Informe definitivo - Informe núm. 336, Marzo 2005

Caso núm. 2370 (Argentina) - Fecha de presentación de la queja:: 29-JUN-04 - Cerrado

Allegations: The complainant organization alleges that the Government refused to enter into sectoral negotiations in the public sector, despite repeated requests on the part of the former; it also alleges that the Government takes unilateral decisions on issues covered by collective bargaining

1. 214. The complaint appears in communications from the National Civil Servants’ Union dated 26 May and 29 June 2004.
2. 215. The Government sent its observations in a communication dated 8 September 2004.
3. 216. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 217. In its communication dated 26 May 2004, the UPCN states that, with the approval of Law No. 24185 of 1992, collective bargaining was definitively adopted as the regulatory instrument regarding employer-worker relations within the public sector, in accordance with the terms of international Conventions Nos. 151 and 154, as ratified by Argentina. The said Law establishes a wide framework for negotiation, given that it has to cover all labour issues which come under employment relations, including matters related to wages. Article 6 of the Law envisages collective bargaining, both at a general and a sectoral level, as well as establishing the nature of the bargaining committees.
2. 218. The complainant organization states that, based on these legal provisions, the representative trade unions of the sector agreed to negotiate collectively concerning working conditions. This resulted in the signing of a collective labour agreement identified by the Decree recognizing it, No. 66/99, which was only signed by the State as employer and the UPCN. It should be pointed out that, from April 2004, another sectoral representative trade union was included in the agreement, the Association of State Workers (ATE). Despite this, on 12 January 2004, the UPCN formally requested the Minister of Labour, Employment and Social Security to open collective negotiations at a sectoral level, by virtue of the terms of the first title of the aforementioned public sector Collective Labour Agreement No. 66/99 and Law No. 24185 (article 6); this request was never processed, and thus, on 30 March 2004, the same public servant was requested to settle the matter quickly and make an announcement regarding negotiations. The deadline for the announcement regarding negotiations was 20 May 2004, and the silence on the part of the administration concerning this last request therefore constitutes a refusal on the part of the administration to engage in collective bargaining. The negotiation of the sectoral agreements envisaged in Annex II of Collective Agreement No. 66/99 has not taken place, neither have the negotiating committees been integrated, the State employer having adopted an attitude contrary to the terms of the internal and international legal regime.
3. 219. The complainant organization alleges that it has repeatedly requested that these sectoral negotiations be opened, as can be seen from the requests made to the Ministry of Labour on 10 February 2000 and 12 January 2004 and to the Sub-secretariat of Public Administration in July 2003. No response has been forthcoming from the State as employer. The UPCN believes that the State’s failure to engage in collective bargaining at the sectoral level, despite repeated requests to that effect, confirms its unwillingness to arrive at an equitable agreement on working conditions in the public sector and that this constitutes a flagrant violation of the principle of good faith which should rule worker-employer relations according to collective labour law. It also contradicts the spirit of negotiations which the ILO Conventions try to reinforce, as well as national standards in force on the issue.
4. 220. The UPCN adds that the State as employer has clearly not complied with the legal obligation to enter into a collective bargaining process. The latter has not assumed its reciprocal duties and takes unilateral decisions on issues which should be resolved through collective bargaining, violating constitutional principles and standards and resulting in damage to the very nature of public employment and, consequently, to those employees represented by the UPCN. More specifically, the complainant organization refers to the following cases in which unilateral decisions were taken by the authorities regarding issues which should have been resolved through a process of collective bargaining:
   • – resolution SSGP No. 34/03. Published in Official Bulletin No. 30285 of 26 November 2003, modifying resolution SSGP No. 2/02, unilaterally establishes the composition of a consultation committee for the national training system, in violation of the rules on proportional representation set out under article 4 of Law No. 24185 and Chapter X of Law No. 25164, which creates the Standing Fund for Training and Labour Re-qualification. The latter has, so far, not begun its work. The decision was formally contested on 11 December 2003;
   • – draft General Regulation on recruitment in posts included within the executive hierarchical scale, submitted by the Sub-secretariat of Public Administration, is also aimed at unilaterally dealing with issues which pertain to collective bargaining, in clear violation of the procedure for recruitment in key posts within the National Administrative Profession System (SINAPA). This draft Regulation was contested on 23 December 2003;
   • – the National Institute of Agricultural and Livestock Technology (INTA): this body carried out the selection of candidates for executive posts, without involving the UPCN as monitor, ultimately refusing to recognize the primacy of the collective agreement. This case was taken before the Standing Committee for Labour Relations (COPAR) (envisaged in article 67 of Collective Labour Agreement No. 66/99 of 12 December 2003);
   • – National Parks Administration: Resolution No. 205/03 contravened the rights confirmed in the Collective Labour Agreement, in attempting to incorporate changes to the personnel entry and selection mechanisms concerning the corps of national park guards, a process involving altering the rights and duties established in the hierarchical scale which has been approved through Decree PEN No. 1455/87. This issue should clearly be dealt with through collective bargaining and cannot be decided on unilaterally by the State as employer. This case was denounced before COPAR on 21 November 2003; and
   • – resolution SSGP No. 7/01 and Decree No. 106/01 which are in violation of the trade union representativity regime envisaged in article 4 of Law No. 24185 and Decree No. 993/91, unilaterally incorporating a trade union organization into the scope of negotiations without that organization having signed the respective collective agreement. The UPCN states that it requested that the regulation in question be revoked.
5. 221. Finally, the complainant organization states that the State as employer recently announced, at a press conference to the representatives of the mass media, that public workers being paid less than 1000 pesos would supposedly benefit from a wage increase of up to 150 pesos (the National Executive has still not published any provision regulating or giving force of law to this decision). This is a clear breach of the collective bargaining process, given that at the same time that this unilateral announcement was being made (without prior consultation), the UPCN was in close contact with certain sectors of the Government, with a view to reaching an agreement on the adjustment of the wages of workers in the sector concerned. It should not be forgotten that, in Argentina, negotiations regarding public workers’ hierarchical scale and wages fall within the ambit of collective bargaining and these subjects can only be modified through such a process. More concretely, the State as employer was attempting to unilaterally resolve an issue which required agreement on both sides for its settlement.
6. 222. In its communication dated 29 June 2004, the UPCN states that, on 25 June 2004, it yet again formally requested, this time through an individual request for each sector, to order a convocation for the setting up of the bargaining committees of the sectoral collective agreements for the different hierarchical scales included in the general Collective Agreement for the national public administration No. 66/99. This request, based on articles 5, 6 and 7 of Decree No. 447/93, regulating articles 6 and 7 of Law No. 24185, constitutes the last possible recourse before all the avenues concerning the administrative standards and joint bodies of Argentina have been exhausted. The UPCN adds that, in accordance with the aforementioned standard, the State is obliged to enter into negotiations within 15 days of the presentation of all the necessary legal instruments to this effect. This legal deadline would unfailingly expire on 26 July 2004.

