Informe provisional - Informe núm. 36, 1960

Caso núm. 192 (Argentina) - Fecha de presentación de la queja:: 16-ENE-59 - Cerrado

1. 72. By a communication dated 16 January 1959 addressed directly to the I.L.O, the World Federation of Trade Unions submitted a complaint containing allegations of infringements of the exercise of trade union rights in the Argentine Republic. The complaint was transmitted to the Government, for its observations, by a letter dated 27 January 1959.
2. 73. At its 21st Session (Geneva, February 1959), the Committee decided, as it had not received the Government's observations, to adjourn its examination of the case until its next session. The Government was informed of this decision by a letter dated 13 March 1959.
3. 74. The complaining organisation forwarded further information in substantiation of its complaint by a communication dated 26 February 1959. This further information was transmitted to the Government by a letter dated 13 March 1959.
4. 75. The Government replied by a communication dated 8 April 1959.
5. 76. The Argentine Republic has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. A. The complainants' allegations

• Allegations relating to the Railwaymen's Strike and to Its Repression
  77. 77 In its communication dated 16 January 1959 the World Federation of Trade Unions alleges that the Argentine railwaymen have been the victims of anti-union repression, which was occasioned by their efforts in support of their demands for an increase in wages.
  78. 78 The W.F.T.U gives the following description of events. On 17 October 1958, after long negotiations, an agreement was signed between the Argentine State Railways Administration and the Railwaymen's Union under which the railwaymen secured a wage increase with retroactive effect to 1 January 1958. The Railwaymen's Union demanded that the arrears due since that date should be paid in one sum within 30 days. On 24 November 1958, some five weeks after this demand was made, the Chairman of the Railways Administration stated that he refused this demand and informed the union that the payment of the sums due would be spread over several instalments, two months' arrears being paid each time one month's normal wages were paid.
  79. 79 The workers having maintained their demand and having met with a consistent refusal on the part of the Railways Administration, a strike was called on 25 November 1958 by station workers on the national Mitre line. Next day the strike extended to workers on the San Martin and Urquiza lines and, on 27 November, to all the Roca railway employees.
  80. 80 On this last date, it is alleged, the President of the Republic ordered the military mobilisation of all railway employees without exception, whether they had participated in the strike or not, as a result of which they became subject to the Military Code, with all the consequences which that implies.
  81. 81 In protest against these measures and in support of the workers' demands, the Railwaymen's Union called a general strike as from noon on 28 November 1958. On the same day the army and national guard are alleged to have occupied the headquarters of the Railwaymen's Union and to have placed a military controller at the head of the organisation.
  82. 82 From the early afternoon of 28 November onwards, it is alleged, many railway employees were arrested for non-compliance with the military mobilisation and for obeying the strike orders issued by their trade union organisation. From 29 November military tribunals were functioning and this continued into December. The complainants give the names of certain persons stated to have been arrested and sentenced to terms of imprisonment ; the W.F.T.U estimates that some 6,000 workers were arrested.
  83. 83 In order to avoid the repression claiming more victims, it is stated, the Railwaymen's Union decided on 2 December 1958 to revoke the strike order, so that normal working was resumed on 3 December, but, despite the resumption of work, the mobilisation position was maintained and, two days later, the military tribunals pronounced further sentences.
  84. 84 The complainants declare that in January 1959 the mobilisation still continued, as did the occupation of trade union premises and the control of occupational organisations, exceptional measures affecting some 250,000 workers thus being kept in force.
  85. 85 In its reply dated 8 April 1959, after having reaffirmed its entire support for the aims of the I.L.O and paying tribute to the work of the Committee on Freedom of Association, the great usefulness of which it recognises, the Government states that as soon as Constitutional government was restored it devoted all its efforts to the reconstruction of an economy which had been compromised by years of bad administration. Being convinced that social peace cannot exist without economic stability, the Government declares that it is determined to make use of all available legal means for stimulating economic development and defeating every attempt-generally politically inspired-to place obstacles in the way of such development.
  86. 86 Passing then to the specific events which form the subject of the complaint of the W.F.T.U, the Government begins by denying that the agreement reached between the Railwaymen's Union and the Railways Administration was the result of long negotiations. On the contrary, states the Government, the Railways Administration agreed immediately to the retroactive increase referred to in paragraph 78 above. The Government points out that the said increase in wages amounted to an increase in wages of 125 per cent compared with the wage rates subsisting on 1 February 1956, that is to say, 2,600 pesos a month instead of 800, the railwaymen thus becoming a very privileged category of workers.
  87. 87 The Government declares that the total retroactive wage bill which the Railways Administration undertook to pay amounted to 5,000 million pesos and that the Railways Administration could not reasonably be expected to pay this sum within a period of one month, which it would have been a material impossibility for it to do.
  88. 88 The Government goes on to point out that, at the time of the events in question, the railwaymen's trade union organisation was in a really chaotic condition, that it was beset by disputes and rivalries, that contradictory orders and instructions were being issued by the different sections, that the sections were acting contrary to the instructions of the central trade union authority, which no longer constituted a responsible spokesman for the purpose of any negotiations. This state of affairs was clearly demonstrated by the manner in which the strike movement began, that is to say, by isolated strikes being called by different groups of occupational crafts at a time when an intense campaign of politically inspired agitation was being carried on.
