Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 344, Mars 2007

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

Allegations: The complainants object to two rulings of the Undersecretariat of Labour and Social Security of Mendoza Province according to which direct industrial action (a workplace meeting) was declared 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 they constituted essential public services. Furthermore, the complainants allege the transfer of workers at the General Directorate of the Property Registry in the Province of Misiones following a strike, as well as the hiring of workers to break the strike and the replacement of striking workers

254. The Committee last examined this case at its November 2005 Session and on that occasion presented an interim report to the Governing Body [see 338th Report, paras 359–384]. The Central of Argentinean Workers (CTA) sent further information in a communication of June 2006.

1. 255. The Government sent its observations in communications of 24 February and 16 August 2006.
2. 256. 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. Previous examination of the case

1. 257. At its November 2005 session, the Committee made the following recommendations [see 338th Report, para. 384]:
2. – As regards the disputed ruling No. 2735/04 of the Undersecretariat of Labour and Social Security of Mendoza Province according to which the industrial 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 it 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.
3. – As regards the alleged sanction of warnings issued to 45 workers who had participated in the industrial action carried out on 22 June 2004, which was 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.
4. – As regards the new allegations presented in a communication of May 2005 concerning acts of anti-union discrimination (transfers and the drawing up of a blacklist) against workers who took part in the industrial action carried out on 4, 5, 6, 7, 8, 12, 13, 14, 20, 21, 22, 26, 27 and 28 April 2005 in the Province of Misiones, the Committee requests the Government to send its observations on the matter.
5. B. Further information
6. 258. In their communication of June 2006, the complainant organizations refer to the allegations already made concerning the transfer of workers at the General Directorate of the Property Registry of the Undersecretariat of State of the Treasury, Finances and Public Works and Services of the Province of Misiones, for having participated in industrial action on 4, 5, 6, 7, 8, 12, 13, 14, 20, 21, 22, 26, 27 and 28 April 2005 in all the public sectors of the Province of Misiones, as well as the hiring of workers to break the strike (a Government list containing the names of nine persons hired under a dependent relationship is attached to the communication). Furthermore, the complainant organizations attach the text of Decree No. 493/05 containing the decision to hire these workers.
7. C. The Government’s replies
8. 259. In its communication of 24 February 2006, the Government indicates that the amparo proceedings initiated by the complainant organization ATE are still at the evidentiary stage.
9. 260. In its communication of 16 August 2006, the Government refers to the allegations of acts of anti-union discrimination against workers who participated in industrial action in April 2005 in the Province of Misiones and, in particular, the hiring of workers by the Provincial Directorate of the Property Registry of the Province of Misiones while it was affected by industrial action. According to the complainants, on 1 April 2005, the Undersecretariat of Labour and Social Security of the Province of Mendoza was notified of the stoppage, the state of alert, the assembly and the mobilization for the period from 4 to 28 April 2005 by employees of the public administration in the province demanding wage increases and improvements in working conditions. As the industrial action was most intense at the National Directorate of the Property Registry, the provincial government issued Decree No. 493/05 determining that nine workers would be hired by the General Directorate of the Property Registry of the Province of Misiones in view of the need to recruit officials so that the service was not affected. The complainant organizations allege that a few days later three workers from the General Directorate of the Property Registry who had participated in the strike were transferred to another section. In short, according to the complainants, the Province of Misiones punished workers for participating in a strike by transferring them and hiring staff to undermine the effectiveness of the strike.
10. 261. The Government denies each of the allegations, and in particular denies that it acted in violation of the right to strike. In this respect, the Government states that the right to strike is respected throughout the national territory. This is demonstrated by the fact that this right is not only protected by constitutional guarantees, but also by the international treaties with constitutional ranking that have been ratified by Argentina, and which have been referred to repeatedly in the presentation of the case. The Government considers that at no stage can the attitude of the Province of Misiones be interpreted as a violation of the right to strike and that the industrial action was not in any way related to the transfer of the three workers or the hiring of nine workers. As set out in the Decree referred to by the complainant organization, these measures are related to the modernization of the institution, involving new computer systems which require skilled personnel.
11. 262. The Government denies that a “blacklist” of the persons participating in the strike was drawn up or that it was related to disciplinary measures against workers in violation of Articles 3 and 10 of Convention No. 87. The Government adds that the Argentine State and the Province of Misiones respect the right to strike, in the meaning of a concerted withdrawal of labour as a result of a legitimate action to protect collective interests. Nevertheless, according to the Government, in this case it is necessary to take certain circumstances into consideration in order to understand that the action taken did not fulfil these characteristics: (1) the industrial action involved workers performing functions related to judicial and notarial activities, encompassing all activities related to the exercise and restriction of the right to property ownership. This is the function of the Provincial Directorate of the Property Registry. All “changes and legal acts” in the life of real estate (restrictions, seizure, sales, etc.) are recorded in the register, and therefore the certificates delivered by workers attesting to acts relating to property ownership are issued on behalf of the State; (2) these operations are related to the functioning of the State, involve the need to maintain the service and require suitable staff in view of the complex nature of the archive system. The decision to transfer and hire staff was taken in relation to the changes involved in technological modernization and was in no way linked to the industrial action. This is demonstrated by the fact that no administrative complaints have been lodged challenging the transfers; (3) the industrial action had an excessive impact in relation to the legal service for which the institution is responsible, as it prejudiced the right of professional workers who require State services or data for property registration processes. It should be emphasized that these services involve the payment of duties, and that failure to provide the services may also give rise to liabilities by the State in relation to third parties, thereby affecting parties other than those involved in the dispute; (4) the industrial action not only involved a “work stoppage”, but also the practice known as working to rule, which was accompanied by the sale of food, the use of loudspeakers during office hours and the gathering of groups in the doorway to the establishment, thereby disturbing the work of those not participating in the industrial action and obstructing the access of the public. This led to disruption in the operation of the service, due to what was in practice an occupation of a workplace in which there is highly sensitive documentation (the loss, damage or careless handling of which could have led to penal action), while the resulting agitation among those with urgent business relating to the sale of property or the need to meet deadlines for legal orders led to situations bordering on the violent. The Government considers that such an attitude adds nothing to further the claims of the workers and goes well beyond the objective of the action.
12. 263. Finally, the Government denies that the list of persons who participated in the industrial action constitutes a “blacklist”. It explains that the industrial action disrupted the clocking in and out system and was accompanied by staff members leaving their posts to participate in marches. Consequently, this information was necessary for basic checking purposes so as to determine the persons who, irrespective of the type of action, did not come to work for various reasons and whether their absences were justified.

