Rapport définitif - Rapport No. 127, 1972

Cas no 633 (Argentine) - Date de la plainte: 17-JUIN -70 - Clos

1. 134. The Committee examined this case at its session in February 1971, when it submitted to the Governing Body an interim report, contained in paragraphs 38-52 of its 123rd Report. The Governing Body approved this Report at its 183rd Session (May 1971).
2. 135. In the said Report certain further information and comments were requested from the Government, which sent them in two communications dated 26 May and 16 August 1971 respectively.
3. 136. 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. A. The complainants' allegations

1. 137. It will be recalled that the complainants referred, in their complaint dated 17 June 1970, to a previous complaint relating to the Government's decision in January 1968 to take over the Argentine Federation of Chemical and Allied Workers. On that occasion the Committee had recommended the Governing Body " to take note of the Government's statement that it intends to restore the situation of the trade union organisation in question to normal as soon as possible ". The complainants went on to say that no measure was taken along these lines and that the authorities forcibly handed over the management of the Federation to Government supporters. The leaders imposed by the authorities proceeded to organise " rigged " elections at the end of November 1969. The electoral Committee, made up of persons who had no connection with the organisation, produced no lists of candidates and refused to allow the ballot boxes to be kept on the Federation's premises, as was customary. As a result, the complainants alleged, a large number of members of the Federation abstained from voting.
2. 138. In its reply dated 30 October 1970, the Government referred to the elections held within the Federation, stating that there had been no electoral Committee and no allegations of electoral fraud. The government-appointed controller of the organisation, an official from the Secretariat of State for Labour, organised an election on 19 February 1970 and, at the Congress held one month later, the new authorities of the Federation were elected, taking over the trade union organisation on 30 March 1970. The Congress had submitted a single list of candidates, which obtained 38 votes from the 41 delegates.
3. 139. At its session in February 1971 the Committee observed, primarily, that the procedure whereby the leaders of the Federation were elected did not reach its culmination until two years after the takeover of the organisation by the public authorities. The Committee considered it necessary to emphasise in this respect the importance it attaches to the principle contained in Article 3 of Convention No. 87, which lays down that " workers' and employers' organisations shall have the right to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes ", and that " the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof ".
4. 140. As regards the elections themselves, the Committee observed that, in their account of the events, the complainants referred to what appeared to have been primary elections, held in November 1969 for the purpose of electing delegates to the Congress which was to have the actual task of electing the leaders of the Federation. The Government had supplied certain details about this Congress but, apart from stating that there had been no electoral Committee, it had made no comment on the remaining assertions of the complainants with regard to these primary elections, which concerned alleged irregularities in regard to the displaying of a list of candidates and the custody of the ballot boxes.
5. 141. It would appear from certain trade union leaflets, of which copies were supplied to the Committee by the complainants, that the group of trade unionists ousted as a result of the takeover hold the takeover responsible, in particular, for the following facts: that the rolls listing the names and other particulars of the electors were not made available to those on the officially authorised lists of candidates; that the ballot boxes were not allowed to be kept on the Federation's premises; that the persons on the officially authorised list of candidates were not permitted to be on the electoral Committee (or board); and that no announcement was made as to when and where the voting was to take place. Accordingly, the group of trade unionists in question announced the withdrawal of their list of candidates and urged the workers to boycott the election.
6. 142. The Committee recalled Decree No. 969 of 1966, which was apparently in force at the time of the elections, and which contains certain provisions relevant to some of the points raised by the complainants. Section 6 of the Decree lays down certain rules with regard to elections which must be embodied in the by-laws of trade unions. As concerns electoral rolls, section 6 (d) stipulates that they must be made available to members and to candidates for office not less than 30 days prior to the date of the election. As for the places where the votes may be cast, section 6 (b) states that these must be specified in the notice of election and may not be changed.
7. 143. Furthermore, the Committee noted the Government's observations to the effect that no allegations of electoral fraud had been made. In this respect the Committee pointed out that it had stated on many occasions that, while in view of the nature of its responsibilities it could not consider itself bound by the rule, normally applicable in international jurisdictions, that national procedures of redress must be utilised in the first instance, it must have regard, however, in examining the merits of a case, to the fact that a national remedy before an independent tribunal, whose procedure offered appropriate guarantees, had not been pursued.
8. 144. In conclusion, the Committee recommended that the Government be requested: (a) to supply information concerning the administrative and judicial avenues open to the trade unionists involved in the present case whereby they could appeal against the decisions of the controller as regards the elections that had been held; (b) to forward its observations and comments on the points mentioned in paragraphs 141 and 142 above.
9. 145. In its communication of 26 May 1971 the Government states that the leaflets sent to the Committee by the complainants do not constitute authentic proof and that the electoral meeting and last ballot undertaken in the Chemical and Allied Workers' Union were entirely normal and gave rise to no objections. The Committee understands that this refers to the primary elections mentioned by the complainants. The Government goes on to say that only one list of candidates was presented at the elections since the other lists, which had been officially approved, were withdrawn. Voting was secret and the Government gives the addresses of the places in which the 12 voting booths were installed. There were 5,218 names on the electoral roll and 2,173 persons voted. The list presented obtained 2,106 votes. Twenty-one votes were declared null and void and there were 46 blank votes. The Government adds that the leaflets sent to the ILO by the complainants are self-contradictory since, while one of them denounces irregularities, a subsequent one calls upon members to take part in the elections (which implies that the alleged irregularities had been made good) and that, lastly, one day before the elections began, a further leaflet called for non-participation in the elections.
10. 146. In its communication of 16 August 1971, the Government explains that the decisions taken by the government-appointed controller of an occupational association, as regards elections held therein, may be challenged if they contravene the provisions of the association's by-laws. Such decisions may be appealed against to the controller's hierarchical superiors (in accordance with Decree No. 7520/44). Moreover, recourse may always be had to court proceedings by any person who considers that his legitimate rights and interests have been abused. In cases where prompt and efficacious intervention is required to ensure the effective application of the guarantees embodied in the Constitution, the persons concerned may avail themselves of the amparo procedure to secure respect of a fundamental right (Act No. 16896). The Government explains that this was the interpretation given by the Supreme Court of Justice when it ruled that " where acts already committed by administrative authorities constitute a present or imminent threat of actual harm, there are grounds for seeking the protection of the courts ".

