Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 362, Noviembre 2011

Caso núm. 2788 (Argentina) - Fecha de presentación de la queja:: 08-JUN-10 - Cerrado

Allegations: The complainant organization alleges lack of good faith on the part of the authorities in collective bargaining in the education sector in the Province of Entre Ríos, contests the decision of the provincial authorities to deduct wages for strike days and alleges that head teachers who did not communicate the names of teachers who took part in the strike were disciplined and a criminal prosecution was initiated for contempt of court in relation to disobedience of a judicial conciliation order

1. 204. The complaint is contained in a communication from the Teachers’ Association of Entre Ríos (AGMER) dated 8 June 2010. The Confederation of Education Workers of Argentina (CTERA) supported the complaint.
2. 205. The Government sent its observations in a communication dated 24 May 2011.
3. 206. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 207. In its communication dated 8 June 2010, the AGMER states that it is an entity with legal recognition granted by Ministry of Labour and Social Security (MTYSSN) Resolution No. 505 dated 22 June 1993 and that it is registered under No. 1518 as a firstlevel trade union entity, covering the territory of the province of Entre Ríos, Republic of Argentina. It also states that it is affiliated to the CTERA, which is a second-level trade union entity (federation), covering the whole territory of the Republic of Argentina.
2. 208. AGMER indicates that the Government has ratified Convention No. 87 and Conventions Nos 151 and 154. It adds that article 14bis of the National Constitution of Argentina guarantees trade unions, as a fundamental right, the right to strike and that the second paragraph of article 75(22) of the National Constitution, for its part, grants constitutional character to a series of international treaties on human rights, including the New York Covenants of 1966, under which Conventions Nos 87, 151 and 154 are recognized as having the same rank. The Covenant on Economic, Social and Cultural Rights further establishes, specifically, that States parties undertake to guarantee the right to strike (article 8.1(d)). This circle of protection of freedom of association is closed by the first paragraph of article 75(22) of the National Constitution, which grants it supra-legal status with respect to other international treaties, including the ILO Conventions.
3. 209. The National Constitution also establishes the representative, republican and federal system and, finally, each Provincial State has legislative powers and, with reference to collective bargaining in the public administration, the convocation procedure must necessarily be included in the legislation of each province. The complainant organization adds that the Constitution of the province of Entre Ríos recognizes “The rights, declarations and guarantees set out in the National Constitution, which that said Constitution deems to be reproduced, shall not be understood as negating other rights and guarantees not listed therein but which derive from the principle of sovereignty of the people, the republican form of government and humankind as such …” (article 5). Thus, the rights contained in the National Constitution are incorporated and respected in the provincial framework and these include freedom of association and the right to organize, collective agreements, the right to strike and guarantees of the trade union status of trade union representatives.
4. 210. In this regard, the province of Entre Ríos has amended its Constitution. These amendments came into force in November 2008 and, among other guarantees, approved the provision in article 82 that: “Work is a right which the State shall protect and promote.” In particular, the same instrument establishes: (a) collective bargaining which guarantees the principle of inalienability, progressiveness, primacy of reality, indemnity and, in case of doubt, interpretation in favour of the worker; and (b) “the general regulatory framework of the provincial and municipal public employee, with the participation of the workers, shall ensure compliance with regulations on health, safety and prevention of accidents …”. The complainant organization considers that although the legal framework and the rights of all those who work as employees of the State in the province of Entre Ríos are clearly defined, in the particular case of the teachers, as will be seen, these rights and guarantees have been clearly and repeatedly infringed.
5. 211. The complainant organization indicates that in 2008, direct industrial action measures were approved and implemented by decision of the AGMER and the other teachers’ representative trade unions, based on the pursuit of a legitimate wage reform, among other labour claims which have been ongoing for several years. These measures, which were legal and in compliance with the trade union statutes, were voluntarily and massively supported by Entre Ríos teachers, who refused to perform tasks, in the exercise of the direct constitutional right to strike enshrined in article 14bis of the National Constitution and other relevant legislations.
6. 212. These measures were clearly claims-related and sought to secure the constitutional guarantee of “fair remuneration” for all workers represented by the trade unions in the sector. Despite the fact that these trade union actions were “legitimate means of trade union action” (enshrined in Act No. 23551), the Government of the province of Entre Ríos and the General Education Council issued a constant, monthly and regular series of regulations which attacked the right to strike with the purpose of: (1) making deductions from the wages of those who exercised that right; (2) taking action against head teachers who did not “hand over” the list of teachers taking part in the strike, in order to make the deductions; and (3) making a note in the personal file of each of the sanctioned teachers.
