Report in which the committee requests to be kept informed of development - Report No 346, June 2007

Case No 2477 (Argentina) - Complaint date: 30-MAR-06 - Closed

Allegations: The complainant organization objects to delays on the part of the administrative authority in processing its application for trade union status, as well as the partial approval by the administrative authority of certain amendments to the statutes of the Central of Argentinean Workers (CTA)

209. The present complaint is contained in a communication of the Central of Argentinean Workers (CTA) dated March 2006. The CTA sent new allegations relating to its complaint in a communication of 18 September 2006.

1. 210. The Government sent its observations in a communication dated 15 May 2007.
2. 211. 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. 212. In its communication of March 2006, the CTA states that it is a trade union confederation (third-level body), registered with the Ministry of Labour, Employment and Social Security under No. 2027, through resolution No. 325 of the said authority. The CTA brings together workers from various sectors, unemployed persons and persons in precarious situations, as well as retired persons. It states that it is attempting to gain definitive recognition by the Argentine State through the application for trade union status that gave rise to this complaint. The CTA states that, on 23 August 2004, it lodged an application for trade union status with the Ministry of Labour, Employment and Social Security.
2. 213. The CTA lists the procedures and steps followed involving the Ministry of Labour, Employment and Social Security, which began with the submission of its application, and highlights the following facts. (1) On 20 December 2004, the “Trade Union Structure” Area Director of the Ministry of Labour, Employment and Social Security advised that transmittal of the application for trade union status to the General Labour Confederation (CGT) be expedited within a period of 20 days. On the same date, the National Director of Trade Union Associations made the following statement: “in accordance with the preceding declaration, prior to transmittal to the General Labour Confederation, please produce a report on the existence of second- and third-level bodies, whose trade union status may coincide with that of those first-level bodies on file and on the registration of their membership if this National Directorate has been provided with that information”. (2) This report was produced on 31 January 2005. (3) On 9 February 2005, the CTA submitted a written request that the matter of transmittal to the CGT be settled quickly. (4) On 18 March 2005, a judicial measure of amparo (appeal for the protection of constitutional rights) was lodged with the labour authority regarding administrative delays. (5) On 8 June 2005, the judicial authority issued a ruling upholding the CTA’s application, resolving that “there have been administrative delays and ordering the Ministry of Labour, Employment and Social Security – National Directorate of Trade Union Associations to complete the administrative procedures within 20 days, ordering that transmittal to the CGT of the CTA’s application for trade union status be expedited. (6) On 18 May 2005, the Minister for Labour ordered that transmittal of the application for trade union status, along with a copy of the resolution and File No. 1-2015-1094.616, be expedited to 12 federations and one confederation (CGT). It should be pointed out that the intervening judge also ruled that owing to the said resolution, there had been administrative delays concerning the procedure, which had still not been completed. (7) Most of the federations, as well as the CGT, responded negatively to the granting of trade union status to the CTA. (8) On 17 November 2005, the CTA again requested that the matter be settled quickly, in an attempt to get the relevant body to speed up the process and grant the application for trade union status made in August 2004. (9) On 22 February 2006, an order was issued by the National Director of Trade Union Associations introducing what was clearly a new delaying measure which consisted of “requiring the General Labour Confederation of the Argentine Republic to provide a list of the bodies with trade union status affiliated to it, for which purpose a period of 20 working days has been granted …”.
3. 214. The CTA states that there is a need to explain briefly what the issue in question is, as well as its own position and that of the CGT regarding the said transmittal of the application. Above all, a summary of events is necessary regarding the delays on the part of the public administration. Recognition of the application for trade union status is based on past cases dealt with by the Ministry of Labour, Employment and Social Security. The trade union status of a third-level trade union body must be in line with the geographical area and category of persons covered by the first- and second-level trade union bodies which go to make up the third-level trade union body. Examples include the granting of trade union status to the Argentine Federation of Pastry, Cake, Ice Cream, Pizza and Biscuit Makers, the Federation of Government Professionals of the Autonomous City of Buenos Aires and the National Taxi Drivers’ Federation (FEPETAX). This “ascending radial” system is used in place of the procedure established under articles 25 and 28 of Act No. 23551 respecting trade union associations (LAS).
