Rapport définitif - Rapport No. 359, Mars 2011

Cas no 2776 (Argentine) - Date de la plainte: 23-AVR. -10 - Clos

Allegations: The complainant organizations object to a ruling issued by the Subsecretariat of Labour and Social Security of the Executive Authority of the Province of Mendoza instituting a compulsory conciliation process concerning a salary dispute affecting the employees of the Judicial Authority of the Province of Mendoza

1. 264. The complaint is contained in a communication of the Argentine Judicial Federation (FJA) and the Trade Union Association of the Employees and the Officers of the Judicial Authority of the Province of Mendoza dated 23 April 2010. The complainant organizations sent new allegations in a communication dated 6 August 2010.
2. 265. The Government sent its observations in a communication of September 2010.
3. 266. 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. 267. In their communication of 23 April 2010, the FJA and the Trade Union Association of the Employees and the Officers of the Judicial Authority of the Province of Mendoza object to Ruling No. 2062/2010 of the Subsecretariat of Labour and Social Security of the Executive Authority of the Province of Mendoza and request that it be declared that said Subsecretariat is not an impartial and independent body, nor does it have the confidence of all parties for the purposes of resolving the dispute described in the complaint. Furthermore, the complainants consider that the threat to declare industrial action illegal, carried out by said Subsecretariat (part of the local Executive Authority) on 23 April 2010, constitutes a violation of freedom of association. The complaint organizations state that, since August 2009, within the framework of a collective bargaining process, the judicial employees of Mendoza have been involved in an ongoing dispute with the provincial State over a salary increase. The main impediment to any agreement is the failure by the employer to offer an adequate pay increase, together with other obstacles put in place by the employer (the provincial Executive Authority and the Supreme Court of the Province).
2. 268. The complainant organizations state that, in addition to the lack of an adequate offer regarding a salary increase, one of the most significant obstacles was the suspension by the Subsecretariat of Labour of the ámbito paritario (a meeting carried out on the basis of equality, in which decisions are taken collectively) halfway through the bargaining process. This suspension was announced in November of last year and more or less paralysed negotiations. The present complaint contains details of more recent facts (described in detail below), principally involving the said Subsecretariat (part of the provincial Executive Authority).
3. 269. On 21 April 2010, the Subsecretariat of Labour and Social Security of the Executive Authority of the Province of Mendoza, a federated member State of the Republic of Argentina, ordered the following through Ruling No. 2062/2010:
4. Article 1. Declare open the compulsory conciliation procedure under national laws Nos 24185 and 14786 and provincial law No. 4974 and other applicable regulations and provincial Decree No. 955/04, so that the parties to the present dispute (the provincial Executive Authority, the Supreme Court of Justice of the Province of Mendoza and the Trade Union Association of the Employees and the Officers of the Judicial Authority of the Province of Mendoza), and setting a hearing for 26 April 2010 at 6 p.m.
5. Article 2. As of this notification the parties in dispute shall not take direct action during the period established by law and the situation which existed prior to the dispute shall be restored, with normal services being resumed immediately, safeguarding guaranteed union rights, as prescribed by law.
6. Article 3. Let this be duly registered, announced, and filed. Signed, Dr Javier G. Castrillejo. Legal and Technical Affairs Sector. Ministry of Government, Justice and Human Rights. Government of Mendoza.
7. 270. The complainant organizations consider that on reading the above document it becomes clear that they are dealing with an employer which has granted itself the right to institute a compulsory conciliation process and then repeatedly to suspend the ámbito paritario. The ruling bears the stamp and signature of an official working for the Government of Mendoza, that is to say, the local Executive Authority (of which the employer is a part), which has the power to decide on the salary increase. The Trade Union Association of the Employees and the Officers of the Judicial Authority of the Province of Mendoza, together with its umbrella organization, the FJA, have repeatedly challenged the competence of said Subsecretariat (part of the provincial Executive Authority) and refused to accept that this body, which is institutionally and functionally dependent on the Governor of the abovementioned province, could intervene as an impartial body to resolve a dispute, an issue which has arisen in a dramatic and urgent fashion as regards this case given the confrontation between the judicial employees and the state employer.
