Interim Report - Report No 353, March 2009

Case No 2614 (Argentina) - Complaint date: 06-NOV-07 - Closed

Allegations: The complainant organizations object to a decision rendered by the Higher Court of Justice of the province of Corrientes in regard to the regulations governing the right to strike within the judiciary; they also object to the decision to dock the salaries corresponding to days spent on strike by judicial employees

1. 345. The complaint is contained in communications from the Trade Union of Judicial Workers of Corrientes (SITRAJ) and the Argentine Judicial Federation (FJA) dated 6 and 19 November 2007. By communications dated 3 January and 3 July 2008, SITRAJ sent additional information in connection with its complaint.
2. 346. The Government sent its observations in a communication dated 25 June 2008.
3. 347. 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 complainants’ allegations

1. 348. In their communications dated 6 and 19 November 2007, SITRAJ and the FJA state that in October 2006, the Higher Court of Justice of Corrientes submitted to the executive its draft multi-year budget for 2007 together with its projections for 2008 and 2009. The amount in question was considered by the executive’s Ministry of Finance, which asked that it be reduced. By Decision No. 36 of 23 November 2006, the Higher Court of Justice resolved “not to entertain a reformulation of the budget and to confirm its presentation thereof for the periods in question and in the amounts requested in accordance with the Act on Financial Independence of the Judiciary” (Act No. 4420, section 5). Despite that confirmation, the legislature, in approving the overall budget for the province, did so without respecting the independence of the judiciary. In November 2006, the provincial executive approved a 19 per cent salary increase for the civil service, effective as from the first of that month, with a subsequent 20 per cent increase as from 1 May 2007 by Decree No. 716/07. Following repeated complaints, partial success was achieved in securing the same salary policy as had been implemented by the provincial executive for the civil service and by the legislature for its employees, with an increase of 8 per cent being secured on 1 February of this year, and 16 per cent on 1 August, by extraordinary Decision No. 3, leaving 15 per cent still outstanding for the judiciary. It was this that sparked the current crisis.
2. 349. The complainants state that on 16 June 2007, it was agreed in an extraordinary general assembly to take direct action in the form of work stoppages on 22 and 29 June and 6 July, in view of the lack of any response to the calls for a salary increase. In an unexpected move, and in the absence of any conciliation or of the direct action being declared illegal, the court ordered the deduction of two days of salary from those having participated in the two days of direct action in June. In the face of this response it was resolved, by decisions taken during recesses of the extraordinary assembly (on 6 and 27 July, 4 and 24 August, 7 and 27 September, and 13 and 26 October), to continue with direct action in the form of work stoppages on two days in July (26 and 27), four days in August (10, 17, 24 and 31), ten days in September (7, 11, 12, 13, 18, 19, 20, 25, 26 and 27) and 12 days in October (3, 4, 5, 10, 11, 12, 17, 18, 19, 24, 25 and 26).
3. 350. The complainants add that an appeal for the protection of constitutional rights (amparo) was also submitted, on 25 July, under the terms of articles 43 and 75(22) of the National Constitution and article 67 of the Provincial Constitution against the state of the province of Corrientes (Judiciary) on account of the certain and imminent threat of measures to dock the salaries of judiciary employees having participated in the direct action – work stoppages – called by SITRAJ, through an infringement of constitutional rights on the part of the Higher Court of Justice. The supreme organ of the province’s judiciary is currently on the point of restricting, distorting and threatening, in a manner that is clearly arbitrary and illegal, constitutional rights and guarantees such as the right to strike, which is recognized under article 14bis of the National Constitution and under numerous international treaties. Similarly, a precautionary measure was requested in order to have the supreme organ refrain from engaging in measures to dock the salaries of employees participating in direct action, and to have it ordered that any amounts thus docked or due to be docked be repaid, and that the matter be brought before Civil and Commercial Court No. 12 of the first district (file No. 9305/07). This judicial authority handed down decision No. 94 of 14 September 2007, in which it decided: “(1) to rule in favour of the present appeal for amparo and consequently to order the state of the province of Corrientes (judiciary) to refrain from docking the salaries of judicial employees on the grounds of presenteeism or any other grounds having to do with the direct action involving work stoppages called by SITRAJ, as from the start of that action and until actual notification hereof, and to repay all amounts thus docked”.
4. 351. The complainants further state that by Resolution No. 546 of 1 August 2007, it was decided “to accept the precautionary measure and, by virtue thereof, to order the state of the province of Corrientes (judiciary) to refrain from docking, as from the month of July and thereafter, the salaries of judiciary employees having participated, or who may participate, in the direct action called for by SITRAJ, whether on the grounds of presenteeism or on any other salary-related grounds, while the case is being examined and until the final judgment is rendered in regard to the substance of the matter in dispute”. The precautionary measure was appealed against by the provincial state, in response to which the trade union entered a challenge for cause in regard to the judges and President of the Higher Court of Justice for having expressed an opinion in advance of the trial (by pronouncing the decisions and ordering the docking of salaries and, ultimately, by having been the one who signed, as President of the Higher Court of Justice and on behalf of the judicial authority, the response to the amparo, thereby becoming both judge and party). Likewise, under the Act on Administrative Procedures, No. 3460, it is stipulated in section X, under the heading “Self-disqualification and challenge”, section 65(b) in fine, that: “… However, no one having previously exercised an administrative, legislative or judicial function in a given case may intervene in that same case in the exercise of one of the other functions …”. When the matter came before it, the Higher Court of Justice rejected the challenge for cause and decided to appeal against the precautionary measure, which it revoked, at the same time rejecting the extraordinary federal appeal. This prompted the complainant organization to lodge a remedy of complaint with the Supreme Court of Justice of the nation, calling for the decisions of the challenged judges to be declared null and void and/or for the revocation of the precautionary measure to be declared null and void. It has thus far received no response.