B. The Government’s response

1. 223. In its communication dated 8 September 2004, the Government states, in relation to the complaint, that it has not violated Conventions Nos. 151 and 154. The Government emphasizes that, in accordance with article 5 of Law No. 24185, it is the political authorities representing the State that have sole authority when it comes to convoking collective bargaining procedures, having to comply with the procedural safeguards laid down in legislation. The Government adds that, without prejudice to what has already been stated, the question is no longer relevant, given that the negotiations in question have already begun.
2. 224. The Government states that meanwhile, and with regard to the non-compliance on behalf of the State as employer mentioned by the complainant organization, it is appropriate to consider the following:
   • (i) on 24 November 2003, the Sub-secretariat of Public Administration, acting within its competence, issued resolution No. 34/03 which was published in the Official Bulletin on 26 November 2003 and refers to the establishment of a consultation committee for the national training system. The UPCN appealed against the aforementioned resolution on 11 December 2003, and this led to the issuing of legal opinion No. 4240/03 of 29 December 2003 and its immediate referral to the Legal and Technical Secretariat of the Presidential Office of the Nation for processing by that body in its capacity as the standing legal service of the Sub-secretariat. An appeal lodged by the UPCN is currently being considered;
   • (ii) with reference to the questions regarding the draft general regulation concerning recruitment in posts included in the executive hierarchical scale, it should be pointed out that the regulation only dealt with labour matters; it should also be pointed out that a draft regulation cannot be contested, neither can related preparatory acts, reports, legal opinions and any other action which, in itself, is not sufficient to give rise to an immediate legal effect with regard to the issue; these acts cannot be contested through administrative or legal channels even though they may suffer from a legal flaw;
   • (iii) with respect to the situation regarding the National Institute of Agricultural and Livestock Technology (INTA), the Government affirms that a representation was made before the Standing Committee for Labour Relations (COPAR), but the State as employer stated that the relevant study and consultations had been initiated, requesting the trade union organization to grant it more time in which to determine its position. The trade union acceded to this request and it was agreed that the issue would be dealt with at the next meeting of the COPAR; and
   • (iv) as to the situation concerning the National Parks Administration, the trade unions and the Sub-secretariat of Public Administration signed an Act on 4 May 2004 and a joint resolution was then issued concerning, among other things, the selection process for auxiliary park guards.
3. 225. The Government adds that without prejudice to what has already been said, during the meeting of the COPAR held on 30 March 2004, the UPCN demonstrated its willingness to alter its position so that the issues at hand be better dealt with.
4. 226. As to the allegation of UPCN which calls into question both Decree No. 106/01 and resolution SSGP No. 7/01, through which members can be integrated in the Standing Careers Committee, the Government states that there is no legal obstacle preventing the National Executive, as a part of the powers conferred upon it, from including a monitor from the Association of State Workers (ATE) in the relevant bodies.

