Rapport définitif - Rapport No. 403, Juin 2023

Cas no 3141 (Argentine) - Date de la plainte: 03-JUIN -15 - Clos

Allegations: The complainant organization(s) allege(s) that it has not been able to collectively bargain over working conditions for the graded staff of the Judicial Authority in the Province of Mendoza, who it represents exclusively

1. 135. The complaint is contained in a communication from the Association of Judicial Officers of the Province of Mendoza (AFJM) dated 3 June 2015. The AFJM submitted new allegations in a communication dated 23 May 2018.
2. 136. The Government sent its observations in communications dated 14 June 2016, 25 September 2019 and 1 May 2023.
3. 137. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 138. In its communication dated 3 June 2015, the AFJM indicates that it obtained simple trade union registration in 2009 and in 2012 it obtained legal trade union status to represent all the graded staff of the Judicial Authority in the Province of Mendoza in all categories and judicial districts, from the Secretary of the Ministry (First Superior Officer) to the Secretary of the Supreme Court of Justice of Mendoza, or equivalent posts, whether professionals or not, with an area of action in the Province of Mendoza. The complainant also notes that it is not a member of any second or third level organization.
2. 139. The complainant indicates that: (i) since 2004/2005, the Government decision to open up collective bargaining in the public sector as a way to agree wages meant that the only existing trade union in the judicial sector, the Trade Union Association of the Employees of the Mendoza Judicial Authority (AGEPJ), became involved in that regard; (ii) as soon as it obtained legal recognition as a trade union in 2012, the AFJM was invited to participate in collective bargaining in a unique and separate forum and held just two meetings to that effect; (iii) paradoxically, immediately afterwards, that forum transformed into one of plural representation, and it remains as such to date, and (iv) the fact that the representative trade union associations in the sector have diametrically opposed viewpoints but are contained within a single remunerative framework, fighting from different philosophical and political positions, for a whole range of criteria for dividing up the payroll, generates an inevitable conflict of interests, as a result of which it is advisable to recommend separating the sector’s negotiating table; as a result the matter has not been and will not be resolved within the domestic jurisdiction of the Argentine Republic and thus turns to the Committee on Freedom of Association for its valued and definitive intervention.
3. 140. In its 2015 communication, the complainant organization alleges that for two years the Government of Mendoza refused to sign wage agreements with it and that in 2015 the Government agreed wages in the judicial sector with the AGEPJ, which does not represent the 10 per cent of unionized officials required by Provincial Decree No. 955/04, and which justifiably undermines its legal authority to agree officials’ wages. The complainant alleges that it was excluded from the salary agreement in 2015 capriciously and also states that it has fruitlessly pursued the opening of a forum for drafting the collective agreement for judicial officials/graded staff for two years.
4. 141. In its communication dated 23 May 2018, the complainant notes that the dispute that gave rise to the presentation of the complaint in 2015 was partially resolved thanks to the presentation of the complaint to the Committee, as when it was presented, the Government of the Province of Mendoza issued resolution No. 102 of 2016 creating an ámbito paritario (a meeting carried out on the basis of equality, in which decisions are taken collectively) for all graded staff operating under the Judicial Authority of Mendoza, with the Judicial Authority Negotiating Committee made up of Judiciary Officials from that province. The complainant notes that two members of the AFJM and one member of the AGEPJ participated in that committee, representing the workers. The complainant maintains that this does not conform with what was determined by the Supreme Court of Justice of the Nation (CSJN) in a ruling issued on 22 November 2016, which put an end to the conflict between the organizations by establishing that the AFJM exercised sole representation of the graded staff in the sector. The complainant attached a copy of that ruling in which the CSJN indicated that: (i) the AFJM obtained legal recognition as a trade union in 2012 to represent all the graded staff in the Judicial Authority of Mendoza; (ii) the AGEPJ appealed that decision, providing evidence that the graded staff were already covered by its own legal recognition as a trade union; (iii) while the National Appeals Chamber rejected those objections, it indicated that both entities share legal recognition as trade unions with regard to graded staff; and (iv) the AFJM lodged an extraordinary federal appeal against that ruling that was finally overturned by the CSJN, indicating that it was clear that the AGEPJ obtained legal recognition as a trade union in 1970 excluding the representation of graded staff; so that when the AFJM requested legal recognition as a trade union, it did not have to compete for it with another association. The complainant alleges that the Ministry of Government, Labour and Justice did not arrange the composition of the Negotiating Committee in accordance with the guidelines established in the aforementioned CSJN ruling, which created an unjustified and unnecessary atmosphere of uncertainty.
5. 142. The complainant indicates that by means of an agreement, dated 18 December 2017, a wage increase was granted and, without prejudice to that, it was also agreed that the separate collective bargaining forum for judiciary officials would remain open in order to continue deliberating over working conditions that were to be established in 2018 (clause 8 of the agreement).
6. 143. The complainant also indicates that, in the context of the restructuring of the provincial judicial system, the Supreme Court of Justice of Mendoza handed down Decree No. 28.502 of 23 November 2017, which regulates working conditions relating to working hours and minimum workplace security guarantees for workers in the Interdisciplinary Auxiliary Corps under the Supreme Court of Justice of Mendoza (mental health, internal medicine and social work professionals specializing in different areas relating to childhood, adolescence and family, who participate in legal cases with jurisdiction in family law and criminal justice for minors), and for other agents of the Public Prosecutor’s Office who are subject to the same treatment. The complainant alleges that not only did the aforementioned decree remove the negotiation of working conditions from the collective bargaining forum, it did so while establishing conditions that violate the legal working time regime and security norms. The complainant indicates that the Decree created an off-site system for night guards on Saturdays, Sundays and holidays which aims to make workers completely available to their employer 24 hours a day and 365 days a year, and regulated entry into high conflict zones without minimum protection guarantees and lacking a mandatory protocol to ensure the physical safety of everybody involved, which violates the legal working time regime and security norms.
7. 144. The complainant states that, although it proposed taking part in the draft decree, advising that the new labour conditions be within the legal limits, the Decree does not make reference to the fact that it was the result of a consensus measure with the AFJM in collective agreements, which highlights that the decision was adopted unilaterally, in conflict with what was agreed in clause 8 of the aforementioned agreement. Indeed, the complainant alleges that the approach of the paritario members from the Judicial Authority and the Government of Mendoza in the negotiation forum to debate working conditions was evasive and inconclusive, resorting to delaying tactics that obstructed and hindered a serious and consensual consideration of the issue that had been created which detracted from the active participation of the trade union organization.
8. 145. The complainant believes that the systematic excuses given – both in the ámbito paritario and elsewhere – have a direct and negative impact on its legal capacity to debate and agree working conditions. The complainant notes that it was not heard and that all its efforts to have dialogue and reach consensus were fruitless or broke down. The complainant alleges that there has been no willingness to create proactive or favourable conditions for collective bargaining and that all bargaining power has been limited, restricted or cancelled. The complainant also alleges that for the past three years it has promoted the opening of its own forum for debate and for the drafting of the collective agreement for judiciary officials/graded staff that includes a wide range of issues relating to working conditions and the working environment. Lastly the complainant notes that there are a series of ongoing legal cases relating to the aforementioned events and provides a list of those cases. Those cases include: (i) an appeal for nullity with regard to the aforementioned Judicial Authority Decree; and (ii) an application for special judicial review for unconstitutionality and annulment that relates to the AFJM and AGEPJ submitted to the Supreme Court of Justice – Second Chamber, Judicial Authority of Mendoza in the month of March 2016 (case No. 153.300).

