Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 363, Mars 2012

Cas no 2837 (Argentine) - Date de la plainte: 03-FÉVR.-11 - Clos

Allegations: The complainant organization alleges bad faith and exclusion from the collective bargaining process in the Teatro Colón autonomous body; declaration of a strike illegal by the administrative authority and termination (dismissal) of eight trade union officers for participating in a strike

1. 290. The complaint is contained in a communication from the Association of State Workers (ATE) dated 3 February 2011. The ATE sent additional information in a communication dated 5 September 2011.
2. 291. The Government sent its observations in a communication dated 3 November 2011.
3. 292. 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 Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 293. In its communication dated 3 February 2011, the ATE stated that it was presenting a complaint against the Government of Argentina for violation of ILO Conventions Nos 87, 98, 151 and 154 because of numerous violations of freedom of association committed by the Government of the Autonomous City of Buenos Aires (GCBA), namely: (a) violation of the principle of bargaining in good faith; (b) the declaration by the Office of the Undersecretary of Labour of the Autonomous City of Buenos Aires that the strike at the Teatro Colón autonomous body was illegal; and (c) sanctions and disciplinary proceedings against theatre workers for industrial action and for their participation in trade union activity.
2. 294. The ATE is a first-level trade union active throughout Argentina and an affiliate of the Confederation of Argentine Workers (CTA). The ATE adds that article 14bis of the Argentine Constitution guarantees trade unions the right to collective bargaining and the right to strike as fundamental rights. The second indent of article 75, paragraph 22, accords constitutional status to a number of international human rights treaties, including the 1966 New York Covenants, thereby granting the same status to Convention No. 87 (Article 8, paragraph 3, of the International Covenant on Economic, Social and Cultural Rights and Article 22, paragraph 3, of the International Covenant on Civil and Political Rights). This circle of protection of freedom of association is made complete by the first paragraph of article 75(22) of the national constitution, which grants supra-legal status to other international treaties, including the ILO Conventions. Act No. 471 of the Autonomous City of Buenos Aires guarantees the right of state workers to collective bargaining. Moreover, section 1 of the Act provides that ILO Conventions are a source of regulation of public employment relationships within the Executive of the Autonomous City of Buenos Aires.
3. 295. The ATE states that, despite this formal protection of the right to collective bargaining, the GCBA, during collective wage bargaining with civil servants, practised discrimination, and obstructed and ultimately abandoned collective bargaining with that organization, in addition to imposing sanctions on the workers of the Teatro Colón autonomous body for legitimately exercising their right to strike. The ATE has been seeking a resolution to a dispute over conditions of employment and wage increases in the Teatro Colón autonomous body ever since the theatre reopened on 24 May 2010. In this context, and in the light of the many wage demands to which the employer has failed to respond, the ATE decided to carry out industrial action in the theatre.
4. 296. The ATE adds that on 28 October 2010, compulsory conciliation was ordered by the Office of the Undersecretary of Labour of the Autonomous City of Buenos Aires with a view to holding collective bargaining meetings on working conditions, the requested wage increase, and the new administrative career and grade structure of workers of the Teatro Colón autonomous body. As a result, conciliation hearings were held (as may be seen from the attached records) under file No. 1.493.152/2010 of the Office of the Undersecretary of Labour of the Autonomous City of Buenos Aires, culminating on 15 December 2010 with the failure of GCBA representatives to appear. According to the ATE, the Ministry of Finance of the Autonomous City of Buenos Aires, in an utterly inappropriate attempt to defuse the conflict, while the abovementioned negotiations were under way, and disregarding the principle of bargaining in good faith, issued decision No. 2855/GCBA/MHGC/10 granting a bonus equal to half of the end-of-year bonus, which was rejected by the ATE.
5. 297. The ATE states that, notwithstanding the bargaining process, the representatives of the authorities told a gathering of workers that they did not intend to reach an agreement on the grounds that there were no funds available for wage increases at the theatre. On 3 December 2010, the Office of the Undersecretary of Labour of the Autonomous City of Buenos Aires informed the ATE of decisions Nos 4181/SSTR/2010 and 4902/SSTR/2010, under file No. 1.368.320/2010, in which the industrial action on 4 and 30 November 2010 was declared illegal. The ATE promptly appealed against the decisions on the grounds that the Office of the Undersecretary of Labour does not have jurisdiction to declare a strike illegal and this constitutes an act of interference by the State as the employer. Notwithstanding the above, and displaying its willingness to bargain in good faith, the ATE on 15 December 2010 appeared before the Office of the Undersecretary of Labour with the intention of pursuing the negotiations that had begun, but the authorities failed to do likewise and broke off all talks with the ATE.
