Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 279, Novembre 1991

Cas no 1532 (Argentine) - Date de la plainte: 16-AVR. -90 - Clos

1. 270. The Argentine Telephone Workers' and Employees' Federation - Buenos Aires Trade Union (FOETRA) submitted a complaint alleging violation of trade union rights in a communication of 16 April 1990. In August 1990 this organisation withdrew the complaint, stating that the problems which had given rise to it had been resolved. Subsequently, in a communication of 10 September 1990 the organisation submitted a new complaint containing allegations that were substantially similar to those made in the previous complaint. The Government replied in a communication of 14 May 1991.
2. 271. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 272. The Argentine Telephone Workers' and Employees' Federation (FOETRA) - Buenos Aires Trade Union, alleges in its communication of 16 April 1990 that, in spite of an increase of 466 per cent in the cost of living in the first quarter of 1990, remuneration in the telephone sector increased by only 40 per cent. In these circumstances, and in order to bring pressure to bear on the National Telecommunications Enterprise (ENTEL), a state enterprise, FOETRA called for a 24-hour nationwide strike on 4 April 1990, while the Buenos Aires Trade Union called for a two-hour work stoppage per shift and occupation on 5 April 1990. The Buenos Aires Trade Union was formally warned on 2 April 1990 not to carry through with this action; the union challenged this warning in court but no decision has been issued. On 10 April 1990 the Ministry of Labour issued resolution No. 208/90, in which it proposed to file action in court to obtain the cancellation of the trade union status of the Buenos Aires Trade Union, and to denounce the probable commission of crimes specified in sections 192, 194 and 197 of the Criminal Code.
2. 273. In August 1990 FOETRA - Buenos Aires Trade Union withdrew its complaint since the Ministry of Labour had decided not to pursue the cancellation of its trade union status, thereby removing the grounds for the complaint.
3. 274. In its communication of 10 September 1990, FOETRA - Buenos Aires Trade Union alleges that there has been no wage increase in spite of the fact that over five months have elapsed since it submitted its first complaint, and in addition, that the ENTEL enterprise had suspended overtime work; consequently, wages in August were lower than they had been in March. The workers' repeated demands have gone unheeded and the problems have begun anew. The Ministry of Labour has responded with warnings to workers not to engage in direct action, and has invoked the compulsory conciliation scheme provided for in Act No. 14786. In this context, the enterprise offered a wage increase which, though it did not fully meet the expectations of workers, was expressly accepted by them; but, as incredible as it may seem, this offer was later withdrawn on the grounds that it had not been "accepted" by the Ministry of Economy, a development which could only add fuel to the dispute (it should be noted that part of this wage increase was paid, as had been agreed, so that there is little question that the wage increase was put into effect). The Ministry of Labour, for its part, declared "illegal" the workers' action of 28 August 1990.
4. 275. It was in this context, the complainant organisation adds, that the Ministry of Labour issued resolution No. 704 of 30 August 1990, which instructed the Ministry of Labour's legal department to file an action in court for the cancellation of the trade union status (or recognition) of FOETRA - Buenos Aires Trade Union, in accordance with the provisions of section 56 of Act No. 23551, and to file charges alleging the probable commission of the crimes specified in sections 192, 194 and 197 of the Argentine Criminal Code. In addition, as part of the action to cancel recognition, the Ministry of Labour has requested the court temporarily to suspend the trade union's executive committee and to appoint an auditor. Moreover, the Ministry of Labour issued resolution No. 711 of 31 August 1990 which: (1) temporarily and until the conclusion of the lawsuit suspends the trade union's registration, and (2) temporarily suspends its trade union rights and the collection of funds paid by employers as membership contributions on behalf of workers belonging to the trade union. According to the legislation, trade union registration automatically implies the acquisition of recognition (section 23 of Act No. 23551); therefore, the suspension of a trade union's registration automatically implies the suspension of its legal status, making it impossibile for it to carry out any trade union activity. It therefore implies the death of the trade union. Likewise, resolution No. 711 orders the suspension of the exercise of all rights arising from the trade union's legal status, even before the court has authorised such a measure.