B. The Government’s reply

1. 146. In its communication dated 14 June 2016, the Government forwarded a letter in which the Undersecretariat for Labour and Employment of the Ministry of Labour, Justice and Government in the Province of Mendoza indicates that: (i) in resolution 102 the Government Ministry arranged the establishment of a separate ámbito paritario for the graded staff who work in a relationship of dependence for the Judicial Authority of Mendoza; (ii) this was implemented at the paritario meeting held on 6 May 2016; and (iii) during that negotiation, the secretary general of the AFJM committed to carrying out the relevant presentations, with a view to requesting the closure of the complaint submitted to the Committee (Case No. 3141) after having created the separate ámbito paritario, which was, appropriately, what motivated the presentation.
2. 147. In a communication dated 25 September 2019, the Government submitted a copy of a note sent by the Regional Delegation of Mendoza to the Undersecretariat for Labour and Employment in the Ministry of Government, Labour and Justice in the province, in which the provincial government authorities are requested to send a detailed report on the issues set out in the complaint. This note emphasizes that the information requested is of vital importance for the defence that the Government must provide to the Committee on Freedom of Association.
3. 148. In its communication dated 1 May 2023, the Government notes that a special judicial review for unconstitutionality and annulment that relates to the AFJM and AGEPJ, submitted to the Supreme Court of Justice – Second Chamber, Judicial Authority of Mendoza in the month of March 2016, (Case No. 153.300) is currently pending.