6. 298. At the same time as the negotiations were being abandoned and the industrial action on 4 and 30 November 2010 was declared illegal, the Director-General and Artistic Manager of Teatro Colón initiated administrative proceedings to determine who was responsible for the industrial action and, pursuant to decision No. 547/EATC/2010, suspended eight workers who were ATE officers, thereby violating their trade union immunity enshrined in Act No. 23551 and article 14bis of the national constitution. As if that were not enough, early in the new year decisions Nos 0627/EATC/2010, 0001/EATC/2011 and 0008/EATC/2011 were issued suspending additional theatre workers and extending the suspensions of the officials who were already suspended.
7. 299. The discriminatory situation subsequently worsened when, on 12 January 2011, representatives of the employer, the GCBA, met with representatives of the Union of State Workers of the City of Buenos Aires (SUTECBA) – the other trade union with official trade union status with regard to the GCBA – and, within the framework of sectoral collective bargaining in Teatro Colón, an agreement was signed whereby a number of workers with permanent contracts were reinstated, excluding the ATE. At the same time, eight of the ten trade union officials on the ATE internal board were suspended for 60 days, the clear intention being to prevent them from working at Teatro Colón while the collective bargaining process was being completed.
8. 300. The ATE reports that appeals were lodged against the suspensions, and intervention by the National Labour Court was requested in order to obtain a stay of execution of the suspensions. Accordingly, four interim measures were issued (with orders for reinstatement) in favour of the trade union officials in the cases of “Piazza, José Estaban v. GCBA interim measure” (Case No. 51.442/10), “Piazza, José Estaban v. GCBA in re interim measure” (Case No. 53/11), “Parpagnoli, Máximo v. GCBA in re interim measure” (Case No. 44/11) and “Tonazzi, María Sara v. GCBA in re interim measure” (Case No. 45/11), but the Government and the Teatro Colón autonomous body did not comply with them.
9. 301. At a press conference held by the manager of Teatro Colón on 20 January 2011, a collective agreement with SUTECBA was announced. Under the agreement, there would be a wage increase in line with the theatre’s productivity in 2011, and the theatre undertook to negotiate on the grade and/or administrative career structure in the near future. The ATE points out that the SUTECBA issued an official statement saying that “on 20 January 2011 … following joint sectoral negotiations within Teatro Colón, and in the absolute conviction that the only valid way to achieve concrete agreements that benefit all colleagues at the theatre is through dialogue in a spirit of mutual respect and collaboration, this trade union delegation is announcing the scope of the points of agreement reached so far. This is a first step towards restoring the reputation of Teatro Colón, and the salaries commensurate with this status ...”.
10. 302. Furthermore, the Director-General and Artistic Manager officially announced the collective agreement from which the ATE had been excluded, and told the media that “this is a groundbreaking agreement because it not only deals with the wage issue but also paves the way for a future where the theatre flourishes and the public can fully enjoy the Colón”. The human resources secretary of the GCBA added that “these people have jeopardized the theatre and tried everything to keep its doors closed, then attempted to discredit each and every one of the actions we have taken”.
11. 303. According to the ATE, the position adopted by the Government constitutes a systematic violation of freedom of association, collective bargaining, the separation of powers and trade union representation in at least the following ways: Firstly, the declaration that the strike was illegal was made without the slightest authority and constituted an attempt to violate recognized constitutional and international law. Secondly, there has been a denial of the right to free collective bargaining with the ATE since an agreement was reached with only one of the trade unions entitled to bargain, thereby violating the principle of bargaining in good faith, and discriminating against one of the representative unions. Thirdly, in the midst of a conflict, sanctions were imposed on the workers and officers of the ATE for participating in the strike.
12. 304. In its communication dated 5 September 2011, the ATE reported that, pursuant to the ruling of 11 August 2011, in the case of “Association of State Workers et al. v. GCBA in re amparo proceedings”, the GCBA was fined 50,000 Argentine pesos (ARS) for failing to comply with the ruling concerning the interim measure ordering the Teatro Colón autonomous body to abstain from continuing with collective bargaining. The ATE adds that decision No. 519/EATC/2011 issued by the Teatro Colón autonomous body aggravated the violation of freedom of association since it caused eight officials of that organization to be dismissed as a sanction for having exercised their right to strike (according to the decision, the sanction was imposed because artistic activities had been suspended without justifiable cause; the sanction was enforced by the Attorney-General’s Office which intervened by filing a judicial application to lift the trade union immunity provided for in the Trade Union Associations Act).

