Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 364, Juin 2012

Cas no 2865 (Argentine) - Date de la plainte: 30-AVR. -11 - Clos

Allegations: The complainant organization challenges the decision of the administrative authority dated 6 December 2010 invalidating the convocation and holding of supplementary elections within the CTA

1. 107. The complaint is contained in a communication from the Confederation of Workers of Argentina (CTA) dated April 2011. The CTA sent additional information in a communication dated 30 January 2012.
2. 108. The Government sent its observations in communications dated 11 August, 3 November 2011 and 15 May 2012.
3. 109. 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. 110. In its communication of April 2011, the CTA, a third-level organization of trade unions and workers, states that it recently held leadership elections which gave rise to interference from the Ministry of Labour, Employment and Social Security (MTESS) (Ministry of Labour). Specifically, the CTA states that its complaint constitutes a challenge to the decision of 6 December 2010 of the Trade Unions Directorate at the Ministry of Labour (file No. 1407454/10) invalidating, for reasons cited in the decision, the convocation and holding of supplementary elections within the CTA on 9 December 2010. The aforementioned decision states that the basis for holding the meeting of the national executive committee at that office on 25 November 2010 with the attendance required by the (union) regulations and for convening supplementary elections to be held on 9 December 2010 in the form prescribed by the aforementioned constitution was not correctly established, and so the validity thereof cannot be recognized owing to non compliance with the regulations.
2. 111. The CTA states, in accordance with the facts which, in its view, represent a violation of Convention No. 87, that for the purpose of convening elections to renew the leadership of the CTA at national, local and regional level, an agreement was concluded on 14 September 2010 between lists 1 and 10 – which both had official authorization to take part in the elections – and the national electoral board to accept arbitration and the establishment of an autonomous tribunal for the settlement of electoral disputes in order to resolve any disputes that might arise between the lists of candidates in the leadership elections due to be held on 23 September 2010. In this way, union autonomy would be protected and there would be no involvement on the part of the labour administrative authority or any other body of the administration (Ministry of Labour) in internal union or electoral disputes. After the elections went ahead on the aforementioned date, the results for some entire districts and for certain polling stations in other districts were the subject of challenges by lists 1 and 10, initially made to the national electoral board as the authority supervising the elections and subsequently, in accordance with the signed agreement, to the autonomous tribunal established by that agreement.
3. 112. The CTA indicates that, as a result of the various decisions issued by the autonomous tribunal for the settlement of disputes further to the challenges from both lists, supplementary elections were due to be held in the districts of Misiones, Tucumán and Mendoza and at 50 polling stations in another seven districts. According to the CTA, the voting which took place in the aforementioned polling stations and districts and was declared null and void by the autonomous tribunal represented only 10 per cent of the polling stations that took part in the elections on 23 September 2010, the results from the remaining 90 per cent of polling stations and districts remaining unchanged in accordance with the decision of 22 October 2010 of the national electoral board; this was not contested by lists 1 and 10 and, following the obvious deduction of the annulled results, yielded a difference of 11,453 votes in favour of list 1. With respect to the appeals that each list lodged with the autonomous tribunal in due course, the latter ruled that the results obtained in the abovementioned districts should be null and void and that, inasmuch as the void results could alter the final result and to meet the requirements of the national electoral board, the CTA national executive committee should convene supplementary elections in due time and form.
4. 113. The CTA draws the attention of the Committee on Freedom of Association to the fact that, under the regulations of the CTA, the only body with authority to convene elections and, consequently, supplementary elections is the national executive committee (section 30). On this basis and in conformity with the ruling of the autonomous tribunal, the national electoral board (JEN), by an official notification dated 25 October 2010, convened a meeting of the national executive committee to be held at 12 p.m. on 1 November 2010, stating in the notification that the meeting was pursuant to the ruling of the CTA autonomous tribunal for the settlement of electoral disputes, its purpose being that the committee would consider convening supplementary elections for the national leadership in some provinces and polling stations, in accordance with the majority pronouncements of the tribunal. On the same day (1 November 2010), the notary Ms Gabriela Rua Peñavera established a formal record of the attendance of 17 members of the national executive committee and of their approval of the proposal made by Mr Pablo Micheli to convene supplementary elections for 24 November 2010. The meeting, which was convened by the national electoral board pursuant to the ruling of the tribunal, was not attended by the members of the national executive committee who had stood for election on 23 September 2010 as list 10 candidates, including the general secretary whose term of office had expired, Mr Hugo Yasky.