B. The Government's reply

1. 276. In its communication of 14 May 1991 the Government states that the dispute between FOETRA - Buenos Aires Trade Union and the ENTEL enterprise was subject to the provisions of Act No. 14786 on compulsory conciliation, and that the parties were therefore under the obligation to bargain during the period established by law. The FOETRA - Buenos Aires Trade Union's decision to leave the bargaining table (which the trade union itself recognises) before the expiration of the period of conciliation, did serious harm to the community and must be qualified as imprudent and as clear evidence of disregard for the public interest. In the hypothetical situation that the parties had reached agreement, but that one of them had to submit the decision to another body, the time prescribed for negotiation would not be altered. The illegality of the strike, and the Ministry of Labour's declaration of the strike as illegal, does not concern the strike itself, but rather the timing of the strike, which took place during the period set aside for conciliation. In fact, section 11 of the above-mentioned Act clearly states that, once the period set aside for conciliation has expired without the resolution of the dispute or the acceptance of a compromise, both parties may resort to such measures of direct action as they see fit.
2. 277. In this context, the Ministry of Labour and Social Welfare issued resolution No. 704, dated 30 August, which, in accordance with section 56 of Act No. 23551, instructed its legal department to file action in court for the cancellation of the trade union status of the complainant organisation; this measure takes immediate effect once the corresponding judicial complaint is filed, and the complaint was filed in, and is currently before the Fourth Chamber of the National Labour Appeals Court.
3. 278. The Government adds that contemporaneously with the filing of the above-mentioned legal action, on 31 August 1990, the Ministry of Labour issued resolution No. 711/90, ordering the temporary suspension of the complainant trade union's registration until the conclusion of legal proceedings. This administrative action is based on section 56 of Act No. 23551, which empowers the Ministry of Labour and Social Security to register trade unions; section 23 of the same Act equates trade union registration with trade union status. In addition, section 48 of the Civil Code establishes that: "The administrative decision concerning the withdrawal of trade union status or intervention shall give rise to the remedies provided for in section 45. The judge may order the temporary suspension of the resolution under appeal." In this sense, it is unanimously accepted by legal experts in the country that the recognition of trade union status depends on an administrative action by the competent authority, in the executive or legislative branch; likewise, the withdrawal or cancellation of that status falls within the competence of the same authority responsible for granting it, without prejudice, of course, to the faculties of the judiciary branch. In this case, the Ministry of Labour merely suspended the complainant's trade union registration on a temporary basis, thereby fulfilling the supervision obligation which belongs to an administrative authority responsible for issuing or recognising an association's trade union status, through a preventive measure which, in the end, is subject to the decision of the courts.
4. 279. The Government states that the suspension of trade union registration does not imply a denial of the collective body's existence, citing the following commentary: "A dissolved corporation may yet subsist, not as a legal person, but as a simple association lacking this attribute" (see anotated Civil Code, Jorge Joaquín Llambias, Vol. 1, page 137, 1982 edition). Under the provisions of section 46 of the Civil Code, simple associations may function without the State's authorisation (ibid, page 124), and may therefore acquire rights and contract obligations. It is therefore clear that the arguments submitted by the complainant to the effect that the suspension of trade union registration implies the death of the trade union, or that the administrative authority does not have the power to suspend such registration, are unfounded, since, as has been shown, the effects of the administrative action in question cannot have, and in practice have not had, such scope as to prevent the survival of the trade union organisation and the maintenance of its regular activities.
5. 280. In addition, the Government states that in spite of the untimely attitude adopted by the complainant organisation, the collective bargaining mentioned above continued with the national federation of telephone workers, and was ultimately concluded to everyone's satisfaction, thereby definitively resolving the differences between the parties. It should be added that the social concertation policy pursued by the national Government has led to the constitution of the Joint Bargaining Committee for the Collective Labour Agreement of Telephone Workers, which was set up to negotiate the agreement which would replace the agreement in force since 1975, with the participation not only of the most representative trade union, but also that of nine new private enterprises which offer telephone services - the successors of the former National Telecommunications Enterprise. This negotiation recently reached a successful conclusion, resulting in the National Collective Labour Agreement for the telephone sector, which will govern the employment conditions of workers in this sector as from 1 May 1991.
6. 281. The Government concludes by stating that this recent development shows that the complaint in this case has become abstract. On this basis, and in the light of the foregoing, the complaint is groundless and should be dismissed.