7. 213. The complainant organization indicates that the many meetings held between teaching unions, the educational and financial authorities of the province and the Governor himself were public meetings aimed at achieving a reform of remuneration to place teachers in a position to perform their work in decent conditions. All these negotiations plainly and clearly failed because the meetings were held without any offer of a genuine reform of wages or measures to ensure decent and safe conditions of work. In the face of the collapse of the negotiations, direct industrial action measures were mandated by teachers’ assemblies acting in accordance with express statutory, legal and constitutional provisions.
8. 214. According to the complainant organization, the reality is that, the “respect” of the public authorities for the right to strike is merely empty words, mere declarations without substance in government practice. On the contrary, State legislation issued at the same time has the quite opposite effect, since the implementation of wage deductions for strike days has a real and substantial impact on teachers’ wages. This is a sanction of a pecuniary character, which is totally illegal, since the industrial action measures were adopted with the utmost legality and there was no declaration of illegality of those measures. This conduct is unacceptable and incompatible with a democratic State and the rule of law, since by a series of actions, such as the public warnings by the State Prosecutor that the teachers would be liable to disciplinary proceedings and dismissal, it was sought to neutralize the right to strike by instilling fear of disciplinary proceedings and consequent sanctions among those who exercised that right.
9. 215. The complainant organization considers that the conduct displayed in official circles was illegal and intimidating, because it subjugated the right to strike, without requesting or declaring the illegality of those actions and without, as required by article 9 of Act No. 14786, warning the teachers to return to their normal work. Faced with the exhaustion of the negotiations to resolve the dispute and faced with the immovable, unreasonable and recalcitrant attitude adopted by the State of the Province of Entre Ríos with regard to fulfilling its obligations, the industrial action decided by the trade unions took place.
10. 216. The complainant organization states that in the face of this industrial action, which obviously had massive support from the teachers, the provincial authorities’ only reply was to issue regulations to allow deductions for strike days. By doing so, they attacked the teaching profession in the province with provisions which clearly conflicted with the constitutional guarantee. This being the case, the deduction ordered by the State, apart from a dogmatic assertion lacking in any justification, constitutes “penalization” in violation of a right which should be strongly guaranteed. The complainant indicates that, for that reason, it is addressing this complaint to the Committee, on constitutional and supranational grounds, concerning the statement in the preamble of the resolution of the General Education Council that “If it is not performed (it refers to performance of work), remuneration should not be paid for the time when the services ceased to be provided and in proportion to the length of time when the labour was withdrawn.”
11. 217. The complainant organization considers that penalization for individual participation in the industrial action which was collectively decided is illegal, as the background and justification of the trade union action is the prior failure of the provincial state to comply with the constitutional requirement to revise wages in line with the cost of living, set out in the Constitution of 1933 and in the current revised text. It should be emphasized that the principle of legality must preside over all acts of government and constitute the basic guarantee for the foundation of a democratic state and rule of law. The deductions made are an administrative sanction and, thus, an expression of the State’s power of sanction and punishment, which affects the right to strike, and thus has clear constitutional implications.
12. 218. The complainant organization indicates that there is a procedure in Argentina instituted by a current National Law (Act No. 14786) to resolve collective disputes which cannot be resolved between the parties, and this procedure was not followed by the provincial administration, which makes its action illegal. The Provincial State commits, as a matter of “practice” an act which consists of making deductions from wages for days when teachers took strike action, without ensuring due process and without resorting to the appropriate bodies to determine the reasons behind the industrial action.
13. 219. The complainant organization states that bad industrial practice by the Entre Ríos provincial state and the General Education Council is common. They have repeatedly abused of collective bargaining (Act No. 9624 on Collective Bargaining for Teachers) seeking only to stop the strike action. According to the complainant, this is shown by the fact that they come to the table without genuine wage offers and, when rare and inadequate wage rises are granted, they are not consolidated as pensionable or the basis for future increases, and have no impact on teachers’ benefits (concealed sums which merely diminish teaching wages, made up of various concealed items which are not subject to tax or contributions). Neither did they respond to claims for decent conditions of work, which is shown by the calamitous state of school buildings, and the lack of rooms for school canteens and washrooms.
14. 220. The administrative action in this case was illegal because it not only proceeded without respecting the right to defence or due process, but when it issued Resolution No. 3217 on the deductions, the State had not requested compulsory conciliation through the General Education Council, nor had the trade unions been given legal notice to cease their industrial action. Thus, the administrative acts which are claimed to serve as the legal basis for the deductions are null and void because they are unjustified and lack foundation. According to the complainant, the deduction is compulsive, arbitrary, and unreasonable, and is shown in pay statement as “Deduction for days not worked”, without there having been a prior declaration of the illegality of the declared strike, without ordering compulsory conciliation and without giving notice to the trade unions to cease their industrial action. In short, without waiting for the judicial pronouncement and subjugating the guarantees of the teachers, who were victims of the illegal act. Not only this, but the deduction was applied as an “administrative sanction” without any basis in any constitutional rule of the administrative power. The second part of article 9 of National Act No. 14786, which institutes an administrative proceeding prior to any action, is conclusive when it states: “the strike or voluntary and premeditated reduction in production, below normal limits, shall result for workers in the loss of the entitlement to remuneration for the period of the strike or reduction in work if they do not cease after receiving notice from the competent authority”.
