Rapport définitif - Rapport No. 349, Mars 2008

Cas no 2513 (Argentine) - Date de la plainte: 30-JUIL.-06 - Clos

311. The complaint is contained in a communication from the Confederation of Argentine Workers (CTA) and the Association of State Workers (ATE) of July 2006.

1. 311. The complaint is contained in a communication from the Confederation of Argentine Workers (CTA) and the Association of State Workers (ATE) of July 2006.
2. 312. The Government sent its observations in a communication of 23 October 2007.
3. 313. 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. 314. In their communication of July 2006, the CTA and the ATE alleged a violation of Convention No. 87 following the declaration in resolution No. 032-ST of 20 April 2006, issued by the Office of the Under-Secretary for Labour and Social Security of San Juan Province, that the direct action organized by the Association of State Workers in that province was illegal.
2. 315. The complainants state that Argentina ratified Convention No. 87 in 1960, Articles 3 and 10 of which guarantee the right to strike, and that article 14bis of the Argentine Constitution guarantees trade unions the right to strike as a fundamental right. Moreover, the International Covenant on Economic, Social and Cultural Rights specifically provides that States parties are obliged to ensure the right to strike (article 8.1(d)). The first paragraph of section 75.22 of the National Constitution, which provides that international treaties, including ILO Conventions, take precedence over national laws, completes this circle of protection for freedom of association. Furthermore, section 67.3 of the Constitution of San Juan Province states: “Trade Union Guarantees. The State guarantees the following rights to trade unions: … (3) The right to strike, as a way of protecting the rights of workers and social guarantees. No repressive measures may be taken against the participants of a strike, if they present no obvious threat to public safety.”
3. 316. The complainant organizations indicate that, despite the provisions relating to formal protection of the right to strike, the Office of the Under-Secretary for Labour of San Juan Province issued the following resolution:
4. Resolution No. 032-ST, dated 20 April 2006: “In view of: File No. 208-0949-C-06, entitled “Social Welfare Fund: Report on industrial action by staff” and Addendum
5. No. 208-1005-C-06; Considering: … that this body is competent to intervene in the dispute in question, it is necessary to investigate the direct action taken by the staff members of the Fund who belong to the Association of State Workers (ATE), by assessing the conduct of the parties to the conflict …. Therefore: the Director of Labour Relations, on behalf of the Office of the Under-Secretary for Labour, resolves: Section 1: To declare illegal the direct action taken in relation to the Social Welfare Fund by the staff members of the Fund who belong to the Association of State Workers (ATE), based in Rivadavia Street No. 524 (East), San Juan City, as indicated in the recitals above. Section 2: To order the abovementioned association and the staff members involved in the direct action, with the requirement of submitting authenticated copies of the relevant documents to the National Ministry of Labour, Employment and Social Security, to apply the sanctions that are deemed appropriate, considering if necessary the removal of the trade union status of the association. Section 3: To notify the parties involved in the dispute, by providing them with a copy of this resolution, in accordance with the provisions of Section 103 et seq. of Act No. 5976. Section 4: This is hereby a resolution of the Office of the Under-Secretary for Labour. Let it be enforced, published and filed. Signed: Dr Roberto L. Correa Esbry – Director of Labour Relations on behalf of the Office of the Under-Secretary for Labour of San Juan Province.
6. Subsequently, the Executive Board of the Social Welfare Fund issued the following resolution:
7. Resolution No. 263 of 8 May 2006: “In view of File No. 708-00006892-A-06 and File No. 708-0000706-A-06, relating to the Social Welfare Fund; Considering: …that attached hereto is resolution No. 032-ST of 20 April 2006, in which the Office of the Under-Secretary for Labour declares illegal the direct action taken by the staff members of the Social Welfare Fund who belong to the trade union ATE, and orders the Fund and the staff members involved to lift the direct action, with the requirement of submitting authenticated copies of the documents relating to the action taken to the National Ministry of Labour and Social Security, to apply the sanctions that are deemed appropriate; resolves: Section 1: To order the Finance Office to dock the salaries of the employees of the Social Welfare Fund that participated in the industrial action for the days of work stoppage, with the exception of the staff of the Casino del Parque, in accordance with the provisions of Decree No. 0036, dated 20 September 2002, from their May 2006 pay packet. Section 2: The Administrative and Accounting Departments will take the measures within their competence. Section 3: This is hereby a resolution of the Executive Board. Let it be published and filed.