5. 114. The CTA states that regardless of the fact that those attending the meeting approved the convening of supplementary elections for 25 November 2010, the choice was made to continue seeking agreements with the members of list 10 in order to complete the elections on the same basis of consensus as in the first part. On account of the complexity involved, there would be a need to harmonize modes and forms of composition relating to the various disputes that could arise in the different districts. Following intensive negotiations, it was agreed between the members of lists 1 and 10 that supplementary elections would be held on 9 December 2010. As a result of this agreement and in view of the approaching end of the academic year (a settlement of the dispute was urgently needed since teachers comprise the membership of the first-level trade union to which the list 10 candidate belongs), Mr Hugo Yasky, the former general secretary, sent a registered letter convening a new meeting of the national executive committee to be held on 25 November at CTA national headquarters. The date already having been agreed, the registered letter reaffirmed the proposal to hold supplementary elections on 9 December 2010.
6. 115. The registered letter sent to each of the members of the national executive committee, summoning them to attend the meeting of 25 November 2010, already specified the date of 9 December 2010 for the supplementary elections. In this context, on 25 November 2010, the persons summoned by Mr Hugo Yasky met at the established time (4 p.m.) at the union headquarters and waited for 30 minutes before starting the meeting. Hence, on 25 November 2010, it was decided to convene supplementary elections in accordance with existing agreements and to set the date of 9 December 2010 for the elections, as proposed by Mr Hugo Yasky. The decision reached at the national executive committee meeting was referred to the national electoral board so that it could issue the convocation for supplementary elections for 9 December 2010. On 28 and 29 November 2010, the convocation for these supplementary elections was published in the Diario Crónica, a national newspaper. The national electoral board then issued decisions dated 26 November and 1 December 2010 giving notice of the elections to be held as supplement to those of 23 September 2010.
7. 116. The CTA alleges that the former general secretary (Mr Hugo Yasky) surprisingly called a new meeting of the executive committee for 9 December 2010, the date set for the supplementary elections. At that meeting the secretariat and members ratified the supplementary elections by a 16–15 vote. Thus, at the 9 December 2010 meeting attended by 31 members, the supplementary election process was upheld and, as a preventive measure should there be any suggestion of the slightest procedural flaw in the convocation issued by the national executive committee at its meeting of 25 November 2010, any potential technical defect was completely rectified, recognition thus being given with formal rigour and scrupulousness to the democratic electoral will of the CTA membership, especially those who exercised their right to vote in the elections of 23 September 2010 and the supplementary elections of 9 December 2010.
8. 117. Prior to the abovementioned meeting of the national executive committee endorsing all decisions taken at the meeting of 25 November 2010, Mr Pablo Micheli, the outgoing deputy secretary and general secretary elect of the CTA, was notified on 3 December 2010 of the opposition made by Mr Hugo Yasky to the challenge to the certification of leadership claimed to have been unlawfully extended as of 2 November 2010 by the Ministry of Labour, which had prolonged the expired terms of office of the members of the national executive committee “pending the assumption of office by the leaders elected in the convened elections”. In the aforementioned submission Mr Hugo Yasky, apart from opposing the challenge to the certification of leadership issued by the Ministry of Labour, applied for an “administrative declaration of judicial ineffectiveness of the electoral convocation issued by list 1”. The CTA adds that further to the completion of the supplementary elections on 9 December 2010, the national electoral board conducted a definitive scrutiny on 14 December 2010 of the supplementary elections of the CTA, which had been convened on 28 November 2010, held on 9 December 2010 and won by list 1 (led by Mr Micheli). The national electoral board then announced the appointment of the elected candidates, installing the members of the national executive committee in office. It should be noted that the aforementioned action of the national electoral board was recorded in notarial deed No. 131 of 14 December 2010.
9. 118. The CTA alleges that the decision of the Ministry of Labour of 6 December 2010 constitutes an act of interference on the part of the Ministry. Specifically, this decision states that the basis for holding the meeting of the national executive committee at that office on 25 November 2010 with the attendance required by the (union) regulations and for convening supplementary elections to be held on 9 December 2010 in the form prescribed by the aforementioned constitution was not correctly established, and so the validity thereof cannot be recognized owing to non-compliance with the regulations. The Ministry of Labour does not have competence for the matter which is the subject of the administrative act issued in the light of articles 14bis (guarantee of free and democratic trade union organizations) and 75(22) of the National Constitution inasmuch as, since the reform of 1994, a series of international human rights instruments recognized as having constitutional status have been incorporated into the latter (including ILO Conventions Nos 87 and 98, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights). Article 3 of Convention No. 87 establishes the right of workers’ and employers’ organisations to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. Accordingly, the public authorities must “refrain from any interference which would restrict this right or impede the lawful exercise thereof”.
10. 119. The CTA points out that these rules of interpretation are no different from those confirmed by the Supreme Court of Justice of Argentina in the recent ATE and Rossi cases, definitively consolidating the method of application of freedom of association in domestic law with the scope recognized in the international sphere by the ILO supervisory bodies. According to the CTA, all the above clearly shows the obstacles that would deny any competence to the Ministry of Labour to establish itself as the supervisory body for trade union elections in general, and it is therefore the labour courts that have competence to deal with this matter.
