Informe provisional - Informe núm. 279, Noviembre 1991

Caso núm. 1551 (Argentina) - Fecha de presentación de la queja:: 20-SEP-90 - Cerrado

1. 665. The complaint is contained in a communication from the Coordinating Council of Supervisory Staff Organisations dated 20 September 1990. This organisation sent in further information in a letter dated 16 November 1990. The Government furnished its observations in a letter dated 18 September 1991.
2. 666. 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 complainant's allegations

1. 667. In its letters of 20 September and 16 November 1990, the Coordinating Council of Supervisory Staff Organisations alleges that the Government has not met its obligations vis-à-vis the Coordinating Council that it entered into following the ILO's direct contacts mission in Buenos Aires in March 1990 in connection with Cases Nos. 1456 and 1496 (in which the Coordinating Council was also a complainant) and which had been examined by the Committee at its meeting in May 1990. Following the Government's undertakings at that time, the Coordinating Council had dropped the complaints when the Ministry of Labour set up a special commission with the aim of "analysing the questions which gave rise to the complaints ... and proposing solutions ...".
2. 668. Case No. 1456 referred to Act No. 23551 of 14 April 1988 on trade union associations and to Decree No. 467/88 issuing regulations under that Act which, according to the complainant, contain provisions that are in violation of Conventions Nos. 87 and 98, such as sections 28 of the Act and 21 of the Decree (number of dues-paying members required for an association that has not been granted recognition to take the place of an association covering the same area which has already been granted recognition), section 29 (prerequisites for an enterprise-level union to obtain recognition), section 30 of the Act (conditions for the granting of recognition to unions covering a particular occupation, profession or category), and the sections of the Act that grant exclusive rights to recognised organisations (representation of collective interests, collective bargaining, administration of social welfare activities, deductions from pay (check-off) of trade union dues, tax exemption and trade union immunity for their representatives, etc.). In case No. 1496 the complainant organisation had presented allegations concerning the enforcement of the Act in practice, denouncing the excessive delays and red tape in the processing of union registration and the granting of recognition, or refusal to do so, the failure to approve union by-laws "adapted" to the new Act on trade union associations, etc. (see 274th Report, Annex, para. 3).
3. 669. The complainant adds that the "special commission" set up to study the above-mentioned issues has served only to enable the complaints of recognised organisations to be heard but not to resolve these complaints. Fourteen applications for recognition and 15 for union registration (some dating back five years) are still pending; in addition union leaders have been dismissed from organisations of supervisory and managerial staff in the public sector, such as HIPASAM, and in the private sector such as those of the Association of Supervisory and Managerial Staff of the Argentine Paper and Chemical Industry (which is in the process of acquiring recognition), Messrs. Botta, Deminotti, Albertini and Santillán.
4. 670. The complainant alleges further that section 67 of Decree No. 1757/90 restricts collective bargaining by suspending the clauses in collective agreements which establish conditions of work that distort productivity or prevent or impede the normal exercise of managerial and administrative authority in state enterprises and companies, mixed economy companies or those in which the State has the major share and in any other entity in which the State is in the position of employer and the staff are at present governed by collective labour agreements. Among these clauses are those "... which include managerial or supervisory staff within the scope of collective labour agreements" (section 67(e) of the Decree). The exclusion, which for the time being is provisional and in line with the procedure established in the Decree in question, will be subject to negotiation by the joint committees on the relevant agreements, the Government's aim being to secure the definitive exclusion of this category of workers from the scope of collective agreements.

