Rapport définitif - Rapport No. 342, Juin 2006

Cas no 2420 (Argentine) - Date de la plainte: 12-AVR. -05 - Clos

Allegations: The complainant organizations object to a resolution issued by the Undersecretary for Labour of the Province of Santa Fe stating that the conflict existing between the Association of Teachers of Santa Fe (AMSAFE) and the Ministry of Education of the province would be submitted to a compulsory conciliation process and ordering the suspension of a strike

207. The complaint appears in a communication of the Congress of Argentinean Workers (CTA) and the Association of Teachers of Santa Fe (AMSAFE) dated 12 April 2005.

1. 208. The Government sent its observations in a communication of 10 May 2006.
2. 209. 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. 210. In their communication of 12 April 2005, the Congress of Argentinean Workers (CTA) and the Association of Teachers of Santa Fe (AMSAFE) object to Administrative Act No. 33 of 17 March 2005 issued by the Undersecretary for Labour of the Province of Santa Fe which, in the part containing the verdict and sentence, states:
2. Article 1: Submit the dispute which has arisen between the Association of Teachers of Santa Fe and the Ministry of Education of the province to the compulsory conciliation process established in Article 14 s.s. and c.c. of Provincial Act No. 10.468.
3. Article 2: Order the parties, as of this notification, to return to the conditions existing prior to the dispute; workers at all levels, represented and/or affiliated to the Association of Teachers of Santa Fe shall return to their posts and shall continue to carry out their normal functions, which they shall not interrupt during the compulsory conciliation process, the employer shall not alter the conditions of the labour relationship with its employees which existed prior to the dispute, in accordance with the provisions of Provincial Act No. 10.468.
4. Article 3: Convoke the parties to a conciliatory audience on 21 March 2005 at ll:00 a.m., to be held before the Office of the Secretary of State for Labour and Social Security of the province, at Calle Rivadavia 3051 P.A. in this the city of Santa Fe.
5. 211. The complainant organizations state that the dispute in this case arose owing to a wage increase, turned down by the Government of the Province of Santa Fe, covering all education workers employed by the State of the Province of Santa Fe, which under the Constitution must guarantee the provision of education services in its territory. Approximately 30,000 workers are employed in the public education sector throughout the province, 6,000 of whom belong to the Rosario branch of AMSAFE. Faced with the provincial government’s policy of unilaterally introducing a single raise for the whole of 2005, stipulated in Decree No. 288/05, and given the non-remunerative nature of the raise and the fact that it may not be used as the basis for the calculation of other additional payments (a mere 100 Argentinean pesos with conditions attached), at a General Governing Assembly meeting held on 24 February 2005, AMSAFE decided, with over 25,000 members voting in favour, to hold a 72-hour strike on 1, 2 and 3 March 2005 and to continue this strike action on 7, 8 and 9 of the same month. Moreover, in the absence of a solution, the strike was to be repeated every week for 72 hours in the same fashion. This made for a total of 11 strike days, as work was also stopped on 15, 16, 17 and 21 and 22 March 2005, the stoppage called for 23 March being suspended as the trade union, while questioning the legitimacy of the act, submitted to the compulsory condition and the lifting of direct action measures.
6. 212. The complainant organizations emphasize that the act in question violates the right to strike, as its aim is to suspend the ongoing strike, rendering it ineffective, in the interests of the employer, the party ordering the lifting of the measure being an integral part of the government employer and not having any degree of operational independence.
7. 213. Finally, the complainant organizations state that on 12 April 2005, the AMSAFE assembly decided to accept the Government’s proposal put forward at the coordinating table, suspending the course of industrial action voted on in February, and point out that the issue could still lead to a dispute.
8. B. The Government’s reply
9. 214. In its communication of 10 May 2006, the Government indicates that as a result of the initiation of a dispute over wage increases, the confederation of teachers’ trade unions decided to stage work stoppages in the beginning of the 2005 academic year with
10. 72-hour strikes on 1-3 and 7-9 March; these continued after a brief interruption of one week, on 15, 16, 17, 20 and 21 March, and then in uninterrupted weekly stoppages of 72 hours until a solution could be found to the wage claims. As a result of this situation, on 17 March, the Undersecretary for Labour of the Province of Santa Fe issued resolution No. 33 introducing obligatory conciliation, calling on the parties to return to the conditions existing prior to the dispute and to workers to return to their posts until the end of conciliation. Due to the ongoing dispute, the provincial administration issued resolution No. 35 extending the period of obligatory conciliation introduced by the previous resolution No. 33/05, so that the parties could go on with their dialogue in the negotiating table and find an agreed solution to the dispute. On 13 April 2005, the Association of Teachers of Santa Fe (AMSAFE) decided to accept the wage proposal made by the representatives of the provincial government, putting an end to the dispute and the obligatory conciliation process. In these circumstances, all the pending proceedings were discontinued.
11. 215. With regard to the allegations against the introduction of obligatory conciliation by the provincial administration, since it is not an independent organ, the Government pointed out that taking into account the final result – agreement between the parties – and the manner in which the negotiations progressed – in a framework of genuine respect and social dialogue – everything indicates that in fact the State’s intervention promoted freedom of association and made a balance of interests possible, as provided for in Article 8(2) of Convention No. 87. In fact, the order of the Secretary for Labour did not contravene or apply in a way which violated the guarantees provided for in this international instrument. The administration established a climate of reconciliation between the parties who managed to reach an agreement putting an end to the dispute after mutual concessions.
12. 216. The Government stated that the main reason for imposing conciliation was the need to keep the schools open as canteens functioned in them. Consequently, there was an urgent need to maintain minimum conditions of operation – always with precautions – in light of the ongoing dispute (stoppages took place during the period of the obligatory conciliation). The explanations provided and the facts which gave rise to the proceedings prove that the allegations that the authorities aimed at rendering ineffective the industrial action were false.
13. 217. The Government indicates that in this case one cannot ignore the fact that the dispute took place two years after the worst flooding in the history of Argentina in the last century. In fact, the overflowing of the Río Salado, which took place on 29 March 2003 in the province, led to disastrous consequences for the educational system in various towns of Santa Fe: (a) destroyed or inundated educational establishments; (b) enormous percentage of students and professors incapable of reaching the public educational establishments because they were themselves victims of the disaster; (c) more than
14. 80 per cent of educational establishments in the city of Santa Fe and cities affected by the phenomenon had to become evacuation centres in order to come to the aid of thousands of persons who had lost their furniture and possessions in the inundation. This situation affected the holding of classes for a period of 60 days in 2003. Consequently, this is not only a trade union problem but also a real social conflict, because as a result of the inundations, the children in the most affected zones and the teachers had to participate in the operations against the flooding. The Government finally recalls that this disaster was preceded by the bankruptcy of 2001, the consequences of which are well-known in the international community. For this reason, the absence of classes in that province in particular had much more serious consequences for the community than in other areas of the country, endangering the life, security and health of the students. To sum up, taking into account the context of complete economic crisis and natural disaster, the intervention of the provincial authority did not constitute in any way an interference in the autonomy and collective independence.

