Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 336, Mars 2005

Cas no 2344 (Argentine) - Date de la plainte: 13-MAI -04 - Clos

Allegations: The complainant organization alleges that acts of anti-union discrimination have been carried out (application for lifting of trade union protection and authorization of dismissal) against its deputy secretary

1. 179. The complaint appears in a communication from the National Coordination of State Workers (CONATE), dated May 2004.
2. 180. The Government sent its observations in communications dated 5 October and 3 December 2004.
3. 181. 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. 182. In its communication dated May 2004, the National Coordination of State Workers (CONATE) states that it is a second-grade trade union organization, made up of various trade unions, collectively known as the New State Workers’ Organization (NORTE), each of which is based in their own province or municipality.
2. 183. The complainant organization alleges anti-union discrimination against its deputy secretary, Mr. Raúl Blas Praino, on the part of the authorities of the National Institute of Social Services for Persons Receiving Retirement Benefits and Pensions (INSSJP), for which he has worked since 1982, having worked as a heating engineer for the General Services Office of the Administrative Division of the PAMI 1 Clinic. The complainant organization alleges that the INSSJP filed a legal application with the aim of lifting the trade union protection of Mr. Raúl Blas Praino and obtaining authorization for his dismissal (the complainant organization states that Argentine law establishes that when a worker is a trade union official and for up to a year after the end of his/her mandate, he/she enjoys legal protection against dismissal during that period, unless “just cause” can be demonstrated in terms of labour law). The complainant organization states that Mr. Praino has been accused of having violated his duty of trust towards the INSSJP, when in reality he was on trade union leave, during which time he was working for an inspection committee representing the trade union organization known as the Association of State Workers (ATE), at the request of the latter, a request which was granted by his employer, the INSSJP.
3. 184. The complainant organization believes that it is clear that the allegations contained in this complaint are not merely a series of casual and circumstantial events but represent a process marked by hostility and discrimination, aimed at a trade union official owing to his ideological beliefs and trade union activities, which has no legal basis whatsoever and which was carried out with complete disregard for all the political and legal parameters that go to make up a republic and the rule of law. The official in question cannot possibly be dismissed on grounds of a fictive just cause, as he was on trade union leave, representing the trade union in the post conferred upon him by said body, with the consent of his employer, the INSSJP, which just so happens to answer to the Government. It is also clear to the complainant organization that the discrimination aimed at Mr. Praino is also aimed at CONATE, of which he is deputy secretary. According to CONATE, the attempt to discourage Mr. Praino in his trade union activities is disrupting the very running of the trade union organization.

B. The Government’s reply

1. 185. In its communication dated 5 October 2004, the Government states that the complaint is based on the alleged dismissal from the INSSJP of Mr. Raúl Blas Praino, regardless of his trade union rights. The Government further states that trade union rights consist of specific protection for trade union officials from acts of discrimination and this is regulated by articles 50, 52 and related provisions of Law No. 23551. This legislation guarantees workers’ representatives a secure job and establishes that dismissal can only take place if “just cause” is demonstrated and, even then, a legal ruling must be handed down, taking this protection away from the worker in question (withdrawal of immunity proceedings).
2. 186. The Government adds that, following consultation with the INSSJP concerning the allegations, it has the following to report: (1) the INSSJP recognizes the existence of trade union immunity in the case of Raúl Praino and proceeded to request the competent judge to issue an exemption of this guarantee as established under the abovementioned article 52 of Law No. 23551; (2) this legal request was made with the aim of dismissing Mr. Praino with just cause and this dismissal is subject to the result of the withdrawal of immunity proceedings; (3) the reasons for requesting the withdrawal of Mr. Praino’s immunity and proceeding to his dismissal are given by the INSSJP in the request for the lifting of trade union protection (more specifically, Mr. Praino stands accused of having participated in the conclusion and implementation of a contract, signed on 20 October 1998, which was prejudicial to the INSSJP’s interests. These reasons constitute irregularities in the conclusion of a contract and are in no way connected to any possible trade union activity on the part of Mr. Praino); and (4) the lifting of guarantees (trade union protection), envisaged under article 50 of Law No. 23551, in the case of Mr. Praino and his dismissal is subject to the ruling to be issued as a consequence of the ongoing withdrawal of immunity proceedings.
3. 187. The Government states that, given the facts of the case, there has been no violation of freedom of association whatsoever, since Argentine law provides protection which ensures that trade union representatives may not be suspended or dismissed because of their trade union activities.
4. 188. In its communication dated 3 December 2004, the Government sends a copy of the ruling handed down by the federal judge of Federal Court No. 2 of the City of Rosario, concerning Case No. 754 entitled National Institute of Social Services for Persons Receiving Retirement Benefits and Pensions v. Praino, Raúl, Lifting of Trade Union Protection, in which the court rejects the application for the lifting of trade union protection in relation to Raúl Blas Praino. Likewise, the Government states that this ruling is currently under review by the Supreme Court after an appeal filed by the PAMI Clinic, in accordance with Argentine law.