8. 317. The complainant organizations indicate that, prior to the issuance of the abovementioned resolutions, on 20 April 2006 the Executive Council of the Association of State Workers (CPD ATE San Juan) decided on behalf of the workers of the Social Welfare Fund to take direct action in the form of a work stoppage on 20, 21 and 22 April 2006 and subsequently informed the National Ministry of Labour and Social Security of that decision. As agreed by the staff of the Social Welfare Fund, the Director of the Fund was informed on 20 April 2006 of the intended action. In the absence of a response from the employer, an assembly of employees of the Social Welfare Fund decided to continue the industrial action and notified the National Ministry of Labour and Social Security of the decision on 24 April 2006.
9. 318. They add that the National Ministry of Labour and Social Security was informed in a note of the workers’ decision to continue the industrial action in the form of a work stoppage on 25 April 2006. In the absence of a response to the demands of the staff of the Social Welfare Fund, the staff assembly decided to extend the industrial action, in the same form, to 26 April 2006 and informed the National Ministry of Labour and Social Security of the decision in a note dated 26 April 2006. On 27 April 2006, in a note of the same date, an assembly of Social Welfare Fund staff decided to suspend the industrial action that had been taken with respect to wage claims in anticipation of a response from the relevant authorities. During this period, the Director of the Social Welfare Fund informed the Office of the Under-Secretary for Labour of the Province of the measures that had been taken by the staff and the Office issued resolution No. 032-ST-06, declaring the strike to be illegal. Subsequently, in resolution No. 263 of the Social Welfare Fund, the Fund ordered salary deductions corresponding to the days of work stoppage by the staff. This measure was adopted, taking into account that the Office of the Under-Secretary for Labour of the Province had declared the direct action to be illegal.
10. 319. The complainants state that the main demand of the workers of the Social Welfare Fund of San Juan Province related to the regulation of their salaries to ensure economic stability and that it was only the indifference to and lack of interest in providing a response that prompted the workers to initiate industrial action. In this case, the workers are seeking collective talks and it is the employer – in other words, the provincial authority – that is making this impossible. There is no question of there being an absence of a legislative framework. Argentina in general, and San Juan Province in particular, have an abundance of regulations in this field.
11. 320. The complainants state that the Association of State Workers has trade union status and members who work in the municipality of San Juan and that the case involves industrial action organized and carried out by a group of workers whose demands relate solely to salaries and working conditions and who are entitled to strike in a way that is organized and carried out collectively. The complainants add that, neither the case file prepared for inspection nor any of the background information suggest that any dispute settlement process was initiated by the employer. Rather, it was the workers who consistently called for collective bargaining and gave notice of the intended action in the face of the employer’s silence and the provincial and national authorities were duly informed of every initiative. They also maintain that the matter of a wage increase and the need for collective bargaining were central issues in every petition and communication regarding the direct action. The case involves unwarranted interference by the national authorities that constitutes a violation of freedom of association and violates Convention No. 87.
12. B. The Government’s reply
13. 321. In its communication of 23 October 2007, the Government rejects claims that the principles of freedom of association have been violated in San Juan Province. The Government states that the national authorities intervened in accordance with international labour standards, Conventions Nos 87 and 98, which permit the national authorities to intervene in disputes in exceptional circumstances and for a certain period, which is the basis for this legitimate intervention involving the deduction of salaries corresponding to the days not worked following the declaration that the industrial action was illegal, as stipulated in section 1 of resolution No. 263 of 8 May 2006.
14. 322. The Government states that no ministerial office in San Juan Province was informed in good faith of the situation of unrest and dispute mentioned in the complaint. It is not true to say that the authorities of San Juan Province remained silent; rather, the complainants failed to present the necessary information, which might mislead the Committee in its examination of the facts. According to the Government, the complainants make reference to notifications relating to the dispute that were never presented to the relevant jurisdiction (administrative authority). They failed to establish a dialogue with the provincial authorities and, more deliberately, avoided the opportunity to reach a negotiated settlement with those authorities, which constitutes a violation of the principles of freedom of association, as this omission is preventing the initiation of the dispute settlement procedure.