15. 221. The complainant organization emphasizes that the notice to the striking workers to return to their work is the means of excluding the guarantee of the right to strike. If the judicial or administrative authority does not give this notice, it is not possible to enforce a sanction such as deduction of pay, as in that case, the administrative action violates the principle of reasonableness and fundamentally violates the principle of the hierarchy of law in article 31 of the National Constitution. The complainant also considers that both the Provincial Government and the General Education Council violated their own rules, as they resorted to the courts to stop the strike and, before the court decision, issued administrative rulings under which they claim to legitimize the arbitrary deductions. The lack of a legal provision which legitimizes the deductions for strike days emerges clearly from the very text of Directive No. 30 of 2007 of the Executive Power of the Province, an administrative act of lower rank which can in no way justify the state’s action. Indeed, the purpose of that act is “to issue instructions on deductions of pay for the adoption of industrial action by employees of the provincial public administration”, without these “instructions” being in any way supported by a basic legal instrument. For that reason, the complainant organization considers that the directive is purely arbitrary, a caprice of the executive power, tainted with arbitrariness, and should be condemned.
16. 222. The claimant states that the provincial state of Entre Ríos and the General Education Council are not only violating the guarantee of the right to strike by deducting days without following due legal process, but are also in contravention of the international human rights treaties ratified by the Argentine State, ignoring and subjugating their obligations which must be fulfilled on pain of incurring liability under international law. It is thus all the more evident that an act is being committed which lacks any justification, reasonableness of any kind and is totally without legality. For its part, Circular No. 02/07, on the subject of “Reporting on strike days by all employees under the General Education Council” and addressed to departmental managements by the Department of Adjustments and Settlements of the General Education Council, states, with reference to the absence of teachers to participate in the strikes: “In the case concerned here, it is a case of absence, justified by direct industrial action, i.e. not leave requested by the teacher, but failure to attend their place of work …”. This circular implemented an administrative system for cases when teachers are absent to take part in industrial action, despite the fact that, for the educational body, the offence of strike is, in its own words, “an absence justified by direct industrial action”. It should be clear that the provincial state, which is the teachers’ employer, cannot qualify an industrial action as legal or illegal, since it does not have the power to do so. Even if it did have such power, in so doing, it assumes the dual role or judge and party, and cannot claim to settle a dispute based on its own rules which censure all strikes by an incorrect and irrational qualification of illegality. The administrative authority cannot even qualify direct industrial action as such, since that decision is solely reserved for the courts.
17. 223. It is quite clear that the deductions from wages, while not overturning the guarantee of the right to strike, equals to an unacceptable restriction of that right, since the provincial executive power thereby assumes powers that it does not possess. In the case of the teachers affected by the deductions from their pay, it conspires against the integrity of the salary, which is certainly of a subsistence nature, and thus unfairly affects the right of property, the inalienability of which is guaranteed by article 17 of the National Constitution. The provincial state is not only failing in its duty to provide “fair remuneration”, which must be revised for the cost of living, but is in clear breach of the contract between the administration and its employees, and, for this, there is no legal basis.
18. 224. The complainant organization indicates that both national and provincial legislation emphasize the different consequences which a strike may cause to the workers involved, depending on whether or not the strike has been declared illegal. Thus, for example, in the case of “ADEMYS Teachers’ Association against GCBA on incidental processes, the Catamarca and Tucuman Appeal Court, 2nd Chamber, Case No. 33972/1” held that “ … 1. The judge in the lower court allowed the preventive injunction requested by ADEMYS that the administration should refrain from any act or event which, as a consequence of the industrial action taken by the teachers sector on 17 and 18 September 2008; 1, 2, 15, 16 and 21 October 2008; 18 and 19 November 2008; 17, 18, 25 and 31 March and 1 and 22 April 2009, would affect the full payment of their wages”. It therefore ordered the immediate restitution of the sums which has been deducted on those grounds.
19. 225. The complainant organization states that in the present case, the strike was lawful since it had not been declared unlawful or illegal, and because it was lawful, it must be protected by the legal order and, also because it was lawful, it could not give rise to loss for the workers who took part.
