Rapport intérimaire - Rapport No. 338, Novembre 2005

Cas no 2373 (Argentine) - Date de la plainte: 30-JUIL.-04 - Clos

Allegations: The complainants object to the rulings of the Undersecretariat of Labour and Social Security of Mendoza Province according to which a direct action measure (workplace meeting) was illegal and the parties involved were required to maintain a minimum 50 per cent level of health and municipal services during a stoppage on the grounds that it constituted an essential public service. The complainants also allege that sanctions were applied against 45 workers who participated in the supposedly illegal meeting

359. The complaint is set out in a communication dated July 2004 from the Association of State Workers (ATE) and the Confederation of Argentine Workers (CTA). The complainants sent additional information and new allegations in communications sent in September 2004 and May 2005.

1. 360. The Government sent its observations in a communication dated 12 May 2005.
2. 361. 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. 362. In their communication of July 2004, the Association of State Workers (ATE) and the Confederation of Argentine Workers (CTA) state that on 1 March 2004, the executive council of the ATE in Mendoza Province requested a hearing from the mayor of Godoy Cruz municipality in Mendoza Province with a view to formally introducing the local ATE delegates and discussing other matters of concern to the workers. Some 15 days later, on 16 March 2004, the mayor was informed by the union that: “In view of the absence of any reply to our request for a hearing to discuss various problems affecting the sector, we have declared a permanent assembly and mobilization in Godoy Cruz Province”, in order to demand the opening of “joint” collective talks on wages and conditions. The complainants add that on the same date, the Undersecretariat of Labour and Social Security of Mendoza Province was notified of the measures. According to the complainants, this shows that the employer and the provincial authorities were informed of the direct action decided on by the unions.
2. 363. The complainants state that on 26 April 2004, the ATE Executive Council in Mendoza Province informed the mayor of Godoy Cruz municipality of the resolutions adopted by the ATE extraordinary provincial general assembly, including a decision to join in a national day of protest called by the ATE extraordinary national congress for 28 April 2004. The measures consisted in holding a permanent assembly in the workplaces concerned, in order to press a number of claims relating to wage increases and the opening of collective (joint) talks. The same notification was also conveyed to the Undersecretariat of Labour and Social Security of Mendoza Province and the local representatives of the Ministry of Labour.
3. 364. The complainants state that the continuing failure to reply and absence of a climate conducive to discussion caused the dispute to deteriorate. Thus, on 14 May 2004, the mayor of Mendoza municipality was informed that direct action was planned for 19 May 2004, having been decided on in a timely manner by the Provincial Congress of the ATE, and would consist of “permanent assembly and mobilization”. The mayor persisted in his refusal to respond to the workers’ claims, and the workers continued with their permanent state of assembly and mobilization, notice of which was given through note No. 7220-E-04 of 1 June 2004. Lastly, on 25 June 2004, the Undersecretariat of Labour and Social Security of Mendoza Province and the local representatives of the Ministry of Labour were notified that a day of protest would take place on 29 June 2004.
4. 365. The complainants indicate that the principal claims of workers in Godoy Cruz municipality related to a wage increase and the opening of collective talks, and it was only the indifference and lack of interest in creating a climate for discussion that prompted the workers to initiate direct action. The workers are seeking collective talks and an opportunity to determine conditions through autonomous provisions; it is the employer – in this particular case, the municipal authority – that is making this impossible. It should be borne in mind that there is no question of an absence of a legislation or regulations. Argentina in general, and Mendoza Province in particular, have an abundance of laws and regulations in this area.
5. 366. The complainants allege that the employer not only rejected these fundamental demands, but also took action against individual workers and thereby sought to curtail collective decision-making. On 22 June 2004, the workers held a meeting – of which the employer and the provincial and national authorities had been duly notified – and the Undersecretariat of Labour of the Province, together with the municipal authority (the employer), carried out an inspection. This led to the creation of case file No. 4476-S-04. The inspection report (No. 270476 of 22 June 2004) was drawn up by the provincial authorities and representatives of the municipal authority, without any direct input from the inspector, let alone from the workers who had been present. On the basis of a document totally lacking in legitimacy – based solely on the wish to interfere of a mayor unable to resolve the dispute, and with the complicity of the provincial authorities – moves were then made to identify the workers who had taken part in the assembly. The harassment of individuals continued through memos addressed to each worker demanding explanations for their failure to carry out their normal duties on 22 June 2004.
6. 367. The complainants state that as a result of the case file established with the labour inspectorate on 22 June 2004, the Legal Affairs Department of the Undersecretariat of Labour of Mendoza Province issued a ruling No. 2735/04 of 24 June 2004, as follows: “IN VIEW OF: the provisions of sections 2, 5, 68, 87, 103, 104, and the National-Provincial Agreement No. 22/2000, Act No. 23551; CONSIDERING: that the Undersecretariat of Labour and Social Security of the Province is competent to intervene in the dispute in question in accordance with Act No. 4974; that, according to the information provided, the existing procedures for reaching a negotiated settlement were not exhausted, and given the failure to notify the administrative authorities of the proposed direct action before implementing the latter, the dispute was not resolved and the applicable provisions were thus violated; the legal advisory office has issued a ruling (see pages 5 and following) and the Undersecretariat of Labour and Social Security of the Province accordingly DECIDES: (section 1) that the direct action measure adopted is illegal; (section 2) that this must be recorded, announced and filed.”
