Rapport définitif - Rapport No. 332, Novembre 2003

Cas no 2240 (Argentine) - Date de la plainte: 17-DÉC. -02 - Clos

Allegations: The complainant organizations allege that the administrative authority rejected the application for registration of police trade unions and that officials of these unions had been dismissed for exercising activities on their behalf

1. 248. The complaint is contained in a letter from the Buenos Aires Police Union (SIPOBA) and the Argentine Federation of Police and Prison Service Unions (FASIPP) dated 14 December 2002. SIPOBA and FASIPP provided additional information in a letter dated 21 January 2003. The Government sent its observations in a letter dated 27 May 2003.
2. 249. 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. 250. In their letter of 17 December 2002, the Buenos Aires Police Union (SIPOBA) and the Argentine Federation of Police and Prison Service Unions (FASIPP) complained that on 4 April 1989 an Assembly was held for the purpose of forming the Buenos Aires Police Union (SIPOBA) and that as a consequence the Buenos Aires police authority instigated disciplinary proceedings against the members of the trade union, arguing that they were in breach of the provisions of article 53, paragraphs 10 and 58, and paragraph 15 of Provincial Decree-Law No. 9550/80. These proceedings led to the dismissal of the chairman of the provisional steering committee, principal officer Nicolás Alberto Masi for exercising, according to the police authority, “… an activity to promote and enrol members within the force in order to form a police trade union … all of which seriously affected discipline and responsibility for assignment of duties, an offence mitigated by the absence of sanctions in their service record and aggravated by the public importance of the matter”.
2. 251. The complainants add that on 13 August 1997, FASIPP applied for registration, and that by Decision No. 169/98, the Ministry of Labour and Social Security refused that application. The decision was appealed in the courts and the National Employment Appeals Court, Chamber V, refused the appeal on the grounds that it was formally inadmissible since the decision subject to the appeal was not final, since it was not an executable decision and because the confirmation of the administrative refusal relied on matters of fact and only incidentally ruled on the rights of police officers, an aspect which could be determined in the courts, subject to compliance with the basic requirements as to the viability of the application.
3. 252. In compliance with the basic requirements mentioned by the National Employment Appeals Court, a list of members, membership forms and list of members of the Executive Committee, together with the Constitution and other documents required under article 21 and conclusions of Law No. 23551, were submitted to the Ministry of Labour on 6 April 1999, thus fulfilling all the requirements of that law for the granting of trade union status. They state that despite all this, on 17 July 2002, the Minister of Labour and Social Security denied the application for trade union registration presented by the Buenos Aires Police Union by Decision No. 500. An appeal for review of the refusal was submitted on 31 July 2002.
4. 253. The complainants indicate that the previous submission was supplemented on 22 October 2002 in letter No. 1063741 by a copy of opinion No. 32251 of the Attorney-General in the National Employment Appeals Court in favour of the trade union registration, reform of the Constitution in line with the observations by officials of the Ministry of Labour and Social Security, and appointment of members in accordance with resolution DNAS No. 36/98. Despite that, in decision No. 661 dated 30 September 2002, the Minister of Labour and Social Security refused the application for review.
5. 254. The complainants mention that article 14bis of the National Constitution provides the right of any worker, without distinction and without any restrictions, to form a trade union. Likewise, international law, which ranks equally with the Constitution (article 75, paragraph 22, of the Constitution) provides the right of freedom of association and the right to organize without interference from the public authorities (American Declaration of the Rights and Duties of Man, Universal Declaration of Human Rights and the Covenant of San Jose de Costa Rica). In this regard, the complainants recall that, as expressly recognized by the Government, there is no law that exempts the security forces from the provisions of Law No. 23551 or affects or generally limits their right to form a trade union. In the light of this omission, it is logical to apply the provisions of the Constitution, especially taking into account the principle of legality and article 19 of the National Constitution. Any gap in the law and the alleged legal vacuum cannot be interpreted as creating a prohibition.
6. 255. In their letter of 21 January 2003, SIPOBA and FASIPP allege that the administrative authority refused the application for trade union registration submitted by the Santa Fe Provincial Police Professional Association (which was the subject of an appeal to the courts in September 2002). The complainant organizations also allege that the General Secretary of that organization, Mr. Miguel Orlando Salazar, was suspended without pay and his arm and badge were withdrawn because he had organized the workers’ protest at the late payment of wages and commented in the press on the lack of police equipment.