B. The Government's reply

1. 671. In its letter of 18 September 1991, the Government states that the position of the complainant conflicts with what can be seen in the complaint, since it has adopted an extreme position - as seen from its unilateral breaking off of discussions on 5 June 1990, when it abandoned the participative process for discussing the issues referred to in the complaint before the "special commission" set up on 15 March 1990 (as a result of the direct contacts mission in March 1990), and from its idea that the administration should resolve the issues outstanding without settling the differences with the other sectors involved, thus distancing itself from procedural standards in respect of due process and the right of defence of all parties involved.
2. 672. The Government states that the the complainant's allegation concerning the refusal of the Ministry to register the organisations of supervisory and managerial staff and to grant them the recognition for which they have applied, is inaccurate. Although pressure of work on the administrative authority and in particular on the National Directorate of Trade Union Associations may cause delays in dealing with applications submitted to it, such delays affect all trade union associations dealing with this body and not only those of supervisory staff. Ministry of Labour records show that 54 trade union associations of supervisory staff have been registered and that recognition has been granted to 74 associations of this kind. In addition a number of other applications have already been processed by the above-mentioned Directorate and referred to the higher authority with the recommendation that the applications be granted.
3. 673. Furthermore there are many cases of associations of supervisory staff that have not responded to the observations made in respect of their proposed rules, and other cases of associations which, having adapted their rules, have failed to submit copies of them, all of which have prevented the relevant proceedings from coming to fruition.
4. 674. The Government adds that at the present time it is involved in a broad review of labour legislation in order to bring it into line with the changes that are taking place in the basic relations of the country's social and economic structure, which is being brought up to date. The standards to be revised include Act No. 23551 which is to be not only modernised but also brought fully into line with the principles of freedom of association contained in international labour standards. To this end the Government recently requested the International Labour Organisation to cooperate with the Ministry in drafting the reforms that will be submitted to Congress. This resulted in an ILO expert mission visiting the country in August 1991. The experts not only met the senior authorities of the Ministry but also members of the labour legislation committees of Congress and the President, Dr. Carlos Saul Menem. On all these occasions the authorities, and in particular the President, confirmed their intention of carrying out a complete overhaul of the legal system governing the institutional life of trade union associations. The expert mission undertook to continue cooperating on the draft reforms that would eventually be submitted to Congress. Under the new system it is planned to abolish any limitations on the setting up of new trade union associations, whatever their level or form of representation, so that they will be able to obtain recognition; craft and works unions and occupational associations will be able to register and to acquire recognition and all obstacles to the free exercise of trade union rights by such associations will be removed. To achieve this, and as stated by the President on the occasion of his meeting with the ILO experts, sections 29 and 30 of Act No. 23551 are to be substantially amended. This will pave the way to the creation of a modern and efficient legal instrument which, drafted with the cooperation of the ILO and of the national sectors concerned, will be able to avoid the criticism to which the present text is subject; in addition trade union associations will enjoy the fullest facilities in respect of their constitution and freedom of operation.
5. 675. As regards Decree No. 1757/90 which suspends clauses in collective labour agreements covering associations represented by the complainant organisation, the Government states that this provision does not apply solely to agreements covering supervisory staff, but that it is general in scope and applies to personnel of all kinds, including employees in state undertakings and bodies, whatever their position. But it should also be mentioned that this legislation was adopted because of the serious economic crisis which has prevailed in Argentina for a long time (partly as a result of the deficit caused, inter alia, by the oversized public sector) and which justifies an anti-inflation stabilisation policy. Furthermore, the Decree in question also aimed at administrative reorganisation since it was tantamount to a call for the renewal of collective labour agreements on which there had been no negotiations in recent years - despite Act No. 14250 - and which were consequently completely out of date. As a result of these circumstances Decree No. 1757/90, until such time as new agreements had been worked out to replace those in force, gave the parties involved the possibility of provisionally suspending the clauses in collective agreements that dealt with productivity; failing agreement between the parties, the Ministry of Labour could decide on the period during which the said clauses were to be suspended. It should be pointed out that the system in question does not cancel out the procedure laid down in Act No. 14250 but, on the contrary, promotes its application, as established in section 64 of Decree No. 1757/90. In addition, the suspension of clauses in collective agreements, as already stated, is merely provisional, and should end with the conclusion of a new collective agreement. Apart from this, the system for which Decree No. 1757/90 makes provision not only imposes no restrictions on the freedom to bargain of the sectors representing supervisory staff, but aims particularly at promoting this freedom, like that of the blue-collar unions. Furthermore it must be stated that the complaint has now become pointless since a number of associations of supervisory staff have been convened to renegotiate their collective labour agreements with the relevant authority. Negotiations on the joint agreements are now in full swing and many of them having already been terminated with the signing of new texts which have all been duly approved (the Government has supplied a list of cases).

C. The Committee's conclusions

1. 676. As regards the alleged statutory limitations on the trade union rights of associations of supervisory staff and the delays in dealing with union registration and recognition, the Committee notes with satisfaction the Government's decision, communicated to an ILO expert mission which visited Argentina in August 1991, to draw up as shortly as possible, with ILO cooperation, draft amendments for submission to Congress so as to bring the legislation on trade union associations fully into line with the principles of freedom of association established in international labour standards. The Committee observes that the new system in respect of trade union associations that is proposed deals with the problem which concerns associations of supervisory staff (abolition of any limitation on the forming of new trade union associations, whatever their level or form of representation, and their possibility to obtain recognition; facilities for registering and obtaining recognition for craft and works unions and occupational associations, sections 29 and 30 of Act No. 23551 being amended accordingly). The Committee requests the Government to inform it of the reforms that are under way and trusts that in the near future it will be able to note major progress on these matters and that, in the more immediate future, the Government will take measures to remedy the delays which it has admitted in dealing with applications for union registration or the granting of recognition.
2. 677. As regards the alleged limitations on collective bargaining resulting from Decree No. 1757/90, the Committee notes the Government's observations and reiterates the principles that it formulated when examining Cases Nos. 1560 and 1567, examined elsewhere in this report, concerning the restrictions on collective bargaining in circumstances of economic emergency.
3. 678. Lastly, the Committee observes that the Government has not answered the allegations concerning the dismissal of union leaders of associations of supervisory staff and requests it to furnish its observations thereon.

The Committee's recommendations

1. 679. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes with satisfaction the Government's decision, communicated to an ILO expert mission which visited Argentina in August 1991, to draw up as soon as possible, with ILO cooperation, draft amendments for submission to Congress so as to bring the legislation on trade union associations fully into line with the principles of freedom of association laid down in international labour standards. The Committee observes that the new system in respect of trade union associations that is proposed deals with the problem which concerns associations of supervisory staff. The Committee requests the Government to inform it of the reforms under way and trusts that in the near future it will be able to note major progress on the matters raised in the complaint and that, in the more immediate future, the Government will take measures to accelerate the processing of applications for union registration or the granting of recognition to trade union associations.
   • (b) As regards the alleged limitations on collective bargaining resulting from Decree No. 1757/90, the Committee reiterates the principles that it formulated when examining Cases Nos. 1560 and 1567, examined elsewhere in this report, concerning the limitations on collective bargaining in circumstances of economic emergency.
   • (c) Lastly, the Committee requests the Government to send its observations on the allegations concerning the dismissal of trade union leaders of associations of supervisory staff.