Informe definitivo - Informe núm. 71, 1963

Caso núm. 273 (Argentina) - Fecha de presentación de la queja:: 19-NOV-62 - Cerrado

1. 54. By a communication dated 19 November 1961 " The Brotherhood " (Railway Locomotive Personnel Union) filed a complaint with the I.L.O against the Argentine Government for violation of freedom of association.
2. 55. By two communications dated 20 December 1961 the complaint was communicated to the Government for its observations, and " The Brotherhood " was informed of its right to furnish further information in substantiation of its complaint within a period of one month.
3. 56. By a communication of 4 January 1962 " The Brotherhood " replied that for the time being it had no arguments to add, but that if the contrary should be the case it would supply them within the prescribed time.
4. 57. At its 30th, 31st, 32nd and 33rd Sessions, the Committee, having received no reply from the Government, decided to defer examination of the case. The said reply was received on 20 February 1963 only.
5. 58. 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. A. The complainants' allegations

1. 59. The complainant states that in March 1961 it requested of the Argentine State Railways Company an increase in wages for the locomotive personnel of the railways which it represented. On their side, the authorities of the state-owned railways proposed the application of a plan to eliminate the operating deficit. To that end the Government issued Decree No. 853/61, which set up consultative committees with trade union representation to advise on the measures to be adopted in implementation of the plan.
2. 60. Subsequently the Executive Power placed the state railways under supervision and by Decree No. 4061/61 the supervisor was granted emergency powers to carry out another railway plan. The clauses of the decree included one to permit the introduction of " those modifications of the present labour regulations which may be required ". The committees created by Decree No. 853/61 found themselves hampered in their work and in the end were dissolved with no account taken of their recommendations.
3. 61. In consequence of a protest work stoppage, an agreement was signed on 19 May 1961 between representatives of the Government and of the trade union organisations, " The Brotherhood " and the Railway Union, whereby committees were to be set up to study the workers' claims. Notwithstanding this, the Government decided to continue with its plan for reorganising the railways without the collaboration of the workers. Following a series of incidents, resolution No. 51/61, dated 29 June 1961, was issued, creating a committee made up of state and trade union representatives to study the claims and the appropriate modifications to the labour regulations. In other words the Government wanted to link a discussion of wage increases with amendments to the railway labour regulations. This point of view was not accepted by the complainant, who pressed for the implementation of the substance of the agreement of 19 May 1961.
4. 62. In the face of a series of protest work stoppages a new agreement was signed between the above-mentioned trade union organisations and a government representative on 26 August 1961. However, the provisions of this agreement were not carried out, for which state representatives on the various committees were to blame since they went on to set certain conditions which the workers could not accept. After a series of protest work stoppages and in view of the fact that steps had been taken towards mass dismissals and a change of the regulations on conditions of work, both " The Brotherhood " and the Railway Union decided to call a strike for an indefinite period as from 30 October 1961.
5. 63. Despite the Government's declared intention of respecting the right to strike as laid down in the Constitution, the authorities summoned the staff to return to work on pain of being declared " on assignment " (en comisión), which amounted to threatening them with loss of conditions of acquired seniority (escalafonamiento), grading, job, etc. This attempt at intimidation did not have the desired effect and so the Government issued Decree No. 10405/ 61 requisitioning railway workers. This decree, issued in virtue of authority granted to the Executive Power under the law on the state of emergency and the National Organisation (Wartime) Act (No. 13234), was applied at first to railway personnel in the federal capital and within a radius of 60 kilometres and was extended on 11 November to the whole of the national territory. " The Brotherhood " presented an appeal for " protection " (amparo) at law but this was rejected.
6. 64. " The Brotherhood's " charges against the Government are that it issued a decree requisitioning railway personnel on pain of 30 days' arrest for non-compliance; that the police broke into and exercised surveillance of homes, public meeting places and union premises, preventing meetings of workers and terrorising them; that officials of " The Brotherhood ", despite their trade union status, were included in the requisition; that the railway labour regulations were amended unilaterally; that economic pressure was applied to the unions since, for over six months, dues collected by the check-off system had not been transferred to the union.
7. 65. In its reply the Government points out that the dispute has been altogether terminated by the provisions of Decree No. 11878, dated 10 December 1961. In accordance with this decree there is one representative each of " The Brotherhood " and of the Railway Union on the Board of Management of the State Railways. Where the strike itself is concerned, the Government states that a strike was called without recourse to the compulsory conciliation procedure established by Legislative Decree No. 879/57 (confirmed by Act No. 14467) and by Act No. 14786. On the other hand, the abandonment of trains and other acts against the security of means of transport and communication are offences under the Penal Code and under Act No. 2873. These facts and the Government's responsibility for ensuring the continuous operation of the public railway service caused the Executive Power of the nation to declare this situation a serious emergency warranting, in accordance with Acts Nos. 13234 and 14785, the use of police and security powers a required to ensure the regular and continuous operation of public services (Decree No. 10405/61, section 1).
8. 66. The requisition order in no way implies repression on the part of the Government, whose only motive was the defence of the general interests of the country. The said decree is based on Act No. 13234, which in its turn is founded on several articles of the national Constitution. As regards the unilateral amendment of the labour regulations, the Government states that the provisions issued for the purpose never came into force. Finally, on the non-transfer of union dues, the Government points out that according to the complainant union itself, the Argentine State Railways Company was already six months in arrears of transfer, which shows that there was no intention to cause " The Brotherhood " economic prejudice on account of the strike, and that the delay was attributable to the abnormal economic situation of the Argentine public treasury and railways.

