Informe provisional - Informe núm. 367, Marzo 2013

Caso núm. 2817 (Argentina) - Fecha de presentación de la queja:: 08-OCT-10 - Cerrado

Allegations: The complainant organization alleges that, although it benefits from the special trade union status “personería general”, several enterprises in the railways sector refuse to engage in collective bargaining and that the administrative authority has not advanced the bargaining process, despite the proceedings that have been instituted; the complainant organization also alleges acts of harassment and persecution of its members

1. 163. The Committee last examined this case at its meeting in November 2011, when it submitted an interim report to the Governing Body [see 362th Report, paras 277 to 308].
2. 164. The Government sent its observations in a communication of 2 November 2012.
3. 165. 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), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 166. The Committee recalls that at its meeting in November 2011, when it examined the complaints regarding the refusal of enterprises in the railways sector to engage in collective bargaining as well as acts of anti-union harassment and persecution, it made the following recommendations [see 362th Report, para. 308]:
   • (a) The Committee requests the Government to promptly take all the measures possible to encourage and promote the full development and utilization of machinery for voluntary negotiation between the APDFA and the enterprises concerned in the sector, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to keep it informed of the final outcome of the judicial proceedings for unfair labour practices filed with regard to the alleged threats of dismissal of APDFA members and for the sanction imposed on delegate Mr Darío Corbalán in the Ferrovías SA enterprise.
   • (c) The Committee requests the Government to confirm that trade union delegate Mr Ramón Darío Alcaraz, who had been dismissed from the All enterprise in violation of trade union immunity, has been reinstated without loss of pay in accordance with the order issued by the judicial authority.
   • (d) The Committee regrets the considerable delay of the Government in responding and urges it to carry out an investigation into the following allegations of anti-union discrimination: (1) pressure on members to leave the union; refusal to recognize the election of delegates and to engage in dialogue with elected delegates; refusal to provide a notice board; prohibition of trade union assemblies and denial of trade union leave in the Ferrosur SA enterprise; (2) denial of the legality of the trade union election procedure and refusal to recognize elected delegates in the América Latina Logística Central and América Latina Logística Mesopotámica enterprises; and (3) threats of dismissal of members in the Ferrovías SA enterprise. The Committee requests the Government to inform it of the results of the investigation.