15. 323. The Government adds that the submissions were always sent to the San Juan regional office of the National Ministry of Labour. Consequently, the allegations of the complainants have an irreparable flaw of nullity vis-à-vis the provincial authorities. It was the trade union sector that refused to enter into dialogue. It is worth noting that Section 102 of Act No. 5902 provides: “In the event that parties are unable to settle a dispute, either party, prior to taking direct action, should give 24 hours’ notice to the Office of the Under-Secretary for Labour. As a result of such a communication, or acting ex officio, if deemed appropriate, taking into account the nature of the dispute, the Under-Secretary for Labour may decide to initiate the compulsory conciliation procedure immediately”. It is clear that the conciliation procedure provided for under San Juan legislation was omitted deliberately, in order to justify the direct action as a foregone conclusion.
16. 324. The Government underscores that the industrial action was taken without consultation, without warning and without any prior claim or petition being submitted and it is clear that the available procedures established under the laws in force for achieving a negotiated settlement were not exhausted. In the above context, the provincial authorities were entitled, in what was an emergency situation caused by sudden action in a body responsible for safeguarding human life, safety and health, to take measures to avoid a situation that might jeopardize the guarantees that international legislation requires it to protect. In fact, the Social Welfare Fund is involved in various aspects of the provision of public assistance, such as designing housing schemes, providing medical and healthcare assistance to pensioners in the province and offering credit, all of which are channelled towards a social segment of the population in emergency situations. The Government points out that the national authorities were in a situation of necessity because, as the Committee will appreciate, the mechanisms of intervention in the dispute had been disrupted. In this respect, section 107 of Provincial Act No. 5976 provides: “The implementing authority may order the immediate cessation of the direct action undertaken by the parties to the dispute. To this end, the implementing authority has the power to decide, through a justified resolution taking cognizance of the dispute, that the situation must revert to that which existed prior to the action or events causing the dispute …”. The application of section 107 is subject to National Act No. 14786, in accordance with the provisions of section 101 of the Provincial Act, which states: “Notwithstanding the national legislation in force on this matter, disputes shall be settled through conciliation, mediation or arbitration procedures.” Act No. 14786 on compulsory conciliation reserves the right of the Government to restrict with regard to two parties in dispute the application of such a provision, in accordance with the principles of freedom of association, for a full period of 15 days which may be extended for a further five days or for a portion of that time. Its aim is not to introduce changes but to restore the situation to the way it was the day before the events causing the dispute. The intervention is not by the employer authority, because the other party refused to give it such status, by not making the formal submissions required by law to facilitate dispute proceedings, and it is this that justifies this intervention. According to the Government, all the complainants’ submissions bear the seal of the national jurisdiction (administrative authority), which cannot be considered as an error, but rather a deliberate move to prevent the province from being a necessary party in the dialogue.
17. 325. With regard to the declaration that the strike was illegal, the Government indicates that, from the background information provided, it should be noted that the national authorities intervened on a temporary basis and that during that period, which is provided for under law, the aim was to restore the conditions existing prior to the events that caused the dispute. The declaration of the illegality of the work stoppage in the province is valid, as there is no question of whether or not there is an independent body to make such a declaration of illegality, by virtue of the fact that the provincial authorities are not recognized as being the employer, on the grounds that, according to the Office of the Under-Secretary for Labour of San Juan Province, this is a political matter. Lastly, the Government underscores that, as indicated by the Committee, strikes may be restricted in relation to services that, if interrupted, could jeopardize the life, safety or health of all or part of the population. If the social objectives of the Social Welfare Fund of the San Juan Province are taken into account, this last principle applies in the case in question.

