Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 334, Junio 2004

Caso núm. 2256 (Argentina) - Fecha de presentación de la queja:: 31-MAR-03 - Cerrado

Allegations: The complainant organizations allege that the administrative authority of the education sector of the province of Mendoza paralysed the collective bargaining process by not appointing its representatives to a joint committee and also that it denounces a joint accord

1. 147. The complaint is contained in a communication from the Confederation of Education Workers of Argentina (CTERA), the United Union of Education Workers of Mendoza (SUTE) and the Confederation of Argentine Workers (CTA) dated March 2003.
2. 148. The Government sent its observations in a communication dated 6 January 2004.
3. 149. 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 complainants’ allegations

1. 150. In their communication of March 2003, the United Union of Education Workers of Mendoza (SUTE), the Confederation of Education Workers of Argentina (CTERA) and the Confederation of Argentine Workers (CTA) state that the SUTE is a trade union body with legal status in the sphere of education workers of the province of Mendoza.
2. 151. The complainant organizations indicate that the authorities of the province of Mendoza organize education in the province and for that purpose have established an independent body with the personality called the Directorate General of Schools (DGE).
3. 152. The complainants note that within this institutional framework the SUTE has concluded numerous joint accords and collective agreements with the DGE over the past decade. The complainants allege that in December 1999 the province’s new authorities came into office, including the new Directorate General of Schools, and that despite repeated notifications, warnings and legal proceedings to persuade the new Government to appoint joint members in order to negotiate a collective agreement for the sector, the DGE has taken no notice and has still not named any joint members, which has brought negotiations to a standstill.
4. 153. The complainant organizations also allege that the DGE denounced an earlier joint accord concluded with the SUTE (No. 1 dated 25 August 1999) and that it is seeking to establish a new framework for negotiations for that particular joint accord, and refusing to recognize the representatives of the workers’ sector. The complainant organizations indicate that the accord denounced by the DGE related to the manner of electing and integrating the Assessment and Disciplinary Boards of the Directorate General of Schools. The complainant organizations state that the joint accord established that representation on those boards would be of four members appointed by the State, four by the SUTE and five appointed following a free election of all teachers in the province, whether or not affiliated to the SUTE. When that accord was concluded on 25 August 1999, the first boards were established with a mandate for their members of three years, with new elections to be held on 31 October 2002. The DGE did not call elections and denounced the agreement, thus contravening article 12 of Act No. 24185 that provides that agreements shall remain in force until new ones replace them.
5. 154. Lastly, the complainant organizations state that it was only by means of an amparo action (appeal for the protection of the constitutional rights) lodged by the SUTE (record No. 80543-35738 entitled United Union of Education Workers of Mendoza against Directorate General of Schools) before the 15th Civil Court of the first district of the province of Mendoza, that by express order of the judge they succeeded in beginning the election process for the boards in question, but the DGE appealed that decision and Civil Court No. 1 of the province of Mendoza revoked the ruling of first instance, leaving the electoral process suspended. As a result, the electoral process for the members of the boards mentioned in the joint accord has once again been interrupted.

B. The Government’s reply

1. 155. In its communication of 6 January 2004, the Government states that it is true that the Directorate General of Schools (DGE) of the province of Mendoza concluded numerous collective labour agreements and joint accords with the United Union of Education Workers of Mendoza (SUTE), the most recent one in 1999 (joint accord No. 1), which the DGE denounced when it expired in 2002. It also states that neither the Government nor the DGE violated or sought to violate the provisions of article 14 of the National Constitution, which establishes the fundamental right to collective bargaining. According to the Government, it was and is the SUTE that has refused to negotiate and that took legal action after warning the DGE to negotiate in good faith.
2. 156. The Government indicates that it is true that in 1999 there was a change of authorities within the democratic system in force in the country, but that it is not true that the new authorities did not call for collective bargaining. Provincial Decree No. 2002/01 ordered that collective bargaining between the provincial authorities and the bodies representing the various sectors of the public administration should continue. It should be pointed out that at one of the first meetings, the SUTE got up and refused to negotiate if the trade union organization, Union of Argentine Teachers (UDA), took part.
3. 157. With respect to joint accord No. 1 of 1999, the Government states that the accord established its validity, as a period of "three years from its official approval, with its validity being extended until conditions are amended by another joint accord ...". Decree No. 1463 officially approved the accord in question on 8 September 1999, and as a result the agreed period of three years expired on 9 September 2002. The DGE denounced the accord on 5 September 2002. In the same document in which the accord was denounced, the Office of the Undersecretary of Labour and Social Security requested that a joint meeting be convened. The Office of the Undersecretary, in accordance with the provisions of the accord, and as stipulated in Act No. 24185, convened the DGE, the SUTE and the UDA to joint negotiations. The first meeting of the parties was held on 11 September 2002.
4. 158. The Government states that the SUTE requested the exclusion of the UDA (a trade union organization also comprised of teachers, similar to the SUTE, both with legal personality recognized by the Ministry of Labour). The trade union organization UDA cited its representativity (recognized by the Ministry of Labour) and the provisions authorizing it to take part in the negotiations. In addition, it requested that the call for exclusion made by the SUTE be refused and that the periods and deadlines in place for the convening of elections and the configuration of the boards mentioned in joint accord No. 1 be suspended.
5. 159. The Government adds that on 17 September 2002 the SUTE presented an amparo action before the courts, which the DGE opposed on the grounds of form and substance. Although the judge of the 15th Civil, Commercial and Mining Court of the province of Mendoza (first instance) ruled in favour of the amparo action and ordered elections to be called to fill the vacancies on the boards mentioned in joint accord No. 1 by 31 March 2003, in the second instance the amparo action was rejected. The UDA also lodged an amparo action before the courts maintaining that Decree No. 1463/99, which officially approved joint accord No. 1 of 1999, was unconstitutional. On 2 April 2003, the SUTE lodged special remedies for unconstitutionality and judicial review before the Supreme Court of Justice of the province of Mendoza. The Supreme Court of Justice of the province of Mendoza rejected the application for judicial review and formally allowed the action of unconstitutionality. Since 16 September 2003, the action of unconstitutionality has been pending before the courts, for consideration by the Ministers of the Supreme Court of Justice, and will shortly be ruled upon.
6. 160. According to the Government, the DGE has conducted itself in accordance with the law and the Constitution, it has denounced a joint accord and has engaged in a new round of negotiations.