4. 215. The CTA adds that the CGT and its other constituent federations believe that the CTA’s application is illegal. The CGT argues that because articles 32, 33 and 25 of the LAS are so similar, the system for the comparison of trade union status therefore also covers second- and third-level associations, depending on their accreditation as the most representative organizations at those levels. According to the CGT, a confederation must be the most representative in order to obtain trade union status, and the most representative organization is the one with the most members paying dues in each affiliated body with trade union status. In order to gain trade union status, the body must also challenge the current body with trade union status, in line with the terms of articles 25 and 28 of the LAS. The CGT and its constituent federations consider on this basis that there can only be one general confederation with trade union status.
5. 216. According to the CTA, the application for trade union status complies with the terms of article 32 of the LAS, which states that: “The most representative federations and confederations shall acquire trade union status under the terms of article 25.” In turn, article 25 of the LAS states that granting of trade union status is linked to the fulfilment of two conditions: (a) the body shall be registered and shall have been active for a period of not less than six months; and (b) over 20 per cent of the workers it seeks to represent must be members of the body. These requirements were met at the time of the application for trade union status and the CTA therefore believes that the administration is delaying issuing a final decision granting or denying trade union status. The Ministry of Labour, Employment and Social Security must speed up the process and decide on its position. It cannot maintain its current state of silence or employ delaying tactics in the face of applications to settle the matter quickly. Neither can it delay proceedings given the imminent ruling on an amparo action for administrative delays.
6. 217. The CTA stresses that the delaying tactics of the Ministry of Labour, Employment and Social Security and its failure to issue a decision have prevented it from having recourse to legal channels in order to obtain a ruling on the interpretation of Argentine law regarding the trade union status of the CTA. Article 62 of the LAS states that decisions to deny trade union status may be appealed against through the National Employment Appeals Court.
7. 218. In its communication of 18 September 2006, the CTA states that, from the time the complaint was presented to the Committee up to the present date, the Ministry of Labour, Employment and Social Security has continued to employ delaying tactics, which, as has already been demonstrated, are based on the “non-completion” or avoidance of completion of the trade union status procedure. Both scenarios involve non-compliance with the deadlines established by law for the completion of steps relating to the completion of the procedure and the existence of formalities the sole aim of which is to delay proceedings. The CTA refers to various steps related to transmittal to the CGT, applications for extensions regarding the file, the lodging of complaints before the administrative authority and applications for the matter to be settled quickly which went unheeded.
8. 219. According to the CTA, the summary of the ongoing proceedings demonstrates that the public administration only prioritizes the issue of the application when called on to settle the matter quickly or when amparo actions are lodged by the CTA regarding delays. The public administration adopts a defensive stance when faced by these appeals and applications, justifying its actions by adding that even the delaying tactics (as in the case of the new transmittal to the CGT) contribute to the completion of the procedure “in order to arrive at a decision that necessarily relates to the application”. The Argentine State requires a minimum of almost three years to complete a procedure that should really involve no more than a simple check to ensure the legality of the application made by the representative organization of workers seeking trade union status.