C. The Committee’s conclusions

1. 189. The Committee observes that the complainant organization alleges anti-union discrimination against its deputy secretary, Mr. Raúl Blas Praino, perpetrated by the INSSJP, for which he has worked since 1982, which filed a legal request with the aim of obtaining the lifting of trade union protection in the case of Mr. Praino and authorization for his dismissal (according to the complainant organization, Mr. Praino stands accused of having committed acts that he could not possibly have committed, given that he was on trade union leave and working for an inspection committee, a post designated to him by the INSSJP and the trade union organization, ATE).
2. 190. The Committee observes that the Government attaches a copy of the request submitted by the INSSJP to the courts, in which it requests that immunity withdrawal proceedings be instigated concerning Mr. Praino, in order to proceed to his dismissal, as a part of which the trade union official in question is accused of having participated in the conclusion and implementation of a contract, signed in 1998, which was prejudicial to the interests of the INSSJP.
3. 191. Likewise, the Committee observes that the Government sent a copy of the ruling handed down by the judicial authority of the first instance in which the judicial action regarding trade union protection brought by the INSSJP against Mr. Raúl Blas Praino was rejected. The Committee observes that, in the considerations of its ruling, the judicial authority states that: (1) “… the lack of attention to detail of the applicant’s (INSSJP) approach regarding the matter in question cannot be ignored, …”; (2) “… inevitably, one question arises: either such a lack of detail is the product of a lack of technical legal knowledge on the part of the Institute’s management with regard to issues requiring special attention and dedication, and these issues did not receive such treatment or, and this is the crux of the matter, discriminatory behaviour aimed at various trade union representatives, consisting in unequal treatment in similar objective situations, …”; (3) “The response to the previous question lies in the study of the following points: the general nature of the accusations made against Mr. Praino and the lack of detail provided regarding these accusations; the lack of any proof (article 37 of the National Civil and Commercial Procedure (CPCCN) having been strictly applied); the contradictory decisions adopted; the chronological disparity between the events and the dismissals (five years); the incongruity of informing the court of Mr. Praino’s suspension, then immediately requesting that he be suspended and then informing the court that he was carrying out his duties as normal; the unequal nature of the approach adopted in objectively similar situations, referred to previously, amongst others”; and (4) “The proof submitted so far is insufficient in this case and the different steps taken by the Institute, which will prove to be extremely costly in financial terms for the Institute, demonstrate inappropriate, inconsistent behaviour and unequal treatment of workers who find themselves in what are, basically, identical situations, and which, thus, displays the anti-union intentions that the Institute is attempting to carry out by legal means”.
4. 192. In these circumstances, observing that: (1) the judicial authority rejected the INSSJP’s application regarding trade union official, Mr. Praino, in particular noting in the judgement acts demonstrating anti-union intentions on the part of the aforementioned Institute; and (2) the fact that the Institute appealed against the said ruling, the Committee requests the Government to forward a copy of the decision regarding the appeal as soon as it is rendered.

The Committee's recommendations

1. 193. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Observing that: (1) the judicial authority rejected the INSSJP’s application for the lifting of trade union protection and the authorization of dismissal against trade union official Mr. Praino, in particular noting in the judgement acts demonstrating anti-union intentions on the part of the aforementioned Institute; and (2) the fact that the Institute appealed against the said ruling, the Committee requests the Government to forward a copy of the decision regarding the appeal as soon as it is rendered.