8. 271. The complainants add that, at the time of the present complaint, the salary dispute has become ever tenser, involving the exercise of the right to strike, voted on by a workers’ assembly and observed by all those workers, without ruling out the possibility of negotiations (the sole condition of which being the respect of freedom of association). Despite this, the provincial Executive Authority, rather than participating in a process of adjustment or bargaining in good faith, chose to violate the freedom of association and the right to strike, posing as the competent (and supposedly partial and independent) body.
9. 272. The complainants state that the judicial employees of the Province of Mendoza have been holding meetings and assemblies and organizing strikes for years without the employer, that is to say, the provincial State (including, of course, the local Judicial Authority and the Executive Authority) ever questioning their right to do so. Moreover, at the last joint meeting on Friday, 16 April 2010, the Executive Authority made a unilateral statement to the effect that it would respect the right to strike within the context of the current process. However, this statement, which of course created a positive precedent, has now been contradicted by employer interference in the form of the actions of the abovementioned Subsecretariat. According to the complainant organizations, it is not feasible for the Subsecretariat of Labour and Social Security of the Province of Mendoza to claim to regulate and intervene as an impartial and/or independent body (something that it is not), while being part of the local Executive Authority, with the Under Secretary answering to the Governor and not being worthy of the trust of the workers as regards this dispute, an essential prerequisite for an impartial body.
10. 273. The complainant organizations therefore consider that the ruling issued by the Subsecretariat of Labour of the Province is illegal because it is a violation not only of the principles of freedom of association and of the impartial body but also of the principles of the republican form of government and the separation of powers in that: it violates the principle of the system of federal Government because it addresses issues which are delegated to the Congress of the Argentine Nation and exclusively governed by the National Executive Authority (articles 5, 121, 126, 99(2) and 75(12) of the Constitution); the provincial Executive Authority clearly exceeded its constitutional authority by taking on functions which correspond to other authorities and altering and restricting the system established under Act No. 25551 with regulatory exceptions with regard to the aspects governed by the contested instrument; it contravenes the principle of legality (articles 28 and 75(22) of the Constitution); and it violates the principle of freedom of association with restrictions breaching the principle of legality (article 75(22) of the Constitution, Articles 16 and 30 of the American Convention on Human Rights “Pact of San José, Costa Rica”, and Articles 5 and 8 of the International Covenant on Economic, Social and Cultural Rights).
11. 274. Moreover, according to the complainant organizations, the ruling in question, issued by the abovementioned Subsecretariat, is irregular and violates freedom of association, because it: subverts the priorities of action of the standards; infringes the principle of the supremacy of the laws (article 31 of the Constitution); contravenes the guarantee of equality (article 16 of the Constitution); is clearly discriminatory (article 75(22) of the Constitution, Articles 1, 2 and 7 of the Universal Declaration of Human Rights, Article 1 of the American Convention on Human Rights “Pact of San José, Costa Rica”, and article 1 of Act No. 23592); thwarts the guarantee of protection of trade union business established under article 14bis of the Constitution and the international standards and Conventions of the ILO previously mentioned; and interferes with the normal running of trade union activities. It should be stressed that Article 8 of the Labour Relations (Public Service) Convention, 1978 (No. 151), makes it clear that the ILO establishes alternative procedures for the setting of standards governing working conditions. One such procedure is the submission of this disagreement to an independent and impartial body.
12. 275. The complainant organizations state that the principle of “freedom of association” is enshrined in those international agreements that “enjoy constitutional status”, (article 75(22) of the Constitution), with that freedom covering the right of associations to hold meetings or assemblies and the right to strike. In accordance with the conditions set out, the right to collective bargaining and, where appropriate, to independent and impartial procedures for the resolution of conflicts arising during the course of bargaining processes or under other circumstances, must be fundamentally guaranteed, along with the exercise of trade union rights in general. Consequently, the attempt by the abovementioned Subsecretariat to intervene in the dispute should be rejected. Therefore, provincial States must be prevented from: exercising alleged “competences” to intervene in collective labour disputes arising with officials of the administration; instituting compulsory conciliation processes in said framework; and ruling on the legitimate measures of union action which may be adopted by trade union organizations.
13. 276. The complainant organizations state that they consequently consider that, under the Constitution, the provincial States lack the authority to: intervene in collective labour disputes arising with judicial employees; impose compulsory conciliation processes and rule on the status of measures for the employer State’s own benefit, acting under the “guise” of public authority through the provincial authority, given that said scenario breaches any rules of equity in the resolution of such conflicts, while representing undue interference in the collective autonomy of trade union organizations as prohibited by article 6 of the Act on Trade Union Associations.