C. The Committee's conclusions

1. 282. The Committee notes that the complainant withdrew the complaint it had presented in its communication of 16 April 1990. The Committee recalls that it has the authority to decide in this respect taking into account the circumstances of each particular case. In the present case, it accepts the withdrawal of the complaint as regarded the allegations in that communication. The Committee will thus confine its conclusions now to the allegations contained in the complainant's communication of 10 September 1990.
2. 283. The case before the Committee can be summarised as follows: faced with the demands of FOETRA - Buenos Aires Trade Union for a wage increase in view of the hyperinflation in the country, the National Telecommunications Enterprise offered a wage increase which was accepted by the workers, but was subsequently withdrawn when it was not accepted by the Ministry of the Economy; this led FOETRA - Buenos Aires Trade Union to call a strike, even though the legally prescribed period for compulsory conciliation had not expired. The Ministry of Labour responded by issuing resolutions Nos. 704 and 711, of 30 and 31 August 1990, respectively: the former ordered that the courts be requested to cancel the trade union status of FOETRA - Buenos Aires Trade Union and the filing of charges alleging the probable commission of crimes specified in sections 192, 194 and 197 of the Criminal Code (crimes against safety in transport and communications) and also requested as a preventive measure the temporary suspension of the trade union's executive committee and the appointment of an auditor; the latter temporarily and until the conclusion of the lawsuit suspended the trade union's registration and temporarily suspended its trade union rights, as well as the collection of funds paid by employers as membership dues or for other reasons on behalf of workers belonging to the trade union.
3. 284. In the first place, the Committee wishes to point out that, in accordance with the Committee's principles, telephone services can be considered essential services since their interruption may endanger the life, personal safety or health of the whole or part of the population; consequently, even stringent restrictions on the right to strike of workers in the sector, including the prohibition of the right to strike, could be admissible from the standpoint of the principles of freedom of association. Nevertheless, Argentinian legislation recognises the right to strike of time frames established for conciliation. In the present case, FOETRA - Buenos Aires Trade Union failed to comply with these time frames, leading to a series of serious administrative sanctions (temporary suspension of trade union registration and trade union rights, including the right to withhold trade union dues at the source) and to the Ministry of Labour's request that the courts cancel the trade union status of the complainant organisation and its denunciation of the commission of possible crimes.
4. 285. In the Committee's opinion, the consequences of the Ministry of Labour's resolutions are excessively severe if one considers: (1) that the strike called by FOETRA - Buenos Aires Trade Union followed the Ministry of the Economy's refusal to accept ENTEL's proposed wage increase for telephone workers in the context of national hyperinflation; and (2) that the Ministry of Labour's immediate reaction to the strikes, through ministerial resolution No. 704, seems to have brought these strikes to an end, and, in any case, they did not last long. The Committee considers that in these circumstances the Ministry should not have resorted to the most severe sanctions prescribed by legislation, such as the cancellation of trade union status, the suspension of trade union registration and the request that an auditor be appointed to replace the trade union's executive committee. In addition, the Committee considers that the administrative suspension of the trade union's registration (which is a requirement for its legal status) as well as of the trade union rights of FOETRA, is the de jure equivalent of the administrative suspension of FOETRA, and is contrary to Article 4 of Convention No. 87. The Committee also notes that although FOETRA - Buenos Aires Trade Union retained de jure a minimum legal existence, as claimed by the Government, the national federation of telephone workers was able to continue the bargaining process, which culminated in a definitive solution to the collective dispute and led to the signing of a collective agreement which entered into force on 1 May 1991.
5. 286. In the light of the specific details of this case, and in view of the fact that the collective dispute which led to the present complaint has been resolved, as well as the fact that the national federation of telephone workers has concluded a collective agreement, the Committee requests the Government, if this has not already been done, to lift the administrative sanctions against FOETRA - Buenos Aires Trade Union and to withdraw the legal actions it has filed against this trade union and its leaders.

The Committee's recommendations

1. 287. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government, if this has not been already done, to lift the administrative suspension of the trade union's registration and to lift the suspension of the trade union rights arising from the special status of FOETRA - Buenos Aires Trade Union.
   • (b) The Committee also requests the Government, if this has not already been done, to withdraw the legal actions it has filed in order to cancel the trade union status of this trade union and to withdraw the legal actions it has filed against its leaders.