11. 120. In conclusion, the CTA affirms that the Ministry of Labour has no competence to deal with its electoral process. The Ministry has violated freedom of association as delineated by the Supreme Court of Justice in the light of the principles stated above and the views expressed on numerous occasions by the ILO supervisory bodies, the guarantees laid down by articles 14bis (guarantee of free and democratic trade union organizations) and 75(22) of the National Constitution, ILO Conventions Nos 87 and 98, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. In addition, this administrative authority has declared its lack of competence in this specific case through the observations made in relation to the approval of the amendments to the CTA regulations concerning extension of the categories of workers eligible for membership and direct affiliation as a legitimate mode of acquiring member status.
12. 121. The CTA indicates that all of the above clearly shows that the full observance and real validity of the guarantee of freedom of association, of the principle of non-interference and of the right of trade unions to elect their representatives in full freedom is only compatible with a system of legal supervision implemented by independent bodies. In the case of the Argentine legal system, the only independent body is the national judiciary.
13. 122. The CTA reiterates that the issue here is of supplementary elections ordered by an autonomous tribunal appointed by lists 1 and 10 and endorsed by the CTA national electoral board. Accordingly, such elections could only take place as part of the electoral process of which 90 per cent had been completed and which required for its completion supplementary elections in three districts (Misiones, Tucumán and Mendoza) and in 50 polling stations (of another seven districts) where the results had been declared null and void by the tribunal whose decisions were binding for lists 1 and 10 and also for the national electoral board, which was one of the signatories of the agreement through which it came into existence. It should be noted that the Ministry of Labour has competence for acts of registration, and it is in this connection that it was notified of the elections of 23 September and the supplementary elections of 9 December. In an act of deliberate confusion, aware of the incompatibility with freedom of association and of the views of the ILO supervisory bodies, the act of interference in question is that the 7 December 2010 decision of the Trade Unions Directorate at the Ministry of Labour was included in the notification sent to the authority for registration of the electoral process.
14. 123. The CTA also refers in this specific case, in addition to the above, to the exclusion of competence decided on by lists 1 and 10 with respect to the autonomy of the CTA, which resulted in them signing, on 14 September 2010, the agreement to accept arbitration and to establish the autonomous tribunal for the settlement of electoral disputes in the CTA. This states, inter alia, that one of the founding principles of the CTA is the strict respect for autonomy, which is reflected in its regulations and its history and has been incorporated as a value in all its structures. In terms of purpose, both lists state explicitly that the protection of the autonomy of associations in electoral matters has been explicitly recognized by the ILO and a key consequence of this is non-interference by the labour administrative authority or any government body (Ministry of Labour, Employment and Social Security) in inter-union and electoral disputes.
15. 124. The CTA indicates that despite the pledges to respect autonomy and avoid intervention from the Ministry of Labour and the judiciary made by the two most representative strands of the CTA at the time of the leadership elections (lists 1 and 10), the former general secretary instituted legal proceedings to have the supplementary elections held on 9 December 2010 declared null and void, the competent body being National Labour Court No. 26. This involved an application for an innovatory protective measure suspending the assumption of office prescribed by the CTA national electoral board. This measure was rejected and there was no appeal from the plaintiffs. It is our understanding that pending a judicial ruling revoking the autonomous decision of the national electoral board, that decision remains fully in force and must be implemented and complied with. However, the Ministry of Labour continues to recognize the members whose term of office has expired as the CTA leadership, on the basis of an extended term of office and a provisional certification of leadership. It should be noted that the object of this request for intervention is concerned exclusively with the decision of the Trade Unions Directorate at the Ministry of Labour (file No. 1407454/10) invalidating, for reasons cited in the decision, the convocation and holding of supplementary elections within the CTA on 9 December 2010.
16. 125. The CTA states that the subject of the complaint is not an internal dispute within the union: on the contrary, it addresses the act of interference from the Ministry of Labour which undermines the autonomy of the CTA. Finally, the complainant organization sends a copy of the ruling issued by the Labour Court of First Instance, rejecting the action seeking to quash the decision to convene the supplementary elections held on 9 December 2010.
17. 126. In its communication of 30 January 2012, the CTA reiterates that the case refers exclusively to the intervention of the Ministry of Labour of 6 December 2010, in which the political authority questions the legitimacy of convening supplementary elections. In no way is the complaint concerned with the extension unlawfully granted by the Ministry of Labour to the leadership whose term of office had expired. The CTA states that on the basis of the jurisprudence of the Committee, the national electoral board decided to provisionally install in office the leadership elected on 23 September 2010 and in supplementary elections on 9 December 2010. The second-instance ruling of Division No. 4 of the National Labour Appeals Chamber overturning the first-instance ruling of Court No. 26 was appealed against in a complaint to the Supreme Court of Justice in view of the rejection of the extraordinary appeal. Under Argentine procedural legislation, an appeal does not have a suspensory effect until the court rules on its viability. To date, no such ruling has been issued. The CTA alleges that throughout this time no action was taken with a view to a further convocation of supplementary elections.