14. 277. In their communication of 16 August 2010, the complainant organizations recall that the judicial employees of the Province of Mendoza were involved in an ongoing unresolved dispute with the provincial State over a salary increase. They add that, on 16 July 2010, they received a contravention notice at the headquarters of the Trade Union Association of the Employees and the Officers of the Judicial Authority of the Province of Mendoza stating that the union had received a six-figure fine for failing to comply with the “compulsory conciliation process” imposed by the Subsecretariat of Labour of the Province of Mendoza (a body which is subordinate to the Executive Authority). As well as being inappropriate, the fine is so high that it would simply wipe out the complainant organization in question.
15. 278. The complainants add that they constantly challenged the provincial Subsecretariat as regards its competence to intervene as an impartial body to resolve a dispute, an issue which arises in a dramatic and urgent fashion in the present case given the confrontation between the judicial employees and the employer State. Thus, when the so-called “compulsory conciliation process” was announced, the judicial trade union of Mendoza challenged it. In the document presented to the abovementioned Subsecretariat of Labour, the trade union categorically rejects Ruling No. 2062/2010 of the Subsecretariat of Labour of the Executive Authority of the Province of Mendoza “in view of the fact that said Subsecretariat does not have the special character of an impartial and independent body, nor does it enjoy the trust of all the parties for the purposes of resolving the dispute set out below”.
16. 279. The complainant organizations state that, without prejudice to this profound disagreement, in the same week that they rejected the compulsory conciliation process, the Executive Authority abandoned that same process and an agreement on salaries was reached at the joint bargaining table, bringing an end to the dispute. The agreement, dated 29 April 2010, which ended said dispute, states that “with regard to the statements of the trade union concerning sanctions and transfers of workers as a result of the dispute, the Executive Authority considers that, within the framework of the law, such measures are inappropriate ...”. In addition to the joint agreement (in which the Executive Authority itself undertakes to refrain from imposing sanctions), in accordance with legislation, once a dispute has been resolved and an agreement reached regarding salaries, there shall be no further consequences.
17. 280. The complainants allege that the Executive Authority, however, did not comply with the agreement and proceeded to violate the relevant laws and regulations in force. Following the resolution of the dispute and the establishment of the agreement that no sanctions of any kind would be imposed, the employer (the provincial State) imposed a financial sanction on the trade union (the amount of which was several times higher than the union’s assets), in accordance with the contravention notice of 16 July 2010. By reactivating a notice which had become completely irrelevant in the light of the resolution of the dispute, the joint agreement and the undertaking, among other things, not to impose sanctions of any kind, the Subsecretariat claims that it is responding to the submission in which, appropriately and in the midst of the dispute over the salary increase, the trade union challenged the so-called “compulsory conciliation process” with the Subsecretariat consequently imposing a fine for non-compliance with that process.
18. 281. The complainants state that, following various arguments which had no legal basis, the ruling dated 12 July 2010, which disregards freedom of association, states that “the Trade Union Association of the Employees and the Officers of the Judicial Authority of the Province of Mendoza shall be fined, taking into account, for the purposes of the calculation of the fine, the number of judicial employees represented (members and nonmembers) by the trade union organization”. The alleged grounds are failure to participate in a compulsory conciliation process, irrelevant given that, had the process been held before an independent and impartial body as required by the ILO, the trade union would have participated. As the process was to take place before an employer body, the trade union declined to participate.
19. 282. According to the complainant organizations, the attitude of the provincial State (the Executive Authority and the Judicial Authority) is absurd. In the same ruling in which the fine is imposed it is stated that the issue of the compulsory conciliation process will not be taken into account because the dispute was resolved jointly and therefore the process is irrelevant. It is irrelevant as regards this issue but not, according to the State, with regard to the imposition of the sanction and the fine.