20. 226. The complainant organization adds that since 2005, in the province of Entre Ríos, Act No. 9624 has been in force, which provides for the institution of the “Collective Agreement for Teachers between the General Education Council of the province of Entre Ríos, as employer, and the teachers’ associations with trade union status, in order to agree conditions of work, wages and all matters pertinent to the employment relationship of teachers …” (article 1). This Act, which was a victory for the teachers in the province, despite being clear as to its procedure, has on several occasions been subject to a distorted and extortionate interpretation and application by provincial governments and the General Education Council (especially during the industrial disputes in mid-2008 and early 2009).
21. 227. During 2008, events occurred which were a repeat of unfair and anti-trade union practices, and the same occurred in 2009. It was a well known and established fact that the AGMER had planned to hold a congress in which decisions would be taken relating to future industrial action on 4 July 2008. Despite the fact that the authorities of the General Education Council and the provincial government had been fully informed of the holding of the meeting on 4 July, on that very same day, the President of the General Education Council issued a convocation to a joint meeting which, surprisingly, was accepted by the administrative body, and the trade unions were convened and notified. This notice reached the trade union after the industrial action had been decided, as shown by a copy of the resolutions of the congress. The trade union refused the convocation because it considered it to be in bad faith on the part of the employer, given that it infringed the provisions of article 6 of the abovementioned Act No. 9624 on Collective Bargaining, where it states: “the parties shall be obliged to negotiate in good faith. This principle implies the following rights and obligations for the parties: (a) attendance at negotiations and hearings notified in due form, with sufficient powers … (e) making efforts conducive to reaching agreements which take into account the various circumstances of the case”.
22. 228. According to the complainants, none of the above conditions were fulfilled. In their opinion, there is a clear case of bad faith in a self-serving convocation on the same day as decisions were to take place and announced previously by all public media in the province and, as if that were not enough, the State itself failed to produce a wage offer by 30 June 2008. Furthermore, it should also be noted that neither the General Education Council nor the provincial government made efforts conducive to reaching an agreement, but simply maintained silence and then, on the day that decisions were to be taken by the trade unions, they requested the opening of the collective bargaining process. As if that was not enough, before the notice of refusal expressed by the trade unions, the President of the General Education Council, 20 days later, asked the Director of the Provincial Labour Directorate to reiterate the convocation, which never happened, but the reason for that omission by the administrative body was not explained. It should be explained that the Director of the Provincial Labour Directorate had ample powers to reconvene the parties, as the bargaining process never started, because of the bad faith of the employer. Thus far, it is reasonable to assume that the collective bargaining process provided by law in specified forums had not begun.
23. 229. The complainant organization indicates this comes to the crux of the anti-union action. The General Education Council, despite the required steps being very clear, applied to the labour court requesting compulsory conciliation, giving rise to the action “General Education Council v. Teachers’ Association of Entre Ríos and Association of Technical Teachers re Compulsory Conciliation, Act No. 9624” which was heard in Labour Court No. 3 of Paraná. The labour judge, entirely and absolutely incorrectly, ordered compulsory conciliation because she considered that: “… from Case No. 915216, filed in the Provincial Labour Directorate, emerges the substantiation of the various stages which, under the law, must be considered, on the one hand, the existence of a collective industrial dispute as defined by law and, on the other, the convening of a conciliation hearing and its failure … In this context, and in accordance with the foregoing legal provision, the Director of the Provincial Labour Directorate, after notification of the direct action measures and the application submitted by the President of the General Education Council, decided in a resolution dated 4 July to convene the collective bargaining committee on 28 July. The trade unions having been notified, they refused to attend the invitation to the meeting, an act of refusal which, apart from the reasons on which the refusal was based which fall outside the matters to be considered under the law, implies in fact a refusal to continue the dialogue and is thus an act, failure to attend, which closes the administrative hearing, exercised in favour of “the freedom to exercise the rights to which they are entitled”… and thus giving rise to the conditions set out in article 16 of Act No. 9624 …”.
24. 230. The complainant adds that, as another clear demonstration of unfair conduct and bad faith, the General Education Council requested compulsory conciliation before the court on 26 August 2008, i.e. one day before the commencement of the industrial action (strikes) which were to take place on 27, 28 and 29 August 2008. In other words, one month later than that fixed by the Provincial Labour Directorate (which was for 28 July 2008), the General Education Council requested the conciliation based on a decision of the AGMER congress (refusal of the convocation to the administrative collective bargaining meeting) communicated by the trade union on 8 July 2008, i.e. one month and 20 days before the application to the court. In light of this court decision, the AGMER lodged an appeal, which was granted by the appeal judge, i.e. the court decision was not upheld and, consequently, was not enforceable.