C. The Committee’s conclusions

1. 161. The Committee observes that the complainant organizations allege that since 1999 the Directorate General of Schools (DGE) of the province of Mendoza has refused to appoint its representatives to continue the negotiation of the collective agreement for the sector with the United Union of Education Workers of Mendoza (SUTE) - a trade union organization with legal personality, which, in accordance with Argentine legislation allows it to be the sole collective bargaining agent. In addition, the complainant organizations object to the decision by the DGE to denounce joint accord No. 1 of 1999 concluded with the SUTE relating to the election and integration of the tripartite Assessment and Disciplinary Boards and that as a result it did not convene elections for its members and is trying to convene new joint meetings for new negotiations on this particular issue.
2. 162. As regards the alleged failure of the DGE since 1999 to appoint its representatives to continue to negotiate a collective agreement for the sector with the SUTE, the Committee observes that the Government states in general terms that, by way of Provincial Decree No. 2002/01, it was ordered that collective bargaining between the provincial authorities and the bodies representing the various sectors of the public administration should continue. Nevertheless, the Committee observes from the allegations that the negotiation of a collective agreement for the education sector is excessively delayed. The Committee recalls that Article 4 of Convention No. 98 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. Consequently, the Committee requests the Government to take measures to this effect and to keep it informed of the result of the negotiation of the collective agreement in question.
3. 163. Concerning the alleged denunciation of joint accord No. 1 of 1999 by the DGE, the Committee notes the Government’s acknowledgement that the SUTE and the DGE concluded numerous accords and collective agreements and that the most recent joint accord concluded was joint accord No. 1 mentioned by the complainants, which was officially approved by Decree No. 1463/99. In addition, the Committee notes the Government’s information that: (1) the DGE denounced joint accord No. 1 when it expired in 2002 and at the same time requested the Office of the Undersecretary of Labour and Social Security to convene joint meetings to conduct new negotiations; (2) the Office of the Undersecretary convened a joint meeting of the DGE, the SUTE and another trade union organization (the Union of Argentine Teachers - UDA) which had not participated in the negotiation of joint accord No. 1; (3) the SUTE requested that the judicial authority exclude the UDA (which, according to the Government, also has legal personality), and the UDA cited its representativity and the provisions that authorized it to take part in the negotiations and asked that the call by the SUTE be rejected; and (4) the matter is currently pending before the Supreme Court of Justice of the province of Mendoza.
4. 164. First of all, the Committee considers that, in these circumstances, the denunciation of the joint accord in itself - the corresponding legal requirements being respected - does not violate the principles of free collective bargaining. Furthermore, as to the intention of the SUTE to exclude the UDA from the joint negotiating committee, the Committee does not have sufficient facts to determine the representativity of the UDA. Whatever the case may be, the Committee observes that this matter has been submitted to the judicial authority. The Committee requests the Government to inform it of the final decision handed down by the judicial authority in this respect.

The Committee's recommendations

1. 165. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the alleged failure of the Directorate General of Schools (DGE) of the province of Mendoza since 1999 to appoint its representatives to continue to negotiate a collective agreement for the sector with the United Union of Education Workers of Mendoza (SUTE), the Committee recalls that Article 4 of Convention No. 98 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee requests the Government to take measures to this effect and to keep it informed of the result of the negotiation of the collective agreement in question.
   • (b) The Committee requests the Government to inform it of the final decision handed down by the judicial authority with respect to the participation by a new trade union organization, the Union of Argentine Teachers (UDA), in the renegotiation of joint accord No. 1 of 1999 concluded between the SUTE and the DGE.