for its own political purposes, irrespective of the objectives of the Confederation, as set out in its statutes, and even in violation of international provisions respecting union activities. The Government provides a transcription of the report of the National Directorate of Trade Union Associations (file No. 1511236/12 of 6 July 2012), which indicates that it is examining an application for the absolute and irrevocable invalidation of the meeting of the executive council of the CGTRA which approved the convening of the Central Committee of the Confederation on 23 May 2012 and the ordinary and extraordinary national congresses on 12 July 2012. The application was lodged by various unions, which claimed that the executive council did not on that occasion achieve the necessary quorum for the meeting to be valid, in accordance with clause 50 of the statutes. It adds that various participants at the meeting did not fulfil the statutory requirements to represent their respective unions. Investigation showed that the quorum was not reached at the meeting of the executive council of the CGTRA on 24 April 2012, which could not therefore be considered valid, resulting in the procedure and the decisions taken by the meeting being null and void, with the need for the same body to meet again to confirm its decisions or a new electoral procedure to be held for the renewal of the officers.
3. 144. The Government recalls that in the present case the complainant was not acting as a mere association, but that during the electoral period it exercised jurisdictional functions, such as resolving the intra-union differences relating to the election process (section 60 of Act No. 23551) and in the executive council, safeguarding the whole electoral process and guaranteeing impartiality, transparency and objectivity. However, the very terms in which the complaint is couched illustrate the lack of awareness of the role that has to be played by the officers of a union during an election. Those who exercise institutional responsibility during ballots have to demonstrate an impartial attitude, irrespective of the positions that are adopted during the campaign. The conduct of the complainant was in breach of the principles of “impartiality and transparency” in two respects: first, the use of the machinery of the Confederation in support of a specific position during the process, and second the disqualification of opponents. The Government adds that the statutes of the CGTRA set out clearly that the union organizations represented on the executive council are those which elect representatives to the executive council through their constituent bodies, and that this requirement was not met. The facts are clear in this respect, and none of the six candidates who stood in the absence of the real members of the executive council produced any documentation from the organizations they claimed to represent, as required by the statutes of the Confederation. In other words, there were six persons without any documentation in support of their presence as members of the executive council, as required by the statutes of the CGTRA. The Government observes that the dispute which arose in the CGTRA first had to be addressed within the Confederation through the establishment, in accordance with sections 59 and 60 of Act No. 23551, of an ad hoc tribunal for that purpose, which would discharge jurisdictional functions within the competence of the State. In so doing, the union is under the obligation to comply with the constitutional guarantees and the provisions of international treaties. The Government adds that the complaint reveals a “lack of respect” for rivals, with the continual disqualification of representatives of sectors that could be seen as dissident by the leadership of the faction wishing to convene an election. Dissidence should not be considered to be an attack justifying the disqualification of those concerned from standing in the election.
4. 145. The Government adds that the Ministry of Labour took action at the request of one of the parties. A series of union organizations requested the Ministry to do so on the grounds of a flagrant violation of the organization’s statutes. The Government reaffirms that the Ministry’s action is legitimized by virtue of two sets of rules: international public labour law and international labour standards. The Ministry of Labour took action under legitimate circumstances, because there were violations of the principles governing the building of a common position in an association, the disqualification of opponents, breaches of the rules of due process, as well as of democratic rules and other guarantees of the exercise of freedom of association. According to the Government, this is fully borne out by the findings of the report of the National Directorate of Trade Union Associations in case No. 1511236/12. The Government provides details of the actions of the complainant which were identified as void and wrongful: (1) the violation of clauses 11, 55(e) and 108 of the by-laws through failure to comply with the requirements for the formal convening of ordinary and extraordinary national congresses, including those intended for elections to renew the officers of the CGTRA; (2) the violation of trade union independence by preventing the contesting organizations, which were members of the executive council, from nominating their representatives for the meeting of 24 April 2012, in breach of clauses 49 and 53 of the statutes; (3) a discriminatory attitude, by challenging the complaint lodged by the contesting organizations through a specific statement dismissing their claims prior to the beginning of the process at the union headquarters – sections 59 and 60 of Act No. 23551; and (4) the failure to convene correctly the Central Committee of the Confederation on 23 May 2012 and the ordinary and extraordinary congresses, set for 12 July 2012. The situation as a whole makes it difficult to validate an election process.