B. The Government’s reply

1. 167. in its communication of 2 November 2012 the Government states that the first point to make clear, as is obvious from the complainant organization’s statement, is that the privatization of the railways in the 1990s had direct repercussions on the occupational categories of railway workers. The fact is that privatization entailed a structural transformation of the railway companies’ organizational chart, changes in the way work was organized, the disappearance of some traditional categories and the modification of others as workers were assigned new functions, or as their previous functions were discontinued. This, along with new tasks that were not covered by the collective agreement, placed these workers in a situation that can broadly be described as “outside the collective agreement”. The changes also caused confusion between the trade unions themselves – the Railway Union and the Association of Management Staff of Argentine Railways and General Ports Administration (APDFA) – and the employers, as to which workers each union represented. This in turn affected the process of collective bargaining and gave rise to a series of conflicts in the labour relations of the various companies. According to the Government, the disputes come under two clear headings: a dispute over each union’s representativity, and a dispute over the rules governing collective bargaining. The institutional framework for dealing with each of these disputes is quite distinct.
2. 168. Whereas the issue of representativity is for the Ministry of Labour to decide (since ultimately what is involved here is the legal personality and individual representativity of each organization), the scope of a collective agreement is a legal matter that must be settled either in court or by the parties themselves through a process of conflict resolution.
3. 169. The issue of representativity is laid down in article 59 of Act No. 23551 and, as such, is for the Ministry of Labour to rule on, albeit subject to preliminary negotiations by the unions themselves, as stipulated in the Act. However, the complainant organization does not appear to have embarked upon this initial stage of the procedure and, as a result, the matter has duly been taken up by the Ministry. This is why, in its earlier reply, the Government referred to the hearings held by the Ministry of Labour in order to seek a reconciliation between the parties and thus complete this preliminary stage. The Government states that it has no authority to rule on the scope of collective agreements because a separate category cannot be created for workers not covered by the existing agreement. That is a legal issue that calls for a court ruling or for reconciliation between the parties to the dispute.
4. 170. The Government maintains that the situation is precisely as it stated at the time: as far as the workers not covered by the agreement are concerned, either the parties involved engage a process of mediation and try to agree on the categorization of the workers, or else the aggrieved party must take the matter to court in order to assert its rights. No such action has been taken, at least as far as can be judged from the complaint. Be that as it may, the Government repeats that the issue of representativity is indeed a matter for the Ministry to decide, and this is what it has endeavoured to do. In the process, some progress has been made in determining the representativeness of the trade unions vis-à-vis the railway companies for purposes of collective bargaining.
5. 171. The Government states that the Railway Union requested that it be recognized as representing workers who hold supervisory or similar posts and/or who are responsible for such functions at América Latina Logística Mesopotámica, SA (file No. 1374511/10), at Ferrovías, SA (file No. 1283862/08) and at Trenes de Buenos Aires, SA (file No. 1311497/09), and that such recognition not be extended to the APDFA. Meanwhile, the APDFA requested (file No. 1469031/11) that it be recognized as representing employees who hold or are responsible for senior management, inspection, coordination, supervision and monitoring positions, with or without workers under them; and/or employees who are engaged in training and in assessing the training skills of staff working under them; and/or employees who are responsible for general and detailed planning and/or programming and/or control functions; and/or employees who are directly responsible to the company management for work carried out by workers under them; and/or employees who have disciplinary powers; and/or employees who carry out similar functions to those listed above, whether in an administrative, technical or professional capacity, or who, as holders of university diplomas, exercise their professional skills at Belgrano Cargas, SA and/or in its managing company Sociedad Operadora de Emergencias, SA (SOESA); and that such recognition not be extended to the Railway Union.
6. 172. Finally, the Government states that Ferrero Roca, SA petitioned (file No. 1402581/10) that the administrative authority to engage the trade union representativeness procedure to determine which union can benefit from the special status “personería general” to represent workers employed as nurses (and support staff), as members of the staff of the Olavaria medical institute, as inspectors or assistant inspector (track), as administrative technical assistants, as field technicians, as operations assistants, as warehouse clerks, as accounts analysts at the Olavaria medical institute, as accounts payable clerks, as accounts receivable clerks, as operations supervisors, as railway network controllers, as personnel distribution managers, as CCA clerks, as K5 warehouse assistants, as Sola area chiefs, as Sola warehouse assistants, as Cañuelas warehouse chiefs, as Cañuelas warehouse assistants, as support staff, as warehouse assistants for the Olavaria medical institute, as Las Flores area assistants, as Olavaria area assistants, as locomotive supervisors, as officers in charge of mechanical supplies, as assistant technicians (clerks), as railway coach supervisors, as area assistants, as fixed plant technical assistants (plant operators), as planning and budget control assistants (planning and statistics), as technical assistants at the company’s premises at 3100 avenida Príngales in Olavaria, Province of Buenos Aires, in accordance with articles 1(b) and 3(a) of Decree No. 1040/01; and lodged a complaint regarding the dispute over trade union representativeness between the Railway Union and the APDFA.
7. 173. The Government states that the whole process conformed to the wishes of the Committee, as a means of encouraging and promoting voluntary collective bargaining between the enterprises and the complainant organization.
8. 174. Finally, regarding the other points raised in the Committee’s recommendation, the Government states that the administrative authority has been informed that Mr Ramón Darío Alcartaz has opted for payment of compensation and has left the company. As to the other issues, information is still being gathered and will be presented in subsequent reports.

C. The Committee’s conclusions

1. 175. The Committee recalls that the allegations that were still pending when the Committee examined this case at its meeting in November 2011 concerned the refusal of a number of enterprises of the railways sector to engage in collective bargaining with the complainant (the APDFA), as well as acts of harassment and persecution of its members and delegates.