  89. 89 In these circumstances, declares the Government, the national authorities issued a solemn and public appeal to the railwaymen warning them of the possible consequences of a stoppage of work in a critical period for the national economy such as was being experienced in the country at that time.
  90. 90 This warning not having been heeded, the Government considered that it was its duty to take the necessary measures to maintain the operation of such an essential service as the railways. In the first place a nation-wide state of emergency was proclaimed; then, pursuant to Act No. 13234 the mobilisation of the railwaymen was decreed, these workers thus being placed under military jurisdiction.
  91. 91 Contrary to the allegations of the complainants (who refer to 6,000 persons as having been arrested), the Government declares that 1,000 persons in all were prosecuted, only 300 of whom are serving sentences, out of a total of 240,000 persons mobilised.
  92. 92 With respect to the control of the trade unions by the military authorities, the Government declares that this was an automatic consequence of the state of emergency. The Government also points out that, of 267 trade union locals, only 60 have been placed under control and that the majority of the latter had no leaders at the time of the events complained against.
  93. 93 The Government declares that a conclusive confirmation of the legality of the measures which it took was given by the courts in connection with an action instituted by certain of the mobilised employees. Both the Federal Court of Appeal and the Judges of the High Court took the view that the Government had acted within its Constitutional powers in taking all the measures which it had taken.
  94. 94 The Government declares in conclusion that it could not fail to recognise the railwaymen's right to strike, which is expressly laid down in Article 14bis of the National Constitution. However, this right, like any other, must be exercised in conformity with the laws which govern it ; it is limited by the exercise of other fundamental rights and by the vital interests of the community, which require that essential public services shall not be brought to a standstill.
  95. 95 In an earlier case also relating to the Argentine Republic, the Committee has had occasion to examine the question of the mobilisation of workers. In that case the Government had decided to mobilise banking employees " to ensure the running of the services needed for the proper functioning of the State". To this end the Government had recourse, as in the present case, to the National Organisation (War-Time) Act, No. 13,234, section 27 of which provides that " the mobilisation of the auxiliary forces may only be decreed by the Government when this is necessary for purposes of national defence or in the event of catastrophes or serious emergencies which affect substantial sections of the country or its population".
  96. 96 Further, as in the present case, the mobilisation of the workers concerned resulted in their becoming subject to the provisions of the Military Code and to the administrative disciplinary regulations.
  97. 97 On that occasion the Committee observed that although the measure adopted by the Argentine Government was not designed to curtail trade union rights as such, but was intended to cope with the emergency created by the bank strikes, in practice these rights were nevertheless affected.
  98. 98 It might be considered that there is a fairly important difference between the case referred to above and that which is now before the Committee, in the sense that the railways might be regarded as possessing the features of an essential service to a much more marked degree than the banks. In this connection, in a case relating to the United States in which it was called upon to examine the requisitioning of the railways, which had been placed under the control of the army, the Committee concluded that the case did not call for further examination only after observing that the requisition in question did not constitute an arbitrary measure but had been dictated by considerations of public interest in order to deal with a national emergency situation ; it had in fact been necessary to ensure the delivery of supplies of munitions to the troops of the United Nations engaged in Korea and the measure of requisition had been taken only after the exhaustion of all other measures of settlement of the dispute provided by law.
  99. 99 In the present case there does not appear to have existed a state of acute national emergency such as the Committee observed in Case No. 33 and, moreover, as is envisaged in the Act referred to in paragraph 95 above ; indeed, in order to justify its action, the Argentine Government merely invokes its anxiety not to see the development of the national economy jeopardised (see paragraph 85 above), an argument which it had already put forward in connection with the mobilisation of banking employees.
  100. 100 Accordingly, the circumstances in the present case being similar to those which prevailed in Case No. 172 referred to earlier, the Committee has reached a similar conclusion and recommends the Governing Body to draw the attention of the Government to the possibility of abuse involved in the mobilisation of workers in industrial disputes and to emphasise the undesirability of recourse to such measures except for the purpose of maintaining essential services in circumstances of the utmost gravity.
  101. 101 With respect to the prosecution of certain mobilised workers and to the arrests of some of them, it would appear from the explanations given by the Government that these measures resulted from the application of the Military Code to which those concerned had become subject by reason of the mobilisation and of the proclamation of a state of emergency.
  102. 102 In a number of cases in which the Committee has had before it complaints regarding alleged violations of freedom of association under emergency or special legislation or under a state security Act, the Committee-while stating that it was not called upon to give an opinion on the necessity or desirability of such legislation, which is a purely political matter-has consistently maintained that it must examine any repercussions that this legislation might have on trade union rights.