9. 220. Moreover, the CTA states that the Seventh National Congress of Delegates of the CTA was held in the city of Mar del Plata (Buenos Aires Province) on 30 and 31 March 2006. During that Congress, over 8,000 workers, fully exercising the freedom of association, approved (by a large majority) various reforms to the social statutes of the CTA. Among other things, these reforms sought to deepen and intensify trade union democracy. On the said occasion the social statutes were reformed, along with new articles 2 and 4, which read as follows:
10. Article 2: The geographical area of the CTA shall cover the entire territory of the Argentine Republic and any first-level trade unions, unions, associations or workers’ federations, cooperatives or civil associations which accept the principles, aims and beliefs of the third-level entity may join the said entity. Workers (any individuals who, through their work, carry out a productive and creative activity with the purpose of satisfying their material and spiritual needs) may join the CTA. In principle, the following categories of individual may join the CTA: (a) employed workers; (b) unemployed workers; (c) workers receiving social security benefits; (d) self-employed workers and own-account workers (so long as they do not employ other workers); (e) associated or self-employed workers; (f) domestic workers. Article 4: Membership of the CTA is a voluntary and free act, performed by workers over the age of 14 covered by the subjective scope of activities, with the only condition being the acceptance and practice of the aims set out in the Declaration of Principles and the chapter on aims and ends, and the respect of the present statutes. Membership shall be obtained directly by the worker through the local, provincial, regional or national CTA organization or through any trade union, union, association or federation of any type which belongs to the CTA. National or provincial trade union bodies should be accepted as members by the National Executive Committee.
11. 221. The CTA alleges that, immediately after the trade union association had completed the procedures required by Argentine law with regard to the approval of amendments to statutes, on 27 July 2006 the Official Bulletin of the Argentine Republic published (page 29) Ministry of Labour, Employment and Social Security resolution No. 717/2006, which presents and partially approves the reforms to the CTA’s social statutes while expressing reservations with regard to what the relevant authority refers to as “the adopted trade union classification” and “scope of membership”, thus reinforcing decisions that contravene international standards which the Argentine State is obliged to respect.
12. 222. The CTA states that resolution No. 717/2006 is in direct conflict with the exercise of freedom of association and the right to organize, as well as violating the terms of Articles 2, 3 and 6 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Argentine State’s position is set out in the recitals of resolution No. 717/2006: “with respect to the statutes submitted for approval, and in particular the provisions concerning the trade union classification and membership scope, Act No. 23551 respecting trade union associations and Regulatory Decree No. 438/88 (regulating the Act respecting trade union associations) take precedence should they come into conflict with the said statutes”. Reiterating this approach, the relevant authority resolves through article 1 that: “As soon as the law requires it, the text of the social statutes of the Central of Argentinean Workers (CTA) shall be approved and the CTA shall then be known as Central of Argentinean Workers (CTA), as contained in page 44/99 of File No. 1.166.285/06, in line with the provisions of Act No. 23551 and Regulatory Decree No. 467/88, which take full precedence in law over the statutes should they come into conflict, in particular with regard to the adopted trade union classification and membership scope, as set out in the said piece of legislation.”
13. 223. The CTA adds that, in contesting the trade union classification and the membership scope, resolution No. 717/2006 refers to two new articles on the statutes, articles 2 and 4. The authority maintains its exclusionary stance by arguing that the contents of the new articles of the social statutes approved at the recent Seventh National Congress of Mar del Plata overstep existing legal boundaries. Thus, resolution No. 717/2006 becomes discriminatory, in that it undermines the recognition, enjoyment and exercise on an equal footing of the social and economic human rights of CTA members. These rights were undermined whenever the authority claims that the LAS and Regulatory Decree No. 467/88 take precedence regarding the “adopted trade union classification” (which simply means that the authority will deny any workers not meeting the requirements contained in the said pieces of legislation the right to organize). Thus, self-employed, pseudo self-employed or own-account workers and those working within an unregistered employment relationship and the unemployed lose the right to organize.
14. 224. The CTA states that it has now been shown that this unacceptable restriction on freedom of association and collective independence, carried out through resolution No. 717/2006, is just one of a series of acts carried out by the administration that go far beyond simple checks regarding legality and registration, reflecting, as it does, animosity and hostility towards the CTA. The articles challenged by the Ministry of Labour, Employment and Social Security of the Argentine Republic are essential for the development of the organization and the trade union activity of the workers’ central. Both direct membership (article 4) and membership of workers regardless of their status (article 2) are essential characteristics of the CTA. Trade union organizations, their members and workers should be allowed to choose the form that trade union organizations take as part of the free and full exercise of their fundamental rights.