18. 127. According to the CTA, the list defeated in the elections has no intention of convening elections, which would thus enable the CTA to return to normal. The CTA considers that the new facts are as follows: (1) the filing of the appeal with the Supreme Court seeking revocation of the ruling of the National Labour Appeals Chamber; and (2) the installation of the leadership in office pending a definitive decision by the national electoral board.

B. The Government’s reply

1. 128. In its communications dated 11 August and 3 November 2011, the Government states that, firstly, the submission of a complaint needs to be made in accordance with the procedural rules of the Committee on Freedom of Association and the principles of public international law relating to labour matters. The ILO supervisory system does not recognize individual submissions, only collective ones. Any issue examined in this international forum must have the backing of a trade union organization or group of workers which the Committee considers sufficient to be regarded as an organization. In this case none of the requirements have been met, since the complainant does not have the status of elected representative of the CTA on account of the judicial circumstances surrounding the actions described, a situation which has not been resolved by the justice system. Therefore this lack of official backing is not in conformity with international law. Moreover, this issue corresponds to the sphere of public international law and consequently follow-up action must be taken by the supervisory bodies, with no admittance of the discretionary powers of the Committee on Freedom of Association in the treatment thereof, since this is an exceptional situation involving self-limitation of the sovereignty of States – article 53 of the Vienna Convention; according to the Treaty of Versailles, States are only obliged to respond if required to do so by an organization of workers, international bodies not being obliged to deal with individual cases. Because of the above, prior to any proceedings, the complainant must rectify the abovementioned omission in order to be in conformity with the provisions of international law relating to disputes. The Argentine State refuses to deal with the case until such action is taken, without prejudice to the reply set forth below.
2. 129. The Government sends the second-instance ruling relating to “Confederation of Workers of Argentina (CTA) v. Electoral Board – amparo proceedings” (Case No. 51.586/2010), in which Division No. 4 of the National Labour Appeals Chamber overturned the first instance ruling of National Labour Court No. 25. Accordingly, the appeals court ordered the revocation of the decision in point I of the appealed ruling and upheld the application of the CTA requesting the supplementary elections held on 9 December 2010 to be declared null and void.
3. 130. In the Government’s view, the foregoing confirms what it has stated repeatedly concerning alleged unofficial intervention by the Government in the CTA elections: namely, that the democratic institutions of the country are wholly functional, and this implies judicial scrutiny of acts of government.
4. 131. The Government affirms that the intervention of MTESS (Ministry of Labour) was legitimate and respected collective autonomy in conformity with Convention No. 87 on freedom of association because the Ministry of Labour intervened at the request of one of the parties involved in accordance with section 56 of Act No. 23551 – a legal provision that was never questioned by the ILO central bodies. The intervention was legitimate because the competence of the “autonomous arbitration tribunal” established by the parties, having reached the limits of its competence, declared its task to be completed and ordered its self-dissolution on 17 November 2010. There is a legal obligation for the administration and for those administrated, namely to protect the property of associations that find themselves without leadership. The Government indicates that section 1969 of the Civil Code states that any person whose term of office has expired is obliged to continue his activities in the form of maintenance tasks, otherwise he will be held liable for damages in the event of dereliction of duty; consequently, the action taken by the Ministry was also for the benefit of all the parties concerned. The Government has an obligation to fulfil its legal duty. The continuation of duties in the form of maintenance tasks following expiry of a term of office requires administrative authorization. Consequently, the State also has the obligation to adopt measures to maintain the assets of the organization. The decision that extended the term of office of Mr Yasky was restricted to essential institutional acts to comply with the requirements of the legislation, which is the general criterion applied by the Ministry of Labour in similar situations.
5. 132. The Government points out that the decision to extend the term of office issued by the Ministry of Labour and validated by the judiciary was objective because it provides for the extension of all terms of office, the purpose being, precisely, not to interrupt the working of the organization. This conduct on the part of the administration is in accordance with Article 8(1) of Convention No. 87. Both parties validated the intervention, recognizing this competence because all the elections of the organization were subject to scrutiny by the Ministry of Labour.
6. 133. The Government indicates that this legitimacy – apart from being based on the administration’s own powers and the obligation of the outgoing executive committee – and the correct conduct of the Ministry derives from adequate judicial scrutiny of acts of government since the Argentine system is among the most rigid and militant and the action of the administrative authority results from a procedure that was validated by the Supreme Court of Justice in “Juárez Faustino et al. v. Ministry of Labour and Social Security – Trade Unions Directorate-General – amparo proceedings” (Cases Nos 313 and 433). This is the context in which section 61 of Act No. 23551 must be taken: “All definitive decisions of the labour administrative authority concerning matters governed by this law, once the administrative channels have been exhausted, may be subject to judicial challenge by means of an appeal or summary proceedings, as appropriate, and in the form established by sections 62 and 63 ... .”
