Observación (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

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

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The Committee notes the Government’s reply to the 2020 observations of the Confederation of Workers of Argentina (CTA Autonomous). The Committee also notes the observations of the Federation of Energy Workers of the Argentine Republic (FETERA), received in 2021, and the observations of the Federation of Construction Workers of the Argentine Republic (UOCRA), received in 2022, which, like the observations of the General Confederation of Labour of the Argentine Republic (CGT RA), the CTA Autonomous and the Industrial Confederation of Argentina (UIA) received on 1 September 2023, raise issues which are examined in this comment. The Committee also notes that the Committee on Freedom of Association (CFA) recently examined a complaint concerning the alleged unlawful detention of Ms Milagro Sala, leader of the Túpac Amaru Civil Association, detained since 2016, and observed that the court cases for which she had been sentenced to imprisonment were not related to the exercise of trade union activities or to the exercise of activities of another nature that could have affected the exercise of trade union rights (Report 401, Case No. 3225, March 2023).

Social Dialogue Commission. Since the Social Dialogue Commission was established in 2019, the Committee has been encouraging the Government to reinforce this body and has expressed the hope that the matters raised in its comments will be examined and addressed in a tripartite manner within the framework of the standards subcommission of the Social Dialogue Commission. The Committee welcomes the Government’s indication that on 4 October 2023 a meeting was held to relaunch the standards subcommission and that on 18 October a second meeting was held at which the CGT, CTA Workers and CTA Autonomous, together with the UIA, adopted regulations for the standards subcommission and reaffirmed the interest in strengthening and deepening social dialogue, giving priority to honouring the commitments made with regard to the ILO and aiming to address at national level the representations made under article 24 of the ILO Constitution and the cases pending before the CFA.

Underlining the key role played by constructive tripartite dialogue to ensure full respect for freedom of association and collective bargaining, the Committee trusts that in the context of the standards subcommission of the Social Dialogue Commission it will be possible to achieve agreements through voluntary conciliation.The Committee also trusts that the other matters raised below will be submitted to the subcommission with a view to the adoption of specific measures in this respect. The Committee requests the Government to continue providing information on progress made in the work of this social dialogue body.

Articles 2, 3 and 6 of the Convention. Trade union independence and non-interference by the State. The Committee recalls that for many years it has been asking the Government to take steps to amend the following provisions of Act No. 23551 of 1988 on trade union associations (LAS) and of the corresponding implementing Decree No. 467/88, which are not in conformity with the Convention:

• Trade union status: (i) section 28 of the LAS, under which, in order to challenge an association’s 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 providing that the association claiming trade union status must have at least 10 per cent more dues-paying members than the organization that currently has the status; (ii) section 29 of the LAS, 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 (iii) section 30 of the LAS, under which, in order to be eligible for trade union status, unions representing a trade, occupation or category have to show that they have different interests from the existing trade union or federation, and that the latter’s status must not cover the workers concerned.
• Benefits deriving from trade union status: (i) section 38 of the LAS, under which the check-off of trade union dues is allowed only for associations with trade union status, and not for those that are merely registered; and (ii) sections 48 and 52 of the LAS, which afford special protection (trade union immunity) only to representatives of organizations that have trade union status.

The Committee notes the Government’s reiteration that the Supreme Court of Justice of the Nation and other national and provincial courts have found various provisions of the above-mentioned legislation unconstitutional, particularly with regard to trade union status and trade union protection. The Committee duly notes and welcomes the opinion of 4 March 2021 of the Public Prosecutor submitted to the Supreme Court indicating, as in previous opinions, that the trade union dues check-off system as set out in section 38 of the LAS is prejudicial to the freedom of association of organizations that are only registered and is therefore unconstitutional. The Committee also notes that the CTA Autonomous emphasizes that the Government continues to delay bringing the LAS into conformity with the Convention. Recalling that it has been requesting the amendment of the legislation referred to above for over 20 years, the Committee urges the Government to adopt specific measures in the very near future to bring the LAS and its implementing Decree into full conformity with the Convention. The Committee strongly encourages the Government to address these issues in a tripartite manner in the Social Dialogue Commission and expects to be able to note tangible progress in the near future.

Delays in procedures for the registration of trade unions and to obtain trade union status. The Committee and the CFA have been asking the Government to take the necessary measures to avoid unjustified delays in procedures for the registration of trade unions or the granting of trade union status. The Committee notes that the CTA Autonomous provides a long list of cases in which union registration or the granting of union status was refused, and denounces the fact that some complaints are still awaiting resolution after delays of between 5 and 20 years. The CTA Autonomous also underlines the fact that to date the Social Dialogue Commission has not addressed the problem of delays in processing applications for union registration. The Committee also notes that the Government provides a table indicating progress on dealing with applications for union registration or union status and states that in many of the cases referred to by the CTA Autonomous the administrative authority has granted union registration or union status where justified, and that in other cases formalities are pending until the legal requirements are fulfilled. The Committee also notes FETERA’s indication that, over 21 years after requesting union status, the National Labour Appeals Chamber ordered the Ministry of Labour to grant it legal status and that this was done on 20 September 2021. The Committee welcomes this information and firmly hopes that this precedent will mark an important step towards improving the functioning of the procedures for granting trade union status. The Committee notes that in cases examined recently the CFA once again underlines the importance of the Government taking steps, with regard to applications for the granting of trade union status, to ensure that the authorities take decisions in this respect without unjustified delays (Cases Nos 3331 and 3232 examined in October 2021 (Report No. 396) and October 2023 (Report No. 404), respectively). In light of the above and duly noting the information provided by the Government on the status of the various formalities, the Committee urges the Government to take the necessary steps to avoid unjustified delays or refusals in the procedures for the registration of trade unions or the granting of trade union status. The Committee also trusts that this issue will be examined by the Social Dialogue Commission and requests the Government to keep it informed of all progress made in this respect.

Article 3. Right of trade unions to elect their representatives in full freedom and to organize their administration and activities. After noting allegations of interference by the Government in trade union elections, and delays in the certification of trade union authorities, the Committee expressed the firm hope that these matters would be examined in the standards subcommission of the Social Dialogue Commission, with a view to the adoption of appropriate measures. Since it has not received any information on this matter, the Committee reiterates its previous comment.