Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Argentina (Ratificación : 1960)

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 24 August 2010 and of the Confederation of Argentinian Workers (CTA) of 31 August 2010, which refer to legislative matters already raised by the Committee, and to violations of trade union rights in practice (including the refusal to register the Branch Association of Workers of Subte and Premetro, the dismissal of workers for engaging in protests, and acts of violence against trade union leaders and members in the provinces of Rio Negro and Chubut). The Committee requests the Government to provide its observations on this subject. The Committee observes that some of the alleged acts of violence are the subject of a complaint to the Committee on Freedom of Association. Taking into account the nature of the alleged acts, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected.

The Committee also notes the comments of the General Confederation of Labour (CGT) dated 13 October 2010.

The Committee further notes the report of the mission undertaken in the month of May 2010 in relation to the application of the Convention, which was of an exploratory nature.

Application by the CTA for trade union status

The Committee recalls that since 2005 it has been noting in its observations that the CTA’s application for trade union status (filed in August 2004) is pending. On several occasions the Committee of Experts, in the same way as the Conference Committee on the Application of Standards and the Committee on Freedom of Association (in Case No. 2477), has urged the Government to secure a decision on this matter without delay. In its 2010 comments, the CTA indicates that up to now there has been no decision on its application for trade union status. The Committee notes that, according to the report of the mission which visited the country in 2010, draft resolutions have been submitted in the Chamber of Deputies and the Senate calling for trade union status to be granted to the CTA. The Committee notes the Government’s indication in its report that there are doubts concerning the interpretation of the legal provisions with regard to the possibility of the coexistence of trade union federations covering multiple sectors and that the intervention in the proceedings of the Office of the Prosecutor General of the Ministry of Finance is being considered in its capacity as the highest legal advisory body of the public administration, with a view to obtaining a decision on the matter. In this respect, while noting the new information provided by the Government, the Committee deeply regrets the length of time that has elapsed – over six years – without any decision from the administrative authority on the CTA’s application for trade union status. In these circumstances, taking into account the importance of this matter, the Committee once again urges the Government to ensure that a decision is reached on the matter without delay and to provide information on any developments in this regard.

Act on Trade Union Associations and its implementing Decree

The Committee recalls that it has been referring for many years in its comments to certain provisions of the Act on Trade Union Associations (No. 23551) of 1998 and its enabling regulations issued by Decree No. 467/88, which are not in conformity with the Convention. The Committee notes the Government’s indications that: (1) the observations relating to the Act were challenged in previous reports and the will of the Government to bring the legislation into conformity was demonstrated once again with the request for ILO technical assistance, which was provided in May 2010; (2) it was indicated to the mission that the views on the need to amend the labour legislation are not unanimous or convergent, and that there has not yet been a decision by the Government on this matter; (3) it is significant that the mission report referred to the existence of positive developments in this respect, emphasizing the broad debate that is being held in society and the convergent opinions of all those concerned to find a solution through dialogue, and that the Government will continue to facilitate dialogue with a view to compliance with its ILO obligations through social dialogue; (4) the climate of social dialogue and the accompanying will to seek solutions is reflected in the statistical trends on existing occupational organizations: 3,025 trade union associations at the first, second and third levels that have been legally registered; 1,534 with trade union status; 1,442 are first level unions or federations; 85 federations; and seven confederations. In June 2009, a total of 3,826,366 workers were members of first-level organizations and 40 per cent of employed persons belong to a union; and (5) when the new officers of the CTA take up their functions, the social partners will be convened in the context of Convention No. 144 to formulate a working agenda covering the subjects which have to be resolved in the light of the Committee’s comments.

While welcoming this information, the Committee recalls that its comments concerned the following matters:

Trade union status

–           Section 28 of the Act, under which, in order to challenge an association’s trade union status, the petitioning association must have a “considerably larger” membership; and section 21 of implementing Decree No. 467/88, which qualifies the term “considerably larger” by laying down that the association claiming trade union status must have at least 10 per cent more dues-paying members than the organization which currently holds the status. The Committee points out that a requirement of a considerably larger membership, amounting to 10 per cent more members than the union currently holding most representative status, is unduly high and is contrary to the Convention, as in practice, it stands in the way of trade unions that are merely registered being able to claim trade union status.

–           Section 29 of the Act, under which an enterprise trade union may be granted trade union status only when no other organization with trade union status exists in the geographical area, occupation or category; and section 30 of the Act, under which, in order to be eligible for trade union status, unions representing a trade, occupation or category must show that they have different interests from the existing trade union or federation and the latter’s status must not cover the workers concerned. The Committee considers that the requirements that unions representing enterprises, trades or categories have to meet in order to obtain trade union status are unduly demanding, and in practice restrict their access to trade union status, giving preferential treatment to existing organizations even where unions representing enterprises, trades or categories of workers are more representative, in accordance with section 28.

Benefits deriving from trade union status

–           Section 38 of the Act, under which the check-off of trade union dues is allowed only for associations with trade union status, and not for associations that are merely registered. The Committee recalls that, as emphasized by the Supreme Court of Justice of the Nation (SCJN), the “most representative” status should not imply privileges other than priority of representation in collective bargaining, in consultations with the authorities and in the appointment of delegates to international bodies. The Committee consequently considers that this provision adversely affects and discriminates unduly against organizations that are merely registered.