7. 134. The actions of the Ministry of Labour were validated by the judiciary on two occasions: first, at the outset, when the protective measure requested by the sector of Mr Hugo Yasky for the legal reasons described above was issued and which was ignored by the opposing party, which acted outside the law because the election procedure was launched – and this gave legitimacy to the action of the Ministry of Labour; second, through the appeal ruling, which confirmed the cancellation of the election results, as already notified to the Committee, and which forms part of these actions. The action of the Ministry of Labour is part of a functional intervention complementary to the administrative acts at the disposal of the executive authority.
8. 135. The Government adds that, initially, no reference will be made in the present reply to the statements of the complainants referring to the conduct of the parties to the electoral process since these are not matters for the Government to assess and are currently under examination in the justice system. The reply will therefore be limited to the intervention that was appropriate for the Government in the context of the principles of freedom of association and will only refer to the activity of the parties in so far as they relate to the activity of the State, which, as already indicated, occurred in the context of constitutional principles and guarantees and, moreover, in accordance with the principles of freedom of association, particularly Article 3 of ILO Convention No. 87. Without prejudice to this, it should be noted that the terms of the submission suggest an intent that goes beyond that of an international complaint, using the latter as an instrument to serve internal purposes, obstructing and distorting the action of the State, when the complainants themselves have engaged in conduct similar to that challenged in the submission.
9. 136. As regards the circumstances prior to the intervention of the Ministry of Labour, the Government states that the CTA held elections on 23 September 2010, in which the Ministry did not intervene, respecting in all its terms the commitment to arbitration signed by competing lists 1 and 10 and the national electoral board of the CTA itself. This process concluded with the partial cancellation of the election, by decision of the independent body, on grounds of observed electoral fraud, as revealed by copies of the judgments of the autonomous arbitration tribunal. As a result of the declaration of partial nullity, the arbitration tribunal declared that it would be necessary to hold supplementary elections in all provincial and local districts and at all polling stations where the results were cancelled. In the Government’s opinion, the statement that even if the challenges had been accepted they would only represent 10 per cent of the electorate is irrational; the Government considers this to be a dogmatic statement which is not substantiated by any documentation.
10. 137. The intervention of the Ministry of Labour was at the request of one of the parties following a practice based on a judicial ruling which established that it was appropriate, and so there was a logical and natural sequence in the situation. Indeed, the autonomous arbitration tribunal considered its task completed and ordered its own dissolution on 17 November 2010, declaring itself no longer competent to deal with the matter, after issuing decisions on all appeals that were submitted to it. Moreover, it maintained that, when the leadership reached the end of its term of office on 30 September 2010 and with appeals pending before the autonomous arbitration tribunal against the results announced by the CTA electoral board, the signatories to the arbitration agreement requested the independent body to take a decision with regard to extension of the term of office of the CTA leadership but the autonomous tribunal declared that it had no competence to that effect.
11. 138. As regards the intervention by the Ministry of Labour to preserve trade union autonomy in line with the requests made by the complainants on other occasions, the Government declares that, first, the complainant has not made any observation regarding the substantive content of the decision. In other words, there is no discussion regarding the Ministry’s statement that in the administrative actions the basis for the presence required by the regulations for the meeting of the executive committee on 25 November was not correctly established, a matter which is being examined by the courts. The complainant, in the initial submission regarding labour matters, merely criticizes the “timeliness, value and appropriateness of the intervention” and refers to a series of considerations and evaluations relating to the views of the ILO supervisory bodies which are not applicable in this case, for various reasons which will be examined in detail below but which can be summarized in terms of Argentine law being one of the strictest in the international system as regards the supervision of administrative acts.
12. 139. Consequently, the acts undertaken by the administration are fully compatible with the provisions of articles 14bis and 74(22) of the Constitution, contrary to the claim made by the complainant organization, and the various freedom of association cases that are unconnected with the reality of the country, in terms of both circumstances and legal aspects, are not applicable. Hence it should be noted that the criticism of the complainant relates to the administrative decision to extend the expired term of office of the leadership – including the plaintiffs – for practical reasons concerned strictly with maintaining the administrative functioning of the organization because the channels established by the parties themselves for the implementation and safeguarding of the election process had been exhausted. The Government points out that both parties validated the intervention in recognition of this competence and on the basis put forward by the administration to extend the term of office of the leadership, which, specific and clearly limited as it was, was also validated by the judicial system in the two pending cases – the dispute between the parties is before the courts – since no ruling was issued ordering the extended leadership to be changed.