15. 225. Finally, the CTA states that it has lodged the corresponding administrative appeals with the relevant authority and that it made it clear in those appeals that it will not accept any kind of restriction on the will to organize independently; this has been stated in the following terms: “Therefore, we insist that the original wording of articles 2 and 4 of the social statutes, as approved by the delegates at the Congress, be maintained and we neither agree to nor accept the interference of the National Executive Power through the Ministry of Labour, Employment and Social Security with regard to matters which fall under the competence, to the exclusion of any other body, of the trade union organization.”
16. B. The Government’s reply
17. 226. In its communication of 15 May 2007, the Government notes in the first place the contradictions which exist in the allegations of the CTA. Secondly, it indicates that the complainant organization tried to obtain trade union status on the basis of article 28 of Act No. 23551 although it has members which are not envisaged by the provisions on trade union status. On the other hand, the trade union invokes the provisions of the abovementioned Act and alleges that the violation consists mainly in the delay of the Government due to successive administrative acts. The Government sums up the issues raised in the allegations as to whether it is necessary or not to compare the representativeness of trade unions as established in article 28 of Act No. 23551 or whether it is possible to apply exclusively articles 25 and 32 of Act No. 23551, in accordance with the last paragraph of article 28 of the Act.
18. 227. The Government rejects in the first place that delays took place in the adoption of the administrative decisions. It recalls that in fact, the CTA presented its request for trade union status on 23 August 2004. On 3 September the National Directorate of Trade Union Associations issued a statement ordering the CTA to attach the minutes of the assemblies in which the first-level bodies decided to affiliate to the third-level entity as well as the minutes through which these affiliations were approved. On 20 December 2004 the National Directorate of Trade Union Associations issued a new order enumerating the first-level bodies whose minutes were added to the file and advising that copies be given to the CGT for any appeal within 20 days. Prior to this, it considered appropriate to verify whether any pre-existing second- or third-level body with trade union status could coincide in full or in part with the statutes of the first-level trade unions affiliated to the CTA. This led to a report dated 31 January 2005. In February the CTA requested that the file be forwarded to the CGT in accordance with the position of the National Directorate.
19. 228. The Government adds that the administrative proceedings continued through successive legal examinations before the Trade Union Structure Department of the National Directorate of Trade Union Associations, the Labour Secretariat, and the Directorate of Legal Actions of the General Directorate of Judicial Matters.
20. 229. The Government indicates that according to the CTA the conditions of articles 25 and 32 of Act No. 23551 for the recognition of the most representative organization were fully met as the organizations affiliated to the CTA are the most representative in their respective domains and for this reason it is not appropriate to apply the provisions of article 28 of Act No. 23551 on the comparison of trade union representativeness. Following this affirmation, the Government indicates that the Labour Secretariat had to request reports in order to determine the existence of second- and third-level bodies whose trade union status is alleged by the CTA.
21. 230. On 18 May 2005, the Labour Minister decided to accord hearings to the CGT and the second-level bodies whose interests could be affected and from then onwards, the entities concerned started to respond. Various extensions were requested and granted.
22. 231. The Government adds that on 21 February 2006, the Trade Union Structure Department of the National Directorate of Trade Union Associations advised that the files be referred to the higher-ranking body and that the CGT be requested to indicate the entities with trade union status affiliated to it. This is due to the fact that a request for trade union status has not been made by a multi-sector confederation since 1946. At that time, trade union status had been granted to the CGT and a different law was in force than Act No. 23551. The CGT was finally notified on 21 February 2006 and on 22 March requested an extension of 20 days which was granted and expired on 17 March 2007, when another extension was requested. Finally, on 12 August 2006 the CGT was summoned to answer and the files were transferred to the General Directorate of Legal Actions.