C. The Committee’s conclusions

1. 218. The Committee notes that in their complaint, the Congress of Argentinean Workers (CTA) and the Association of Teachers of Santa Fe (AMSAFE) object to Administrative Act No. 33, issued by the Undersecretary for Labour of the Province of Santa Fe (included in the annex by the complainants) through which it was decided to “submit the dispute which has arisen between the Association of Teachers of Santa Fe and the Ministry of Education of the province to the compulsory conciliation process established in Article 14 of Provincial Act No. 10.468” and to order the striking workers to return to their posts and to continue to carry out their normal functions, and not to interrupt those functions during the compulsory conciliation process. Moreover, the Committee notes that the complainant organizations also criticize the fact that the Administrative Act in question was issued by the provincial government in its role as the employer and that it is in no way independent.
2. 219. The Committee notes that the Government indicates that: (1) taking into account the final outcome (agreement between the parties) and the manner in which the negotiations progressed in a framework of genuine respect and social dialogue, everything indicates that the State’s intervention promoted freedom of association and made a balance of interests possible; (2) the order of the Secretary for Labour did not contravene or apply in a way which violated the guarantees provided for in Convention No. 87 and the administration established a climate of reconciliation between the parties who managed to reach an agreement putting an end to the dispute after mutual concessions; (3) the main reason for imposing conciliation was the need to keep the schools open as canteens functioned in them; (4) the conflict took place two years after a flooding in the province of Santa Fe which led to disastrous consequences for the educational system (destroyed or inundated educational establishments, students being incapable to reach the schools, etc.) and was added to the financial crisis of 2001, reason for which the absence of classes in the province would have much more serious consequences for the community than in other areas of the country.
3. 220. The Committee also takes due note of the fact that AMSAFE states that it decided to accept the proposal put forward by the Government at the coordinating table and suspended the course of industrial action voted on in February 2005. The Committee concludes that the dispute which gave rise to the present complaint has ended.
4. 221. In this regard, the Committee recalls that it has been called on before to examine complaints presented against the Government of Argentina concerning convocation by the authorities to the compulsory conciliation procedure in the public sector and therefore makes reference to appropriately formulated previous conclusions stating that “the Committee emphasizes that it would be desirable to entrust the decision of opening the conciliation procedure to an organ which is independent of the parties to the dispute” [see 336th Report, Case No. 2369, para. 212, and 338th Report, Case No. 2377, para. 403]. In these circumstances, the Committee requests the Government, given the above information, to bring its law and practice into line with Conventions Nos. 87 and 98.

The Committee's recommendations

1. 222. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Reiterating that it would be desirable to entrust the decision of opening the conciliation procedure to a body which is independent of the parties to the dispute, the Committee requests the Government to bring its law and practice into line with Conventions Nos. 87 and 98.