Report in which the committee requests to be kept informed of development - Report No 396, October 2021

Case No 3331 (Argentina) - Complaint date: 28-MAY-18 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Allegations: The complainants allege a delay in the granting of most representative trade union status to the complainant organization AGTSyP, as well as police repression, suspensions and arrests of workers who took part in protests and industrial action

1. 100. The complaint is contained in a communication from the Trade Union Association of Subway and Light Rail Workers (AGTSyP) and the Confederation of Workers of Argentina (CTA) dated 30 May 2018.
2. 101. The Government sent its observations in communications dated 31 May and 3 July 2019 and 9 September 2021.
3. 102. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 103. In their communication dated 30 May 2018, the Trade Union Association of Subway and Light Rail Workers (AGTSyP) and the Confederation of Workers of Argentina (CTA) state that: (i) the AGTSyP was founded in 2008 as a first-level trade union entity for the workers of the Buenos Aires city subway transport service; (ii) the AGTSyP had to bring the case before the courts to demand that the administrative labour authority grant it trade union registration; and (iii) on 25 November 2010, the Ministry of Labour issued Decision No. 1381/2010 registering it as a first-level entity. The complainants argue that, with the “simple” trade union registration and by having greater worker representation in the sector, it in fact replaced the Automotive Tramway Union (UTA), a first-level association with most representative trade union status representing workers in the public transport and subway passenger sector in Argentina. The complainants indicate that this situation led to tensions and disputes between the unions because the displaced union did not accept its low representativeness among subway workers.
2. 104. The complainants indicate that: (i) in view of the AGTSyP’s larger membership (1,849 members; around 60 per cent of overall representation), in accordance with Act No. 23.551 on Trade Union Associations, on 31 July 2013 it applied for most representative trade union status; (ii) the UTA obstructed the application process and filed an appeal with the Ministry of Labour, which was referred to the Labour Chamber; (iii) the Chamber found the appeal inadmissible because it only has jurisdiction over challenges to final administrative decisions; (iv) once the file was referred back to the Ministry of Labour, three verification hearings were held to give both entities the opportunity to prove their membership and thus ascertain the most representative entity, but the UTA failed to appear at any of them and consequently the administrative authority issued Decision No. 1601, granting the AGTSyP most representative trade union status, in the exclusive domain of subway and light rail transport, without affecting the rest of the UTA’s most representative trade union status, which it maintained for the remainder of automotive transport; (v) the UTA filed a judicial appeal against the decision granting the trade union status (without providing a single explanation for any grievance regarding this, and especially the reason for its failure to appear at the verification hearings) and, on 6 March 2017, Chamber ll of the National Chamber for Labour Appeals overturned Decision No. 1601 on the grounds it involved merely formal issues, thus returning to zero the trade union status application process; (vi) the AGTSyP appealed the ruling before the Supreme Court, which did not process the appeal because, following its own doctrine, it deemed it not to be a “final ruling or comparable to such”; and (vii) the judiciary referred the file back to the Ministry of Labour on 13 April 2018 and, to date, it remains unresolved, leaving the AGTSyP unable to ever obtain its recognition as the most representative entity.
3. 105. The complainants also indicate that the city of Buenos Aires subway concession holder, Metrovías S.A. (hereinafter enterprise A), and the public enterprise Subterráneos de Buenos Aires (SBASE) (hereinafter enterprise B) used the 2018 Supreme Court ruling as an excuse to restrict the AGTSyP’s participation in the 2018 wage negotiations. They indicate that, although the Government of the City of Buenos Aires recognized the authority of its representatives to engage in joint wage negotiations, the AGTSyP did not agree with the proposal made by enterprises A and B and was excluded from the negotiating table. They indicate more precisely that the AGTSyP refused to agree to a wage increase below inflation and that the aforementioned enterprises signed an agreement with the UTA that runs counter to the interests of subway workers and even imposes on AGTSyP members a contribution to the UTA equivalent to one per cent of their wages.
4. 106. The complainants indicate that: (i) from that moment on, the AGTSyP took two types of action in rotation on the different subway lines in Buenos Aires city: on the one hand, the turnstiles at the entrance to the subway were opened/released (in other words, passengers could use public transport without paying for a ticket) and, on the other hand, the partial and staggered interruption of train services, within certain hours and on specific lines. All these measures were announced in advance; (ii) in a statement dated 14 May 2018, enterprise A announced the suspension of more than 70 employees who had taken part in the protests, in response to which the union decided to take more extensive action and, in a statement dated 17 May 2018, enterprise A indicated that the suspension telegrams were sent because of the action taken to occupy the facilities, open the emergency doors and/or release turnstiles, and stressed that the situation did not violate the right to strike, given that those being sanctioned had taken part in illegal actions; the AGTSyP demanded the reinstatement of the suspended workers and on 18 May the enterprise announced that it had sent more than 100 suspension telegrams; and (iii) on 22 May 2018 enterprise A barged in with an “army” from the city police infantry guard, on subway line H, which had been suspended due to the strike called by the AGTSyP, repressing the protesting workers at the location with sticks and pepper spray, and arresting 16 of them, including the joint secretary of the union, Mr. Néstor Segovia, who, as reported by the Buenos Aires city authorities, have had criminal proceedings brought against them and been charged with resisting arrest and undermining authority (section 227 of the Criminal Code) and interrupting the public transport service (section 194 of the Criminal Code), which are legal provisions commonly used in Argentina to restrict the right to social protest.