7. 368. The complainants deny that, in the words of the ruling, the direct action in question was decided on “without consultation, abruptly, and without any prior claim or petition being submitted”. According to the complainants, the dispute had developed over a number of months, and appropriate notifications and clear demands were made. They also deny the claim that “the available procedures established under the laws in force for achieving a negotiated settlement” had not been exhausted; neither the case file produced after the inspection nor any of the background information suggests that any consultation was initiated by the employer. On the contrary, it was the workers who consistently called for collective talks and gave notice of the intended action in the face of the employer’s silence, and the provincial and national authorities were duly informed of every initiative. Lastly, they maintain that it is clearly established that in every communication regarding the direct action, the matter of a wage increase and the need for collective talks were central issues.
8. 369. The complainants add that subsequently (on 25 June 2004), ruling No. 2738/04 was adopted. According to this, the Undersecretariat of Labour and Social Security of Mendoza Province includes “municipal public services” in the category of essential services, with a view to guaranteeing a minimum 50 per cent level of such services. According to the disputed ruling, “IN VIEW OF: the information given by the ATE regarding the day of protest on 29 June 2004 involving a stoppage, general meeting, and/or mobilization in all the departments directly subordinate to the central administration, central and decentralized authorities and municipalities of the Province; CONSIDERING: that in relation to the facts alleged and given the powers given to the authority to intervene in the dispute under the terms of Act No. 4974: the Legal Affairs Department has issued a ruling ... by virtue of which the Undersecretariat of Labour and Social Security of the Province HEREBY DECIDES: (section 1): to extend the provisions of resolution No. 2539/2004 to the stoppage of 29 June 2004, planned for all departments and offices directly subordinate to the central administration, decentralized authorities and municipalities of the Province, the measure in question being defined in terms of a stoppage; (section 2): the parties concerned are ordered to ensure that a minimum level of 50 per cent of normal services be maintained in the areas of health and municipal public services, given that the services in question constitute an essential public service; (section 3): Let this be duly registered, announced, and filed.”
9. 370. The complainants state that this is from every point of view a generalization which fails to specify which municipal services must be maintained, other than indicating that they include services other than health services.
10. 371. Lastly, the complainants maintain that the disputed rulings contravene the principles of freedom of association and, specifically, the provisions of Convention No. 87, which provide for the right of trade unions to formulate their own programmes of action and state that their purpose is to promote and defend workers’ interests. According to the complainants, the central fact in the case is that the majority of workers in Godoy Cruz municipality decided at a meeting on direct action in pursuit of claims relating to conditions of work, a wage increase and the opening of collective talks.
11. 372. In their communication of September 2004, the complainants state that Godoy Cruz municipality in Mendoza Province adopted ruling No. 1727 of 11 August 2004, under the terms of which official warnings were given to 45 of the workers who had taken part in the permanent assembly of 22 June 2004.
12. 373. In their communication of May 2005, in which the CTA and ATE present new allegations relating to Misiones Province, the complainants allege that after the Undersecretariat of Labour and Employment of Misiones Province had been notified that the ATE had decided on a stoppage, state of alert, permanent assembly and mobilization over the course of a number of days during April 2005, the authorities of Misiones Province took steps against the workers who had taken part in the direct action.
13. B. The Government’s reply
14. 374. In its communication of 12 May 2005, the Government states that because of the federal structure of the country’s administration, provincial governments have autonomy to legislate and act as they consider appropriate. The national Government accordingly informed the Mendoza provincial authorities of the complaint in question to enable them to make any observations they considered appropriate.
15. 375. The Government states that according to the information provided by the provincial authorities, the dispute that led to the complaint was confined to the refuse collection services in Godoy Cruz municipality. The concept of “essential services” may include any activity the absence of which could affect the life, safety or health of individuals. In the light of this, and given that a total stoppage of refuse collection services could indeed affect public health, the labour authorities of Mendoza Province ordered that a minimum 50 per cent level of health and municipal services be maintained on the basis of clear public health and safety criteria.
16. 376. The Government states that according to the Mendoza provincial authorities, the ATE brought a case before the courts to challenge the ruling that their direct action was illegal and to challenge the sanctions imposed on the workers concerned. Proceedings were initiated before the First Labour Chamber of the first judicial district of Mendoza on the case “Association of State Workers (ATE) versus the municipality of Godoy Cruz regarding protection of constitutional trade union rights (amparo sindical)”. The case is currently at the evidentiary stage and no ruling has been handed down on the substance of the case.