C. The Committee’s conclusions

1. 326. The Committee observes that the complainant organizations dispute resolution No. 032-ST dated 20 April 2006 issued by the Office of the Under-Secretary for Labour of San Juan Province declaring the direct action of the staff of the Social Welfare Fund to be illegal (ordering the cessation of the direct action or the application of appropriate sanctions – including the removal of trade union status) and resolution No. 263 of 8 May 2006 issued by the Social Welfare Fund ordering deductions corresponding to the days of work stoppage from the salaries of employees who participated in the industrial action (according to the complainants, on 20 April 2006, the Executive Council of ATE San Juan decided on behalf of the workers of the Social Welfare Fund, to carry out a work stoppage with respect to wage claims on 20, 21 and 22, 25 and 26 April 2006 and the National Ministry of Labour and Social Security and the Director of the Social Welfare Fund were informed of that decision – the relevant communications are attached to the complaint – this decision was adopted in the face of the indifference to and lack of interest in providing a response and an opportunity for discussion).
2. 327. The Committee notes that, according to the Government: (1) the complainants did not inform the ministerial office of the San Juan Province of the dispute and therefore did not enter into dialogue and avoided the opportunity to achieve a negotiated settlement with the provincial authorities; (2) the direct action (work stoppage) was taken without consultation, without warning and without any prior claim by the complainants; (3) the provincial authorities were entitled to take action in what was an emergency situation caused by sudden action in a body responsible for safeguarding human life, safety and health, (according to the Government, the Social Welfare Fund is involved in designing housing schemes, providing medical and healthcare assistance to pensioners in the province and offering credit, etc., all aimed at a social segment of the population in emergency situations, meaning that a restriction could be placed on the strike); (4) all the complainants’ communications were sent to the national jurisdiction (the Committee understands this to mean national administrative authority), preventing the province from being a necessary party in the dialogue; and (5) the declaration of the illegality of the work stoppage is valid, as there is no question about whether or not there is an independent body to make such a declaration, by virtue of the fact that the provincial authorities are not recognized as being the employer.
3. 328. With regard to the notification of the dispute, the Committee observes from the documentation provided by the complainant organizations, that the dispute had been notified to the Social Welfare Fund (the direct employer of the striking workers) and the regional representative of the National Ministry of Labour itself. Nevertheless, the Committee notes that no national or provincial authority tried to mediate with or conciliate the parties during the five-day strike in question.
4. 329. In any case, with regard to the declaration that the stoppage of activities by workers of the Social Welfare Fund was illegal, which subsequently led to the decision of the Fund authorities to dock the workers’ salaries for the days of work stoppage, the Committee regrets that it must recall that, on many occasions – including in connection with a case relating to Argentina [see 338th Report, Case No. 2373, para. 378] – it has emphasized that the declaration of illegality of actions such as strikes should not be a matter for the Government but for an independent body that enjoys the confidence of both parties. Under these circumstances, the Committee expects that the Government will respect this principle in the future.

The Committee's recommendations

1. 330. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets the declaration of illegality of the work stoppage by the workers of the Social Welfare Fund of San Juan Province, on the basis of a decision made by a non-independent body.
   • (b) For this reason, the Committee questions the decision by the Fund authorities to dock the salaries of the workers for the days of work stoppage on the basis of a declaration of illegality by a non-independent organ.
   • (c) The Committee emphasizes that the declaration of illegality of actions such as strikes should not be a matter for the Government but for an independent body that enjoys the confidence of both parties and expects that the Government will respect this principle in the future.