25. 231. According to the complainant organization, the provincial government, at the time when the judicial measure was requested on 26 June 2008, did not have any offer to make. One must wonder, therefore, what was the core and principal purpose of initiating a collective bargaining process by the provincial executive, if its opposite number had replied that the proposal was insufficient and the latter, in turn, stated that there was no better offer or any possibility of one. The answer is obvious; the only intention is to use the collective bargaining mechanism to stop direct action measures decided by the trade unions. It should be noted that since the start of the proceedings, the conduct of the authorities could be characterized as in bad faith, in that they certainly already knew the answer that would be given by the workers’ side. Despite that, the teachers of the province, long-time advocates of dialogue, decided to participate in the bargaining committee with the object, logically, of obtaining a different result from that which, unfortunately, due to the employer’s action, occurred and which consisted of the total breakdown of the bargaining process in the administrative forum.
26. 232. According to the complainant, the bad faith is evident not only in the request to convene a joint meeting, as described, but also the entire bargaining process conducted by the administrative side. The AGMER indicates that on 11 March 2009, the employers attended and said that the offer was “a wage increase involving a monthly outlay of some 7 million pesos …”. As this was exactly the same wage offer that had already been rejected by the teachers’ unions, the AGMER members included on the agenda, among other things, “holding a budget and wage discussion, taking into account that the union congress had already rejected, as insufficient, the offer formulated by the Government of the Province on 26 February 2009, the same as expressed in this offer, relating to an increase which involves a monthly outlay of some seven million pesos …”. To this, the representatives of the General Education Council replied stating the need to have a break to respond to the points included by the teachers’ representatives. The complainant adds that it was then, in the reply given 24hours later, that the employers’ true intention and bad faith became clear. Thus, with regard to the applications, they maintain that: “There will be no derogation to the provisions set out in the document of 11 March 2009 to strengthen the administrative legal order governing the education system, in relation to the return of days deducted for strikes in 2008 and non-execution of deductions for strikes in 2009, we uphold the decision of the provincial government to pay days actually worked; it also offers to advance, in addition to the initial wage offer made yesterday, the payment of the teacher’s incentive initially set at six instalments from July 2009 to December 2009, to three instalments in May, July and September this year.”
27. 233. The complainant maintains that what looks like an offer is no such thing. This offer constitutes late payment of a debt by the National State and the Provincial State to the teachers of Entre Ríos which dates from 2004. Moreover, the offer is to pay it in instalments and without any interest or adjustment. The President of the General Education Council herself said that the teaching incentive is a responsibility of the National Government, since the province was only an intermediary between the payer and the beneficiary, and that the Nation does not consider it a debt to the teaching sector. Given the total absence of a reply to any of the bargaining points included by the parties, the bargaining session broke down.
28. 234. The complainant organization indicates that neither the General Education Council nor the Government made efforts conducive to reaching agreement, but simply maintained the same offer and even tried to “deck it out” with an improvement by promising to pay sums owed for several years (teaching incentive) and by another debtor (the National State) which had already announced the advance which they wanted to make as an additional or improved offer. The employers have never used this collective bargaining mechanism in “times of peace”, and all their actions are confined to invoking the Act on Collective Bargaining for the sole purpose of disrupting or stopping industrial action, generally strikes decided by teachers when for a long time their claims for better conditions of work have been ignored. This is what shows the bad faith argued above, in that, for the employer, this does not and never has constituted a genuine tool for bargaining with its employees as the law intended. They respect neither its spirit nor its letter.
29. 235. The complainant organization states that unlike the unfair attitude and bad faith shown by the employer’s action, on 4 March 2009, i.e. two days after calling for collective bargaining during 2009, it issued Resolution No. 521/09 CGE which states: “article 1: authorize departmental heads of schools, after identifying head teachers who did not report the non-attendance of teaching staff of their schools, due to strikes by those staff during 2008, to apply to them the so-called “warning”, which is recorded in their personnel record ...”. This regulation implies totally unfair conduct and, moreover, is clearly unconstitutional, as, among other things, it applies a general and indiscriminate sanction without any consideration of the particular situation of each head teacher, it attacks the principle of innocence, the right of defence, due process, the principle of legality of all rights and guarantees of constitutional and supra-legal rank contained in international treaties. According to the complainant, the genesis of this provision clearly shows that the employer is acting in bad faith, by requesting a bargaining round and two days later, without giving any reasons, without listening, without requiring discharge, without any possibility of defence, punishes head teachers who did not report the non-attendance of teaching staff.
30. 236. This punishment is imposed on head teachers without any sanction being provided at any time by legislation, as the relevant legislation (Entre Ríos Teachers’ Regulations) does not contain “warning” entered in the personnel record as a possible sanction (article 61 and following), without any possibility of defence. This resolution has only one purpose: persecution of those who exercised the legitimate right to strike and for that reason did not attend work. We must not fail to point out that head teachers are not civil servants but teachers who are promoted to management posts by competitive selection in accordance with rules issued by the State itself. They are not seconded civil servants and thus do not have legal personality in their own right, they have their own system of authorization, a salary scale common to all employees subject to the General Education Council and, as such, are covered by the Teachers’ Regulations, for which reason they have the same rights and obligations as the rest of the sector, including the right to take industrial action.
