Informe definitivo - Informe núm. 399, Junio 2022

Caso núm. 3389 (Argentina) - Fecha de presentación de la queja:: 03-AGO-20 - Cerrado

Allegations: Annulment by a provincial government of a collective agreement that was in force through the withdrawal of the decision approving the agreement

1. 79. The complaint is contained in a communication from the Confederation of Workers of Argentina (CTA Workers) dated 3 August 2020.
2. 80. The Government sent observations by communications dated 20 May 2021 and 2 May 2022.
3. 81. 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. 82. The complainant organization alleges that the government of Tierra del Fuego Province arrogated to itself the authority to annul a collective agreement in force that was applicable to the public employees of the province, by simply revoking the administrative decision that had approved the collective agreement. In this connection, the CTA Workers requests the Committee to urge the Government to overturn the administrative revocation immediately and to resume dialogue with the trade union organizations representing public employees.
2. 83. The complainant indicates that: (i) the collective agreement for the staff of the provincial public administration was concluded on 28 November 2019, then approved by Decision No. 217/19 of the Ministry of Labour, Employment and Social Security (MTEySS) and published in the Official Bulletin of Tierra del Fuego Province on 6 December 2019; (ii) the signatories of the collective agreement were the Association of State Workers, the National Civil Servants’ Union and the Association of Health Workers of Argentina; (iii) the collective agreement in question had been concluded after a laborious process fraught with difficulties, which had lasted more than 20 years (from the opening of the bargaining on the basis of the approval of Provincial Law No. 113 until the conclusion, registration, approval and publication of the final text); (iv) the collective agreement was approved by the provincial administrative authorities and its provisions came into effect immediately – with the exception of any that involved changes to budget lines – hence the text of the collective agreement indicated that, in accordance with Provincial Law No. 113, it would become applicable only after approval by the provincial legislature; (v) after new government authorities took office as a result of the democratic electoral process, the Provincial Attorney General issued an opinion pointing to the existence of inconsistencies that must be reviewed, but did not indicate any specific measures to be adopted; (vi) following this opinion, Provincial Decree 101/20 was issued, instructing the Ministry of Labour to “issue an administrative decision revoking Decision MTEySS No. 217/19 on the grounds of illegitimacy”, whereupon the Provincial Ministry of Labour issued Decision MTyE No. 20/20 revoking Decision MTEySS No. 217/19 (which had approved the collective agreement) “on the grounds that it is contrary to the provincial public order and is a matter of administrative law”; (vii) the administrative decisions that resulted in the revocation were issued without the parties having had any opportunity to submit their arguments, thereby wholly contravening the guarantees provided by the right to effective administrative and judicial oversight; (viii) as a result of the revocation of the approval of the collective agreement, the local authorities understood that they must return to the provisions applicable before the collective agreement entered into force (in other words, based on the interpretative approach, Decree Law 22.140, which emanated from the last dictatorship that was de facto in power in Argentina, came back into effect); (ix) legal proceedings were lodged before the competent labour court but were rejected on formal grounds (specifically, the court held that the application for amparo [protection of constitutional rights] was not the appropriate route to handle the claims, and found that arbitrariness and unlawfulness had not been demonstrated and that, as “approval is a general administrative decision”, it is by definition “essentially revocable” by the provincial executive power); and (x) this meant that the public servants of the province were wholly deprived of the collective agreements and their rights derived from them.

B. The Government’s reply

1. 84. In its communication of 20 May 2021, the Government transmits the observations of the authorities of the province concerned, which indicate that: (i) the issues that gave substance to the revocation of the approval decision were established after an exhaustive examination of the respective actions and procedures, in particular the considerations of the Attorney General of Tierra del Fuego Province, which the legal services of the ministerial bodies did not consider to be open to criticism; (ii) they also note that none of the trade unions who were signatories to the collective agreement took action to challenge or appeal against the administrative decision in question; (iii) a collective agreement is currently being negotiated with the same trade union organizations that were involved in the impugned agreement whose approval was revoked; (iv) in the context of legal proceedings related to the issues raised by the complainant, the judicial authority held that approval is a general administrative decision and, by definition, is essentially revocable by the executive power of the province; and (v) with the exception of the observations that led to the decision on the revocation of approval, the provincial Ministry of Labour has never registered any complaints from any trade union concerning past or present actions that limit or restrict the validity of the rights to freedom of association or the continuation of bargaining with a view to concluding a collective agreement for the staff of the provincial public administration.
2. 85. By a communication of 2 May 2022, the Government submits the dossier concerning the collective bargaining process and informs the Committee of the signing of a new collective agreement which, according to the parties concerned, amply resolved the conflict. As a result, the Government requests that the case be closed.

C. The Committee’s conclusions

1. 86. The present complaint reports that a collective agreement that was in force was annulled by a provincial government through the revocation of the administrative decision approving the agreement. The Committee observes that the provincial authorities indicate that the issues which gave substance to the revocation of the decision approving the agreement followed an exhaustive examination of the actions and that the judicial authority affirmed that approval is a revocable administrative decision.
2. 87. The Committee observes that the reasons stated in the respective decisions to revoke the approval include matters such as a lack of the requisite consideration of budgetary implications, irregularities in the administrative proceedings or in equal representation, and contradictions of the legal or public order in labour matters. In this connection, the Committee notes that the text of Provincial Decree 101/20, which was enclosed with the complaint, indicates that “the Attorney General held that the collective agreement did not undergo an in-depth legal analysis concerning the rules of the provincial public order that must be respected … nor was an exhaustive examination undertaken of the provisions that directly entailed budgetary commitments or changes", having observed "irregularities in the administrative procedures followed by the competent ministerial portfolio, resulting from the existence of three separate dossiers, and non-observance of the established bargaining system or the points/agenda items established by the Ministry; nor was the participation of duly appointed equal representatives observed … which leads to the conclusion that the procedure followed in the bargaining did not contribute to making it transparent and legitimate". Furthermore, “the Committee observes that Provincial Decree 101/20 held that "the collective agreement has clear flaws which disrupt the public order in labour matters … such as the Argentinian nationality entry requirement for the public administration" or contradict provincial legislation and alludes to the existence of provisions of the collective agreement that have budgetary implications that were not analysed in advance and included by the government authorities. In this connection, the Committee considers that the lengthy negotiation process (of more than 20 years) should have allowed all the necessary verifications to be carried out ex ante and that the unilateral revocation of the legal effects of the collective agreement after its entry into force, as in the case of the present complaint, does not help in the promotion of collective bargaining.
3. 88. Furthermore, the Committee duly notes that, according to information provided by the Government in its communication of 2 May 2022, the subsequent negotiations concluded with the signing of a collective agreement that amply settled the conflict, according to the parties involved. In the light of the foregoing, the Committee considers that this case does not call for further examination and is closed.

The Committee’s recommendation

1. 89. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.