5. 352. On 10 August, a submission was made to the Higher Court of Justice, reiterating the urgent need for a response in the matter of the 15 per cent shortfall in the salary increase requested (file No. S-50/07) for all employees of the province’s Judiciary, since the issue was one of subsistence, the main supporting argument being that the same salary policy should be implemented for the judiciary as for the executive, through decrees and by decision of the Legislature.
6. 353. The complainants state that, on 3 August 2007, following the communication in the normal manner of a note announcing the outcome of the extraordinary assembly, the Higher Court of Justice announced that it required “an authentic copy of the minutes of the assembly, together with records in the form of the books and tables drawn up for the purpose of registering the attendance of members at the assembly (article 32 of the SITRAJ statute), on pain of sanction in the event of non-compliance”. This was met with petitions requesting clarification, there being no indication as to why something never previously requested was now being called for, or on what legal basis details were being requested whose inspection fell solely within the competence of the body responsible for supervising trade unions, namely the Ministry of Labour, Employment and Social Security of the nation. On 5 October, against a backdrop of persistent reports of amounts having been docked from salaries corresponding to the months of July and August, a note was sent to the Director of Administration informing her of the status of the amparo request, in response to which the Higher Court of Justice ordered that the docking of salaries should now cover the months of July, August and September (a total of 17 days), with the month of October not being included since it was not yet over.
7. 354. The complainants state that on 11 October 2007, the Higher Court of Justice rendered Decision No. 30, which, in point 23, regulates the right to strike and constitutes a clear subjugation of the practice of freedom of association. An appeal for reconsideration was entered against that decision (file No. S-126-07), calling for its annulment on the grounds that it sought to regulate, unreasonably and with a clear overuse of authority, a right that was enshrined in article 14bis of the National Constitution and requesting that its effects be suspended pending settlement of the matter. Such suspension was rejected by Resolution No. 225/07, against which an appeal for reconsideration was entered, together with reservations as to the making of all necessary administrative and judicial representations at the national and international levels.
8. 355. A corresponding complaint was also made to the Ministry of Labour, Employment and Social Security by the Argentine Judicial Federation, the same complaint being made to the Ministry’s Corrientes office by SITRAJ, the said office having replied (on 25 October) that “subjugation of the practice of freedom of association” lay beyond the competence of the Ministry. Nevertheless, and “should the parties so decide”, they would act as “intermediaries”. On 26 October, the recess of the extraordinary assembly was continued, during the course of which it was decided: “to repudiate Decision No. 30, point 23, which limits freedom of association and prohibits the right to strike, to accept the offer by the Corrientes office of the Ministry of Labour, Employment and Social Security to act as an “intermediary”, and to suspend the pursuit of direct action – work stoppages – owing to the possible threat of loss of the source of labour.
9. 356. The complainants consider that the conduct on the part of the Higher Court of Justice and the text of Decision No. 30, point 30, highlight the grievances behind their complaint. First, in the preambular part of the decision in question, the following interpretation is made of the content of the Trade Union Act: point IV of the reasons disregards the obligatory conciliation procedure provided for by Decree No. 272/2006 within the provincial territory. The complainants wonder whether each ministry or each authority has powers to regulate the right to strike. As they see it, it would appear to be so at the provincial level, since as judicial employees they are governed by Decision No. 30, point  23, which in turn leaves aside Act No. 23551, which is the act that governs the trade union status accorded to SITRAJ under Ministry of Labour, Employment and Social Security Resolution No. 362/75.
10. 357. The complainants add that point 5 of the decision regulates “the manner in which control is exercised over the minimum requirements of accreditation and negotiation of conflicts within the Higher Court of Justice …”, now exercising the powers of supervision and control that correspond to the Ministry of Labour, Employment and Social Security and requiring the presentation of documents on pain of “… taking judicial steps to have the action taken declared illegal”. In the view of the complainants, the arguments put forward by the province’s Higher Court of Justice undermine its institutional standing inasmuch as they seek, in an unlawful and dogmatic manner, to regulate the right of associations to take direct action. They consider it unworkable for the Higher Court of Justice of Corrientes to attempt to regulate matters pertaining to trade union rights.
11. 358. The complainants further state that Decision No. 30/07 also wrongs them inasmuch as its point 1 provides “… that prior to resorting to direct action, the Higher Court of Justice shall be informed of the reasons for the conflict, which must be of a labour-related nature, together with any suggestions deemed relevant, to which end the corresponding record shall be drawn up in the presence of the administrative secretary”. In point 2 of its operative part, the decision goes on to provide as follows: “In like manner, it shall – in the event that it is decided to undertake direct action liable to result in the suspension, interruption or shutdown of the services provided by judicial employees, by means of their withdrawal from the workplace or by other means – give advance notice to the Higher Court of Justice in due form and no later than five days before the date on which the action is due to begin, providing it with the outcome of the extraordinary assembly which, having been convened solely for that purpose, decided in favour of such action by at least a twothirds majority of those in attendance and entitled to vote (sections 21(j) and 27 of the Statute of the Trade Union of Judicial Workers) ...”.