13. 140. The Government states that, as the Committee on Freedom of Association is aware, section 58 of Act No. 23551 establishes that the Ministry of Labour is the sole executive authority with regard to trade unions. On 29 October 2010, the National Trade Unions Directorate received a submission from Mr Hugo Yasky in which, referring to his status of general secretary of the CTA whose term of office had expired on 30 September 2010, he stated that since there had been no definitive result to the elections and that supplementary elections would be necessary in a number of districts in 11 provinces with the involvement of some 300,000 voting union members, he asked the certification of leadership to be renewed on a provisional basis until such time as the organization resumed normal functions. Mr Yasky requested such a decision as a matter of urgency with a view to taking essential action regarding administration of the CTA assets and to convening the necessary supplementary elections so that the organization could return to normal, taking particular account of the fact that, under section 30 of the CTA regulations, any decision to call elections is a matter for the national executive committee of the CTA.
14. 141. In the light of the issue raised concerning the elections held on 23 September 2010 and taking into account that the terms of office of the members of the executive committee had expired on 30 September 2010, the National Trade Unions Directorate extended the terms of office of the leadership on 2 November 2010 subject to the limits stated, namely until the assumption of office of the leaders elected in the new elections which were due and in order to perform the necessary tasks to conserve and manage the assets of the CTA. The continuity of the term of office of the leadership registered in the abovementioned administrative department and within the limits stated constitutes a uniform and customary criterion that was applied previously by the labour administration in similar circumstances, including with respect to the CTA itself in 2006. In the light of the above, the complainant organization lacks veracity and contravenes its own proceedings.
15. 142. The Government also adds that section 56(4), second paragraph, of Act No. 23551 states as follows: “In the event of the absence of leadership within a workers’ trade union or the body to which leadership duties have been assigned, and in so far as the regulations of the association concerned or of the federation of which it forms a part have not established any means of regularizing the situation, the executive authority may also appoint an official to perform the necessary tasks or to regularize the situation.” This is also without prejudice to the fact that section 56(4), first paragraph, of the Trade Unions Act authorizes the Ministry of Labour to “call elections for bodies which are responsible within workers’ organizations for the governance, administration and supervision of the acts undertaken by the latter, and also for performing any other acts needed for the appointment of the members of these bodies through the elections. To this end they may also appoint the persons who will be responsible for performing those acts. All of the above applies in cases where, further to being instructed to do so, the body authorized to take the action concerned fails to execute the instruction within a set period of time.”
16. 143. The criterion applied by the labour executive authority to cases of absence of leadership consists of providing for the temporal continuity, within a restricted scope, of the most recent certified leadership so that the latter may complete the electoral process and other internal union action required to restore normal functioning. This is the most appropriate approach inasmuch as this preserves the autonomy of trade unions which go through such a situation of institutional abnormality, instead of having direct intervention from the administrative authority in the internal affairs of such organizations. Hence there are no doubts concerning the rationality of the action taken by the State as regards extension of the term of office.
17. 144. As regards the timeliness of the administrative intervention and its lack of arbitrariness and the scrutiny of administrative acts by the judiciary, the action of the Argentine State can never entail any risk of arbitrariness that undermines collective autonomy or violates the provisions of articles 14bis and 75(22) of the Constitution. This is because the voluntary action taken by the administration was a choice of both parties recognizing reasonable conduct in the action of the State. Furthermore, in terms of legal certainty on the basis of the Constitution, the complainant’s claim that the conduct of the administration violates Article 3 of Convention No. 87 and is therefore at fault is baseless. The complainant refers throughout its submission to a series of opinions of the Committee supposedly asserting that the intervention of the State might be arbitrary. However, as stated above, a closer look at the legislation of Argentina shows that the system is far from allowing any possibility of “arbitrariness” since there is constant, ongoing supervision by the highest levels of the judiciary.
18. 145. The Government explains that prior to the elections of 23 September 2010, the CTA submitted all elections to inspection by the National Trade Unions Directorate without any challenges being made to the scrutiny of the administrative authority or any questioning of the constitutional nature of section 15 of Decree No. 467/88. Accordingly, the application of section 15 of the regulatory decree is justified by the need to ensure the effective force of the constitutional principle of internal trade union democracy established in article 14bis of the National Constitution and in section 8 of Act No. 23551, as upheld by the Supreme Court of Justice in “Juárez, Rubén Faustino et al v. Ministry of Labour and Social Security (National Trade Unions Directorate) – amparo proceedings”, 10 April 1990 (Cases Nos 313 and 433).
19. 146. The Government affirms that the intervention of the Ministry was not of its own accord but at the request of the parties and in line with an existing legal ruling of the Supreme Court of Justice. Both parties had asked the Ministry to extend the term of office in the last two elections; on the first occasion, this was done by the complainant. The extension of the term of office includes the retention by the complainants of the posts that they held before the elections, thereby avoiding any kind of legal objection preventing international representation of their sector at the Conference, and with no risk of delays as claimed. The issue is currently being examined by the courts and so the objection based on the complainant’s quotations from the opinions of the supervisory bodies, to the effect that the administrative decision might be arbitrary, is also invalid. The justice system has not changed the decision to extend the term of office or issued any protective measure that would reduce its impact; nor has the complainant questioned the content of the decision at the international level. Hence it cannot be alleged that the intervention of the Ministry was arbitrary, quite apart from the criticisms made in the complaint regarding the conduct of the opposing party, which, as stated above, is not party to the discussions with the Ministry.
