Definitive Report - Report No 157, June 1976

Case No 809 (Argentina) - Complaint date: 11-DEC-74 - Closed

1. 90. The Committee already examined this case in May 1975 and submitted at that session an interim report which is reproduced in paragraphs 185-200 of its 151st Report. The Governing Body approved this report at its 196th Session (May 1975).
2. 91. 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. A. The complainants' allegations

• Allegations relating to the Withdrawal of Trade Union Status from the FGB
  92. 92 The complainant stated that legal recognition as a trade union had been withdrawn from the FGB and that action had been taken by the authorities because it would not bow to the dictates of the "Social Covenant" concluded between the Government and the employers' organisations. This covenant unilaterally froze wages for an indefinite period, when, in the absence of any serious check on prices, articles of prime necessity were getting dearer day by day, with the result that the workers' purchasing power was seriously dropping. The complainant added that the Government was at the point of handing over trade union assets to an irresponsible group led by persons who had been expelled by the organisation for serious infringement of union rules.
  93. 93 According to the Government the withdrawal of trade union status from the FGB by a resolution of the Ministry of Labour was due partly to the use of direct action in contravention of the National Pact (acto de compromiso nacional) which has force of law, and partly to irregularities in the financial management of the organisation. The Government stated that the FGB had appealed to the Chamber of Labour Appeals which had confirmed the administrative decision by a judgment of 19 December 1974.
  94. 94 In its 151st Report, the Committee had pointed out that in Argentina the withdrawal of trade union status from an organisation does not entail its dissolution. However, from the strictly trade union point of view, the role assigned to organisations without legal status is extremely limited and in view of the statutory distinction between organisations having trade union status and ordinary trade unions, it would seem that organisations which do not have trade union status do not have the right to organise their administration and activities and to formulate their programmes freely.
  95. 95 The Committee had considered firstly that if the authorities found irregularities which could be socially detrimental they should have taken legal action based on these irregularities against the persons responsible rather than adopt measures depriving the union of all possibility of action.
  96. 96 As regards the National Pact, this was an agreement between the central government, the General Labour Confederation, and the General Economic Confederation which, among other things, placed certain restrictions on collective bargaining. By a Decree No. 901 of 24 December 1973, collective agreements in force were extended for the duration of the aforementioned Pact, i.e. up to June 1975. From that time onward, any collective agreement which had been concluded would take effect. The Committee had pointed out that it accepts that if a Government considers at a certain moment that the economic situation in the country requires certain stabilisation measures, it may for a reasonable period and as an exceptional measure restrict the free negotiation of wage rates provided that such measures are applied only to the extent necessary, and are accompanied by adequate safeguards, to protect workers' living standards. In this case, the FGB had not respected the temporary restrictions and its appeal against the withdrawal of union status had been rejected. It was none the less true that such withdrawal might result in depriving the printing workers of a representative trade union organisation, and the Committee had recommended the Governing Body, in view of the consequences of this measure, to suggest to the Government that it consider the possibility of reviewing its decision.
  97. 97 In its latest communication, dated 30 October 1975, the Government recalls that the trade union status of the FGB was annulled under section 42(2)(a) of Act No. 20.615 respecting workers' occupational associations, for violation of its own statutes, and that this action had been confirmed by the National Chamber of Labour Appeals. The Government points out that a legal entity is held accountable for the actions committed by its lawful representatives and that the sanction imposed on the association does not rule out proceedings against individuals.
  98. 98 The Government points out that the occupational interests of the printing workers have not had to suffer as a result of this action since they have been represented and defended by the Argentine Printers' Union whose paying membership figures make it the most representative trade union and which was granted legal status by Resolution No. 571 of the Minister of Labour on 12 December 1974. The Government states that, both in its goals and in the persons and interests it protects under its statutes, the aforementioned organisation ensures a legal and de-facto continuity in the representation and defence of the workers concerned. Free elections have been organised in this union and it has concluded a new collective agreement which is currently in force.
  99. 99 The Committee notes the information submitted by the Government.
• Allegations regarding the Arrest of Mr. Ongaro
  100. 100 The complainant also stated that Raimundo José Ongaro, leader of the Printers' Union, was arrested on 30 October 1974 at the same time as Alicia Fondevilla, Margarita González and Enriqueta Castro, who, like him, are leaders of the FGB and of the Argentine Printing Workers' Federation.
  101. 101 The Government stated that it had been obliged in the application of the Constitution and the existing legislation to proclaim a state of emergency throughout the country by Decree No. 1368 of 6 November 1974 because of the situation with which it was faced, and consequently to suspend the individual guarantees recognised by the Constitution within the limits prescribed therein. Mr. Ongaro and the three other trade union leaders, the Government continued, had been arrested and charged with contravening section 189(bis) of the Penal Code, which prohibits the possession of weapons and ammunition. The Committee had noted that according to certain information which appeared in the Argentine press, Mr. Ongaro and the other leaders were discharged. However, according to the Government, Mr. Ongaro had subsequently been handed over to the national executive authorities because of his clear purpose to create a disturbance and action prejudicial to the national reconstruction programme.
  102. 102 In May 1975 the Committee had refrained, as in the past, from expressing an opinion on the political aspects of the state of emergency, but it had emphasised that such measures should be accompanied by adequate judicial safeguards applied within a reasonable period and that a person under arrest should be afforded the guarantee of regular judicial proceedings with the least possible delay. It had recommended the Governing Body to recall the principles set out above and to request the Government to supply, in the light of these principles, detailed information regarding Mr. Ongaro's situation.
  103. 103 In its reply the Government points out that Mr. Raimundo Ongaro had been handed over to the national executive authorities under Decree No. 1810 of 9 December 1974 adopted subsequent to the proclamation of the state of emergency. The courts, the Government goes on to say, declared that article 23 of the National Constitution granted the executive power the right to arrest and oust persons during the state of emergency without the judicial power being able to, or having to, take cognizance of the circumstances surrounding, and the reasons behind, the action taken under these powers. Nevertheless, the Government continues, Mr. Ongaro chose to exercise the right granted him under article 23 of the Constitution to leave the country and he departed for Lima on 28 August 1975.

B. B. The Committee's conclusions

1. 104. As the Committee has pointed out in a previous case concerning Argentina, what it is concerned with is not whether the action taken is legal under Argentine law, but whether the legal powers vested in the Argentine Government have been exercised in a manner inconsistent with freedom of association. The Committee emphasised the importance of due process in cases in which trade unionists are charged with offences of a political nature or offences under the ordinary law. The requirement of due process would not appear to be fulfilled if under the national law the effect of a state of emergency is that a court cannot make and does not make an examination of the merits of the case. The Committee also considered that the granting to a trade unionist of his freedom on condition that he leaves the country is not compatible with the free exercise of trade union rights. In view of this, the Committee feels that it would be desirable for the Government to reconsider Mr. Ongaro's case.

The Committee's recommendations

1. 105. In these circumstances, the Committee recommends the Governing Body:
   • (a) regarding the allegations respecting the withdrawal of trade union status from the FGB, to note the information submitted by the Government;
   • (b) regarding the detention of Mr. Ongaro, to draw the attention of the Government to the considerations and principles set out in paragraph 104 above, in particular, concerning the possibility of reviewing his case, and to emphasise that no trade unionist should be kept in prison or deprived of his freedom of movement without having been brought before the courts with the least possible delay.