12. 359. The complainants affirm that, as if the Higher Court of Justice’s arrogation of legislative powers were not enough, point 2 of the operative part of Decision No. 30/07 provides that in the event of it being decided to resort to direct action, copies shall be submitted of the executive committee’s call to assembly, of the agreement and resolution and of the ad hoc book or list recording the attendance of members at the assembly. The complainants wonder which provision of the National Constitution or Provincial Constitution, or of an international treaty, has been taken as a basis for establishing that the employer is to supervise and inspect the calling of its employees to an extraordinary assembly.
13. 360. In point 4 of Decision No. 30/07 it is established that “in the event that the obligation to inform the Higher Court of Justice of the reasons for the conflict is not complied with; that those reasons are not labour-related; that the decision to resort to direct action is not taken in conformity with sections 21(j) and 27 of the Statute of the Trade Union of Judicial Workers; or that the obligation to provide a copy of the executive committee’s call to assembly, of the agreement and resolution and of the ad hoc book or list recording the attendance of members at the assembly is not complied with, the Higher Court of Justice may take legal steps to have the direct action declared unlawful”. The complainants hold that, under this provision, the Higher Court of Justice is acting as both judge and party, it being for this reason that they have lodged a complaint with the Supreme Court of Justice of the nation.
14. 361. The complainants likewise object to point 3 of Decision No. 30/7, which states that: “on the day immediately following the day on which advance notice is given, the minimum services to be maintained during the conflict, the arrangements for their provision and the staff to be assigned to provide them shall be established in accordance with the past practice of the Higher Court of Justice referred to in the preambular part hereof”. The complainants state that resolutions by which extraordinary assemblies resolve to engage in direct action – work stoppages – provide for one working day to enable magistrates and officials to call for, or establish shifts, in case the direct action attracts a very large following, with courts of first instance and public prosecution teams being exempted.
15. 362. The complainants consider that under this decision, in the event of a labour-related conflict, it is required that the members of the SITRAJ executive shall first appear before the administrative secretary, inform him of the reasons and provide him with suggestions to be included in the record. No mention is made of dialogue with the Higher Court of Justice, of reconciliation between the two parties (employer and union), or of seeking solutions or agreements. Then, although the response is not known, it is necessary to give advance notice, five days ahead of the action, of the outcome of the extraordinary assembly, which, under the terms of the Statute it is not possible to do since the calling of a stoppage or strike is a defensive measure that can be taken only in extremis. In the event that such a call is issued on any grounds other than those specified in section 21(j), “or that those reasons are not labour-related”, for example, modification of the union’s statute (subparagraph (a)); under this decision, “the Higher Court of Justice may take legal steps to have the direct action declared unlawful”. In the complainants’ view, this is another clear example of the restrictions being imposed on freedom of association by the Higher Court of Justice.
16. 363. The complainants maintain that the decision about which they are complaining is unlawful inasmuch as it regulates, in a unilateral and arbitrary manner, the exercise of trade union rights – something which no legislator has done. The deviations that are occurring are causing harm to judicial employees in particular, but also have negative repercussions for the entire spectrum of workers and their unions, for whom there is henceforth a precedent that can be drawn upon when it comes to limiting the union activities in their respective companies or state entities. However, the interference by the Higher Court of Justice of Corrientes does not end here, since not only does it regulate the law but also sets itself up as the implementing authority for verification and examination of trade union activities. According to the complainants, the justice service has not been affected in its work, bearing in mind that only a part of the judicial community is represented by SITRAJ, it being the responsibility of the magistrates and officials, within whose power it lies, to provide the information that the court requires.
17. 364. The complainants state that, as a consequence of the above situation, they have requested the intervention of the Ministry of Labour, Employment and Social Security of the nation, through a complaint lodged with the Corrientes office and another with the central office, in the interests of putting an end to the arbitrariness and serious violation of freedom of association on the part of the Higher Court of Justice. This resulted in the opening of file No. 1-208-81743-2007, in which the conflict is described in detail and in which the aforementioned Ministry states that the matter “falls outside the scope of its competence inasmuch as it has to do with a case of unfair practice under the terms of section 54 of Act No. 23551, calling for recourse to judicial channels, in which matter it would be prepared to act as a mediator”. In this regard, the Higher Court of Justice of the province of Corrientes refuses to recognize the mandatory conciliation procedure provided for in section 2 of Act No. 14786, maintaining that those regulations do not apply to conflicts arising within the provincial territory, or to accept the mediation offer by the Corrientes office of the Ministry of Labour, Employment and Social Security, which is not mandatory. It is for this reason, with all internal procedures at the national, administrative and judicial levels having been exhausted, that the complainants have seen fit to lodge the present complaint, having regard to the legal considerations that are set forth below.
18. 365. According to the complainants, various situations have arisen that amount to a serious violation of internationally-recognized principles – incorporated into Argentina’s domestic legislation – designed to guarantee freedom of association.
19. 366. The complainant organizations allege that the Higher Court of Justice, in issuing Decision No. 30(23), is seeking to regulate aspects of trade union rights (timing and arrangements for the holding of extraordinary assemblies and the corresponding quorum) that lie wholly outside its sphere of competence as a public authority. The complainants assert that there can be absolutely no disputing the fact that the strike, as a form of direct action aimed at bringing about certain changes in the employer’s behaviour – changes that can involve either adopting new behaviour or dropping an existing one – is protected under the Constitution and constitutes a legitimate right in the sphere of labour relations. This constitutional right is exercised as a means of demanding the right to a decent wage, based on the family expenditure level, while at the same time the exercise of that right places a burden, to a greater or lesser extent, on the party against whom it is directed.