20. B. The Government’s reply
21. 283. In its communication of September 2010, the Government states that, when consulted, the Subsecretariat of Labour of the Province of Mendoza stated that: (1) the legislative framework within which the negotiations were carried out was Act No. 24185, provincial Decree No. 955/2004, provincial act No. 4974 establishing the Subsecretariat of Labour of the Province of Mendoza and the agreement dated 17 June 2005 reached between the parties to the joint dialogue in the judicial sector; (2) the salary negotiations completed between the trade union organization, the Supreme Court of Justice of the province and the provincial Executive Authority continued into 2010; (3) the meetings were set in accordance with the wishes of the parties, or the calendar of the joint dialogue which called for two meetings per month and on 26 March 2010 the trade union organization began to carry out direct action, consisting of strikes by the staff of the Judicial Authority; (4) despite the direct action carried out, the ámbito paritario continued to be held, with meetings in which the parties exchanged offers and established their positions regarding salaries and other issues; (5) as a result of the fact that the judicial service of the Province of Mendoza was almost completely paralysed, the spread of the strike to the penal service and the danger posed by this situation to the general population, through Decree No. 22681 of 21 April 2010, the Supreme Court of Justice of Mendoza (SCJM) requested the Governor of the province to institute a compulsory conciliation process as regards the dispute in question; (6) at the time of the request of the SCJM, industrial action had been taken on 26, 30 and 31 March and on 5–9, 12–16, 19 and 20 April 2010; (7) on 21 April 2010, Ruling No. 2061 was issued in which the Subsecretariat of Labour instituted a compulsory conciliation process regarding the dispute in question; (8) the second article of the ruling states that the parties in dispute shall abstain from taking direct action for the duration of the dispute, with normal services being resumed immediately. The parties were notified of that ruling but the trade union organization did not comply with it, continuing to carry out direct action. Despite all this, the ámbito paritario continued to function, and a salary agreement was reached on 29 April 2010 within that forum; and (9) the objections raised by the trade union regarding the compulsory conciliation process were fundamentally based on the alleged lack of competence of the labour body to issue the said ruling, as well as with regard to the joint dialogue in general and on the fact that, in the trade union’s view, a number of international agreements in force prevented the State from instituting a compulsory conciliation process within the framework of a state joint dialogue.
22. 284. The provincial administrative authority adds that it should also be noted that, faced with the trade union organization’s disregard for the authority of the Subsecretariat of Labour as the body within which the joint dialogue process is carried out, and for the powers granted to the administrative authority by Act No. 24185 and Decree No. 955/2004 regarding the joint dialogue, and at the request of the other parties involved in the joint dialogue, on 9 November 2009 Ruling No. 8819/09 was issued expressly establishing the scope of competence of the body as regards the joint dialogue process (the Trade Union Association of the Employees and the Officers of the Judicial Authority of the Province of Mendoza being notified of that ruling without lodging any kind of appeal against it).
23. 285. The Government states that the fact that Article 8 of Convention No. 151 specifically states that conciliation is a valid means of negotiation and that the complainant organization participated in that conciliation and reached an agreement should be taken into account. It states that the allegations presented are not sufficient for the attitude of the labour body to be considered as a breach of freedom of association, but rather the opposite. According to the Government, the legislation applied is appropriate and known to all the parties involved in the dispute. In particular, the trade union was informed of the measure, without the provincial administrative authority being aware at any point of its opposition until the present complaint was submitted.

C. The Committee’s conclusions

1. 286. The Committee notes that, in the present case, the complainant organizations: (1) object to the ruling issued by the Subsecretariat of Labour and Social Security of the Executive Authority of the Province of Mendoza opening a compulsory conciliation process (within the framework of a salary dispute) between the complainants, the provincial Executive Administration and the SCJM (the complainants state that they have constantly challenged the competence of the abovementioned Subsecretariat to intervene as an impartial body in order to resolve a dispute); and (2) allege that, although the dispute was resolved on 29 April 2010 and an agreement was signed under which the provincial Executive Authority undertook not to impose sanctions, the said authority did not respect the agreement, imposing a fine on the trade union organizations that was several times larger than their assets for failure to participate in the compulsory conciliation process.