B. The Government’s reply

1. 107. In its communications of 31 May and 3 July 2019 and 9 September 2021, the Government indicates that the dispute has its origins in an alleged dispute over recognition of trade union representativeness between two unions contesting the representation of workers in the sector, with the courts intervening to settle the dispute. Regarding the trade union status of the AGTSyP, the Government indicates that in a ruling dated 6 March 2017, the National Chamber for Labour Appeals overturned Ministerial Decision No. 1601/15, which had granted most representative trade union status to the AGTSyP, on the grounds of various irregularities in the application process. In that ruling (attached by the Government), the Chamber indicated that it was overturning the aforementioned decision and referring the proceedings back to the administrative headquarters so that, once the formal irregularities had been rectified, it could rule again on the issue at hand (the granting of most representative trade union status). The Government indicates that these administrative proceedings have been suspended due to the pandemic (during 2020 administrative proceedings were suspended) and that they have recently been resumed, both entities having been ordered to forward the documentation submitted by each, for reciprocal recognition or to deal with any other issue on the matter. The Government considers this to be a dispute between two trade union organizations referred to the courts, which the ministry has been ordered to deal with in a certain way, and it is therefore no longer a matter involving the Government.
2. 108. Furthermore, the Government indicates that the industrial action carried out by the union in 2018 affected subway traffic in the City of Buenos Aires for more than 40 days and considers that the grievance should have been settled in another way, as it had had a detrimental effect on normal transit and traffic and even on the safety of citizens travelling to and from their work or homes.
3. 109. Regarding the alleged arrest of 16 workers and the trade union leader, the Government states that it has attached a report from the Ministry of Security of the Government of the City of Buenos Aires, which indicates that the protesters interrupted the enterprise’s subway service line, preventing normal traffic on the system and operations, and that, when police personnel requested a dialogue, most of the protesters dispersed, while others locked themselves in the drivers’ cabs. The report also indicates that, in this situation, the Intercommunal Transit Security Directorate intervened to protect worker and passenger safety, making the protesters come out of the cabs, who were then detained for infringement of article 69 of the Contravention Code and for undermining authority and resisting arrest. The Government indicates that the case is being handled by the prosecutor’s office No. 12, which is responsible for contraventions and misdemeanours (Fiscalía Contravencional), headed by Dr. Daniela Dupuy, Secretary, and Dr. Tomas Vaccarezza, under File No. 248486/18.
4. 110. The Government attaches a copy of an agreement concluded between the Undersecretariat for Labour of the Government of the Autonomous City of Buenos Aires, the AGTSyP and enterprises A and B, dated 8 April 2019. The Undersecretariat for Labour also reports that it is engaging in dialogue with this association on a regular basis and at the latter’s request.