C. The Committee’s conclusions

1. 377. The Committee notes that according to the complainants, the Association of State Workers (Provincial Executive Board), having attempted repeatedly and unsuccessfully to meet with the authorities of Godoy Cruz municipality in Mendoza Province with a view to introducing their delegates and discussing matters of concern to the workers (including wage claims and the opening of collective talks), gave written notice to the effect that it had declared a state of permanent assembly and mobilization from 16 March 2004 onwards, and subsequently that it would be organizing a day of protest on 29 June 2004. The complainants allege that the Undersecretariat of Labour of Mendoza Province issued a formal ruling (No. 2735 of 24 June 2004) according to which the union’s direct action (permanent assembly) on 22 June 2004 was illegal and 45 workers involved in the measure were given formal warnings. On 25 June 2004, it issued another ruling, No. 2738, which defined the measure planned for 29 June as a stoppage and formally ordered the parties concerned to maintain a minimum level of 50 per cent of health and municipal services on the grounds that they constitute an essential public service.
2. 378. As regards ruling No. 2735/04 of the Undersecretariat of Labour and Social Security of Mendoza Province according to which the direct action (assembly in the workplace) on 22 June 2004 by workers of Godoy Cruz municipality was illegal, the Committee notes the Government’s information to the effect that the ATE has initiated proceedings to defend its constitutional rights (amparo) before the courts of Mendoza Province and that the proceedings are at the evidentiary stage. The Committee recalls that it has on many occasions expressed the view that the declaration of illegality of actions such as strikes or equivalent measures such as a declaration of permanent assembly should not be a matter for the Government but for an independent body that enjoys the confidence of both parties. Under these circumstances, the Committee requests the Government to take the necessary steps to ensure that this criterion is met. The Committee also requests the Government to keep it informed of the outcome of the constitutional protection (amparo) proceedings currently under way before the provincial court.
3. 379. As regards the alleged penalty of a formal warning against 45 workers who participated in the supposedly illegal direct action and referred to in the preceding paragraph, the Committee notes that according to the Government, the application for constitutional protection (amparo) lodged with the courts with regard to the declaration of illegality of the direct action (permanent assembly) of 22 June 2004 also covers this issue. Under these circumstances, the Committee requests the Government to keep it informed of the outcome of the amparo proceedings.
4. 380. Lastly, as regards the disputed ruling No. 2738 of 25 June 2004, by which the Mendoza Undersecretariat of Labour and Social Security ordered the parties to maintain a minimum level of 50 per cent of health and municipal services during the day of protest held on 29 June 2004 in all the subordinate departments and offices of the central administration and the central and decentralized authorities of Mendoza Province, on the grounds that they constitute an essential public service, the Committee notes the Government’s statements to the effect that: (1) the dispute which led to the presentation of the complaint was confined to the refuse collection services of Godoy Cruz municipality; and (2) the concept of essential services can apply to any activity the absence of which could affect the life, security or health of individuals, and the labour authority of the Province accordingly considered that a total stoppage of refuse collection could indeed affect public health.