  103. 103 In the present case, although the figures given by the complainants and by the Government do not correspond, the Committee observes that it is nevertheless true that a certain number of strikers and mobilised workers have been the subject of prosecutions and have been sentenced pursuant to legislation which can be assimilated to emergency legislation.
  104. 104 In these circumstances the Committee, as it has done in certain previous cases, recommends the Governing Body to express the hope that the Government, desiring to see labour relations develop in an atmosphere of mutual confidence, will have recourse, when dealing with situations resulting from strikes and lockouts, to measures provided under common law rather than to emergency measures, which involve a danger by reason of their very nature of certain restrictions being placed on fundamental rights.
  105. 105 With respect to the placing of the Railwaymen's Union and several locals thereof under the control of a military administrator, the Committee observes that it examined a similar situation in Case No. 172, to which reference was made earlier. On that occasion the Committee recommended the Governing Body to draw the attention of the Government to the importance which it attaches to the generally accepted principle that the public authorities should refrain from any interference which would restrict the right of workers' organisations to elect their representatives in full freedom and to organise their administration and activities. As the Committee has a similar situation before it in the present case it makes the same recommendation to the Governing Body.
• Allegations relating to the Strike of State Refrigeration Workers, Which Became General, and to Its Repression
  106. 106 In a communication dated 26 February 1959 the complainants describe further events which, in their view, illustrate the systematic violations of freedom of association committed by the Argentine Government.
  107. 107 The complainants allege that after the state refrigeration plant " Lisandro de la Torre " had been handed over to a private company by government decree, 8,000 employees of this undertaking went on strike on 17 January 1959, as a protest, when they were called out by the Argentine Meat Products Workers' Union. It is alleged that the Argentine Government immediately sent considerable military forces, supported by tanks, to remove the workers who were peacefully occupying the plant. It is stated that many persons were wounded and many were arrested.
  108. 108 In protest against these measures of repression, it is alleged, all the Argentine trade unions called a strike. The strikers demanded the abrogation of the decree relating to the refrigeration plant, the demobilisation of the railwaymen, the cancellation of sentences passed by military tribunals, effective measures against the cost of living, an urgent increase of 1,500 pesos per month for all wage earners and action against unemployment.
  109. 109 It is alleged that the Government declared these strikes illegal and decreed the military mobilisation of the petroleum workers and of the transport workers in the city of Buenos Aires. Certain parts of the national territory were also declared to be military zones.
  110. 110 The Transport Workers' Union and the " Group of 32 Unions " decided to resume work on 20 January 1959. The other trade unions resumed work two days later.
  111. 111 In spite of the resumption of work, it is alleged, the police, on the orders of the Government, entered the premises of the six most important trade unions in the country and closed them, the six organisations then having been placed under the control of military administrators.
  112. 112 The W.F.T.U further alleges that 500 workers and trade union leaders were imprisoned and that the military tribunals had once again begun to operate.
  113. 113 In conclusion, the complainants declare that " these facts, added to those already described in our letter of 16 January, prove the wide scope of the Argentine Government's anti-democratic and anti-trade union policy and the urgency of effective action by the I.L.O with a view to securing respect for freedom of association in Argentina ".
  114. 114 The Government replied by a communication dated 12 May 1959, received on 15 May. This communication, declares the Government, is only a partial reply and additional information will be addressed to the Office subsequently.
  115. 115 In these circumstances, having regard to the late arrival of the Government's reply regarding these particular allegations and also to the fact that in respect of these allegations it is incomplete, the Committee has adjourned its examination of this aspect of the case until it has received the further information referred to by the Government.

The Committee's recommendations

1. 116. In these circumstances the Committee recommends the Governing Body:
   • (a) to draw the attention of the Government, with respect to the mobilisation of the railwaymen, to the fact that trade union rights may be endangered by the mobilisation of workers in industrial disputes and to emphasise the undesirability of recourse to such measures except for the purpose of maintaining essential services in circumstances of the utmost gravity ;
   • (b) to express the hope, with respect to the allegations relating to the prosecution and arrest of organised workers, that the Government, desiring to see labour relations develop in an atmosphere of mutual confidence, will have recourse, when dealing with situations resulting from strikes and lockouts, to measures provided under common law rather than to emergency measures, which involve a danger by reason of their very nature of certain restrictions being placed on fundamental rights;
   • (c) to draw the attention of the Government, with respect to the appointment of military administrators in the case of the Railwaymen's Union and of certain of its locals, to the importance which it attaches to the generally accepted principle that the public authorities should refrain from any interference which would restrict the right of workers' organisations to elect their representatives in full freedom and to organise their administration and activities.
   • (d) to take note of the present interim report with respect to the allegations relating to the strike of state refrigeration workers, which became general, and to its repression, it being understood that the Committee will report further thereon when it has received the further information promised by the Government.