Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 332, Noviembre 2003

Caso núm. 2221 (Argentina) - Fecha de presentación de la queja:: 30-SEP-02 - Cerrado

Allegations: Imposition of illegal and unconstitutional rules by a decree and administrative decisions regulating the activities of workers in the newspaper and magazine vending sector; exclusion of the right to freedom of association of organizations in the sector; restrictions on the right to collective bargaining

1. 211. The complaint is contained in a letter from the Trade Union of Newspaper and Magazine Vendors of the Federal Capital and Greater Buenos Aires (SIVENDIA) of September 2002.
2. 212. The Government sent its observations in communications dated 9 May and 30 September 2003.
3. 213. 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. 214. In its letter of September 2002, the Newspaper and Magazine Vendors Union of the Federal Capital and Greater Buenos Aires (SIVENDIA) states that Decree 1025 of 2000 issued by the national Government, Ministry of Labour resolution 434 of 2001 and Ministry of the Economy resolution 256 of 2001 revoked the regime regulating the activity of newspaper and magazine vendors, and made it a commercial activity subject to a system of free competition (not regulated by labour legislation). The complainant organization alleges that the new legislation is in contravention of the national Constitution, the national laws on trade unions and collective bargaining and ILO Conventions Nos. 87, 98 and 154, and is a flagrant breach of the labour rights of newspaper and magazine vendors and the like and their right to organize and freely and voluntarily negotiate conditions of employment in the sector.
2. 215. Specifically, the complainant organization alleges, firstly, that the change from employment to commercial activity converts the “workers” engaged in that activity into traders, thereby removing their right to organize and virtually condemning their organization and sister organizations in the sector in the interior of the country to extinction. The complainant states that the predominantly employment nature of the activity was determined by the State itself which in 1945 granted it trade union status (as most representative trade union), in accordance with the conditions and scope of the Trade Unions Act, to defend and represent workers in the newspaper and magazine vending sector.
3. 216. In addition, the complainant organization alleges that Decree 1025 of 2000 renders void administrative decisions concerning the sector made by the Ministry of Labour following a process of collective bargaining in the framework of a tripartite commission and also the provisions establishing a framework for collective bargaining, thereby restricting the right to collective bargaining. These decisions laid down provisions on conditions of work, wages and rest and the procedure for recognition of the right to strike and conditions for acquiring, retaining and transferring it.

B. The Government’s reply

1. 217. In its letter of 9 May 2003, the Government states that the Ministry of Labour, Employment and Social Security recognizes the right of newspaper and magazine vendors to form trade unions on the basis of historical and legislative considerations without taking into account, exceptionally, of whether workers in the sector were self-employed or employees. Consequently, it granted trade union status to trade unions which applied for it and which satisfied the necessary requirements. In this regard, the Government indicates that the authority responsible for applying these rules (National Directorate of Trade Unions in the Ministry of Labour) approved in March 2003 the granting of trade union registration to the Jujuy Province Union of Newspaper and Magazine Vendors.
2. 218. The Government further observes that the rules governing the activity of newspaper and magazine vendors unequivocally presuppose the existence of trade unions in the sector, since, for example, the Control Commission of the National Register of Newspaper and Magazine Vendors and Distributors, established by resolution 434 of 2001, is made up of representatives of publishers, distributors and the Buenos Aires Union of Newspaper and Magazine Vendors or the Argentine Federation of Newspaper and Magazine Vendors in the case of matters beyond the confines of the city of Buenos Aires.
3. 219. The Government points out that the issue in this case is not whether the workers in the sector are self-employed or employees, a matter which it considers outside the ambit of the Committee, but whether they are recognized as having the right to organize. Moreover, the Government reiterates that it has been shown quite clearly that the Ministry of Labour recognizes the existence of trade unions representing workers in the complainant organization’s sector and, consequently, the full enjoyment of freedom of association.
4. 220. Finally, in its communication of 30 September 2003, the Government states that the Ministries of Labour and of Production have adopted a joint decision (No. 168 of April 2003) which clarifies the differences of interpretation concerning the standards of the sector and helps overcome the divergencies between the sectors concerned. This decision had the support of all members of the Control Commission (including the representatives of the complainent).