B. B. The Committee's conclusions

1. 67. The Committee has been guided by the principle that allegations relating to the right to strike are within its competence in so far, but only in so far, as they affect the exercise of trade union rights.
2. 68. In an earlier case relating to Argentina, the Committee had occasion to examine the question of the mobilisation of workers on account of a railway strike. Although in the present circumstances requisition only is involved, a measure less serious in its implications than mobilisation, it nevertheless remains exceptional in a labour dispute in view of the gravity of its consequences with regard to personal freedoms and trade union rights. In the case in question, the Government had availed itself of Act No. 13234, section 27, which states 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.
   • On that occasion the Committee considered that there did not seem to have existed a state of acute national emergency, such as had been observed in a case relating to the United States in which it had been necessary to ensure the delivery of supplies and ammunition to the troops of the United Nations engaged in Korea, to justify the mobilisation of workers on account of the dispute in progress as the Government had merely invoked its anxiety not to see the development of the national economy jeopardised by the strike.
3. 69. In the present case, when the strike finally broke out after a series of negotiations, stoppages and agreements signed between the parties to the dispute, the Government argues on the one hand that the complainant did not follow the compulsory conciliation procedures established by Decree No. 879/57 and Act No. 14786, unlawfully exercising the right to strike, and that, on the other hand, the acts against the means of transport and the need to maintain an important public service such as the railways caused the Government of the nation to regard this situation as a " serious emergency " justifying recourse to requisition.
4. 70. In regard to the compulsory conciliation procedure to which the complainant should have submitted, this appears to be governed by Decree No. 879/57 relating to labour conflicts in state-owned undertakings. The Committee has already had occasion to examine this decree in a previous case. Under it, if a direct agreement between the parties to the dispute is not reached, the dispute shall be settled by the Executive Power, after consultation with the Ministry of Labour. Before the matter is brought before the Executive Power the parties may submit a brief regarding their rights. In consequence of the system established by the decree, strikes by the workers of the Argentine State Railways Company would seem to be prohibited. From the evidence in the Committee's possession, it appears that the procedures laid down in Decree No. 879/57 have not been followed. Furthermore, although the Government refers to compulsory conciliation established by the decree, it would appear that these conciliation procedures were not included in its terms, since once the direct negotiations between the parties are broken off, it is the Executive Power that decides, after consultation with the Ministry of Labour.
5. 71. The Committee has noted in many previous cases 6 that the right to strike may be subject to restrictions in essential occupations and in the civil service. In such cases the Committee has stressed the importance it attaches to the provision of some procedure that will ensure peaceful settlement of such disputes so that the workers who are deprived of the right to strike may have appropriate guarantees. Consequently the Committee is bound to arrive at the same conclusion as in the previous case in which it examined Decree No. 879/57, when it considered that the system imposed thereby for the settlement of disputes in state-owned undertakings was not in accordance with the above-mentioned principles.
6. 72. Consequently, the Committee recommends the Governing Body to draw the attention of the Government once again, as it did in the case in which it examined Decree No. 879/ 571, to the desirability of investing the existing system for the settlement of disputes in state-owned undertakings with the guarantee of adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage.
7. 73. With regard to the situation where a " serious emergency " justifies, in the eyes of the Government, recourse to the measure of requisition, the Committee recalls that, in an earlier case in which the government concerned used army technicians to maintain the telephone service, interrupted by a strike, it considered that, where an essential public service such as the telephone service is interrupted by an unlawful strike, a government may have to assume the responsibility of ensuring its maintenance, in the interests of the community and of public order, and, to this end, may consider it expedient to call in persons from the armed services or other services to perform the duties which have been suspended. In another previous case, the Committee considered that the employment of the armed forces or of another group of persons to perform duties which have been suspended as the result of a labour dispute can - if the strike is lawful-be justified only by the need to ensure the working of services or industries whose suspension would lead to an acute crisis and that the utilisation by the Government of labour drawn from outside the trade, with a view to replacing the striking workers, entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.
8. 74. In the present case the Committee, observing that the Government gives as a reason justifying the measure of requisition the need to maintain an important public service, considers, as it did in an earlier case relating to a railway strike in Argentina, that the Government has not furnished evidence to show that there existed a situation of acute national crisis, such as had existed in Case No. 33 referred to in paragraph 68 above, which would have warranted a measure of this kind, which implies serious consequences for workers and for their trade union rights and which may involve abuse during a labour dispute.
9. 75. Further, the complainant alleges that trade union meetings have been prevented or rendered difficult and that the police have occupied trade union premises. Though the Committee has no more precise information about these facts, they were not denied by the Government in its reply. In this regard the Committee has already pointed out on a previous occasion that the measures taken by the authorities to ensure the observance of the law should not result in preventing unions from organising meetings during labour disputes. The Committee has also emphasised, while recognising that trade unions, like other associations or persons, cannot claim immunity from search of their premises, the importance which it attaches to the principle that any such a search should only be made following the issue of a warrant by the ordinary judicial authority after that authority has been satisfied that reasonable grounds exist for supposing that evidence exists in the said premises material to a prosecution for an offence under the ordinary law and provided that such search is restricted to the purposes in respect of which the warrant was issued.

The Committee's recommendations

1. 76. In these circumstances the Committee recommends the Governing Body:
   • (a) to draw the attention of the Government to the possibility of abuse involved in the requisition of workers during 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 draw the attention of the Government to the importance which the Governing Body has always attached to the principle that measures taken by the authorities to ensure the observance of the law should not result in preventing unions from organising meetings during labour disputes, and to the principle that any search of trade union premises should only be made following the issue of a warrant by the ordinary judicial authority after that authority has been satisfied that reasonable grounds exist for supposing that evidence exists on the said premises material to a prosecution for an offence under the ordinary law and provided that such search is restricted to the purposes in respect of which the warrant was issued.
     • Geneva, 29 May 1963. (Signed) Roberto AGO, Chairman.