2. 287. As to the contested compulsory conciliation process instituted by the Subsecretariat of Labour and Social Security of the Executive Authority of the Province of Mendoza within the framework of a salary dispute, the Committee notes that the Government states that it contacted the Subsecretariat in question and received the following response: (1) the legislative framework within which the negotiations were carried out consisted of Act No. 24185, provincial Decree No. 955/2004, provincial Act No. 4974 establishing the Subsecretariat of Labour of the Province of Mendoza and the agreement dated 17 June 2005 reached between the parties to the joint dialogue in the judicial sector; (2) the salary negotiations completed between the trade union, the SCJM and the provincial Executive Authority continued into 2010 and meetings were set in accordance with the wishes of the parties, or the calendar of the joint dialogue which called for two meetings per month; (3) on 26 March 2010, the trade union began to carry out direct action, consisting of strikes by the staff of the Judicial Authority but, despite the direct action carried out, the ámbito paritario continued to be held, with meetings in which the parties exchanged offers and established their positions regarding salaries and other issues; (4) as a result of the fact that the judicial service of the Province of Mendoza was almost completely paralysed, the spread of the strike to the penal service and the danger posed by this situation to the general population, through Decree No. 22681 of 21 April 2010 the SCJM requested the Governor of the province to institute a compulsory conciliation process as regards the dispute in question. At the time of the request of the SCJM, industrial action had been taken on 26, 30 and 31 March and on 5–9, 12–16, 19 and 20 April 2010; (5) on 21 April 2010, Ruling No. 2061 was issued in which the Subsecretariat of Labour instituted a compulsory conciliation process regarding the dispute in question. The second article of the ruling states that the parties in dispute shall abstain from taking direct action for the duration of the dispute, with normal services being resumed immediately. The parties were notified of that ruling but the trade union did not comply with it, continuing to carry out direct action. Despite all of this, the ámbito paritario continued to function, and a salary agreement was reached on 29 April 2010 within that forum; (6) it should be noted that, faced with the trade union’s disregard for the authority of the Subsecretariat of Labour as the body within which the joint dialogue process is carried out, and for the powers granted to the administrative authority by Act No. 24185 and Decree No. 955/2004 regarding the joint dialogue, and at the request of the other parties involved in the joint dialogue, on 9 November 2009, Ruling No. 8819/09 was issued expressly establishing the scope of competence of the body as regards the joint dialogue process (the Trade Union Association of the Employees and the Officers of the Judicial Authority of the Province of Mendoza being notified of that ruling without lodging any kind of appeal against it). According to the Government, the legislation applied is appropriate and known to all the parties involved in the dispute. In particular, the trade union was informed of the measure, without the provincial administrative authority being aware at any point of its opposition until the present complaint was submitted.
3. 288. As to the allegation concerning the compulsory conciliation process, the Committee notes that the salary dispute which gave rise to the strike (16 days of industrial action) and the summons to the compulsory conciliation process took place within the framework of the Judicial Authority of the Province of Mendoza and recalls that it has, on numerous occasions, stated that “Officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 578]. Furthermore, the Committee has stated on previous occasions that “Legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association and, in general, a decision to suspend a strike for a reasonable period so as to allow the parties to seek a negotiated solution through mediation or conciliation efforts, does not in itself constitute a violation of the principles of freedom of association” [see Digest, op. cit., paras 549–550]. In these circumstances and bearing in mind the aforementioned principles, the Committee will not pursue its examination of these allegations.
4. 289. As to the allegation that the provincial Executive Authority did not respect the agreement which ended the salary dispute in question, imposing a fine on the trade union organizations (the amount of which was several times higher than their assets) for failure to participate in the compulsory conciliation process, despite the fact that, according to the complainant organizations, the provincial Executive undertook not to apply sanctions, the Committee notes that the Government has not sent its observations in that regard. In that respect, the Committee observes that the complainant organizations do not specify the amount of the fine they received. In these circumstances, while observing that the documentation sent by the complainants includes a contravention notice (under Act No. 25212 establishing the violation by any of the parties of rulings issued regarding compulsory conciliation processes as a very serious infraction) summoning the complainant organizations to defend themselves and discharge themselves of the allegations, the Committee recalls that agreements should be binding on the parties and 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, op. cit., paras 935 and 939], and requests the Government to take the necessary measures to ensure that the agreement in question is respected and, if the agreement effectively expresses what is alleged by the complainant organizations, that the sanctions referred to by the complainants are not imposed.

The Committee's recommendations

1. 290. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • As to the allegation that the Executive Authority of the Province of Mendoza did not respect the agreement which ended the salary dispute in question, imposing a fine on the trade union organizations (the amount of which was several times higher than their assets) for failure to participate in the compulsory conciliation process, despite the fact that, according to the complainant organizations, the provincial Executive Authority undertook not to apply sanctions, the Committee requests the Government to take the necessary measures to ensure that the agreement in question is respected and, if the agreement effectively expresses what is alleged by the complainant organizations that the sanctions referred to by the complainants are not imposed.