31. 237. This anti-union attitude displayed by the State is designed to “discourage” industrial action by trade unions, as those affected see that if they observe the decisions of the teachers’ unions, even though made within the framework of the law, as in this case, they will be “individually” attacked by the employer. Finally, another significant fact because of its political implications, impact on trade unions and manifest impact on rights, is the criminal prosecution of trade union leaders of the Teachers’ Association of Entre Ríos.
32. 238. The AGMER indicates that, in the face of the clear violation of the law evidenced by the bad faith of the state employer, it decided not to accept compulsory conciliation and to confirm the strikes on 28 and 29 August 2008 and to instruct its lawyers to file the corresponding appeal against the court order which incorrectly ordered compulsory conciliation. Subsequently, the employers appeared before the labour court and requested legal measures to be taken in relation to the failure to comply with the appealed court order, in clear reference to the initiation of a criminal prosecution for alleged commission of an offence under the Argentine Criminal Code. Specifically, proceedings were initiated against “Elizar Sergio, Madoz Marta, Budino Luis César, Sánchez Zulma, Sánchez Norma and Rodríguez Patricia for contempt of court”. These proceedings are being heard in Magistrate’s Court No. 8, in the town of Paraná, Case No. 2684. This offence for which the officials, at the time members of the central executive committee of the Teachers’ Association of Entre Ríos, are being investigated, is set out in article 239 of the Criminal Code which provides that “a person who disobeys a public official in the legitimate exercise of his functions shall be punishable by a prison sentence of 15 days to one year”.
33. 239. Apart from the fact that in the present case, there is no offence, there was no contempt of court nor did those now charged act in any way illegally. It should be emphasized that when the State itself resorts to the criminal law, it is because it seeks to escalate the industrial dispute with the vehemence engendered by the power of punishment. In a democratic State subject to the rule of law, the power of punishment is, at the least, a last resort, i.e. it arises when there is no other law that can be applied. However, in the present case, an industrial dispute which is supposed to be settled by conciliation of the parties, this is incompatible with conduct which criminalizes the constitutional right to strike and the labour and administrative right to fight for the integrity of their wages and fair increases, decent and fair conditions of work, and health and safety at work.
34. 240. It should be emphasized that the accused in the criminal case are teachers who held office as officials of Entre Ríos teachers’ trade unions, who were elected to defend their labour rights, which they did always strictly within the framework of the Constitution and the laws governing that activity. That is why it should be emphasized that the claims of the civil servants who initiated the case are intended to frighten workers who fight for their rights. The fact that a criminal prosecution has been instituted is solely for the purpose of creating a state of fear in the teaching profession.

B. The Government’s reply

1. 241. In its communication dated 24 May 2011, the Government states that the Provincial Labour Directorate (DPT) of the Province of Entre Ríos replied, in relation to the application of the Provincial Act No. 9624/05 on Joint Negotiations, that, before considering the dispute in 2008, it is necessary to describe briefly the disputes since 2005, and show the attitude of the complainant organization throughout those disputes.
2. In 2005, the President of the General Education Council of the province issued Instruction No. 084-02364/05 at the request of a self-constituted parents’ group, formed in defence of public education to safeguard the educational cycle and essential right to education of their children who were affected by the direct industrial action carried on by various trade unions. In the light of this request, the DPT immediately called a series of hearings to deal with the dispute. The dispute itself referred to teachers’ claims for a reform of wages, derogation of Provincial Act No. 8330, conditions of work and school buildings, and the Education Finance Act. It was led by various teaching unions; the AGMER, the Argentine Union of Private Teachers (SADOP), the Association of Technical Teachers (AMET), and the Argentine Union of Teachers (UDA). The dispute led to strikes on 25, 26 and 27 July 2005; 3 and 4 August 2005, and 11 and 12 August 2005.
3. 242. On that occasion, the DPT convened a hearing for 5 August 2005, arriving at an agreement in principle which was ultimately rejected by the trade union leadership, with a further strike on 11 and 12 August 2005. Given that the dispute was escalating, compulsory conciliation was called within the time limit of 15 days. This conciliation was not accepted and the powers of the Directorate to call it were challenged. Under the Federal Labour Pact (No. 25212) the proceedings were referred to the Secretariat of Labour of the Nation, in order to request its intervention to expedite the matter. The latter, by Resolution No. 275/05, recognized the competence and powers of the DPT to intervene in collective industrial disputes arising in the territory of the province. Thus, Resolution No. 442/05 of the DPT of 19 August 2000 was issued, confirming the order for compulsory conciliation and indicating that the direct industrial action should cease. Neither was this measure accepted by the trade union. The DPT indicates that, despite the indications given and despite the failure to respect the bargaining measures, sanctions were not applied, nor was the right to strike infringed.
