Rapport définitif - Rapport No. 75, 1964

Cas no 334 (Argentine) - Date de la plainte: 07-MAI -63 - Clos

1. 7. The complaint by the International Federation of Christian Trade Unions is contained in a communication dated 7 May 1963 addressed directly to the I.L.O. This communication was accompanied by a memorandum from the Federation of Telephone Workers and Employees of the Argentine Republic (F.O.E.T.R.A.) and by a number of documents in support of the complaint. The complaint was transmitted to the Government, which submitted its comments in a note dated 22 January 1964.
2. 8. 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).

9. The memorandum submitted by F.O.E.T.R.A specifies the manner in which the National Telecommunications Company (ENTEL) is said to have violated trade union rights, in particular by failing to comply with the provisions of the collective agreement in force between the parties. According to the complainants, the following infringements have been committed: (a) the provisions of the paragraph of the agreement under which the new collective agreement was to take effect from 1 July 1962 have not been complied with because the company has obstructed the negotiations, thus making the renewal of the agreement impossible; (b) the company has refused to receive, and to acknowledge receipt of, notes submitted by the staff, in contravention of the provisions of the agreement; (c) the company has inserted advertisements in newspapers offering employment to new staff under conditions different from those laid down by the agreement and in contravention of the provisions of the agreement under which 50 per cent of the posts which become vacant must be filled by the Trade Union Labour Exchange, preference being given to the children of employees who have died or retired and/or to the surviving spouse; (d) the provisions of the agreement which relate to hours of work have been violated, and F.O.E.T.R.A therefore reported the company to the Ministry of Labour for having resorted to unfair practices punishable under national legislation; (e) the Company has not fulfilled its obligation to make contributions to F.O.E.T.R.A for social work.

1. 10. In support of their complaint, the complainants have submitted many documents, including the following : a petition presented to the National Labour-Management Relations Board which alleges unfair practices on the part of the Company in violation of subsections (b), (d) and (f) of section 42 of Act No. 14455, copies of documents signed in the presence of officials of the Ministry of Labour by the representatives of F.O.E.T.R.A and of the company; communications from the company to its staff; a resolution authorising the company to modify the conditions of work of any members of its staff who may so request; and the text of the collective agreement in force.
2. 11. In its reply the Government points out that it is not true that the company has obstructed the renewal of the agreement in force. In view of the financial position of the company, a proposal was made to the workers' representatives that there should be an increase in hours of work and a proportionate increase in wages. This proposal was not accepted by F.O.E.T.R.A. As regards the notes submitted by the workers, no reply was sent because the company addressed itself directly to the staff as a whole and offered them new conditions of work. Advertisements were inserted in newspapers because it was not possible to fill the vacancies in the manner prescribed by the agreement; nevertheless, none of the applicants for these vacancies was engaged. The Company did not resort to unfair practices: the offer of higher wages in return for an increase in hours of work was rejected by F.O.E.T.R.A, which withdrew from the joint committee that was negotiating renewal of the agreement and adopted coercive measures, such as withdrawal of co-operation and unwillingness to work. In these circumstances the company addressed itself directly to the staff and repeated its offer so that the staff might be able to opt freely for the conditions proposed. Finally, the Government points out that there has been no violation of the other provisions of the agreement, including that which relates to contributions for social work, and indicates the amounts contributed for that purpose. The debt outstanding when the complaint was made was due solely to the difficult financial position of the company.
3. 12. The Committee notes that, as shown by the statements of the complainants and the information provided by the Government, this case relates to the renewal of a collective agreement which was to have come into force on 1 July 1962. Since the parties had been unable to reach agreement in the joint committee established for that purpose, the Company, after several months, addressed itself directly to the staff and repeated the offer of new conditions of work previously made to, and rejected by, F.O.E.T.R.A. The documents submitted by the complainants show that the Company subsequently addressed itself to the staff again in order to inform them of its latest proposal to the trade union because it considered that the latter was keeping its members in ignorance of the facts. It also inserted advertisements in newspapers offering employment on conditions different from those laid down in the agreement. The last meeting, held on 1 March 1963, ended in deadlock. The complainants accused the Company of not having complied with the agreement and of having resorted to unfair practices by its unwillingness to negotiate with F.O.E.T.R.A and its direct approach to the staff.
4. 13. There are thus two basic problems before the Committee: the contention that the collective agreement was violated, and the charge of unfair practices on the part of the Company.
5. 14. The Committee notes that Act No. 14250 concerning collective labour agreements contains, inter alia, the following provisions:
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7. 5. On the expiry of a collective agreement the conditions of employment established in virtue thereof shall continue until a new agreement is concluded.
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9. 7. The provisions of an approved collective agreement shall be binding and cannot be modified by individual contracts of employment in any way unfavourable to the employees. The operation of a collective agreement shall in no case affect any conditions more favourable to the employees under their individual contracts of employment.
10. 8. An approved collective agreement shall be binding for all employees (regardless of membership) engaged in the activities covered by it in the area to which it applies....
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12. 13. The Ministry of Labour and Welfare shall be the authority charged with the administration of this Act and shall supervise performance of the collective agreements. Any breach of the terms of collective agreements for which protection is provided by the laws governing labour and where violation is considered in the said laws as a punishable offence shall involve the penalties mentioned in Decree No. 21877/44 (Act No. 12921). This shall not be deemed to debar persons concerned from prosecuting actions for performance.
13. 15. These provisions are, in principle, in conformity with the terms of the Collective Agreements Recommendation, 1951 (No. 91), which lays down, inter alia, that collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded ; that stipulations contrary to those contained in the collective agreement should not be included in contracts of employment ; that stipulations in contracts of employment which are more favourable to the workers than those prescribed by a collective agreement should not be regarded as contrary to the collective agreement ; and that the stipulations of a collective agreement should apply to all workers of the classes concerned employed in the undertakings covered by the agreement unless the agreement specifically provides to the contrary.