B. The Government’s reply

1. 305. In its communication dated 3 November 2011, the Government states that it consulted the Office of the Undersecretary of Labour of the Autonomous City of Buenos Aires, which informed it of the following:
   • 1. Regarding the dispute in the context of collective bargaining and the illegality of the strike, the labour authority of the Government of the Autonomous City of Buenos Aires (GCBA) states that the industrial action paralysed the activities of the Teatro Colón autonomous body, that it did so suddenly and without prior notice, and at a time when collective bargaining was under way and compulsory conciliation had been ordered. The complainant trade union had agreed to comply with it and committed itself to continued dialogue in the record of the hearing. In this context, the workers involved waited until the entire audience was seated in the theatre before occupying the stage and preventing the performance from going ahead. The theatre had to be cleared, tickets had to be refunded and claims for compensation were received from catering franchisees, the artists and their representatives because of the loss of earnings resulting from the cancellation of the performance. It should also be noted that the decisions in question clearly comply with existing national and local law. That being so, the Attorney General’s Office intervened to authorize the dismissal of the trade union representatives involved in the events since they are covered by trade union immunity under Act No. 23551.
   • 2. Sanctions and terminations: the termination of the workers and the corresponding decision are based on the prior administrative proceedings initiated in 2010 to determine the responsibilities of the staff and/or workers directly or indirectly involved in the industrial action that caused the suspension of the activities of the Teatro Colón autonomous body on 4 and 30 November 2010, and/or was prejudicial to the GCBA.
   • 3. Opinion of the Attorney-General’s Office: administrative proceedings No. 369/2010. Following an assessment of the facts and evidence, it was concluded that the conduct of one group of workers warranted the sanction of termination, and in other cases the charges were dismissed. The legitimate right of defence guaranteed in the civil service was observed throughout the proceedings. The workers involved remain in their jobs pending a decision on the legal action on lifting trade union immunity.
   • 4. The judicial fine referred to in the supplemental submission is unrelated to the conflict that led to the termination of the workers and is currently being appealed before a higher court.
     • Lastly, neither the Teatro Colón autonomous body nor any other part of the city Government has violated any ILO Convention or national law. On the contrary, due process has been respected.

