Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 340, Mars 2006

Cas no 2414 (Argentine) - Date de la plainte: 31-JANV.-05 - Clos

Allegations: the complainants object to resolutions adopted by the Provincial Education Council of Neuquén province which oblige the directors of educational establishments to inform on workers who take part in stoppages, deny them the right to strike and apply sanctions to any of them who took part in stoppages in 2004

274. The complaint is contained in a communication from the Confederation of Education Workers of Argentina (CTERA) and the Educational Workers’ Association of Neuquén (ATEN), dated 31 January 2005.

1. 275. The Government sent its observations in a communication dated 28 October 2005.
2. 276. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 277. In their communication of 31 January 2005, the Educational Workers’ Association of Neuquén (ATEN) and the Confederation of Education Workers of Argentina (CTERA) objected to resolutions 1550 of 27 July 1999 and 163 of 1 March 2002, adopted by the Provincial Education Council (CPE) attached to the State Executive of Neuquén province, prohibiting teachers in the province from exercising the right to strike, as well as to other resolutions adopted in December 2004 by the same provincial body, imposing a 30-day period of suspension on the directors of educational establishments as a consequence of the aforementioned regulations denying the right to strike.
2. 278. The complainants consider that the purpose of resolution 163 is to oblige the directors of educational establishments to work, denying them their right to protest within the framework of a strike, at the same time requiring them to draw up “lists” of educational workers who take part in direct action organized by the trade union.
3. 279. The resolutions in question amount to clear intimidation and a curtailment of the free exercise of the right to strike. Worker absence is already monitored, and there is no need for any special measures. The intention is to set up a system for monitoring “strikers”, the sole purpose of that system being to intimidate, since if the intention were merely to dock a day’s pay it would be sufficient to have noted the worker’s unannounced or unjustified absence. The only aim here is to identify those exercising their right, with a view to instilling fear of dismissal or persecution, as was subsequently and regrettably the case with the 30-day period of suspension to which the directors were subjected pursuant to the aforementioned resolutions of 21 December 2004. Finally, the complainants maintain that education is not an essential service but a social right that the State has a duty to ensure.
4. B. The Government’s reply
5. 280. In its communication of 28 October 2005, the Government notes that the complainants object to the content of two resolutions adopted by the State Executive of Neuquén province on the grounds that they constituted a violation of the right to strike by seeking to keep tabs on those present and those absent on protest days called by the province’s union of education workers. According to the Government, it is important to point out that the obligations imposed by the resolutions in question relate solely to the directors of educational establishments, who are required under the terms of those resolutions to ensure that their establishments open and close at the normal times during periods of direct action.
6. 281. The Government adds that, before going on to consider the alleged facts, it wishes to put on record the fact that, under the system of federal government, provincial governments enjoy autonomy when it comes to legislating and acting vis-à-vis their own administrations. This being the case, the national Government drew the attention of the Neuquén provincial authorities to the complainants’ grievances in order that it might formulate its observations on the matter. In this context, the Government states that the resolutions in question were adopted by the Provincial Education Council (CPE), a tripartite body within which the teaching sector is duly represented, inasmuch as Act 242 of Neuquén province, creating this body, provides that its highest authority shall be a deliberative body comprising five members and a chairman, together representing the three parties involved, i.e. the provincial executive, the teachers and the community.
7. 282. The Government sees fit to emphasize that the school directors have a higher rank than the teaching staff, being in some measure depositories of the public authority and hence having a duty, by virtue of their position, to ensure the provision of the public service in question. It is along those lines that the judicial authority has expressed its opinion: “while article 14 of the National Constitution recognizes the right to strike for all trade unions, that right does not extend to officials who in some measure are depositories of the public authority, i.e. officials and employees in positions of authority”.
8. 283. In the case of directors of educational establishments, the teaching function is accompanied by other types of function, including supervision and control of the pupils attending the establishment and management of its staff. The terms of article 5(a) of the Estatuto Docente (teachers’ statutes), Act 14473, approved by Provincial Act 956/76, broadly provide that teaching staff must carry out their functions in a dignified, effective and loyal manner. Where directors are concerned, those functions include not only administration of the teaching side but also the administration, supervision and monitoring of the pupils, such functions being delegated by the State, which bears ultimate responsibility for any damage caused through the failure to fulfil such obligations.
9. 284. The Government points out that the State has delegated to directors certain crucial functions by virtue of which they are responsible for helping to avoid the kind of conflict of rights that occurs when they fail to fulfil their obligations, as happens when the right to strike clashes with the rights of the child in general. It is important to emphasize the fact that the obligation imposed by the resolutions to which the complainants object does not apply to all members of the teaching staff, but only to the administrative staff performing authoritative functions as representatives of the State. As regards the scope of the right to strike in relation to officials performing functions of this kind, the Committee has considered that “Recognition of the principle of freedom of association in the case of public servants does not necessarily imply the right to strike” and that “the right to strike may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State”.
10. 285. The Government adds that the Council, upon being informed of the protest measures being planned by the province’s educational union, requested the regional districts to provide the information necessary to ensure the provision of a minimum level of teaching activities, bearing in mind that these have to do not only with ensuring the pupils’ right to education but also include the school cafeteria services, and must therefore be considered essential services. In view of the special function that schools in Argentina fulfil in terms of nutrition, the Committee on Freedom of Association has recognized them as constituting an essential service. This social consideration is also underpinned by legislation in Neuquén province, where Act 242/61 (article 29, section VIII) makes it obligatory for the State to provide school cafeteria services to pupils of school age. Likewise, Decree 0572/62, containing the enabling provisions for Act 242, provides as follows: article 29 (regulatory): “The Provincial Education Council shall organize all the necessary services such as to ensure the pupil’s social, economic, physical and psycho pedagogical welfare.”
11. 286. Having regard to the obligation that is incumbent upon school directors, and by virtue of the responsibilities inherent in their position, the State has taken steps to ensure, on the one hand, that those of the establishment’s teachers and auxiliaries who did not participate in the direct action may also exercise their constitutional right to work, thereby guaranteeing the pupils’ right to learn, and, on the other hand, that pupils of school age receive daily meals. It is important in this regard to note that closure of the establishment on account of direct action bars access to those members of the teaching staff not engaging in that action and to non-teaching staff employed in the school canteen. It should further be noted that the latter category of staff comes under a different collective labour agreement that is not affected by the direct action in question. The risk and the danger that are entailed in the closure of public establishments in Neuquén province, given the nature of such establishments, are not arbitrary, but on the contrary undermine the protection of fundamental rights.
12. 287. The Government adds that the State’s obligation in regard to the provision of sustenance and child welfare became a constitutional one with the reform of 1994, which incorporated the Convention on the Rights of the Child into the text of the National Constitution. Similarly, article 257 of the Constitution of Neuquén province provides that “the laws which organize and regulate education should seek to ensure, to the extent possible, that those who lack resources are provided with clothing, equipment, snacks and other necessities such that they are able to pursue their obligatory education”. This constitutional provision has to do with the role that is played by schools in the process of social integration in Neuquén province. The serious nutritional deficiencies to be found among the child population have led the Government to transform school canteens into an effective means of ensuring health and nutritional welfare by becoming the main source of nutrition for children of school age affected by nutritional deficiency. Thus it is that many families accord greater significance to the welfare function of schools than to their traditional educational function.
13. 288. According to the Government, the information provided shows that the aim of the resolutions in question was not to limit the right of teachers to strike, but essentially to guarantee “the right of the child to enjoy the very highest possible level of health” and “to the greatest extent possible, the survival and development of the child”, in accordance with the obligations laid down in our National Constitution.
14. 289. The Government further indicates that article 14 of the National Constitution, as well as the international treaties incorporated in its text, protect the right to teach and to learn. Given that education is a basic right of the individual and a means of improving the quality of life of society as a whole, its status as a fundamental human right cannot be denied. Teachers’ strikes of an indefinite duration are bound to have an adverse effect on the main purpose of education, hampering the achievement of the learning goals that are pursued through the basic knowledge dispensed. The purpose of the disputed resolutions has been to ensure the fulfilment of the constitutional mandate that is incumbent upon the CPE. In accordance with the functions referred to in previous paragraphs, this entity is responsible for adopting measures to ensure the normal provision of educational services, including reasonable regulations governing the functioning of educational establishments during a period of direct action.

