Rapport définitif - Rapport No. 323, Novembre 2000

Cas no 2045 (Argentine) - Date de la plainte: 31-AOÛT -99 - Clos

Allegations: Ministerial resolution restricting the rights to unionization and collective bargaining

1. 123. The complaint appears in a communication of August 1999 from the Trade Union of Newspaper and Magazine Vendors of the Federal Capital and Greater Buenos Aires (SIVENDIA). The Government sent its observations in a communication dated 28 April 2000.
2. 124. 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 complainant's allegations

1. 125. In its communication of August 1999, the Trade Union of Newspaper and Magazine Vendors of the Federal Capital and Greater Buenos Aires (SIVENDIA) states that pursuant to resolution No. 416/99 issued by the Ministry of the Economy and Works and Public Services of the nation, the activity of newspaper and magazine vendors is now considered a commercial activity, contrary to the legislative tradition and the de facto elements whereby the State had recognized this activity as a form of labour. Thus this resolution is a flagrant infringement of the labour rights of the vendors of newspapers, magazines and similar publications, the right to unionization and to free and voluntary negotiation of the conditions of employment in the sector. The complainant adds that the sale of newspapers and magazines is regulated by Legislative Decree No. 24095/45, ratified by Act No. 12921 and the supplementary resolutions of the Ministry of Labour and Social Security of the nation and that it is clear from such standards that the activity is a form of work and not a commercial activity.
2. 126. The complainant points out that the undeniably labour nature of the activity was recognized by the State itself when it granted SIVENDIA legal personality No. 27 in 1945, in accordance with the terms and provisions set forth in the Act respecting trade union associations, for the purposes of defending and representing vendors in the newspaper and magazine sector.
3. 127. The complainant points out that transforming the labour activity of its members into a commercial activity will result in the disappearance of the activity.

B. The Government's reply

1. 128. In its communication of 28 April 2000, the Government states that the complainant lodged an appeal for protection against resolution No. 416/99. In this respect, the courts of the first and second instance ruled that the standard in question was unconstitutional and null and void since the conditions of "necessity and urgency" required for the issuing of the measure did not exist. In these circumstances, resolution No. 416/99 has no practical application of any kind, and the matter is therefore purely theoretical. In the light of the above, the Government emphasizes that there has been no violation of international Conventions since the standard which would supposedly result in such a situation was declared unconstitutional, and Legislative Decree No. 24095/45, ratified by Act No. 12921, was declared to be fully in force.

C. The Committee's conclusions

1. 129. The Committee observes that the complainant in this case challenges resolution No. 416/99 of April 1999, issued by the Ministry of the Economy and Works and Public Services of the previous Government. According to the complainant, this resolution disregards the labour nature of the sale of newspapers and magazines and the transformation of such activity into a commercial activity, thus affecting the right to unionization and collective bargaining of workers in the sector.
2. 130. In this respect, the Committee takes note that the Government states that the complainant lodged an appeal for protection against resolution No. 416/99 and that in the courts of the first and second instance the judicial authorities considered the resolution to be unconstitutional and null and void, and that it therefore has no practical application. In these circumstances, the Committee believes that the case requires no further examination.

The Committee's recommendations

1. 131. In the light of the foregoing conclusions, the Committee invites the Governing Body to decide that this case requires no further examination.