D. The Committee’s conclusions

1. 264. The Committee recalls that at its November 2005 session it requested the Government to keep it informed of the outcome of the amparo proceedings initiated by the ATE in relation to disputed ruling No. 2735/04 of the Undersecretariat of Labour and Social Security of Mendoza Province declaring the industrial action (assembly at the workplace) of 22 June 2004 by workers of the municipality of Godoy Cruz illegal and the alleged sanction of warnings issued to 45 workers who had participated in the industrial action carried out on 22 June 2004, which was declared illegal by the administrative authority of Mendoza Province. In this respect, the Committee notes the Government’s statement that the amparo proceedings are still at the evidentiary stage. The Committee observes that, on 12 May 2005, the Government made the same observation and considers that a period of almost two years to rule on amparo proceedings on matters relating to trade union rights is excessively long. Under these conditions, the Committee regrets the delay, recalls that “justice delayed is justice denied” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 105] and expects that the judicial authorities will issue a ruling in the near future. The Committee requests the Government to keep it informed of the outcome of these proceedings.
2. 265. Furthermore, at its November session, the Committee requested the Government to send its observations on the allegations of acts of anti-union discrimination (transfers of workers and the drawing up of a blacklist) against the workers of the General Directorate of the Property Registry who participated in the industrial action carried out in April 2005 in all the public sectors of the Province of Misiones, as well as the hiring of workers to break the strike. The Committee notes that the Government denies all the allegations and states in particular that: (1) the National State and the Province of Misiones respect the right to strike, but the industrial action in question not only involved a “work stoppage”, but also the practice known as working to rule, accompanied by the sale of food, the use of loudspeakers during office hours and the gathering of groups of persons in the doorway to the establishment, thereby disrupting access by non-strikers and the public; (2) the industrial action included workers engaged in functions linked to legal and notarial activities, including all activities related to the exercise and restrictions of the right to property ownership (the employees of the General Directorate of the Property Registry issue certificates on behalf of the State attesting to acts relating to property); (3) the transfers of three workers and the hiring of nine workers are not related to the industrial action, but are linked to the modernization of the establishment and new computer systems which require skilled personnel; (4) no “blacklist” was drawn up, although as a consequence of the industrial action, the clocking in and out system was disrupted and the strike involved employees leaving their posts to participate in marches, which meant that information was required for a basic check on those who had not come to work and whether their absence was justified.
3. 266. As to the allegation that strike breakers were hired, the Committee observes that the documents attached to the complaint show that the hiring of nine workers was determined by Decree No. 493 of 18 April 2005, issued by the Government of the Province of Misiones. The introductory part of the Decree states that the General Directorate of the Property Registry of the Province of Misiones needs to employ officials to ensure that the ongoing project to update the property register is not affected and that it is highly necessary for the implementation of improvements to the establishment, identified by a firm of consultants, to have suitable staff selected on the basis of their specific skills and knowledge related to the handling of property registry information. Furthermore, as of 1 January 2005, the Decree acknowledges the services provided by the nine individuals and approves their contracts for the provision of services in the context of a dependent relationship until 31 December 2005. With regard to the alleged anti-union transfer of three workers, the Committee notes that this was decided on by Resolution No. 170 of the Secretariat of State for the Treasury, Finances and Public Works and Services of the Province of Misiones, dated 29 April 2005, the introductory part of which indicates that the Undersecretariat of Government and Registry Affairs of the Ministry of Government requires administrative officials and/or experts with knowledge of property registry issues, from the General Directorate of the Property Registry, to discharge functions in Civil Defence establishments and that the General Directorate of the Property Registry put forward the names of the three workers in question in view of their experience, length of service and knowledge of property registry issues.
4. 267. Under these circumstances, taking into account the Government’s statements and the contents of the decrees referred to by the complainants, the Committee will not pursue its examination of these allegations.

The Committee's recommendations

1. 268. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Emphasizing that a period of almost two years for the issuing of a decision on amparo proceedings concerning issues relative to trade union rights is too long, the Committee expects that the judicial authorities will issue a ruling in the near future with regard to the amparo proceedings initiated by the ATE concerning contested ruling No. 2735/04, in which the Undersecretariat of Labour and Social Security of Mendoza Province declared the industrial action (assembly at the workplace) carried out by the workers of Godoy Cruz municipality on 22 June 2004 to be illegal, as well as the alleged sanction of issuing warnings to 45 workers who had participated in the industrial action of 22 June 2004, which was declared illegal by the administrative authority of Mendoza Province. Recalling that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties concerned, the Committee requests the Government to keep it informed of the outcome of these amparo proceedings.