C. The Committee’s conclusions

1. 221. The Committee observes that the allegations in this case concern the imposition of illegal and unconstitutional rules by a decree and administrative decisions regulating the activities of workers in the newspaper and magazine vending sector; exclusion of the right to freedom of association of organizations in the sector; and restrictions on the right to collective bargaining.
2. 222. In these circumstances, the Committee is not in a position to examine the question as to the self-employed or employee status of workers in the sector and that its mandate is to establish whether the situation considered in this case is consistent with the provisions of Conventions Nos. 87 and 98, ratified by Argentina. In any case, the Committee recalls that by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and police – should have the right to establish and to join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize [see Digest of decisions and principles of the Freedom of Association Committee, para. 235].
3. 223. Moreover, the Committee observes that the complainant organization alleges that the new legislation deprives workers in the sector of the right to organize and condemns the existing organizations to extinction. In this respect, the Committee notes that the Government denies this allegation and states that the Ministry of Labour recognizes the right of workers in the sector to form trade unions and has granted trade union status (most representative trade union with exclusive rights to collective bargaining and strike) to various trade unions in the sector. In this regard, the Government adds that recently the National Directorate of Trade Unions approved the granting of trade union registration to another trade union in the sector (the Jujuy Province Union of Newspaper and Magazine Vendors). The Committee also notes the Government’s assertion that the rules governing the activity of newspaper and magazine vendors unequivocally presuppose the existence of trade unions in the sector since, for example, the Supervisory Commission of the National Register of Newspaper and Magazine Vendors and Distributors, established by the new resolution 434/01, is made up of representatives of publishers, distributors and trade unions in the sector. The Committee considers that in the light of the information provided by the Government, the new regime does not exclude the trade union rights of workers and organizations in the sector and thus, in this regard, is not a violation of the principles of freedom of association.
4. 224. Furthermore, as regards the allegations concerning restrictions on collective bargaining, the Committee observes that the complainant states that rules contained in administrative decisions of the Ministry of Labour adopted following a process of bargaining in the context of a tripartite commission (on recognition of the right to strike and conditions for acquiring, retaining and transferring it and provisions on conditions of work, wages and rest) have been revoked and modified. The Committee observes that the Government has not made reference to these allegations. In this respect, although it is not a matter of bargaining in the meaning of Convention No. 98, since it is a tripartite body (apparently rather a consultative body whose conclusions must be incorporated in an administrative decision to be binding), the Committee requests the Government in future to respect the agreements concluded with the participation of the parties concerned and to refrain from rendering them void by decree and recalls the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative employers’ and workers’ organizations of the sector involved [see Digest, op. cit., para. 926].
5. 225. In addition, with regard to the allegations of restrictions on collective bargaining, the Committee observes that the complainant organization maintains that Decree-Law 24095 which fixed the abovementioned procedure for establishing rules in the sector has been repealed. Indeed, it appears from the information on the legislation sent by the complainant that the former tripartite commission to elaborate and propose a legal regime no longer exists. Instead, a Supervisory Commission of the National Register of Newspaper and Magazine Vendors and Distributors has been created, also tripartite, the functions of which are centred on “control” of the regime regulating the activity established in the resolution. This Commission may after five years or when the majority of its members consider it necessary, revise the regime regulating the activity. The Committee observes, however, that the Commission in question is chaired by the administrative authority for labour and consists of a representative of the association of newspaper publishers, a representative of the association of magazine publishers, a representative of the society of newspaper and magazine distributors and a representative of the union of newspaper and magazine vendors. The Committee considers that this composition does not provide the required balance between the trade union and the employers and that this could have a negative impact on the trade unions’ confidence in the body. The Committee requests the Government to undertake detailed consultations with the parties concerned with a view to adopting measures to remedy this situation and recalls that, irrespective of this system, trade unions and employers in the sector should be able to engage in free and voluntary collective bargaining concerning their conditions of work. The Committee requests the Government to keep it informed of developments in this regard.
6. 226. The Committee takes note with interest of decision No. 168 by which, according to the Government, the divergencies between the sectors concerned have been overcome. The Committee observes that according to the Government, this decision had the support of all members of the Control Commission, on which the complainant organization is represented.

The Committee's recommendations

1. 227. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government in future to respect the agreements concluded with the participation of the parties concerned and to refrain from rendering them void by decree and recalls the importance it attaches to promoting dialogue and consultation on questions of mutual interest between the Government and the most representative employers’ and workers’ organizations when preparing new legislation in the newspaper and magazine vending sector.
   • (b) As to the alleged restrictions on collective bargaining, the Committee requests the Government to undertake detailed consultations with the parties concerned with a view to remedying the imbalance in the Supervisory Commission of the National Register of Newspaper and Magazine Vendors and Distributors and to promote free and voluntary collective bargaining between newspaper and magazine vendors’ unions and employers in the sector. It requests the Government to keep it informed of developments in this regard.