B. The Government’s reply

1. 256. In its letter of 27 May 2003, the Government indicates that Convention No. 87 leaves it up to the law in each ILO member State whether or not to allow the formation of trade unions in the armed forces and the police, and article 8 of the International Covenant on Economic, Social and Cultural Rights guarantees the freedom to form trade unions allowing only restrictions which are necessary in a democratic society in the interests of national security or public order. Furthermore, article 22 of the International Covenant on Civil and Political Rights fully endorses the right of freedom of association, the only restriction to the exercise of that right being the case of members of the armed forces and the police, and article 16 of the American Convention on Human Rights (Covenant of San Jose de Costa Rica), paragraph 3, states “The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police”.
2. 257. The Government states that it is essential to recall that these international treaties are integral to Argentine law as instruments of constitutional standing, as laid down in article 75, paragraph 22, of the Constitution. It is thus clear that the unionization of the security forces and the police is contained in Argentine law in accordance with international instruments, since at present there is no other specific legislation on this issue. It adds that although freedom of association is fully recognized, solely limited in the cases discussed above, it was decided that because of the nature of the activities of the armed forces and the police, it was not appropriate for them to be organized in trade unions.
3. 258. There is a hierarchical principle in the security forces which conflicts with the principle of trade union democratization, the latter being an essential condition for the recognition of the authority of trade union associations as collective subjects of labour law. A trade union is a group of workers united by affinity and solidarity whose functions are independent of employers and the State itself.
4. 259. Independence vis-à-vis employers and the State, specifically set out in article 6 of the Trade Unions Act, Law No. 23551, is an essential requirement. No one can overrule or interfere in the actions of a trade union in such a way as to prevent it fulfilling its principal objective. The armed forces and the police are not independent of the State, but represent it and are part of it, since they are the sole repositories of public authority and guarantors of internal security. Moreover, in ratifying Convention No. 154, article 2 of Law No. 23544 provided that it should not apply to the armed and security forces. The consistency of Laws Nos. 23551, 14250 (Collective Bargaining Act) and 23544, as well as the abovementioned international instruments which have constitutional standing, show that the legal system has exercised the right to restrict the right to freedom of association for members of the armed forces, security forces and the police, and that this restriction in no way constitutes any violation whatsoever of the letter and spirit of Convention No. 87.
5. 260. The Ministry of Labour, Employment and Social Security has frequently spoken on the subject, recalling that the task of security imposed by law on the armed forces and the police, under a vertical hierarchical structure, is essential to the maintenance of the internal discipline of the forces and its effectiveness in fulfilling its tasks, which would be rendered very difficult if a trade union for these categories were established. Consequently, the applications for trade union registration were refused. The Minister’s position was upheld on several occasions by the judiciary.
6. 261. Granting the right to form trade unions to the security forces is a highly complex issue given the country’s realities and characteristics. It would also generate a climate of debate which would affect people’s security, especially considering that the armed forces and the police are the sole responsible enforcement agencies for that purpose. This does not mean a failure to recognize the rights of the members of these forces under appropriate administrative mechanisms which guarantee these rights. Finally, the Government states that under the abovementioned international provisions which carry constitutional standing, comparative law and the decisions of the Committee on Freedom of Association and the judicial authority, it is concluded that non-recognition of the right of the armed forces and the police to establish trade unions cannot be considered a violation of Convention No. 87.

C. The Committee’s conclusions

1. 262. The Committee observes that the complainant organizations allege that the national administrative authority refused the applications for trade union registration of the Buenos Aires Police Union (SIPOBA) and the Santa Fe Provincial Police Professional Association (APROPOL). In addition, the complainant organizations allege that as a reprisal, after the formation of SIPOBA, one of the members of its Executive Committee, Principal Officer Nicolàs Alberto Masi, was dismissed and the General Secretary of APROPOL, Mr. Miguel Orlando Salazar, was dismissed for claiming payment of wage arrears and complaining of the lack of police equipment on behalf of the workers. The Committee notes the general reply of the Government with respect to the right to organize of the police.
2. 263. The Committee recalls that Argentina has ratified Convention No. 87, Article 9 of which provides that “The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations”.
3. 264. In the light of this text, there is no doubt that the International Labour Conference intended to leave it up to each State to decide the extent to which it considered it appropriate to apply the rights envisaged in the Convention to members of the armed forces and the police, in other words, by implication, that States which have ratified the Convention are not obliged to recognize the rights set out therein for those categories of workers [see 145th Report, Case No. 778 (France), para. 19]. Nevertheless several member States have recognized the right to organize of the police and the armed forces
4. 265. In these circumstances, taking into account that the Convention left the issue up to member States to decide, the Committee recommends to the Governing Body that it should decide that the case does not require further consideration.

The Committee's recommendations

1. 266. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that the case does not call for further examinations.