20. 367. At the national level, the right to strike is enshrined in Act No. 25877, known as the Labour Organization Act, which regulates the right to strike in such a way as to lend greater effectiveness to the constitutional guarantee in keeping with the interests of the State, ensuring the essential values of social coexistence, while setting limits on that regulation, which is confined to essential services and is subject to the principles and criteria established by the ILO in that regard and incorporated into Argentine law. The Ministry of Labour, Employment and Social Security is the authority with the competence to exercise such regulation at its discretion and the only entity capable of determining the legitimacy or otherwise of the strike, not having declared it to be unlawful in the present case, while the Higher Court of Justice has no authority to determine the legitimacy of the strike or, even more to the point, to regulate it.
21. 368. In its communication dated 3 January 2008, SITRAJ raises objections to new decisions relating to sick leave arrangements, and to the administrative rule of procedure for the judgment of breaches of discipline on the part of magistrates, officials and employees of the judiciary. The complainant organization adds that, on 28 November, criminal charges relating to fraud were unexpectedly brought against the general secretary of SITRAJ, Mr Juan Carlos González, for a matter going back to 2001. The complaint was lodged by an employee not associated with the entity, and the proceedings were anything but usual, it having been stated that the intention was to intimidate the union’s leadership. The complaint was dismissed owing to the absence of any crime.
22. 369. The complainant organization insists that the behaviour on the part of the Higher Court of Justice and the text of Decision No. 30(23), which amounts quite simply to a negation of the right to strike, concealing the wrongful persecution being carried out through the obvious abuse, overuse or misuse of power, since authority is being exercised for a stated purpose (ensuring an adequate justice service), while the true purpose lies elsewhere, namely in the restriction of freedom of association involving interference in the union’s activities and the imposition of different regulations and a supervisory body other than the one provided for in Act No. 23551.
23. 370. In its communication dated 3 July 2008, SITRAJ adds that the Higher Court of Justice of the province of Corrientes, not content merely to have adopted Decision No. 30 of 11 October 2007, which rules out the right to strike, has gone still further in its efforts to cut back on freedom of association by interfering in the activities of the union of judicial workers, imposing different regulations and a supervisory body other than the one provided for in Act No. 23551.
24. 371. SITRAJ adds that on 14 February 2008, by judicial Decision No. 01, the Higher Court of Justice of the province of Corrientes rejected the appeal for reconsideration submitted by SITRAJ in regard to Decision No. 30(23) and confirmed “each and every one of the factual and legal grounds for the existence of Decision No. 30(23)”. This judicial decision amounts to a restatement of the reasonings already expressed, using different nuances and words, in Decision No. 30, seeking to justify the unjustifiable, namely curtailment of the right to strike and interference in the internal affairs of a trade union, in other words causing injury by its efforts to confer legitimacy on a curtailment of the rights that are recognized and protected under section 14bis of the National Constitution. This lengthy decision fails to take account of the fundamental fact that the “right to strike” is the very last tool to which a union has recourse when all other avenues have been exhausted, and that SITRAJ has only ever made use of it in this way. Nor does it say anything about SITRAJ various requests received by the Higher Court of Justice, which was not even prepared to receive the new members of the executive committee, despite the requests made to that end, which have remained unanswered. SITRAJ wonders how the Court can expect to comply with its duty to engage in “prior dialogue” if it never grants an audience.
25. 372. SITRAJ states that on 6 March 2008, the Higher Court of Justice rendered Decision No. 5, item 13, which withdrew the trade union privileges enjoyed by three members of the executive committee (general secretary, deputy secretary and treasurer), spuriously basing its action on section 48 of the Act on Trade Union Associations (No. 23551). Furthermore, in the operative part of item 13, the Court resolved to lift the suspension provided for under Decision No. 31/02(4), solely with respect to section 62, first part (hitherto suspended), which modified the current section 56, and granted entitlement to leave without pay while maliciously not implementing the second part by which trade union leave is granted. SITRAJ sees this as evidence of patent animosity towards the members of its executive committee and as an attempt to weaken SITRAJ as a part of its ongoing curtailment of the rights of workers who are constantly being subjugated by the Higher Court of Justice. This then completes the curtailment of freedom of association, since the SITRAJ representatives are able to perform their representative duties only during the three hours of leave that are granted to them as employees of the judiciary.

B. The Government’s reply

1. 373. In its communication dated 25 June 2008, the Government emphasizes that the acts to which the complaint refers are those of an independent authority (the judiciary) of a provincial government (that of the province of Corrientes), and that by virtue of the federal form of government and principle of independence of authorities, the national Government must proceed with the greatest caution and the utmost respect for these constitutional principles. It is for this reason that the complaint was transferred to the Higher Court of Justice of the province of Corrientes, which presented its observations in regard to the case in question. The Government adds that, over and above those observations by the Higher Court of Justice, whose report is attached, in the present case it is necessary to abide by the relevant decisions of the Committee on Freedom of Association, namely that “officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition”, and that “staff in the judiciary should be considered as public servants exercising authority in the name of the State and, as a result, the authorities may suspend the exercise of the right to strike of this staff”. The Government points out that at no time in the case in question was the right to strike prohibited or suspended, but that the minimum measures were adopted to ensure that the judiciary would be able to maintain an emergency service during the period of the strike.