C. The Committee’s conclusions

1. 227. The Committee observes that, in the case in question, the National Civil Servants’ Union (UPCN) alleges that the State refused to enter into the collective bargaining process at a sectoral level as requested by the complainant organization since February 2000, despite the fact that, under national legislation, labour relations in the public sector, both at a general and sectoral level, should be regulated through collective bargaining. The complainant organization adds that the State has been taking unilateral decisions regarding issues which pertain to collective bargaining and gives examples of decisions which had been adopted on issues which, in its view, should have been the object of collective bargaining.
2. 228. Firstly, while regretting the significant delay in initiating the collective negotiations the Committee observes that the Government states that the collective negotiations requested by the UPCN have now begun. The Committee expects that the negotiations will lead to the resolution of the issues at hand in the very near future.
3. 229. As to the cases referred to by the UPCN with regard to which the State had supposedly taken unilateral decisions which should have been the object of collective bargaining (more specifically, with regard to resolution SSGP No. 34/03 which establishes the composition of a consultation committee for the national training system; the draft General Regulation on recruitment in posts included within the executive hierarchical scale; the selection procedure for executive posts at the National Institute of Agricultural and Livestock Technology (INTA); and changes to the personnel entry and selection mechanisms concerning the corps of national park guards), the Committee observes that the Government states that during the meeting of the Standing Committee for Labour Relations envisaged in article 67 of collective labour agreement No. 66/99 of 30 March 2004, the UPCN demonstrated its willingness to alter its position so that the issues at hand be better dealt with. In this respect, the Committee trusts that the Government and the UPCN will be able to find a solution to these problems.
4. 230. As to resolution SSGP No. 7/01 and Decree No. 106/01 through which, according to the UPCN, a trade union organization which had not signed the respective collective agreement was unilaterally incorporated into negotiations, the Committee observes that the Government states that there is no legal obstacle preventing the National Executive, as a part of the powers conferred upon it, from including a monitor from the Association of State Workers (ATE) in the relevant bodies. The Committee also observes that the complainant organization has not specified that the aforementioned organization is not representative.
5. 231. Finally, with regard to the allegation related to the possible unilateral decision of the State to introduce a wage increase of 150 pesos for public sector workers earning less than 1,000 pesos, the Committee observes that the Government has not sent its observations on this matter. The Committee expects that any decisions relative to wage changes in the public sector will be subject to prior consultation with the workers’ organizations concerned. The Committee recalls that Article 7 of Convention No. 151 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organizations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.

The Committee's recommendations

1. 232. In light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While regretting the significant delay in initiating collective negotiations, the Committee takes due note of the Government’s statement that the collective negotiations requested by the UPCN have now begun. The Committee expects that the negotiations will lead to the resolution of the issues at hand in the very near future.
   • (b) As to the cases referred to by the UPCN with regard to which the State had supposedly taken unilateral decisions, which should have been the object of collective bargaining, the Committee trusts that the Government and the UPCN will be able to find a solution to these problems, within the framework of the Standing Committee for Labour Relations envisaged in article 67 of collective labour agreement No. 66/99 of 30 March 2004.
   • (c) With regard to the allegation related to the possible unilateral decision by the State to introduce a wage increase of 150 pesos for public sector workers earning less than 1,000 pesos, the Committee expects that any decision relative to wage changes in the public sector will be subject to prior consultation with the workers’ organizations concerned.