C. The Committee’s conclusions

1. 111. The Committee notes that the present case concerns, on the one hand, allegations relating to the delay in the granting of most representative trade union status to the complainant organization AGTSyP (representing workers in the Buenos Aires city subway service) and, on the other hand, allegations relating to police repression, suspensions and arrests of workers who took part in protests and industrial action.
2. 112. Regarding the most representative trade union status, the Committee notes that, according to the allegations: (i) the AGTSyP was founded in 2008, obtained its trade union registration in 2010 and applied for most representative trade union status in 2013; and (ii) although in 2015 the ministry granted it most representative trade union status (in the exclusive domain of subway and light rail transport), the UTA (a first-level association with most representative trade union status representing workers in the public transport and subway passenger sector in Argentina) filed administrative and judicial appeals. To date, the trade union status application process has not been completed (the National Chamber for Labour Appeals overturned the ministerial decision to grant most representative trade union status due to irregularities in the application process and the Supreme Court did not process the appeal, referring the file back to the ministry on 13 April 2018, and since then it has remained unresolved).
3. 113. In this respect, the Committee notes that, according to the Government, (i) the dispute has its origins in an alleged dispute over recognition of trade union representativeness between two unions contesting the representation of workers in the sector; (ii) in a ruling dated 6 March 2017, the National Chamber for Labour Appeals overturned Ministerial Decision No. 1601/15 (which had granted most representative trade union status to the AGTSyP), on the grounds of various irregularities in the application process and referred the proceedings back to the administrative headquarters so that, once the formal irregularities had been rectified, it could rule again on the issue at hand; and (iii) these administrative proceedings have been suspended due to the pandemic and have recently been resumed, both entities having been ordered to forward the documentation submitted by each, for reciprocal recognition or to deal with any other issue on the matter.
4. 114. While taking due note of the Government’s indication that the administrative proceedings have been suspended as a result of the pandemic, the Committee observes that the application process was initiated in 2013 and that the ruling of the National Chamber for Labour Appeals, to which the Government refers, dates from 2017. It also notes that, according to the complainants, the AGTSyP appealed this ruling before the Supreme Court (which did not process the appeal) and that the latter referred the file back to the Ministry of Labour on 13 April 2018. In other words, the application process for most representative trade union status, for which the Government has responsibility, has been pending a decision at the administrative level since the beginning of 2018.
5. 115. While recalling that a matter involving no dispute between the Government and the trade unions, but which involves a conflict within the trade union movement itself, is the sole responsibility of the parties themselves [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1610], the Committee however observes that the allegation in this case concerns the lengthiness of the procedure for obtaining trade union status following the remand of the matter to the Ministry of Labour. In this regard, the Committee recalls that where administrative decisions on the granting or revocation of most representative trade union status are challenged, the administrative and judicial proceedings need to take place without delay. The Committee recalls that there are other cases where it has already examined problems and delays similar to those described in the present complaint [see, for example, 376th report, paras 176–189, or 375th report, paras 15–21]. Taking due note of the Government’s indication that the administrative proceedings have recently been resumed, the Committee requests the Government to inform it of any decision taken in this respect.
6. 116. With regard to the allegation that, in the context of the action taken by the AGTSyP in 2018 (opening of turnstiles at the entrance to the subway and partial and staggered interruption of train services), enterprise A had suspended more than 100 workers and the police had repressed (with sticks and pepper spray) and arrested 16 of them, including the joint secretary of the AGTSyP, who allegedly had criminal proceedings brought against them, the Committee notes that: (i) as indicated in the complaint, enterprise A has stated that it did not infringe the right to strike and that it suspended those who had taken part in illegal actions such as the occupation of facilities, the opening of emergency doors and/or the release of turnstiles; and (ii) the Government indicates that subway traffic in City of Buenos Aires had been affected for more than 40 days and that when the police requested a dialogue most of the demonstrators dispersed or locked themselves in the drivers’ cabs and the authorities intervened to protect worker and passenger safety, making the protesters come out of the cabs, who were then detained for infringement of article 69 of the Contravention Code (which provides for sanctions to be imposed on persons who intentionally interfere with public services such as transport) and for undermining authority and resisting arrest.
7. 117. The Committee notes that the Government has failed to provide more detailed information in this respect, or to inform it whether, following the arrests, the workers and trade unionists concerned were held accountable in any way or sanctions imposed on them, or whether any judicial proceedings were instituted in this regard. The Committee recalls that, on numerous occasions, where the complainants alleged that trade union leaders or workers had been arrested for trade union activities, and the governments’ replies amounted to general denials of the allegation or were simply to the effect that the arrests were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has always followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests, particularly in connection with the legal or judicial proceedings instituted as a result thereof and the result of such proceedings, in order to be able to make a proper examination of the allegations [see Compilation, para. 178]. In light of the foregoing, the Committee requests the Government to inform it of the results of any judicial proceedings that may have been instituted in relation to the workers who were arrested.
8. 118. Lastly, the Committee notes that, as reported by the Government, on 8 April 2019 the Undersecretariat for Labour of the Government of the Autonomous City of Buenos Aires, the AGTSyP and the enterprises agreed on a retroactive adjustment to the wage scale and also agreed that the joint wage negotiations for the period from 1 March 2018 to 28 February 2019 were concluded and that no issues remained outstanding. The Committee notes that the Government has attached a copy of this agreement. The Committee also notes and welcomes the Government’s indication that the Undersecretariat for Labour is engaging in dialogue with the AGTSyP on a regular basis and at the latter’s request.

The Committee’s recommendations

1. 119. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Taking due note of the Government’s indication that the administrative proceedings have recently been resumed, the Committee requests the Government to inform it of any decision taken in this respect.
   • (b) The Committee requests the Government to inform it of the results of any judicial proceedings that may have been instituted in relation to the workers who were arrested.