B. B. The Committee's conclusions

1. 16. The Committee notes that, under the provisions in force in Argentina, since the parties have been unable to reach agreement on the conclusion of a new agreement the provisions of the previous agreement remain in force. The Committee further notes, with respect to the complainants' accusation that the company has violated the provisions of the agreement, that section 13 of Act No. 14250 provides for penalties and for appropriate action to secure compliance with an agreement. In this case it does not appear that the workers have taken advantage of the relevant provisions in order to defend their rights.
2. 17. In similar cases' in the past the Committee has taken the view that, where there has been failure to have recourse to appropriate national remedies with respect to matters raised in a complaint, the complainants have not offered sufficient evidence to show that an infringement of trade union rights has occurred. In the light of the facts referred to in the preceding paragraph, the Committee must reach the same conclusion in the present case.
3. 18. The complainants base their accusation of unfair practices by the company on subsections (b), (d) and (f) of section 42 of Act No. 14455 concerning industrial associations of employees. The subsections in question relate to intervention by employers in the Constitution, operation or administration of an industrial association of employees, encouraging staff to join particular associations and refusal to bargain collectively with employees in accordance with the legal procedure.
4. 19. With respect to the last point, the Committee notes that in the present case the parties were unable to reach agreement in spite of the fact that a number of meetings were held. According to the complainants, the last meeting took place on 1 March 1963 and ended with the refusal of the workers' representatives to accept a proposal made by the employers. The Committee recalls that in a previous case it pointed out that no provision of Article 3 of Convention No. 98 obliges the government concerned to give effect to the principle of collective bargaining by coercive measures which would change the nature of such bargaining. The Committee further pointed out that whether one of the parties adopts a conciliatory attitude or an intransigent attitude with respect to the demands of the other party is a matter for negotiation between the parties in accordance with the law of the country concerned.
5. 20. The complainants further accuse the employers of resorting to unfair practices as defined by national legislation because they negotiated directly with the workers. This allegation is made in the general petition submitted by F.O.E.T.R.A to the National Labour-Management Relations Board on the grounds of unfair practices on the part of the Company. No information concerning the result of that petition has been submitted to the Committee. The Committee has previously considered a case in which it was alleged that the legislation permitted the conclusion of collective agreements between the undertaking and 70 per cent of its workers outside the framework of a trade union organisation. In respect of that case, the Committee took the view that direct bargaining between an undertaking and its workers outside the framework of existing representative organisations may in certain cases be detrimental to the principle laid down in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that governments shall encourage and promote collective bargaining between employers' and workers' organisations. According to the Government, in the present case the direct offer made by the Company to its workers was merely a repetition of the proposals previously made to the trade union, which had rejected them. In other words, it was not an attempt to engage directly in collective bargaining with the workers outside the framework of their organisation. Moreover, the Committee notes that negotiations between the Company and the trade union were subsequently resumed. This allegation on the part of the complainants therefore relates to their earlier contention that the Company refused to negotiate with F.O.E.T.R.A. In the light of the facts set out in the previous paragraphs, the Committee considers that the complainants have not demonstrated that there has been a violation of trade union rights.
6. 21. Finally, with respect to the allegation that the Company has interfered with the workers' organisation and encouraged its staff to join another organisation, the Committee points out that this allegation is couched in extremely vague terms and that the complainants have submitted no evidence in support of their complaint.
7. 22. In the light of all these circumstances, the Committee has reached the conclusion, as regards both the allegations of non-compliance with the collective agreement and the other allegations of unfair practices by the Company, that the complainants have not furnished sufficient proof in support of their complaint to the I.L.O.

23. The Committee therefore recommends the Governing Body to decide that the case does not call for further examination.