C. The Committee’s conclusions

1. 306. The Committee observes that in the present case the ATE alleges bad faith and claims that it was excluded from the collective bargaining process in the Teatro Colón autonomous body. The ATE also objects to the declaration by the GCBA that a strike by the workers of the theatre on 4 and 30 November 2010 was illegal, and to the suspension and subsequent termination of eight ATE officials.
2. 307. Firstly, the Committee observes that the Government states that in its reply it forwards the information provided by the Undersecretary of Labour of the Autonomous City of Buenos Aires.
3. 308. Regarding the allegation of bad faith and exclusion from the collective bargaining process in the Teatro autonomous body (according to the complainant, after the process of negotiation with ATE was abandoned, an agreement was concluded with SUTECBA, from which the ATE was excluded), the Committee notes that the Undersecretary of Labour of the Autonomous City of Buenos Aires states that the complainant trade union took industrial action that paralysed the activities of the Teatro, and that it did so suddenly and without prior notice, and at a time when collective bargaining was under way and compulsory conciliation had been ordered. In this regard, the Committee observes that the Government does not refer to the issue of the exclusion of the ATE from collective bargaining for a sectoral agreement in the Teatro. The Committee observes that, regarding this issue, it appears from the documentation transmitted by the complainant organization that the judicial authorities of the Autonomous City of Buenos Aires: (1) noted that the Sectoral Bargaining Committee of the Teatro held a meeting at which the ATE was not represented and consequently, on 22 February 2011, decided on an interim measure ordering the GCBA and the Teatro to refrain from conducting collective bargaining unless the ATE was included; and (2) having learned that the Teatro had disregarded the interim measure and held a meeting with SUTECBA on 14 June 2011 in order to agree on payment for the maintenance of the orchestra’s musical instruments, fined the GCBA 50,000 Argentine pesos (according to the GCBA, an appeal has been lodged against this decision).
4. 309. The Committee regrets that the Teatro has failed to comply with the interim measure ordered by the judicial authority and excluded the ATE from the collective bargaining process. The Committee emphasizes the principle that “employers, including governmental authorities in the capacity of employers, should recognize for collective bargaining purposes the organizations representative of the workers employed by them” and also recalls 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 of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 935]. In these circumstances, the Committee requests the Government to take the necessary steps to ensure that the ATE is not excluded from bargaining on the conditions of employment of workers of the Teatro.
5. 310. As regards the alleged declaration by the GCBA that a strike by the workers of the theatre on 4 and 30 November 2010 was illegal, the Committee also notes that it is clear from the documentation transmitted by the complainant organization that the GCBA: (1) instructed the complainant organization to abandon any current or planned direct action throughout the bargaining period; and (2) declared that the industrial action of 4 November 2010 was illegal on the grounds that it had taken place during the bargaining period, and that the industrial action of 30 November 2010 was also illegal on the grounds that it had violated the agreement between the parties under the compulsory conciliation process. The Committee also notes that the Undersecretary of Labour of the Autonomous City of Buenos Aires states that: (1) the industrial action paralysed the activities of the Teatro, and that it did so suddenly and without prior notice, and at a time when collective bargaining was under way and compulsory conciliation had been ordered; (2) the complainant organization had agreed to comply with that order and committed itself to continued dialogue; (3) the workers involved in the strike had waited until the entire audience was seated in the theatre before occupying the stage and preventing the performance from going ahead; and (4) the theatre had to be cleared, tickets had to be refunded and claims for compensation had been received from catering franchisees and the artists. In this regard, while taking note of the criticism of the Undersecretary of Labour of the Autonomous City of Buenos Aires suggesting that the complainant organization failed to obey the law, the Committee recalls that “responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved” [see Digest, op. cit., para. 628]. In these circumstances, the Committee requests the Government to take the necessary steps – including amendments to the legislation if necessary – to ensure that this principle is respected.
6. 311. Regarding the alleged suspension and subsequent sanction by termination (by decision No. 519/EATC/2011 issued by the Teatro) of eight ATE officers and other workers for participation in the strikes on 4 and 30 November 2010, the Committee notes that the Undersecretary of Labour of the Autonomous City of Buenos Aires states that: (1) the dismissal decisions are based on the prior administrative proceedings initiated in 2010 to determine the responsibilities of the staff and/or workers directly or indirectly involved in the industrial action that caused the suspension of the activities of Teatro; (2) following an assessment of the facts and evidence, it was concluded that the conduct of one group of workers warranted the sanction of termination, and in other cases the charges were dismissed; (3) the legitimate right of defence guaranteed in the civil service was respected throughout the proceedings; and (4) the workers in question remain in their jobs pending a decision on the legal action on lifting trade union immunity (pursuant to an administrative decision, the Attorney-General’s Office intervened by filing a legal action to lift their trade union immunity under Act No. 23551 on trade unions). Observing that, according to the administrative decision in question, it is now incumbent upon the judicial authorities to rule on whether to lift the trade union immunity of the eight ATE officers sanctioned with termination, the Committee requests the Government to keep it informed of the decision taken with regard to this issue, as well as to indicate whether the allegations of suspension of other workers have been subject to judicial proceedings.

The Committee’s recommendations

1. 312. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary steps to ensure that the ATE is not excluded from bargaining on the conditions of employment of workers of the Teatro Colón autonomous body.
   • (b) The Committee requests the Government to take the necessary steps – including amendments to the legislation if necessary – to ensure that responsibility for declaring a strike illegal lies not with the Government but with an independent body which has the confidence of the parties involved.
   • (c) The Committee requests the Government to keep it informed of the judicial decision with regard to the application for the lifting of the trade union immunity of the eight ATE officers sanctioned with termination and to indicate whether the allegations of suspension of other workers have been subject to judicial proceedings.