2. 374. In his report, the President of the Higher Court of Justice of the province of Corrientes states that the decisive circumstances resulting in the decision to establish a framework for the right to strike of judicial employees and harmonize the exercise of that right such as to ensure that the essential rights of individuals are not undermined, by maintaining non-postponable services pertaining to their liberty and to public safety, stem from considerations both legislative, i.e. the absence of any procedure at the provincial level for handling strikes by judicial employees, and factual, including: (a) the exercise of that right in 2007 by judicial employees; who on several occasions and with varying scope took the concerted decision to pursue direct action and then to maintain it, abandoning their duties after having signed the daily timesheets. In its report of 11 February 2008, the staffing and leave division of the Corrientes judicial authority stated that employee participation had been recorded in the stoppages arranged by SITRAJ on 22 and 29 June; 6, 26 and 27 July; 10, 17, 24 and 31 August; 7, 11, 12, 13, 18, 19, 20, 25, 26 and 27 September; 3, 4, 5, 10, 11, 12, 17, 18, 19, 24, 25 and 26 October 2007, making a total of 31 days; and (b) the difficulties reported by the Supreme Council comprising the law societies of Corrientes, Goya, Santo Tomé, Curuzú Cuatía and Paso de los Libres on account of the negative effects produced by the repeated action taken by the union, in the absence of conciliation.
3. 375. The report states that such events gave rise to serious discussion, given the importance in such circumstances, and perhaps all the more so because of them, to find a way through that accommodated the various interests while ensuring that one sector’s pursuit of its specific aims does not undermine the rights of any other sector. For these reasons, and given the existence of regulations at the national level (Decree No. 272/2006) in regard to the provisions of section 24 of Act No. 25877 (relating to the adoption of direct action in the context of activities that may be considered essential services) – which was deemed to be inapplicable to labour conflicts arising on provincial territory through the express application of the provisions of articles 121, 122 and 123 of the National Constitution, in the same way as it was deemed impossible for the Ministry of Labour, Employment and Social Security to interfere in conflicts involving employees of the judicial authority of the province of Corrientes (a lack of jurisdiction not discussed by that Ministry when it learned of the situation from SITRAJ) – it was decided to adopt measures aimed at establishing a framework for the exercise of the right to strike.
4. 376. The report goes on to state that, as was the case when the decision was rendered in regard to the appeal for revocation lodged by SITRAJ against the provisions of Decision No. 30/07(23), the competence of the Supreme Court of Justice to act in the way that it did has constitutional and legal backing since, under the framework established by articles 187(9) and 188 of the Provincial Constitution, the duties of this body include issuing decisions and regulations for the purpose of giving effect to the Constitution and organizational act on the courts, and exercising oversight in regard to the administration of justice. The word “oversight” signifies “ultimate oversight of a branch”, this constituting an intrinsic duty of the Higher Courts or Courts of Justice in order to “govern” the judiciary. This implies decentralized legislation, distribution and implementation as institutional guarantees or safeguards for adequate fulfilment of the role that the Constitution assigns to this authority and clearly refers to the entity’s decentralized competence, separate from the central administration, whereby the judiciary is responsible for determining its own decision-making powers and administering its own activities.
5. 377. Within this framework, the province’s Supreme Court is responsible for administering its own organization, bearing in mind that the administrative judicial machinery of the judiciary raises very delicate issues in regard to the management and use of the human, technological and financial resources assigned to enable it to perform its basic and essential functions, and in the exercise of those rights and in the aspect pertaining to the effective provision of the justice service, for which the Higher Court of Justice is the main custodian and responsible entity (being empowered to issue decisions for the purpose of improving its services and to exercise oversight in regard to all employees of the province’s justice administration, in application of the duties and authority accorded to it by the Provincial Constitution for the effective consolidation of its work), it is logical and reasonable, when faced with the situation referred to in point 23 of the contested decision, as in the case of the concerted adoption by judicial employees in 2007, on various occasions and with varying scope, of ongoing direct action whereby they abandoned their duties after signing the daily timesheets, that the Court should have taken appropriate measures to balance the interests at stake; on the one hand, the need to ensure the uninterrupted provision of the justice service, seen as an essential service for the community and, on the other hand, the need to ensure respect for the fundamental right to strike. The balance to be achieved, then, is between the aforementioned interest of the community at large and the right of workers to take direct action.
6. 378. Let it be recalled that the justice service entrusted to this provincial state authority constitutes a function in its own right that is essential and cannot be delegated and whose implementation and efficient provision fall chiefly to the Higher Court of Justice, which is the reason why these internal measures were adopted in order to adapt the constitutional exercise of the right to strike in such a way as to avoid situations that could result in the possible disruption or degradation of the service. The principles of efficiency, effectiveness and uninterrupted service provision are of particular significance when it comes to organization of the justice service, on account of the exclusivity of the public functions concerned; hence the emphasis on the absolute need to ensure their provision. In short, the competence in question stems from the implicit authority conferred by the preambular parts of both constitutions, national and provincial, to “strengthen the justice system” or safeguard its administration, as well as from the aforementioned legal and constitutional authority which confers its management on the Higher Court of Justice. The judiciary has a non-repealable mission to guarantee the essential rights of individuals, sanctioning behaviours which harm those rights and ordering that any such unjust harm be redressed, it being essential to ensure the adequate and uninterrupted operation of its various organs in order to guarantee peaceful and healthy coexistence and the maintenance of citizens’ rights.
7. 379. It is precisely because the right to strike is not an absolute right but a relative one, subject to the reasonable limits laid down in the corresponding regulations, as prescribed in articles 12 and 14 of the National Constitution, that it is open to regulation. Such regulation must flow not only from an act but also from the entity whose responsibility it is to provide the justice service. It was within this context that it was decided to establish a framework for (rather than prohibit) the exercise of direct action, while focusing less on the internal organization of the union or decisions taken by it. In short, whether we are looking at autonomous or delegated regulations, the province’s Higher Court of Justice, as head of the judicial authority, acted within the bounds of its competence when issuing the decision in question.