20. 147. Finally, the Government reiterates that the status of general secretary of the CTA invoked by the complainant, Mr Pablo Micheli, lacks documentary support, according to the relevant procedures at the National Trade Unions Directorate. Nor has it been validated, up to the date of the present submission, in the court proceedings in progress: “Micheli, Pablo v. Ministry of Labour – amparo proceedings (Case No. 54.788/10) and “Confederation of Workers of Argentina (CTA) v. CTA National Electoral Board – amparo proceedings” (Case No. 51.586/10), both of which are before National Labour Court of First Instance No. 26 in Buenos Aires.
21. 148. The Government adds that, with regard to the statement by the complainants that Mr Micheli constitutes the sole valid representative as an officer appointed by the CTA electoral board, it refers to the administrative act of 6 December, which was confirmed by the judicial body, extending the term of office of the existing leadership, as shown by the complainant’s own documentation – a ruling by the prosecutor and by the second officiating magistrate. Both this and the previous judicial ruling both before and after the supplementary elections ruled in favour of maintaining the existing committee, bearing in mind that the extension of the term of office established in the administrative act has precise limits geared to convening new elections in the same conditions, form and manner as the previous elections, as requested by the complainant, in which an extension of the term of office had also been requested. Furthermore, the administrative action was at the request of one of the parties when the competence of the autonomous tribunal set up by mutual agreement of the parties to the dispute had been exhausted. In short, the ministerial action was validated with its limited scope of competence, in which the extension of the term of office was granted for the sole purpose of performing tasks to maintain the functioning of the trade union organization; this is the sole activity performed by the administration.
22. 149. The Government reiterates that the intervention of the Ministry of Labour was at the request of one of the parties, in a context of absolute freedom, in accordance with a remedy which both parties have used when established judicial review channels have been exhausted and with judicial scrutiny of the administrative act.
23. 150. The Government indicates that it is inappropriate to link the present case to quotations from opinions of the ILO, stating that the intervention of labour ministries accompanying a judicial submission should not have a suspensory effect on the validity of that election pending the final outcome of the judicial action. In this case, contrary to what was quoted, the judicial action was instituted not by the administration but by one of the interested parties requesting a protective measure. Moreover, the ILO has never questioned administrative intervention on the part of the executive authority in so far as there are adequate judicial controls. In the present case the administrative act was reviewed by two judges, who deemed the act to be reasonable, at least as regards the extension of the term of office, since the election had been conducted. In the first case, when Mr Hugo Yasky requested the preventive suspension of the elections of 9 December 2010 and the protection of trade union rights – section 47 of Act No. 23551 – the magistrate duly took account of the reasonableness of the administrative act, which was analysed in substantive and procedural terms. In more technical terms, it could be said that the administrative act was evaluated by the Public Prosecutor’s Office, which also endorsed the act.
24. 151. The second evaluation was made by the current officiating magistrate who overturned the innovatory protective measure and upheld the decision of the administration regarding the leadership, with the limits and purpose prescribed by the Ministry of Labour. There is no doubt whatsoever that the decision of the administration was subjected to judicial scrutiny on two occasions, its judicial value being assessed both times. This applies in particular to the second magistrate who, even at the level of the Public Prosecutor’s Office, conducted a thorough analysis of the position of both parties to the dispute and examined the value of the administrative act issued by the Ministry and the administrative act issued by the electoral board of the trade union determining the presumption of sufficient legitimacy of the ministerial decision to endorse the extension of the terms of office, within the limited scope of administrative decision-making.
25. 152. In other words, nobody can doubt that the judicial controls functioned properly. This is in line with the judicial interest in protecting freedom of association; consequently, there was no act by the administration which distorted, obstructed or modified any trade union right. This is a dispute that started at the administrative level and is now being examined at the judicial level with all constitutional guarantees and international labour instruments in force in Argentina. The Ministry has taken measures aimed at ensuring the maintenance that was necessary.
26. 153. The Government adds that before 9 December 2010 the intervention of the Ministry originated on the basis of a convocation for supplementary elections published in a Buenos Aires newspaper on 26 and 27 November 2010, calling elections to be held on 9 December, at the request of list 10. This is the last action of the Ministry since despite the decision of the labour department suspending any elections the process continued, giving rise to a judicial application for protective measures from list 10, whereby the officiating magistrate suspended the act of 9 December 2010, validating the extension of the term of office. The complainant organization claimed that it was not notified in time and so the elections went ahead, subsequently giving rise to other situations unconnected with this challenge in the local judicial sphere but whose repercussions as regards the legal action produced a situation of moral violence with respect to the officiating magistrate, who transferred competence to another magistrate (Labour Court No. 26), who confirmed the extension of the term of office.
