Report in which the committee requests to be kept informed of development - Report No 343, November 2006

Case No 2438 (Argentina) - Complaint date: 23-MAY-05 - Closed

Allegations: The complainant organization alleges that the Ministry of Education authorities of Chubut Province turned down a request for trade union leave made by a number of its trade union officials and that the authorities then issued a decision cancelling the trade union leave of SITRAED

211. The complaint is contained in a communication of the Education Workers’ Union (SITRAED), dated 23 May 2005. SITRAED sent new allegations in a communication of 27 December 2005. The Central of Argentinean Workers (CTA) supported the complaint in a communication of 27 May 2005.

1. 212. The Government sent its observations in communications of 23 and 26 May 2006.
2. 213. Argentina has ratified the Freedom of Association and Protection of 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 the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 214. In its communications of 23 May and 27 December 2005, the Education Workers’ Union (SITRAED) states that, on 30 September 2003, it was granted trade union registration and legal personality. It was not granted trade union status because the Association of Education Workers of Chubut (ATECH) was already operating in Chubut Province. On obtaining trade union registration, SITRAED formalized its institutional status.
2. 215. The complainant organization alleges that, on 14 October 2003, trade union officials Eduardo Norberto Heidel, Jerónimo Omar Retamal, Gerardo Enrique Carranza, María Cristina Alcalá and Laura Vilar were notified that their request for trade union leave was refused by, the Ministry of Education of Chubut Province, which returned the forms with the supporting documentation proving they had taken trade union leave since 2000, when the trade union organization was founded. During the 2000-03 period, trade union officials Gerardo E. Carranza, María Cristina Alcalá and Jerónimo O. Retamal were members of the CTA Executive of Puerto Madryn, remaining in office from 2003 to 2006 after being re-elected. Since its foundation, SITRAED has been affiliated to the CTA. On 27 October 2003, the Ministry of Education also notified Provincial School No. 170 of its refusal to grant trade union leave to Hernández Luís Enrique, stating that “it could not be approved” because SITRAED had no legal representativity in the province.
3. 216. The complainant organization points out that article 30(1) of the rules on leave for teaching staff of the Ministry of Education of Chubut Province, established by Decision No. 1040, states that “Paid leave shall be granted to the employees of the Ministry of Culture and Education in connection with trade union functions, in the following cases: (a) staff members elected to hold trade union office in the executive committee for their term of office, provided that they shall return to work within the 30 days following the end of the term of office for which they were elected.” The complainant organization states that the said trade union officials have been granted paid trade union leave in order to carry out trade union activities across Chubut Province since the establishment of SITRAED. SITRAED considers that, in refusing to grant trade union leave, the Ministry of Education authorities are seeking to favour the trade union organization with trade union status.
4. 217. SITRAED states that, in September, October and November 2005, it carried out progressive direct action, culminating in an open-ended strike lasting from 20 October to 14 November, when it was suspended in order to create a climate conducive to dialogue and negotiation, which SITRAED had always been willing to conduct. SITRAED then requested that a bargaining committee be set up. The rejection of dialogue in favour of direct persecution became clear in pre-electoral statements made by the Governor and published in the print media, such as “cut off the heads of the trade union leaders” – a position manifested in the decision to abolish “trade union leave”. SITRAED alleges that, through the Ministry of Education and through Decision XIII, No. 550/2005, dated 29 November 2005, the provincial executive decided to cancel the trade union leave of SITRAED.
5. B. The Government’s reply
6. 218. In its communication of 23 May 2006, the Government states that it should be pointed out that the allegations do not state that the members of the complainant organizations were prevented from exercising the right to freedom of association, since the allegations date back to 2003 and, as is clear from the decision of November 2005 issued by the Ministry of Education of Chubut Province, representatives of trade union organizations had, up to that date, fully exercised the trade union functions they claim. In fact, the rule adopted on 29 November 2005 stipulates that up to that date, the leave provided for under section 45 of Decision MCE No. 785/97 shall be granted, making it difficult to allege that such leave was refused in 2003, given that during those years the trade union representatives had taken trade union leave.
7. 219. The Government of Chubut Province issued Decision XIII, No. 550/2005 following a specific request by the trade union with trade union status. This does not mean that, in adopting the decision of November 2005, the provincial administration was not acting in accordance with the law, since the granting of trade union leave to the representatives of organizations with trade union status is not contrary to the provisions of the Convention, given that, in article 3 of the ILO Constitution, the ILO recognizes the right to give preference to the most representative organizations, as is the case with regard to tripartite representation at the International Labour Conference.
8. 220. With regard to this case, section 31 of Act No. 23551 establishes several rights for trade union organizations with trade union status, including the granting of the right to trade union leave to the representatives of those organizations with trade union status. The Government adds that it should be borne in mind that other organizations may claim the rights arising from the granting of trade union status, the matter being settled by comparing the representativity of the organizations to determine which of them has the largest membership in the geographical area and category of persons concerned, in accordance with section 25 of the said Act. This provision has never been questioned by the ILO supervisory bodies.
9. 221. The complainant organization initiated the process of recognition of trade union status, which has now been suspended – on its own decision – owing to the bringing of an “action in respect of unconstitutionality” against Decision XIII, No. 550/2005, preceded by an amparo appeal (enforcement of constitutional rights), which was rejected by the Appeals Court of the City of Trelew. Consequently, the matter is now under examination by the courts, and the Government will report on the outcome in due course.
10. 222. Lastly, the Government states that, without prejudice to the internal dispute between the trade union organizations, the matter is in the process of being resolved at the initiative of the Government, an agreement having been reached with the members of the provincial executive committee of the trade union to allow the possibility of granting leave to these persons in connection with meetings held to discuss and/or agree on matters related to teaching.
11. 223. In its communication dated 26 May 2006, the Government states that Decision XIII, No. 550/2005 of the Ministry of Education of Chubut Province was appealed against by the complainant organization SITRAED, and that, in these circumstances and in the context of conciliation and negotiation, trade union leave for the officials of this organization is to be maintained until a definitive ruling has been issued on the matter.