8. 380. The President of the Higher Court of Justice notes in this connection that under point 1 of the operative part of the decision in question, recourse to direct action must be preceded by an explanation from the union of the labour-related reasons for the conflict, together with any suggestions it may have in that regard, the aim of this being to find a rapid and effective means of resolving the complaints. The need for rapidity is obvious, in order not to hinder the normal functioning of the justice service and to foster the search for consensus solutions in the specific matter of conflicts.
9. 381. Where the decision by SITRAJ to take direct action liable to result in suspension, interruption or paralysis of any part of the service is concerned, point 2 of the operative part requires the establishment of rules regarding the means by and form in which this is to be communicated to the court, whereby the period of notice must be reasonable, namely five days before the stoppage or strike is due to begin. The reason for this is common knowledge; as the chief authority, the Higher Court of Justice must notify each of its offices in the capital and elsewhere in the province of the union’s decision so that they can take the measures necessary to ensure an uninterrupted service. This period of notice is absolutely essential in order to avoid situations such as the calling of a stoppage just one day after the Higher Court of Justice is informed of that action. By way of illustration, it can be seen from file No. S-79-07 that SITRAJ, on 21 June 2007, informed the President of the Court that action would be taken as from 7 a.m. on 22 June 2007, with the signing of timesheets and withdrawal from the workplace without allowing for continuity of the service to be duly safeguarded or for news of the action to be communicated to other courts and to members of the Public Prosecutor’s office.
10. 382. The union is also required to provide, together with its communication regarding the planned stoppage, a copy of the executive committee’s call to assembly, of the agreement and resolution and of the ad hoc book or list recording the attendance of members at the assembly in question, in addition to which point 3 stipulates that the minimum services to be maintained during the period of the conflict shall be established. In regard to such services, there are already decisions of the Court, formulated differently to the current one, which specified the manner in which these were to be organized. With respect to the requirement as to the submission of a copy of the executive committee’s call to assembly, of the agreement and resolution and of the ad hoc book or list recording the attendance of members at the extraordinary assembly convened solely for the purpose of discussing the taking of direct action, in no way does this imply interference in the union or its internal affairs.
11. 383. If the union’s own statute, in sections 21(j), 27 and others, regulates the arrangements for giving notice of such a meeting, then requesting the union to provide a copy to the Court when it announces its decision and to specify the days on which the strike is to be held, responds, as the Higher Court of Justice states, to the basic principle of law whereby anyone calling for the adoption of a given situation must provide due grounds therefore. This requirement has everything to do with transparency and with the execution of the strike in due form and good faith, and can in no way be interpreted as undermining the rights of the appellant union or restricting the right to freedom of association. It is, moreover, a minimum requirement in the face of a decision to take strike action, which, as everyone knows, can be taken only as a final, extreme measure, whence the requirements laid down in the union’s own statute for taking such a decision.
12. 384. In conclusion, none of the measures that have been ordered undermine, infringe or impair the right to strike or the right to freedom of association of the union’s members, nor do they constitute an unfair practice or restrict the union’s right to agree on direct action, which it can do subject to respect for the aforementioned conditions. Finally, the foreseen consequences also become irreproachable since the possibility of pursuing a declaration of lawfulness or unlawfulness is clearly unquestionable in regard to the exercise of the right to strike. Then, the whole question of remuneration for duties not performed, in addition to the reasons already set forth in the contested decision, is a principle that has repeatedly been supported by the Higher Court of Justice of the nation.
13. 385. The reasons which led the union to decide in favour of direct action are specified in the notifications received by the Higher Court of Justice. These refer specifically to: (1) salary adjustment: 31 per cent as at June 2007; and (2) disagreement: (a) with the sums being disbursed by the judiciary for the division of IT and buildings infrastructure; (b) regarding the advancement of lower-ranking employees; (c) regarding the Act on Independence; and (d) with the docking of salaries for days of work stoppage, among other things.
14. 386. The question of the budget/wage review and financial independence formed the main grounds for the demands made by the judicial employees, triggering the various strikes held in 2007. It is essential that attention be drawn to the following in the interests of clarifying the matter, which is inextricably linked with the budget. The budget for the expenditure and resources of the judiciary for 2007 was drawn up in accordance with strict prudential standards laid down by the General Budget Directorate of the province of Corrientes (files Nos 100-01899-2006, 100-00087-2007 and 100-00135-2007), having regard to the financial cap imposed by the nation vis-à-vis the province, pursuant to the Act on Fiscal Responsibility, No. 25917, and with due consideration at all times being shown for upcoming projects and tasks, such as the implementation of 13 new legal offices, staff strengthening in those offices experiencing a serious human resources deficit, continuation of the computerization plan and of the buildings and equipment infrastructure policy, all of these goals being closely and indissociably linked in the interests of achieving the Court’s prime objective of ensuring the effective administration of justice, with priority being given to the improvement of working conditions for judicial employees.
15. 387. An initial presentation to the Provincial Executive of the budget for 2007, in the amount of 160,963,608 Argentina pesos (ARS), provided for a salary increase of 15 per cent for judiciary employees. However, following application of the financial cap imposed by the nation on provincial budgets, the credits allocated for salary increases were reduced by 8 per cent. The budget ultimately approved, by Act No. 5778, was in the amount of ARS138,463,608, the reductions made having been ARS17,000,000 under item 100 (staff costs), ARS2,500,000 under item 200 (consumer goods), and ARS3,000,000 under item 400 (fixed assets). It is to be noted that the body in charge of the financial administration system has the constitutional authority to modify the amounts proposed by the Judiciary. Despite the decision by the Higher Court of Justice to ratify the initial amount of ARS160,963,608, the provincial legislative power, pursuant to the Act on Fiscal Responsibility, No. 25917, which requires that the national and provincial governments maintain a balanced budget, was obliged to reduce the amounts proposed.