5. 146. The Government adds that at all times the Ministry of Labour endeavoured to ensure compliance with existing requirements, as illustrated by the meeting held in the Ministry of Labour, but without success. The lack of agreement during the meeting convened by the Ministry demonstrated political conduct which perverted the electoral process, by seeking to impose requirements that were in breach of natural individual and union safeguards, as the politicization of the statutory governance bodies, in the middle of an electoral process, prevented it from being considered objective and transparent. The Government indicates that in reality the complainant was endeavouring to take over the electoral process for its own political ends.
6. 147. The Government reports that the intra-union dispute is currently before the courts, to which the action taken by the administration has been referred. The case is before Chamber V of the National Labour Court, entitled: Ministry of Labour v. Armando Cavalieri et al., Secretaries-General of union organizations affiliated to the CGTRA, under the Act respecting trade unions, Case No. 55910/12. This means that oversight over the action taken by the administration is being exercised by the courts, which are the appropriate instances to safeguard the interests of the parties, and the courts will decide on the relevance, merits and legality of the action taken by the Ministry.
7. 148. In its communication of 11 March 2014, the Government refers to the latest allegations made by the complainant organization in December 2012. The Government points out that although the complainant refers to the events which occurred on 20 and 21 December 2012, those were actually the outcome of a process which started earlier and is, as already mentioned, characterized by blockades, pickets and intimidation of all kinds. As pointed out by some newspapers dated 20 June 2012, the truck drivers’ union – which is part of the set of unions that the complainant organization claims to represent – ordered a work stoppage of 72 hours in the fuel distribution sector, and was, in light of the circumstances, requested to immediately cease industrial action, as also reported by the newspapers. In addition to ignoring the mandatory conciliation, the union in question proceeded to block several production plants or fuel distributors. According to the Government, the State was subjected in this context to ongoing acts of violence endangering the lives and safety of persons, and, as a result of this situation, the Government initiated two lawsuits over these incidents which are pending before the courts. The Government further states that, as noted by the newspaper reports, a fine was imposed on the union for ignoring the mandatory conciliation during the dispute, and the related judicial proceedings are also ongoing. On 21 November 2012, industrial action was taken once again in the form of pickets and blockades of all entries of the city of Buenos Aires. These circumstances led to the measures adopted in December mentioned by the complainant. The events of December 2012 are the consequence of a constant and recurring performance of acts of threats for six months, and the statement of the public officials must be understood in that context.

C. The Committee’s conclusions

1. 149. The Committee observes that in the present case the complainant alleges that the administrative authorities interfered in the electoral procedures of the General Confederation of Labour of the Republic of Argentina (CGTRA), which were carried out in compliance with the statutory procedure, resulting in the election on 12 July 2012 of new officers for a period of four years (the complainant organization objects to the intervention of the administrative authorities, which found that the quorum had not been reached in the executive council of the CGTRA and decided that the council should be reconvened to confirm the decisions taken or a new election procedure organized). The Committee also observes the allegation by the CGTRA that: (1) the interference extends to the highest level of the executive authority and is not limited to public expressions of preference for a candidate but also consists in placing pressure on trade union leaders and affiliated organizations; and (2) the government authorities engaged in conduct intended to invalidate and interfere in the activities of the organization, thereby demonstrating a clear anti-union policy against the secretary-general, Hugo Moyano, and other leaders (according to the CGTRA, criminal charges were brought against Hugo and Pablo Moyano for calling a general strike decided upon by the National Federation of Truck Drivers and Workers in the Road Transport of Loads, Logistics and Services (FNTCOTACLS) in December 2012 and, even though the criminal charges were set aside, a very heavy fine, amounting to over 1 million pesos, was imposed by the administrative authorities).