–           Sections 48 and 52 of the Act give special protection (trade union immunity) only to representatives of organizations that have trade union status. The Committee considers that sections 48 and 52 provide preferential treatment for representatives of organizations with trade union status in the event of acts of anti-union discrimination, and that this exceeds the privileges that may be granted to the most representative organizations by virtue of the principle set out in the previous paragraph.

The Committee emphasizes that it has been making these comments for many years and that tangible measures have not been taken to make the requested changes. The Committee recalls that the Conference Committee on the Application of Standards requested the Government in 2007 to join forces with the social partners, with ILO assistance, to formulate draft legislation to give full effect to the Convention.

The Committee notes with interest that the Supreme Court of Justice of the Nation (CSJN) found section 52 of the Act on Trade Union Associations to be unconstitutional in the case Rossi, Adrianna Maria v. National State–Argentine Navy, and that the IVth Chamber of the National Labour Appeal Court found section 29 of the same Act to be unconstitutional in the case Ministry of Labour v. Staff Association of the Catholic University in relation to the Act on Trade Union Associations. The Committee also recalls that in its previous observation it noted the ruling of the CSJN in the case Association of State Workers v. The Ministry of Labour in relation to the Act on Trade Union Associations, in which it found that section 41(a) of Act No. 23551 is in violation of the right to freedom of association, as protected both by article 14bis of the National Constitution and by standards of international rank, since it requires “staff delegates” and the members of the “internal commissions and similar bodies” envisaged in section 40 to be members of “the respective trade union associations with trade union status and to be elected in the elections convened by that association”. With regard to this ruling, the Committee notes the Government’s indication in its report that: (1) section 41 of the Act remains in force in accordance with the constitutional rules as any decision which finds a provision to be unconstitutional, even when issued by the Supreme Court of Justice, is restricted in scope to the particular legal case or question on which it was given and does not in any event imply the repeal or nullity of the provision which will continue to remain in force until it is repealed or amended by the legislative or executive authority which is competent to do so; (2) the system guarantees compliance with the principle of the division of powers, thereby preventing the judicial authorities from taking over areas of competence which are reserved by the National Constitution for other authorities; and (3) the ruling will never have an effect on sections 48 and 52 of the Act on Trade Union Associations, as those provisions were not examined and were not covered by the ruling of the Supreme Court, as they were not applicable to the facts examined in the specific judicial case. The Committee emphasizes that these rulings have the effect of overcoming a significant number of the problems under examination and trusts that they will be taken into account in the process of tripartite dialogue that the Government is endeavouring to pursue.

The Committee also notes that the mission which visited the country in May 2010 noted that various sectors of the Chamber of Deputies submitted draft legislation to amend the trade union laws and that it expressed concern that the proliferation of such drafts would give rise to confusion and delays and that effect would not be given to the Committee’s comments. Under these conditions, the Committee requests the Government, taking into account the court rulings finding various sections of the Act on Trade Union Associations (No. 23551) to be unconstitutional, to take the necessary measures, in consultation with all of the social partners, to make the legislative changes requested in relation to the matters covered by these rulings, as well as in relation to all of the pending issues. The Committee requests the Government to provide information in this respect in its next report.

Determination of minimum services

In its previous comments, the Committee noted that the CTA had referred to Decree No. 272/2006 issued under section 24 of Act No. 25877 on collective labour disputes and, specifically, that it objected to the fact that, under the terms of section 2(b) of the Decree, the Guarantees Commission, which includes representation of workers’ and employers’ organizations and of other independent persons for the determination of minimum services, may only act in an advisory capacity, as the final decision on the determination of the necessary minimum services lies with the Ministry of Labour in final instance in cases where “the parties have not come to an agreement” or “when the agreements are inadequate”. In this respect, the Committee requested the Government to: (1) provide information on the cases in which the Guarantees Commission had intervened regarding minimum services and, more specifically, information on the number of occasions on which the administrative authority had not followed the opinion of the Guarantees Commission; and (2) ensure that the Guarantees Commission becomes operational. The Committee notes with satisfaction Decree No. 362 of the National Executive Authorities establishing the Guarantees Commission and appointing its members (with representatives of the Argentine Industrial Union, the Argentine Federation of Law Societies, the National Inter-University Council, the Confederation of Argentinean Workers, the General Confederation of Labour of the Republic of Argentina and the executive authorities). The Committee notes the Government’s indication that up to now there has been no collective dispute with the characteristics in which the intervention of the Guarantees Commission is envisaged. The Committee requests the Government to provide information in its next report on other cases, during the period covered by the report, in which the Guarantees Commission has intervened in relation to minimum services and whether the administrative authorities followed its recommendations in practice.

Finally, the Committee trusts that, as indicated by the Government in its report, the social partners will meet in the near future to examine the report of the preliminary exploratory mission which was undertaken from 3 to 7 May 2010 with a view to identifying shared solutions for all of the pending matters. The Committee hopes that the outcome of this examination, in which it is to be hoped that the criteria of constitutionality set forth by the judicial authorities referred to above are taken into account, will serve as a basis for the next technical assistance mission with a view to achieving full conformity with the Convention.