16. 388. Also affected by the imposed reduction – although to a lesser extent – were capital investments. It was stated at the time that the decision signalled the intention to respect the state policy in regard to the judiciary and the provisions of the Act on Fiscal Responsibility. Within the described framework, the Higher Court of Justice granted a salary increase of 8 per cent by Decision No. 5/07, with retroactive effect to 1 February 2007, prior to the approval of and in response to the 2007 budget, as authorized by the body in charge of the State’s financial administration system. Subsequently, Extraordinary Agreement No. 3/07 provided for a nominal increase of 16 per cent as from 1 August 2007, representing an effective improvement of 25.28 per cent accumulated over the period in question, following approval of the Budget Act (2007), No. 5778, and reorganization of the budgetary resources.
17. 389. It is to be noted that the judiciary shares in the province’s budget within the so-called central administration. SITRAJ demanded 31 per cent in order to be on a nominal footing with the increases granted by the executive to its employees, that is: 19 per cent under Decree No. 1547/06 plus 20 per cent under Decree No. 716/07, less the 8 per cent granted under Decision No. 5/07. By way of illustration, it is to be recalled that from September 1993 to the present, justice administration employees saw an increase in the actual purchasing power of their salaries in the order of 85 per cent, while over the same period the provincial executive merely confined itself to reviewing the slender basic incomes of the other employees of the central administration.
18. 390. The President of the Higher Court of Justice considers it necessary to point out that, under the constitution of the province of Corrientes, the budget for expenditure and resources of the judiciary is calculated by the executive on the basis of the preliminary draft drawn up by it and is approved by the legislature. Therefore, although the judiciary has full financial independence it does not have the constitutional powers to establish its budget. Thereafter, the economic and financial opportunities to grant salary increases depend solely on the financial resources legally available. Along the same lines, the fulfilment or otherwise of the rules established under Provincial Act No. 4420, which sets a minimum of 6.27 per cent of the province’s general budget, is not the concern of the judicial authority but of the other authorities, and since the province’s general budget constitutes an act, it must be understood as modifying the former.
19. 391. As regards the use that is made of the budget, although the salary question is an essential one, it is at the same time but one aspect of the many requirements to be met. The administration of justice could not be effective without an adequate infrastructure, computer facilities or logistical organization to support the work of the courts. In this regard, the Judiciary currently (in 2007) allocates 84.36 per cent of its budget to staff costs, leaving only 15.64 per cent for goods and services and fixed assets.
20. 392. Where staff numbers are concerned, these have also increased. In 2003, there were 1,275 employees, including judges and judicial officials, that figure having risen to 1,928 posts by 2007. On the question of infrastructure, the judiciary’s architecture unit set itself the objective to implement during 2007 a number of premises projects necessitated by the creation and/or expansion of a number of judicial offices and their functions. Priority was given to the implementation of works designed to provide accommodation for the new functions, as well as to repair and maintenance work on the various premises in the capital and provinces, with objectives being proposed in line with available budgetary resources and the plan of works established at the beginning of the year. As regards the computerization programme, the IT Division, through its various units, has been a constant tool for implementation of the Higher Court of Justice’s decisions and institutional policies, as reflected in a series of measures: purchasing of the latest technology; updating of the corresponding regulations; ongoing user training; and strengthening of technical specialists.
21. 393. In the area of human resources, it is worth pointing out that work has been stepped up, through the judicial school, on the ongoing training, retraining and upgrading of judges, officials and employees. Work has been done on the functional structure of the courts, providing them with more staff and, above all, creating a balance between those having the same level of competence but different staffing levels. Access to all levels of the administration of justice was provided through open public competitions, with the application, perhaps for the first time in this province, of the constitutional provisions (article 24 of the Provincial Constitution) whereby employment in the public service shall be granted through the system of “merit”. The report also refers to investment in a vehicle fleet and to the creation of the Institute of Forensic Medicine (judicial morgue, criminal investigation laboratories, refrigeration equipment, etc.).
22. 394. Finally, the President of the Higher Court of Justice states that every effort has been made and continues to be made to ensure full protection of staff salaries in the various structures and at all the hierarchical levels, in the context of budgetary restrictions and of the economic situation currently being faced by the whole of Argentine society, with the relevant demands being addressed to other authorities within the framework of institutional dialogue, without this in any way implying the calling into question of this authority’s independence. Had the claim by SITRAJ been allowed and had this led to the award of a salary increase over and above the authorized budgetary items, that independence would have been placed in serious jeopardy, since it would then be a matter for the executive to decide whether or not to release the budgetary credits necessary to cover the resulting additional expenditure.

C. The Committee’s conclusions

1. 395. The Committee notes that in the present case the complainants object to the decision by the Higher Court of Justice of the province of Corrientes to dock pay corresponding to two days of the work stoppage called by SITRAJ in June 2007, and at least a further 17 days for stoppages in July, August and September 2007, the stoppages having been called in protest against the absence of any response to the calls for salary increases and against the subsequent decision to render Decision No. 30 of 11 October 2007, which regulates – in a unilateral and arbitrary manner according to the complainants – the right to strike within the sector (according to the complainants, the decision in question takes no account of the mandatory conciliation procedure, makes it obligatory to inform the judicial authority of the reasons for the conflict, which must be of a labour-related nature, imposes a five-day notice period ahead of the direct action, etc.). The complainants further allege that, with the aim of intimidating the SITRAJ leadership, criminal charges for the alleged crime of fraud were brought against its general secretary and subsequently dismissed, and that by Decision No. 5 of 6 March 2008, the trade union privileges enjoyed by three SITRAJ leaders were withdrawn for the purpose of weakening the complainant organization.