2. 150. With regard to the allegation of interference by the administrative authorities in the electoral process of the CGTRA (the complainant criticizes the intervention by the administrative authorities which found that the quorum had not been reached in the executive council of the CGTRA and decided that the council should be reconvened to confirm the decisions taken or a new election procedure organized), the Committee notes the Government’s statements that: (1) the Ministry of Labour, Employment and Social Security acted in defence of international guarantees which had objectively been prejudiced through failure to comply with clear statutory provisions, and which resulted in the exclusion of the representatives of important organizations from participation in the executive council of the CGTRA; (2) the action taken by the Ministry was at the request of one of the parties in light of violations of international and constitutional guarantees, which may be summarized as the violation of the right of expression, equality before the law and the exercise of the right to vote; (3) it was an objective situation involving the exclusion of representatives of unions from the leadership of the CGTRA; (4) the Ministry of Labour took action under legitimate circumstances, as there were violations of the principles governing the building of a common position in an association, the disqualification of opponents, breaches of the rules of due process, as well as of democratic rules and other guarantees of the exercise of freedom of association; and (5) the intra-union dispute is currently before the courts, to which the action taken by the administration has been referred (the case is before Chamber V of the National Labour Court, under the title of: Ministry of Labour v. Armando Cavalieri et al., secretaries-general of unions affiliated to the CGTRA, under the Act respecting trade unions), and it is the court that will decide on the relevance, merits and legality of the action taken by the Ministry of Labour. While noting all this information, the Committee recalls that:
   • The right of workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct of the elections themselves.
   • Measures taken by the administrative authorities when election results are challenged run the risk of being arbitrary. Hence, and in order to ensure an impartial and objective procedure, matters of this kind should be examined by the judicial authorities.
3. [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 391 and 440.] Under these conditions, the Committee firmly expects that the judicial authorities will rule without delay on all the pending matters relating to the electoral process in the CGTRA and requests the Government to keep it informed in this respect.
4. 151. With regard to the new allegations of December 2012, according to which the Government authorities engaged in acts of disqualification and interference in the activities of the organization, thereby demonstrating a clear anti-union policy against the secretary-general, Hugo Moyano, and other leaders (according to the CGTRA, criminal charges were brought against Hugo Moyano and Pablo Moyano for a general strike called by the FNTCOTACLS in December 2012, and even though the criminal charges were set aside, the administrative authorities imposed a very heavy fine, amounting to over 1 million pesos, which is before the administrative authorities), the Committee notes that the Government indicates that: (i) the events which occurred on 20 and 21 December 2012 were the outcome of a process characterized by work stoppages in the fuel distribution sector as well as pickets, blockades and intimidation, which started earlier; (ii) on 20 June 2012, the truck drivers’ union called for a work stoppage of 72 hours in the fuel distribution sector, and was, in light of the circumstances, requested to immediately cease industrial action; (iii) in addition to ignoring the mandatory conciliation, the union in question proceeded to block several production plants or fuel distributors, and the State was subjected to ongoing acts of violence endangering the lives and safety of persons; (iv) as a result of this situation, the Government initiated two lawsuits over these incidents which are pending before the courts, and a fine was imposed on the union for ignoring the mandatory conciliation during the dispute, with the related judicial proceedings also ongoing; and (v) the events of December 2012 are the consequence of a constant and recurring performance of acts of threats for six months, and the statements of the public officials must be understood in that context. Under these circumstances, highlighting the delay in the ongoing proceedings relating to the events of 2012, the Committee requests the Government to keep it informed of the outcome of the relevant judicial proceedings.
5. 152. Lastly, regarding the allegations concerning the authorities’ interference by publicly expressing their preference for candidates participating in the CGTRA’s election process, as well as the pressures and threats to leaders and affiliated organizations, the Committee notes that the Government states that it is not a question of partiality and that the Ministry of Labour acted in defence of international guarantees which had been prejudiced and due to the breach of CGTRA’s statutory requirements. In that regards, the Committee recalls that in general “when the authorities intervene during the election proceedings of a union, expressing their opinion of the candidates and the consequences of the election, this seriously challenges the principle that trade union organizations have the right to elect their representatives in full freedom” [see Digest, op. cit., para. 434].

The Committee’s recommendations

1. 153. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling the importance of respecting the principles concerning the non interference of the authorities in trade union elections mentioned in the conclusions, the Committee firmly expects that the judicial authorities will rule without delay on all the pending matters relating to the electoral process in the CGTRA. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to keep it informed of the outcome of the ongoing judicial proceedings initiated on the grounds of the events occurred during the general strike called by the National Federation of Truck Drivers and Workers in the Road Transport of Loads, Logistics and Services (FNTCOTACLS) in December 2012, as well as of the outcome of the judicial proceedings concerning the imposition of a fine on the FNTCOTACLS, for not having complied with the mandatory conciliation in the framework of the relevant dispute.