B. B. The Committee's conclusions

1. 147. The Committee observes that the further communications sent by the Government contain no specific information regarding the complainants' allegations, mentioned in paragraph 141, or the relevant legislative provisions, referred to in paragraph 142. The Government confines itself to pointing out that the fact that in one of the trade union leaflets members were urged to participate in the voting implies that the irregularities denounced by the trade union concerned, in a previous leaflet, had been remedied. Nevertheless, the Committee notes that in the final leaflet, calling upon workers not to take part in the elections, the reasons given are the alleged irregularities referred to in paragraph 141 above. Two of these irregularities would constitute infringements of the provisions of Decree No. 969 of 1966 (see paragraph 142 above). The Committee consequently considers that, because of the lack of precision and detail in the information sent by the Government, it is impossible to throw sufficient light on the events complained about in this case. Nor is the Committee in a position to judge the extent to which the alleged irregularities would have rendered the electoral process fraudulent. In any case, they appear to have led to the withdrawal of various lists of candidates so that the trade union election could not be held in completely normal conditions. Moreover, the Committee observes that less than half of those who were entitled to vote actually did so.
2. 148. The Committee considers it necessary to recall that the elections took place while the Argentine Federation of Chemical and Allied Workers (to which the Chemical and Allied Workers' Union is affiliated) was under Government control and that the elections were organised by the official from the Secretariat of State for Labour who was acting as controller. The Committee has frequently had occasion to express its opinion (restated in paragraph 139 above) with regard to the taking over of trade unions by public authorities. As regards measures that can be taken by government-appointed controllers in the exercise of their functions, the Committee considers that these are liable to appear arbitrary, even though they may be called in question before the courts. This is why the Committee has repeatedly pointed out that, although the principles established in Article 3 of Convention No. 87 do not prevent the control of internal acts of a trade union, if it is considered that such acts constitute a breach of legal or statutory provisions, it is of the utmost importance, in order to guarantee an impartial and objective procedure, for such control to be exercised by the relevant judicial authority. This would avoid the risk to the free exercise of trade union rights caused by any type of administrative takeover of trade unions.
3. 149. On the other hand, the Committee observes that the decisions taken by the government-appointed controller could have been appealed against in the courts in order to clarify the matters raised by the persons involved and, in view of the circumstances, to provide a timely remedy to any proved irregularity, but that the persons concerned did not avail themselves of this possibility.

The Committee's recommendations

1. 150. In these circumstances, the Committee recommends the Governing Body:
   • (a) to regret the fact that the Government has not sent precise information regarding the allegations made by the complainants of irregularities in trade union elections;
   • (b) to note that the persons concerned did not avail themselves in this case of their right of appeal to the judicial authorities to oppose the measures alleged to have affected them in the electoral procedure;
   • (c) to draw the Government's attention to the considerations set forth in paragraphs 147 and 148 above as regards the specific question of trade union elections and the more general problem of the taking over of trade unions by the administrative authorities.