4. 243. The provincial authority adds that in 2008, under the framework of the new regulation (articles 7 and 16 of Act No. 9624) the DPT was requested to intervene. The latter set the hearing for 28 July 2008. The hearing was not attended by the complainant organization, despite having encouraged the drafting and passing of the Act. Article 16 of the Act provides for judicial intervention, by an order for compulsory conciliation, which was also not respected by the AGMER. The DPT emphasizes that, despite that, sanctions were not imposed.
5. 244. The provincial authority indicates that in 2010, the AGMER announced industrial action for 26 and 27 July, and the General Education Council requested an order for compulsory conciliation. The President of the General Education Council indicates that, in application of the Act on Collective bargaining for Teachers, an increase was granted in two stages (Act of 17 February 2010), while bargaining continued. Resolution No. 401/10 of the DPT of 23 June 2010 was not accepted and was disputed by the AGMER, arguing that Act No. 9624 on collective bargaining contained a mechanism which can lead to an order for compulsory conciliation by a national court, and in the present case, the employer was both judge and party in the matter. It explains that there was no collective bargaining mechanism in the province, as the province had adopted the terms of the National Act on Collective Bargaining for Teachers.
6. 245. On 24 July 2010, the trade union was notified of the application for an order for compulsory conciliation. Upholding the provincial state on 25 July 2010, the Civil and Commercial Court of First Instance, No. 1, Paraná, Secretariat No. 1 in the case of “Provincial Council for Children, Adolescents and the Family v. AGMER and others/precautionary injunction”, the Court definitively confirmed the compulsory conciliation convened by the DPT. Despite that, the trade union again refused to comply with the order, and took direct industrial action on 25 and 26 July 2010. On this occasion, the National Secretariat of Labour was asked to intervene, and it issued Resolution No. 1077 of 2 August 2010, which ordered the AGMER to participate in the compulsory conciliation ordered by the General Labour Directorate of the Province of Entre Ríos, subject to the provisions of article 56(3) of Act No. 23551, which was notified to the trade union of 5 August 2010.
7. 246. In conclusion, the provincial authority argues that the allegations contained in the complaint should be rejected in their entirety, as there had been no violation whatsoever of freedom of association. It emphasizes that the AGMER, as indicated, never complied with the provisions which, at national or provincial level, provide for compulsory conciliation prior to the adoption of direct industrial action. Moreover, despite that, no proceedings were ever adopted or initiated to apply sanctions. All the measures taken by the provincial authority were within its powers and competence to hear collective industrial disputes in its territory.
8. 247. The provincial authority adds to the information provided by the General Education Council of the province, concerning the other allegations made by the trade union, the following: (1) Sanctions on the grounds of exercise of the right to strike by teachers. It is emphatically denied that a financial penalty was imposed, since the right to strike is a right enshrined in the National Constitution, article 14bis, thus the exercise of that right is not punishable conduct. What was applied was non-payment of remuneration for nonattendance at work, which, while authorized by law, does not give rise to remuneration, because the only act which gives rise to remuneration is work; (2) Absence of prior proceedings. It is highlighted, primarily, that, in reality, it was the trade union itself which did not comply with the law, when it did not respect the conciliation procedure laid down, which in turn establishes that the proceedings must take place prior to strike action (article 2(f) of Act No. 14786). The latter must be initiated by the trade union which is promoting the strike action, which in this case specifically did not happen. It states that the trade union had already refused to comply with the court order for compulsory conciliation laid down in the provincial jurisdiction, which included the order to suspend the strike action pending conciliation proceedings (articles 8 and 11 of the Act). This conduct shows that it was the trade union itself, which did not observe the law and the proceedings prior to taking direct industrial action (article 2(f) of Act No. 14786), as is shown in the previous paragraph. It is reiterated that, even so, the strike action was not declared illegal, but, simply, the days not worked were not paid and a settlement was sought through conciliation; (3) Bad faith in collective bargaining. The truth of the matter is that it is the trade union which openly and clearly rejected the conciliation route, which failed to attend judicial and administrative hearings and which discredited those proceedings. This wholly justifies the judicial proceeding which the Act on Collective Bargaining for Teachers, article 16, states very clearly: “on the breakdown of the said administrative conciliation proceedings, any of the parties may apply to the labour court in the city of Paraná for a compulsory conciliation order”. However, the trade union refused judicial conciliation, yet, quite paradoxically, used it to examine and reject the Government offer. In short, it appears that the trade union considers that the collective bargaining process is a victory for the workers when they achieve the results sought by the trade union and discredit it when that is not the case; (4) Administrative proceedings against head teachers. It explains mildly that the “warning” is not a punishment. It does not have punitive character and no penalty is applicable. It is a corrective measure set out in Resolution No. 1427/02 of the General Education Council of 15 May 2002, which governs the procedure for the preparation of the teacher’s annual assessment. These measures do not give rise to any diminution in the assessment score, unlike disciplinary measure; and (5) Criminal prosecution of trade union leaders. The General Education Council points out that the complainant organization should have accepted the court decision which ordered the compulsory conciliation, and that non-compliance with a judicial decision in any system is an offence. It considers, lastly, that the comments on state public policies are irrelevant to the central reason for the complaint, i.e. the exercise of the right to strike by state teachers.