C. The Committee’s conclusions

1. 224. The Committee notes that in the present case, the complainant organization alleges that, against a background of persecution of the Education Workers’ Union (SITRAED) of Chubut Province and with the aim of giving preference to the sector trade union organization with trade union status, in October 2003 the Ministry of Education authorities of Chubut Province turned down the requests for trade union leave of several SITRAED officials and that, in November 2005, the same authorities issued Decision XIII, No. 550/2005 cancelling the trade union leave of SITRAED.
2. 225. In this regard, the Committee notes that the Government states that: (1) up until the moment when Decision XIII, No. 550/2005 was issued in November 2005, the representatives of SITRAED had fully exercised their right to trade union leave; (2) the Government of Chubut Province issued Decision XIII, No. 550/2005 in response to a specific request by the trade union with trade union status in the sector; (3) through the decision of November 2005, the provincial administration acted lawfully, since the granting of trade union leave to the representatives of organizations with trade union status is not contrary to the provisions of Convention No. 87, given that in article 3 of its Constitution, the ILO recognizes the right to give preference to the most representative organizations; (4) section 31 of Act No. 23551 establishes several rights for organizations with trade union status, including the granting of the right to trade union leave to the representatives of those organizations with trade union status; (5) the rights arising from the granting of trade union status may be claimed by other organizations, the matter being settled by comparing the representativity of the organizations to determine which of them has the largest membership in the geographical area and the category of persons concerned, in accordance with section 25 of the said Act; (6) the complaint organization initiated the process of recognition of trade union status, which has now been suspended – on its own decision – owing to the bringing of an “action in respect of unconstitutionality” against Decision XIII, No. 550/2005, preceded by an amparo appeal (enforcement of constitutional rights), which was rejected by the Appeals Court of the City of Trelaw. Consequently, the matter is now under examination by the courts, and the Government will in due course report on the outcome; (7) without prejudice to the internal dispute between the trade union organizations, the matter is in the process of being resolved at the initiative of the Government, an agreement having been reached with the members of the provincial executive committee of the trade union to allow the complainant organization to grant leave to its representatives in connection with meetings held to discuss and/or agree on matters related to teaching; (8) Decision XIII, No. 550/2005 of the Ministry of Education of Chubut Province was appealed against by the complainant organization SITRAED and, in these circumstances, and in the context of conciliation and negotiation, trade union leave for the officials of this organization has been maintained until a definitive ruling has been issued on the matter.
3. 226. The Committee notes that it has already examined complaints presented against the Government of Argentina containing allegations relating to rights granted to trade unions with trade union status but not organizations that are merely registered [see 320th Report, Case No. 2054, and 329th Report, Case No. 2157]. The Committee recalls that, on several occasions, and particularly during discussion on the draft of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the International Labour Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction that is sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the ILO includes the concept of “most representative” organizations. Accordingly, the Committee felt that the mere fact that the law of a country draws a distinction between the most representative trade union organizations and other trade union organizations is not in itself a matter for criticism. Such a distinction, however, should not result in the most representative organizations being granted privileges extending beyond that of priority in representation, on the ground of their having the largest membership, for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organizations that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members, for organizing their administration and activities and formulating their programmes, as provided for in Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, para. 309].
4. 227. In any case, the Committee notes the Government’s statement that the dispute between the trade union with trade union status and SITRAED over the granting of trade union leave is in the process of being resolved and that trade union leave for the officials of SITRAED is to be maintained until a definitive ruling has been issued regarding the appeal lodged against Decision XIII, No. 550/2005. The Committee trusts that the Government and the trade union organizations concerned will reach a definite agreement, and recalls the terms of Article 6 of Convention No. 151, ratified by Argentina, which provides that such facilities shall be afforded to workers’ representatives as may be appropriate in order to enable them to carry out their functions promptly and efficiently, and trusts that the representatives of SITRAED will continue to enjoy such facilities.
5. 228. Lastly, the Committee requests the Government to keep it informed as to the outcome of the appeal lodged against Decision XIII, No. 550/2005 of the Ministry of Education of Chubut Province.

The Committee's recommendations

1. 229. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the Government and the trade union organizations concerned will reach a definite agreement, and recalls the terms of Article 6 of Convention No. 151, ratified by Argentina, which provides that such facilities shall be afforded to workers’ representatives as may be appropriate in order to enable them to carry out their functions promptly and efficiently, and trusts that the representatives of SITRAED will continue to enjoy such facilities.
   • (b) The Committee requests the Government to keep it informed as to the outcome of the appeal lodged against Decision XIII, No. 550/2005 of the Ministry of Education of Chubut Province.