23. 232. Finally, the Government indicates that the file concerning the request for trade union status by the CTA is still active and pending due to its particular characteristics, taking into account that the only precedent on record of a request for trade union status by a multi-sector confederation dates back to 1946 and was presented by the CGT. Currently, the various first-level trade union organizations affiliated to the CGT are in the course of appearing in the proceedings in order to indicate how many contributing members they have. It is the examination of the quality of trade union affiliated to the CGT that delays the proceedings and not any dilatory acts.
24. 233. The Government underlines the importance of taking into account the interests not only of the CTA but also the CGT, which involves the comparison of the representativeness of the first-, second- and third-level entities – an extremely difficult task given the high number of bodies with trade union status in Argentina.
25. 234. As for resolution 717/06 of the Ministry of Labour, Employment and Social Security, which partially approves the reform of the by-laws of the CTA and expresses a reservation as to the adopted trade union classification and scope of membership, the Government refutes the allegations of the CTA according to which the resolution violates the provisions of Articles 2, 3 and 6 of Convention No. 87. There is absolute freedom in Argentine law to establish professional associations regardless of their level, as deemed appropriate, without intervention by the authorities in conformity with articles 1, 5 and 23 of Act No. 23551. The Government also underlines that Case No. 1777 examined by the Committee is not applicable in this case.
26. 235. The Government clarifies that the issue in the present case is the comparison of trade union representativeness in order to obtain trade union status and the amendment of statutes aimed at incorporating a subjective trade union classification and scope of membership which are not in conformity with Act No. 23551. In fact, nothing prevents an organization from being established in conformity with resolution 325/97 in order to obtain a simple registration. However, when it comes to obtaining trade union status, the situation changes as the criterion of representativeness has to be taken into account and a comparison has to be carried out with other organizations which have trade union status in conformity with the provisions of Act No. 23551.
27. 236. The Government emphasizes that the CTA came to the Ministry of Labour to obtain trade union status in conformity with the law, which does not allow for direct affiliation nor for organizations of the nature envisaged in the statutes of the CTA, which were examined by the Ministry of Labour in conformity with the provisions of articles 21 and 56, sections 1, 2, 21, 25 and 32. The Government underlines that the resolution of the Ministry which recognizes the trade union status should be in direct relationship with the organization’s statutes which were previously approved and registered. In the present case, the statutes which were amended in order to obtain trade union status changed the context of representativeness and the classification established in Act No. 23551 by virtue of which trade union status was requested.
28. 237. The Government considers moreover that the Committee cannot pronounce itself on this case because it lacks elements which were not brought before it. Article 25 of Act No. 23551 provides that the qualification of most representative organization will be granted to the association which has the largest average number of contributing members, in relation to the average number of workers that it aims to represent.
29. 238. According to the Government the complainant organization affirms its intention to initiate the proceedings in the framework of Act No. 23551 in the hope of a change in the criterion applied by the administration so as to allow for the coexistence of first-, second- and third-level organizations with trade union status in conformity with articles 28, last paragraph, 25 and 32 of the aforementioned Act. In all its arguments, it acknowledges that the Act only allows for the affiliation of workers to first-level organizations and indicates that in fact, the second-level bodies only have the powers delegated to them expressly by the first-level body, notably that of collective bargaining. They are entities which group together other trade unions. Workers can only join a first-level trade union. The affiliation to a second- and third-level organization is an act exercised collectively by a workers’ organization and not by one or several workers individually and it is possible to join, not to join or to resign from a higher-level entity. As a result, the complainant organization cannot feel prejudiced by the observations made on its statutes with regard to the impossibility of direct affiliation by workers to a third-level body.
30. 239. Similarly, with regard to workers in general, the Government indicates that in conformity with article 2 of Act No. 23551 which establishes the organizations which must be taken into account in order to determine the scope of representativeness and in conformity with article 1 of Decree No. 467/88 which defines the concept of worker, the provision of article 25 limits the scope of representativeness to those working in a relation of subordination, who are affiliated and pay their dues.

