Report in which the committee requests to be kept informed of development - Report No 376, October 2015

Case No 3083 (Argentina) - Complaint date: 05-JUN-14 - Follow-up cases closed due to the absence of information from either the complainant or the Government in the last 18 months since the Committee examined the cases

Allegations: The complainant organization alleges that collective bargaining is being hindered by the Court of Audit of Santa Fe Province

1. 190. The complaint is contained in a communication of May 2014 from the Association of Staff of Supervisory Bodies (APOC).
2. 191. The Government sent its observations in a communication of 27 October 2014.
3. 192. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 193. In its communication of May 2014, the complainant organization alleges that the Court of Audit and the legislature of Santa Fe Province are hindering the exercise of the right to bargain collectively in the sector.
2. 194. APOC considers that the authorities of the Court of Audit of Santa Fe Province have unduly delayed the establishment of a bargaining committee, thereby preventing the complainant organization from participating in joint negotiations in the sector and from discussing and negotiating working conditions and wage policies, as would be appropriate for an organization with trade union status. APOC alleges that the aforementioned Court (which operates under the authority of the legislature and has the power to take decisions concerning the pay and working conditions of its staff, subject to the involvement and opinion of the Legislative Audit and Oversight Committee) makes it compulsory, however, to apply the working conditions and wage policies determined by the Joint Committee under Act No. 10052, a committee from which the complainant organization is excluded and the scope of which is limited to the staff of the provincial public administration, which operates under the authority of the executive branch. APOC also alleges that the Court’s employees are affiliated to an organization, APOC, which has trade union status (status of most representative organization for the purposes of collective bargaining) and competence to act in matters pertaining to the Court. Therefore, the complainant organization filed a complaint with the Ministry of Labour, which subsequently issued Opinion No. 3411 in 2011, calling for the appointment of the members of the bargaining committee. However, the Court did not establish the committee, claiming that it was prevented by law from doing so on the grounds that it was not fully constituted, as it was lacking one of its five members. APOC considers this reason to be unfounded and dilatory. At present, the members of the Court of Audit continue to take all decisions relating to staff and salaries, but employees are prevented from discussing and negotiating their conditions of work and pay. As the situation had not been resolved, in April 2013 APOC lodged an appeal against Decree No. 522/2013 of the government of Santa Fe Province, which provided for the application of the working conditions approved by the Joint Committee under Act No. 10052 to the employees of the Court of Audit. In the absence of a reply, an application for amparo (enforcement of constitutional rights) on the grounds of delays was filed with the Santa Fe courts of justice. In 2014, there was a further refusal to establish a bargaining committee and the Joint Committee under Act No. 10052 agreed on increases and working conditions for the staff of the Court of Audit which were endorsed by the Court without APOC being able to participate. As a result, APOC submitted a list of demands by the staff of the Court of Audit with the signatures of 170 employees (over 60 per cent of the staff). This initiative was supported by the General Confederation of Labour for the Santa Fe region; the Chamber of Senators endorsed most of the points set out in a request for information sent to the Court of Audit in April 2014.
3. 195. The complainant organization also alleges that the provincial state, through its legislature, has not established the Legislative Audit and Oversight Committee, which plays a very important role in the bargaining process, as the only instance with higher supervisory authority over the court, including in pay and labour-related matters.

B. The Government’s reply

1. 196. In its communication of 27 October 2014, the Government forwards the reply by the government of Santa Fe province to the allegations made by APOC and stresses that other trade union organizations hold the most representative status based on objective criteria. The Government considers the matter to be a dispute between trade union organizations, which should be settled by those concerned in accordance with the principles of freedom of association.
2. 197. Regarding the allegations of obstruction and delays, the provincial government indicates that the Court of Audit stated that it was not able to participate in the negotiations because it was not fully constituted (at present, two of the five regular members have not been appointed). Similarly, the Government reports that the Court does not have the power to make decisions pertaining to the labour and wage arrangements applicable to staff, because the Legislative Audit and Oversight Committee has not yet been established and by law such decisions are subject to the involvement and preliminary opinion of that Committee.
3. 198. The provincial government’s report states that the Court of Audit, with the endorsement of opinions by the State Prosecutor’s Office, has adopted resolutions that make the regulations and collective agreements relating to the provincial public administration, which operates under the authority of the executive branch, applicable to the Court’s staff. It states that, in the context of the provincial public administration operating under the authority of the executive branch, the capacity for concluding collective agreements lies with the organization with trade union status that is most representative in the area of activity. It states that this status is held by the Association of State Workers (ATE) and the National Civil Servants’ Union (UPCN). It concludes that, accordingly, the public employees of the Court of Audit are not without means of defending their rights, as they are represented by these organizations in the Joint Committee under Act No. 10052.
4. 199. The provincial government indicates that APOC participates in the meetings of employees with members of the Court and its inputs and suggestions are taken into account. It states that APOC is seeking to establish its own joint committee, awarding itself the status of sole representative union on the grounds of its specific nature, but that it does not have the approval of the other trade union organizations in this respect.

C. The Committee’s conclusions

1. 200. Regarding the allegations that the exercise of collective bargaining is being hindered and delayed by the Court of Audit to the detriment of the complainant organization, the Committee notes that, despite an opinion by the Ministry of Labour calling for the appointment of members of a bargaining committee, the Court of Audit has not yet established the committee. The provincial government indicates that the fact that the court is not fully constituted (two regular members had not been appointed) and the fact that the Legislative Audit and Oversight Committee has not been established are hindering the bargaining process. The Committee expects that the measures necessary to resolve these problems will be taken soon.
2. 201. The Committee notes that the Government also claims that two other organizations hold the status of most representative organization and that the public employees of the Court are not without means of defending their rights, as they are represented by these organizations in collective agreements. The Committee notes, however, that the complainant organization has recognized union status (and is therefore recognized as most representative organization) in its area of activity.
3. 202. In this regard, the Committee considers the complainant organization’s demand to negotiate on behalf of the employees of the Court of Audit to be legitimate, given that employees in this sector (who fall under the authority of the legislature) may have interests that differ from those of employees of the provincial public administration, who fall under the authority of the executive branch and who are represented by the other two trade unions. Hence, the Committee firmly expects that the Government will take steps so that the public authorities concerned will soon adopt the institutional measures that are necessary to allow for the establishment of the Court of Audit’s bargaining committee and to effectively promote collective bargaining with the complainant organization (APOC) and that the Government and the complainant organization will keep it informed of developments. The Committee also requests the Government to keep it informed of the outcome of the appeals lodged by the complainant organization in connection with this case.

The Committee’s recommendations

1. 203. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Considering that APOC should be able to bargain collectively in respect of the Court of Audit of the province on behalf of its members, the Committee firmly expects that the Government will take steps so that the public authorities concerned will soon adopt the institutional measures that are necessary to allow for the establishment of the Court of Audit’s bargaining committee and to effectively promote collective bargaining with the complainant organization. The Committee requests the Government and the complainant organization to keep it informed of developments.
   • (b) The Committee also requests the Government to keep it informed of the outcome of the appeals lodged by the complainant organization in connection with this case.