5. 381. In this respect, the Committee notes that according to the information supplied by the complainants and the wording of ruling No. 2738, the day of protest was not confined to the refuse collection sector (the ruling refers to “health and municipal public services”). Nevertheless, the Committee recalls its statements on numerous occasions to the effect that the determination of minimum services and the number of workers required to assure these “should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services” [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 560]. The Committee notes in this regard that according to section 24 of the Labour Organization Act (Ley de Ordenamiento Laboral) (No. 25877): “Essential services are deemed to include public health and hospital services, production and distribution of drinking water, electricity and gas, and air traffic control. An activity not covered by the previous paragraph may exceptionally be deemed by an independent commission formed in accordance with established regulations to be an essential service, subject to prior initiation of the conciliation proceedings provided for under law, under the following circumstances: (a) where by reason of the duration and geographical extent of the stoppage this might endanger the life, safety or health of all or part of the population; (b) where the public service affected is one of overriding importance according to the criteria established by the supervisory bodies of the International Labour Organization.” In the view of the Committee, this provision could offer a satisfactory solution for all the parties concerned as regards the determination of what are essential services in cases such as the one to which the complaint relates.
6. 382. In this respect, the Committee recalls that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 541]. The Committee requests the Government to take steps to ensure that in future, if a provincial authority considers it necessary to impose minimum levels of service in refuse collection which in the specific circumstances of this case cannot be considered essential in the strict sense of the term, consultations are held with the workers’ and employers’ organizations concerned.
7. 383. Lastly, as regards the new allegations made in a communication sent in May 2005 regarding acts of anti-union discrimination against workers who participated in direct action at the end of April 2005 in Misiones Province, the Committee requests the Government to send its observations on the matter.

The Committee's recommendations

1. 384. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the disputed ruling No. 2735/04 of the Undersecretariat of Labour and Social Security of Mendoza Province according to which the direct action (assembly at the workplace) of 22 June 2004 by workers of Godoy Cruz municipality was illegal, the Committee recalls that responsibility for declaring illegal an action in support of claims, including strike action and equivalent measures such as permanent assemblies, should not lie with the government, but with an independent body which has the confidence of the parties, and requests the Government to keep it informed of the outcome of the trade union amparo proceedings initiated by the ATE and currently under examination by the judicial authorities of the Province.
   • (b) As regards the alleged sanction of warnings issued to 45 workers who had participated in the direct action carried out on 22 June 2004 and declared illegal by the administrative authority of Mendoza Province, the Committee, noting that the amparo proceedings initiated by the ATE regarding the declaration of illegality also cover this issue, requests the Government to keep it informed of the outcome of those proceedings.
   • (c) The Committee requests the Government to take steps to ensure that in future, if a provincial authority considers it necessary to impose a minimum level of service in refuse collection, which in the specific circumstances of this case cannot be considered essential in the strict sense of the term, it consults the workers’ and employers’ organizations concerned.
   • (d) As regards the new allegations presented in a communication of May 2005 concerning acts of anti-union discrimination against workers who took part in the direct action carried out in May 2005 in Misiones Province, the Committee requests the Government to send its observations on the matter.