C. The Committee’s conclusions

1. 149. The Committee observes that, although this complaint was presented in 2015 by the AFJM, which represents the graded staff of the Judicial Authority in Mendoza Province, in 2016 the Government reported that the issues contained therein had been resolved following the creation of an ámbito paritario (a meeting carried out on the basis of equality, in which decisions are taken collectively) for all graded staff in the Judicial Authority of Mendoza, which is what had motivated the complaint, and so the secretary general of the AFJM had committed to requesting the closure of the complaint.
2. 150. The Committee notes that, in its 2018 communication, the complainant notes that an ámbito paritario for all graded staff was indeed established in 2016, and a Judicial Authority negotiating committee was made up of judiciary officials from that province, in which the workers were represented by two representatives of the AFJM and one representative of the trade union organization known as AGEPJ. The Committee notes that the complainant alleges that the AGEPJ should not have been part of the committee since, on 22 November that same year, the CSJN had made it clear that AFJN was the sole trade union organization representing the graded staff of the Judicial Authority of Mendoza. The Committee observes that in this ruling the CSJN indicated that the AGEPJ obtained legal recognition as a trade union in 1970 excluding the representation of graded staff and the AFJM obtained legal recognition as a trade union in 2012 to represent the graded staff. The Committee understands that this ruling shows that, while both organizations have legal recognition as trade unions, and as such have bargaining power, the AFJM represents the graded staff of the Judicial Authority of Mendoza exclusively.
3. 151. The Committee observes that the Government notes in addition that a special judicial review for unconstitutionality and annulment that relates to the AFJM and AGEPJ, submitted to the Supreme Court of Justice of Mendoza in March 2016, is currently pending. The Committee notes that it does not have further details regarding the specific subject of the case mentioned by the Government and observes that, according to the website of the Judicial Authority of Mendoza, there have been no movements in the case since 2019.
4. 152. With regard to the configuration of the Negotiating Committee, the Committee observes that, according to the documentation provided by the complainant organization, Provincial Decree No. 955/04 establishes that when there is no agreement between the trade union organizations with bargaining power with regard to the configuration of the will of the worker sector in the Negotiating Committee, the Ministry of Government, through the Undersecretariat of Labour and Social Security, defines the percentage of votes corresponding to each party, with the number of votes being proportional to the number of contributing members.
5. 153. The Committee understands that the complainant objects to the participation of the AGEPJ in the Negotiating Committee because it is an ámbito paritario for graded staff, who the complainant organization represents exclusively. The Committee nonetheless observes that it is not clear from the complaint whether the Negotiating Committee established in 2016, known as the “Judicial Authority Negotiating Committee for Judiciary Officials in the Province of Mendoza” was set up exclusively with regard to the graded staff. Without further details in that respect and observing that the Committee does not have information with regard to the functioning of this Committee since 2018, the Committee hopes that its configuration conforms to what is provided in the relevant provincial regulations and that the ruling handed down by the CSJN on 22 November 2016 is taken duly into account.
6. 154. The Committee notes that the complainant alleges that the Supreme Court of Justice of Mendoza handed down a decree in November 2017 which regulates working conditions for workers in the Interdisciplinary Auxiliary Corps under the Judicial Authority of Mendoza, which not only removed the negotiation of working conditions from the collective bargaining forum, it did so while establishing conditions that violate the legal working time regime and security norms. The Committee notes that the complainant alleges that the Decree was not agreed with the AFJM, that their attempts at dialogue with the Government have broken down, that for the past three years they have been promoting the drafting of a collective agreement for judiciary officials, and that there has been no willingness to create favourable conditions for collective bargaining.
7. 155. The Committee regrets that it has not received the Government’s reply to these allegations. The Committee is obliged to examine them without significant information on the background of the matters raised in this case.
8. 156. The Committee observes that the Judicial Authority’s Decree indicates that it was necessary to strengthen the structure of the Interdisciplinary Auxiliary Corps (mental health, internal medicine and social work professionals who participate in legal cases with jurisdiction in family law and criminal justice for minors) and achieve full 24-hour coverage every day of the year. It also observes that the Decree was handed down one month before the wage agreement was reached in December 2017 and that, in that agreement, the parties committed to continue deliberating over working conditions that were to be established in 2018. That is to say that the commitment to negotiate working conditions came after the dictates of the Decree.
9. 157. The Committee observes that, although the Negotiating Committee was established in 2016 and the parties committed to continue deliberating over working conditions in December 2017, no agreement had been reached before the presentation of the complaint in May 2018, at least. The Committee has not been given evidence of whether any agreements materialized between 2018 and the present. In these circumstances, and observing that what the complainant organization is requesting is the possibility to negotiate the working conditions of graded staff in a separate ámbito paritario, the Committee encourages the Government to take measures to create favourable conditions for constructive dialogue and effective negotiation between the parties concerned with regard to the working conditions of the graded staff of the Judicial Authority of the Province of Mendoza, with a view to reaching agreements in that respect.
10. 158. The Committee notes that the complainant indicates that there are a series of ongoing legal cases relating to the aforementioned events, including with regard to the Judicial Authority Decree, and that the Government also makes reference to a pending legal action before the Supreme Court of Justice of Mendoza. Not having any updated information on the matter, the Committee hopes that rulings will be promptly issued in that regard . In these circumstances, the Committee considers that this case is closed and does not call for further examination.

The Committee’s recommendations

1. 159. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee encourages the Government to take measures to create favourable conditions for constructive dialogue and effective negotiation between the parties concerned with regard to the working conditions of the graded staff of the Judicial Authority of the Province of Mendoza, with a view to reaching agreements in that respect.
   • (b) The Committee hopes that rulings will be promptly issued with regard to the legal cases relating to the events mentioned in this case.
   • (c) The Committee considers that this case is closed and does not call for further examination.