2. 396. In this respect, the Committee notes that, in general terms, the Government states that officials working in the administration of justice are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions or even prohibition, but observes that in the present case the right to strike has at no time been prohibited or suspended but that minimum measures were taken to ensure that the judiciary could operate on an emergency basis under strike conditions. The Committee further notes the report of the Higher Court of Justice of the province of Corrientes, in which it is stated that: (1) the decisive circumstances resulting in the decision to establish a framework for the right to strike of judicial employees and harmonize the exercise of that right such as to ensure that the essential rights of individuals are not undermined stem from: (a) the exercise of that right during 31 days in 2007, when employees of the judiciary joined stoppages – abandoning their duties after signing the daily timesheets – arranged by SITRAJ; and (b) the concern and call for conciliation on the part of the Supreme Council, comprising various law societies, in regard to the negative effects produced by the direct action taken by SITRAJ; (2) given the existence of regulations at the national level relating to cases of direct action in the context of activities that may be considered essential services (which was deemed to be inapplicable to labour conflicts arising on provincial territory), it was decided to adopt measures aimed at establishing a framework for the exercise of the right to strike; (3) the competence of the Supreme Court of Justice to act by adopting the disputed measure has constitutional and legal backing; (4) the justice service constitutes a function in its own right that is essential and cannot be delegated and whose implementation and efficient provision fall chiefly to the Higher Court of Justice, which is the reason why internal measures were adopted in order to adapt the constitutional exercise of the right to strike; (5) the judiciary has a non-repealable mission to guarantee the essential rights of individuals, sanctioning behaviours which harm those rights and ordering that any such unjust harm be redressed, it being essential to ensure the adequate and uninterrupted operation of its various organs in order to guarantee peaceful and healthy coexistence and the maintenance of citizens’ rights; (6) in this context it was decided to establish a framework for, and not to prohibit, the exercise of direct action; and (7) the reasons which led SITRAJ to decide in favour of direct action had to do with the salary adjustment and with disagreement as to the allocation of funds for the division of IT and buildings infrastructure, the advancement of lower-ranking employees, the Act on Independence and the docking of salaries for days of work stoppage. According to the report by the President of the Higher Court of Justice, every effort has been made and continues to be made to ensure full protection of staff salaries in the various structures and at all the hierarchical levels, in the context of budgetary restrictions and of the economic situation currently being faced by Argentine society.
3. 397. Regarding the disputed decision by the Higher Court of Justice of the province of Corrientes to dock pay corresponding to two days of the work stoppage called by SITRAJ in June 2007, and at least a further 17 days for stoppages in July, August and September 2007, the stoppages having been called in protest against the absence of any response to the calls for salary increases, the Committee recalls that is has pointed out on various occasions that “salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles” [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, para. 654]. This being the case, the Committee will not pursue its examination of this allegation.
4. 398. Regarding the disputed Decision No. 30 of 11 October 2007 – adopted, according to the complainants, in a unilateral and arbitrary manner – which regulates the right to strike in the judicial sector in the province of Corrientes, the Committee, while recalling, as it has done on previous occasions in respect of other cases relating to Argentina, that officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition [see 344th Report, Case No. 2461 (Argentina), para. 313; and 291st Report, Case No. 1660 (Argentina), para. 106] observes that judicial workers enjoy the right to strike.
5. 399. Regarding the allegation as to the unilateral nature of Decision No. 30 issued by the Higher Court of Justice of the province of Corrientes, which regulates the right to strike within the sector, the Committee observes that neither the Government nor the province’s supreme judicial authority have denied this allegation. In this respect, the Committee recalls the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the sector involved [see Digest, op. cit., para. 1067]. In these circumstances, the Committee expects that in future the authorities will endeavour to ensure compliance with this principle and to promote collective bargaining, including on wages.
6. 400. The Committee requests the Government to send its observations concerning the allegations, presented in 2008, that: (1) with the aim of intimidating the SITRAJ leadership, criminal charges for the alleged crime of fraud were brought against its general secretary and subsequently dismissed and requests it to institute an investigation to determine whether these charges had an anti-union intimidation or discrimination motive; and (2) by Decision No. 5 of 6 March 2008 the trade union privileges enjoyed by three SITRAJ leaders were withdrawn for the purpose of weakening the complainant organization.
7. 401. Finally, in respect of the declaration of illegality in relation to the strike, that according to the complainant organization lies within the power of the Minister of Labour, Employment and Social Security, the Committee recalls that responsibility for declaring a strike illegal should not lie with the Government but with an independent body which has the confidence of the parties involved [see Digest, op. cit., para. 628].

The Committee's recommendations

1. 402. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that in future the authorities will endeavour to ensure compliance with the principle of the importance of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the sector involved and to promote collective bargaining, including on wages.
   • (b) The Committee requests the Government to send its observations concerning the allegations, presented in 2008, that with the aim of intimidating the SITRAJ leadership, criminal charges for the alleged crime of fraud were brought against its general secretary and subsequently dismissed and requests it to establish an investigation to determine whether these charges had an anti-union intimidation or discrimination motive. The Committee also requests the Government to send its observations relating to the allegations that by Decision No. 5 of 6 March 2008, the trade union privileges enjoyed by three SITRAJ leaders were withdrawn for the purpose of weakening the complainant organization.