C. The Committee’s conclusions

1. 290. The Committee observes that in the present case the complainants allege that resolutions 1550 of 1999 and 163 of 2002, adopted by the Provisional Education Council (CPE) of Neuquén province, prohibit the directors of educational establishments in the province from exercising the right to strike by requiring them to be present at the establishment whenever protest days are taking place, while at the same time requiring them to draw up a list of those members of staff who participate in a stoppage. The complainants further allege that in 2004, pursuant to the aforementioned resolutions, numerous school directors received sanctions of 30 days’ suspension, official warnings and reprimands.
2. 291. In this respect, the Committee takes note of the Government’s statement that: (1) the disputed resolutions were adopted by the CPE, a tripartite body within which the teaching sector is duly represented; (2) school directors have a higher rank than the teaching staff, being in some measure depositories of the public authority and hence having a duty, by virtue of their position, to ensure the provision of the public service in question; (3) it is important to emphasize the fact that the obligation imposed by the resolutions to which the complainants object does not apply to all members of the teaching staff, but only to the executive staff performing authoritative functions as representatives of the State; (4) upon being informed of the protest measures being planned by the province’s educational union, the CPE requested the regional districts to provide the information necessary to ensure the provision of a minimum level of teaching activities, bearing in mind that these have to do not only with ensuring the pupils’ right to education but also include the school cafeteria services, and must therefore be considered essential services; and (5) the Government’s aim in adopting the resolutions in question was not to limit the right of teachers to strike, but essentially to guarantee the right of the child to enjoy the very highest possible level of health and, to the greatest extent possible, the survival and development of the child, in accordance with the obligations laid down in the National Constitution.
3. 292. These statements by the Government regarding the resolutions objected to by the complainants notwithstanding, the Committee notes that the documentation it attaches to its reply shows that the CPE of Neuquén province adopted a new resolution (record No. 2503-37259/02) declaring resolution 163 of 2002 null and void, removing from resolution 1550 of 1999 the obligation to inform on those participating in stoppages, and recognizing that the directors of establishments or anyone in charge thereof may, in the context of protest days, freely exercise the right to strike without any sanction whatsoever (see in annex hereto the full text of the new resolution). The Committee notes with interest the new resolution of the Provisional Education Council and requests the Government to report on the implementation of the resolution.