C. The Committee’s conclusions

1. 240. The Committee notes that in the present case, the complainant organization objects to the long period of time which has elapsed without the administrative authority having issued a decision regarding the application for trade union status that the complainant organization presented on 23 August 2004. Furthermore, it alleges that the administrative authority has only partially approved the reforms to the statutes of the CTA (agreed on at its National Congress in March 2006), in violation of the principles of freedom of association.
2. 241. The Committee, regretting the delay in the Government’s reply, takes note of its observations indicating the various steps taken in the examination of the request for trade union status by a third level trade union organization and denying that this is a case of administrative delays. The Committee notes that the Government recounts the various stages of the proceedings due to the participation of various parties. The Committee also notes that according to the Government this is a particular situation as a request for trade union status has not been made by a third level trade union organization since 1946, when the General Confederation of Labour requested trade union status and a different legislation was in force.
3. 242. The Committee, however, notes with concern that administrative proceedings have been ongoing for almost three years and, as a result of this excessive delay, the complainant organization may have been adversely affected in the exercise of its activities. The Committee observes that the Committee of Experts on the Application of Conventions and Recommendations has already examined this issue and that in its 2007 report it stated the following [see Report III (Part 1A), p. 41 of the English language version]:
4. In view of the significant benefits enjoyed by workers’ organizations that have “trade union status” (including the right to collective bargaining), the Committee regrets that so long a period has elapsed – more than two years according to the Government – without any decision from the administrative authority. The Committee urges the Government to take a decision without delay regarding the CTA’s application for trade union status.
5. In the same vein, the Committee strongly urges the Government to take a decision without delay regarding the CTA’s application for trade union status (made almost three years ago) and to keep it informed in this respect.
6. 243. As to the allegation that the administrative authority only partially approved the reforms to the statutes of the CTA adopted during the trade union organization’s National Congress in March 2006, the Committee notes that according to the complainant organization, administrative resolution No. 717/2006 challenges new articles 2 and 4 of the statutes with regard to the trade union classification adopted and the scope of membership (in particular, article 2 allows both employed and unemployed workers, as well as those receiving social security benefits, to join the CTA and any of the organizations affiliated to it).
7. 244. The Committee takes note of the Government’s observations according to which the conditions for obtaining a simple registration are different than those for acquiring trade union status and that the statutes of the CTA which were amended in order to obtain trade union status included subjects not envisaged in Act No. 23551, which does not allow for direct affiliation, nor for the nature of the organizations envisaged in the statutes of the CTA.
8. 245. In this respect, the Committee recalls that it has, in the past, pronounced itself with regard to similar allegations presented by the CTA in relation to the refusal of the Government to proceed with its trade union registration, based on the fact that it is a third-level trade union body which has certain special characteristics in its structure as regards its representation, whereby provision is made for direct affiliation by individual persons – including retired and unemployed persons – contrary to the provisions of Act No. 23551 respecting trade union associations [see 300th Report, Case No. 1777, paras 58–73]. On that occasion, the Committee stated the following:
9. ... the Committee recalls that organizations of employers and workers should have the right to draw up their constitutions and rules in conformity with Article 3 of Convention No. 87. The Committee therefore considers that the prohibition of the direct affiliation of certain persons to federations and confederations is contrary to freedom of association principles. It is for these organizations themselves to determine what the rules relating to their membership should be.
10. In these circumstances, the Committee urges the Government to take measures to ensure that the statutes of the CTA are fully approved and to keep it informed in this respect.

The Committee's recommendations

1. 246. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee strongly urges the Government to take a decision without delay regarding the CTA’s application for trade union status (made almost three years ago) and to keep it informed in this respect.
   • (b) The Committee urges the Government to take measures to ensure that the statutes of the CTA are fully approved and to keep it informed in this respect.