Recommendation (a)

1. 176. The Committee had requested the Government to take promptly all possible measures to encourage and promote the full development and utilization of voluntary negotiation procedures by the APDFA and the enterprises concerned in the sector, with a view to regulating the conditions of employment by means of collective agreements. The Committee notes in this respect that the Government states: (1) that the Railway Union requested that it be recognized as representing workers who hold supervisory or similar posts and/or who are responsible for such functions at América Latina Logística Mesopotámica, SA, at Ferrovías, SA and at Trenes de Buenos Aires, SA, and that such recognition not be extended to the APDFA; (2) that the APDFA meanwhile requested that it be recognized as representing employees who hold or are responsible for senior management, inspection, coordination, supervision and monitoring positions, with or without workers under them; and/or employees who are engaged in training and in assessing the training skills of staff working under them; and/or employees who are responsible for general and detailed planning and/or programming and/or control functions; and/or employees who are directly responsible to the company management for work carried out by employees working under them; and/or employees who have disciplinary powers; and/or employees who carry out similar functions to those listed above, whether in an administrative, technical or professional capacity, or employees who, as holders of university diplomas, exercise their professional skills at Belgrano Cargas, SA and/or in its managing company Sociedad Operadora de Emergencias, SA (SOESA), and that such recognition not be accorded to the Railway Union; (3) finally, that Ferrero Roca, SA requested that the administrative authority engage the trade union representativeness procedure to determine which occupational organization can benefit from the special status “personería general” to represent various categories of employees (nurses, medical staff, railway track inspectors, assistants, administrative technicians, etc.), in accordance with articles 1(b) and 3(a) of Decree No. 1040/01, and lodged a complaint regarding the dispute over trade union representativeness between the Railway Union and APDFA; (4) that the issue of representativeness is laid down in article 59 of Act No. 23551 and, as such, is for the Ministry of Labour to rule on, albeit subject to preliminary negotiations by the unions themselves, as stipulated in the Act; (5) that the complainant organization does not appear to have embarked upon this initial stage of the procedure and that, as a result, the matter has duly been taken up by the Ministry of Labour (the Government notes that, in an earlier reply, it referred to the hearings held by the Ministry of Labour to seek a reconciliation between the parties and thus complete the preliminary stage of the procedure); and (6) that the whole process conformed to the wishes of the Committee as a means of encouraging and promoting voluntary collective bargaining between the enterprises and the complainant organization.
2. 177. The Committee notes all this information, from which it appears that at least two trade unions have requested the Ministry of Labour to recognize them as representing several categories of employees in a number of enterprises in the railways sector. The Committee firmly expects that the necessary steps will be taken so that the Ministry can, without delay, take an appropriate decision with regard to the requests for recognition of representativeness that it has received, and so that representative workers’ organizations and companies in the railways sector can regulate conditions of employment by means of collective bargaining.

Recommendation (c)

1. 178. The Committee recalls that it had requested the Government to confirm that trade union delegate Mr Ramón Darío Alcaraz, who had been dismissed from the ALL company in violation of his trade union immunity, had been reinstated without loss of pay in accordance with the order issued by the judicial authority. In this respect, the Committee notes the Government’s statement that the said delegate has opted for payment of compensation and has left the company.

Recommendations (b) and (d)

1. 179. With regard to recommendations (b) and (d), the Committee regrets that, despite the seriousness of the allegations (exertion of pressure on trade union members to leave the union, non-recognition of the election of union delegates, threats of dismissal, etc.) dating back to 2010, the Government merely informs it that information on the matter is still being gathered. The Committee reiterates its recommendations and firmly urges the Government to send its observations on the matter without delay.

The Committee’s recommendations

1. 180. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee firmly expects that the necessary steps will be taken so that the Ministry can, without delay, take an appropriate decision with regard to the requests for recognition of representativeness that it has received, and so that the representative workers’ organizations and companies in the railways sector can regulate conditions of employment by means of collective bargaining.
   • (b) The Committee firmly urges the Government to send its observations without delay on the following recommendations that it made at its meeting in November 2011: (a) the Committee requests the Government to keep it informed of the final outcome of the judicial proceedings with respect to unfair labour practices filed with regard to the alleged threats of dismissal of members of the APDFA and with respect to the sanction imposed on delegate Mr Darío Corbalán in the Ferrovías SA enterprise; and (b) the Committee regrets the Government’s considerable delay in responding and urges it to carry out an investigation into the following allegations of anti union discrimination: (1) pressure on members to leave the union; refusal to recognize the election of delegates and to engage in dialogue with elected delegates; refusal to provide a notice board; prohibition of trade union assemblies and denial of trade union leave at Ferrosur SA; (2) denial of the legality of the trade union election procedure and refusal to recognize elected delegates at América Latina Logística Central and at América Latina Logística Mesopotámica; and (3) threats of dismissal of members at Ferrovías SA. The Committee requests the Government to inform it of the results of the investigation.