Informe definitivo - Informe núm. 330, Marzo 2003

Caso núm. 2130 (Argentina) - Fecha de presentación de la queja:: 10-JUN-01 - Cerrado

1. 181. The complaint is set out in a communication from the Congress of Argentine Workers (CTA) dated 10 June 2001. The Government submitted its reply in the communication of 2 December 2002.
2. 182. 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. 183. In its communication of 10 June 2001, the Congress of Argentine Workers (CTA) claims that the Fishing and Allied Workers’ Union (SIPES) was established as a trade union association on 14 July 2000 with the aim of bringing together workers involved in the fishing and related industries from the entire coastline situated within the national territory. Despite the fact that this trade union has more than 500 members and tried to obtain legal trade union status in accordance with the regulations of Act No. 23551, the authorities (the Ministry of Labour) refuse to grant this request claiming that it is absolutely essential to guarantee “dependent employment relationships” in the sector, along with the respective wage receipts granted by the employer. The complainant points out that it has become impossible to meet this requirement owing to the characteristics of the affiliated employees (see below). This is preventing the trade union in question from exercising its right to represent and defend its members within national territory, in flagrant violation of Convention No. 87. Furthermore, the trade union is being denied the right to establish representation committees in enterprises.
2. 184. The complainant organization explains that only 20 per cent of the workers involved in manufacturing in Buenos Aires have a dependent employment relationship. The remaining 80 per cent work through the fraudulent outsourcing of cooperative associations, which are established by the very employers in the sector with the aim of lowering labour costs in the difficult economic circumstances.
3. 185. The CTA explains that according to Argentinian law, workers (or service providers) are indirect employees of the “beneficiary of the service” (when intermediary recruitment is legitimate) and direct employees when the recruitment process is fraudulent. In either case, the beneficiary of the service must meet all labour and social security standards for workers with dependent employment relationships.
4. 186. To deal with the abovementioned elusive practice, continues the complainant, the State adopted various (but partial) measures to address this fraudulent situation. For example, the National Executive Power Decree No. 2025/94 and the National Institute of Cooperative Action Resolution No. 1510/94 suspended the granting of trade union registration to “labour cooperatives” to give less leeway for labour fraud. However, employers continued to recruit their workforce through intermediaries, which are still “irregular” and only exist because of the distressing situation of workers and various forms of pressure. In response to the aforementioned administrative provision, another strategy used by employers was to “hire” the registration details of cooperative associations.
5. 187. The recent adoption of Act No. 25250, section 4, of which confirms the power of the State Police to detect labour fraud, could be included as a measure taken to monitor the abovementioned situation, but it is completely ineffective in practice owing to its bothersome bureaucracy.
6. 188. However, for social security purposes, resolutions were issued by the General Directorate of Taxation such as Resolution No. 4328/97 which considers the mediation of cooperative associations to be fraudulent (“When the social objective and purpose of such associations focus on the provision of a labour force to third parties, the workers should be considered to be dependent and, therefore, contributors to the respective social security system”). As a result, the diverse and so-called cooperative associations that are proliferating, namely those which are merely borrowed names or frontmen, adopted various techniques, such as changing their name or widening their statutory objective to include “production”.

B. The Government’s reply

1. 189. In its communication of 2 December, the Government declares that the SIPES has on no occasion made any request to the administrative authority for trade union registration and/or legal trade union status. In this respect, the allegations are completely false since there is no factual substance to them whatsoever. This highlights the dishonesty of the complainant organizations and the abusive use of the procedure.

C. The Committee’s conclusions

1. 190. The Committee observes that in this case the complainant organization alleges that the authorities refuse to grant legal trade union status to the Fishing and Allied Workers’ Union (SIPES) claiming that it is absolutely necessary that dependent employment relationships exist in this sector, whereas in reality only 20 per cent of workers in the fish manufacturing sector have dependent employment relationships and 80 per cent of them are enrolled in the fraudulent outsourcing system of cooperative associations established to lower labour costs and in which employers recruit their workforce through intermediaries.
2. 191. The Committee notes that according to the Government, the SIPES has not requested the authorities for trade union registration or legal trade union status. The Committee concludes that this case does not require a more detailed examination unless the complainant organizations provide specific information in this respect.

The Committee's recommendations

1. 192. In light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not require a more detailed examination unless the complainant organizations provide specific information in this respect.