The Committee's recommendations

1. 293. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Noting that the documentation that the Government attaches to its reply shows that the Provincial Education Council (CPE) of Neuquén province adopted a new resolution (record No. 2503-37259/02) declaring resolution 163 of 2002 null and void, removing from resolution 1550 of 1999 the obligation to inform on those participating in stoppages, and recognizing that the directors of establishments or anyone in charge thereof may, in the context of protest days, freely exercise the right to strike without any sanction whatsoever (see in annex hereto the full text of the new resolution), the Committee notes with interest the new resolution of the CPE and requests the Government to report on the implementation of the resolution.

Z. Annex

• Resolution
• Record No. 2503-37259/02
• Provincial Education Council of the province of Neuquén
• In view of:
• Resolution 0163/02; and
• Considering:
• That in the matter of remuneration it is established, in accordance with the regulations in force, modern principles and case law, that in the public employment relationship the parties must fulfil their obligations fully and in a normal manner;
• That the legislation in force guarantees dignified and equitable working conditions as provided for in the National Constitution, such conditions having not been adhered to by this Provincial Education Council, given the state of the establishments;
• That there has been non-fulfilment on the part of the Provincial Education Council in regard to the timely and adequate payment of public employee salaries;
• That educational policies have been applied without the necessary consensus that is required under the Provincial Constitution, which entrusts such responsibilities to a deliberative body with representatives from the teachers and from the educational community;
• That such situations give rise to expressions of rejection and disagreement on the part of workers in the form of strike action as a means of protest that is legitimate and legally protected under article 14bis and specifically under the International Covenant on Civil and Political Rights and the Covenant of San José de Costa Rica, article 75(22), both of which form part of the National Constitution;
• That resolution 163/02 approves forms for sworn statements to be used for informing on workers’ presence and absence on days of protest;
• That it makes the directors of establishments responsible for drawing up the aforementioned sworn statements;
• That a worker who bears such a responsibility occupies a hierarchical post, as indicated in articles 8, 67, 101, 122 and 150 of Act 14473;
• That under the abovementioned Act, workers achieve such positions by satisfying requirements relating to length of service, educational qualification, level of performance and, in many cases, through a competition based not only on past performance but also competitive examination;
• That the director is therefore a worker who is free to decide whether to support and/or participate in action called for by the trade union organization;
• That in any case it is a decision of the employer who may not delegate to any employee as this constitutes an unfair practice that runs counter to the Act on professional associations;
• That any obligation to provide such information seriously violates the aforementioned constitutional rights;
• That a very serious view is taken of the irregularity in the regulations in regard to the non-fulfilment of duties imposed under constitutional and legal rules;
• That in accordance with article 64 of the Act on administrative procedures, pursuant to the provisions of articles 60 and 63, the competent authority is empowered to qualify such irregularities according to the degree to which the transgression violates the legislation in force;
• That it is fitting to declare it null and void pursuant to the provisions of article 70, with the effects of article 71 of the same legal instrument;
• That it is necessary to adopt the corresponding legal provision;
• Therefore,
• The Provincial Education Council of Neuquén
• Resolves
  1. (1) To declare resolution 163/02 null and void.
  2. (2) To exclude Annex IV – List of staff occurrences – resolution 1550/99, Code 2107 – Participation in stoppage.
  3. (3) To recognize that the directors of establishments or anyone in charge thereof may, in the context of days of protest, freely exercise the right to strike without any sanction whatsoever.
  4. (4) To provide that these communications shall be transmitted through the Directorate-General for Dispatch.
  5. (5) To record and to inform the representatives; the Provincial Administrative Directorate; the General Directorate for Human Resources; classification boards; the Directorate General for Primary Education; the Directorate General for Initial Education; the Directorate for Pupils with Special Needs; the Directorate General for Secondary Education; the Directorate General for Higher Education; the Directorate General for Technical and Agricultural Education and Professional and Management Training of Regional District Areas I to VIII; and to submit this instrument to the Directorate-General for Dispatch, according to article 4. Accomplished. For filing.