9. 248. The provincial authority indicates that there are no grounds for the present complaint, since, even with the profusion of dates and details provided by the trade union, the Act on Collective Bargaining for Teachers was applied, and that Act was approved with the active participation of the AGMER and, secondly, article 16 provides “on the breakdown of the said administrative conciliation proceedings, any of the parties may apply to the labour court in the city of Paraná for a compulsory conciliation order”.

C. The Committee’s conclusions

1. 249. The Committee observes that in the present case, the complainant organization alleges lack of good faith on the part of the Government of the Province of Entre Ríos and the General Education Council in collective bargaining in the education sector (offers of supposed improvements outside the scope of the provincial powers, absence of genuine offers of wage increases or illegal offers of payments and refusal to consider claims concerning conditions of work) and disputes the decision of the authorities of the province to make deductions from wages for days of legal strikes carried out in the sector in 2008. The complainant organization also alleges that head teachers were punished for not communicating the names of teachers who took part in the strike and that criminal proceedings for contempt of court in relation to the compulsory conciliation order were initiated against the trade union leaders named in the complaint.
2. 250. With respect to the alleged lack of good faith on the part of the provincial authorities in the collective bargaining, the Committee notes that the Government of the Province of Entre Ríos indicates that the complainant organization had repeatedly refused conciliation on the matters under negotiation, and that the authorities had not imposed sanctions, and in particular points out that: (1) during the direct industrial action in 2005, compulsory conciliation was ordered which was rejected by the trade union but sanctions were not imposed; (2) in the context of the dispute in 2008, the DPT invited the parties to a hearing but the complainant organization did not accept the invitation and although the court ordered compulsory conciliation, the AGMER did not attend; (3) sanctions were not imposed on the complainant organization; (4) in 2010, in the context of a new dispute, the AGMER again did not accept the compulsory conciliation which was ordered by the court; and (5) the AGMER had publicly and openly refused the conciliation route and did not attend administrative or court hearings.
3. 251. In this respect, the Committee finds that it is apparent from the allegations and the Government’s reply that for years industrial relations in the teaching sector in the Province of Entre Ríos have been attended with difficulties. In these circumstances, the Committee recalls that it has on many occasions emphasized that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest of Decisions and Principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 935]. The Committee requests the Government to ensure that the principle is respected.
4. 252. As regards the disputed decision to make deductions from teachers’ wages for the days when they took part in a strike in 2008, the Committee notes that the Government of the Province of Entre Ríos states that a financial sanction was not applied, since the right to strike is a right enshrined in the National Constitution, but what was applied was non-payment of wages for non-attendance at work. The Committee considers that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Digest, op. cit., para. 654] and will therefore not pursue its examination of these allegations.
5. 253. With regard to the alleged sanctions “warnings” which were apparently imposed on head teachers who did not communicate the names of teachers who took part in the strike, the Committee notes that the Government of the Province of Entre Ríos states that the “warning”: (1) is not a sanction and is not punitive in character; (2) no penalty is applicable; and (3) it is a corrective measure set out in Resolution No. 1427/02 of the General Education Council which does not give rise to any diminution on the professional assessment, unlike disciplinary measures. Taking this information into account, the Committee will not pursue its examination of these allegations.
6. 254. Lastly, with regard to the allegation concerning the initiation of criminal proceedings for contempt of court in relation to the compulsory conciliation order against the trade union officials named in the complaint, the Committee notes that the Government of the Province states that failure to comply with a court decision in any system is an offence. The Committee recalls that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [see Digest, op. cit., para. 672] and requests the Government to provide a copy of the final judgment.

The Committee's recommendations

1. 255. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee recalls that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike and requests the Government to provide a copy of the final judgment relating to the criminal proceedings for contempt of court in relation to the compulsory conciliation order against trade union officials of the AGMER named in the complaint.