27. 154. According to the Government, the important thing is that when the Ministry adopted the measure there was no winner in the election and hence it was bound to invalidate any holding of elections on 9 December 2010. For the administration, it was a question of an event which did not take place under its jurisdiction but under judicial jurisdiction and hence outside the supervisory scope of the international body, which is obliged to focus on the specific act undertaken by the Ministry of Labour, namely the extension of the term of office for specific purposes which was validated by the courts, since it is this which has judicial consequences. Hence, it is a matter for the State as far as the continuing validity of elections further to the challenge is concerned and pending a definitive decision, the elections are monitored from the start by the judicial authorities and fall outside the competence of the labour department, in accordance with the principles of freedom of association.
28. 155. The Ministry intervened because the trade union organization was without leadership, the term of office having expired, and the leadership was extended exclusively for administrative tasks that were necessary prior to the elections; this is the only thing that must be considered in the international jurisdiction, since these are the sole effects of the decision of the administration which affected third parties and entered the sphere of freedom of association. Otherwise, the judiciary has taken action since the outset and this action of the State is in line with the interests protected by freedom of association. There is unanimous international recognition that the administration may take steps to preserve the functioning of trade union organizations. What the Ministry did was to exercise the administrative authority that exists in legislation all over the world, subject to strict judicial supervision, whose act was endorsed on account of its reasonableness. Accordingly, the complainant has focused on the intervention of the Ministry and in these terms the international dispute has remained blocked; the action of the judiciary and the evaluation thereof within the supervisory system has been excluded from this international dispute. The Government wishes to avoid further confusion and distortions in addition to those that already exist in this matter.
29. 156. The Government points out that certain statements by the complainant seek to slow down, distort or influence both the work of this international body and that of the judiciary in Argentina. Situations of non-existent privileges are claimed, thereby misleading the ILO. The same misleading action is seen in the bogus claim of recognition of the validity of the elections by the labour administration, when the action by the Ministry predates the holding of the elections; at the time the elections were held, competence lay with the judiciary further to the issue of a protective measure. In any case, it is for the judiciary to make the assessment. It is a matter of criteria of judicial appraisal, which must be respected. The complainant organization also seeks to mislead by appearing to claim that views expressed by the supervisory system can influence the judicial process in the context of legitimate recognition of the competence of the State with adequate judicial scrutiny. According to the Government, the Supreme Court of Justice ruled that judicial appraisal could not be subject to influence by the opinions of the ILO supervisory bodies.
30. 157. Finally, the Government concludes that the complainant causes confusion by citing cases of ILO jurisprudence, ascribing impossible conduct to the administration, since decisions were called for on a matter which was not under its jurisdiction. The work of the Ministry ceased before the elections and so it did not officially establish any winner. The conduct of the Ministry was in line with the international rulings on the matter. It restricted itself to extending a term of office prior to the elections as part of the task of recording anomalies in the election process, the discussion of which is a judicial matter. What is beyond discussion is the judicial confirmation of the extension of the term of office for the performance of administrative acts. In its communication of 15 May 2012, the Government indicates that the issue of the CTA elections is currently before the judicial authorities and thus outside the Ministry’s competency. It would therefore be totally inappropriate for the Ministry of Labour to intervene in any way.

C. The Committee’s conclusions

1. 158. Before examining the substance of the allegations, the Committee notes the Government’s statements to the effect that: (1) the ILO supervisory system does not recognize individual submissions, only collective ones, and that any issue examined in this international forum must have the backing of a trade union organization or group of workers which the Committee considers sufficient to be regarded as an organization; and (2) in this case none of the requirements have been met, since the complainant (the Government refers to the union officer who signed the complaint, Mr Micheli) does not have the status of elected representative of the CTA on account of the judicial circumstances surrounding the actions described. The Committee observes that the complaint alleges interference by the Government in the electoral process of the CTA and that the complainant considers that the list headed by Mr Micheli won the elections, with this union official having been appointed general secretary. The Committee therefore considers that the issues of substance raised in the case should be examined.
2. 159. The Committee observes that in the present case the complainant organization states that, for the purpose of renewing the national, local and regional leadership of the CTA, elections were held on 23 September 2010 and that, as a result of challenges to the electoral process, the autonomous tribunal of the CTA declared the voting that took place at 10 per cent of the polling stations null and void (the results in the remaining 90 per cent were upheld, according to the complainant, and this was not contested by any of the electoral lists and the deduction of the annulled results yielded a difference of more than 11,000 votes in favour of the list headed by Mr Micheli), supplementary elections were convened for 9 December 2010, and these were won by the electoral list headed by Mr Micheli. The Committee notes that the complainant contests the decision of 6 December 2010 of the administrative authority (file No. 1407454/10) invalidating the convocation and holding of supplementary elections within the CTA on 9 December 2010 (i.e. the call for elections which, according to the complainant, affected 10 per cent of the polling stations).
3. 160. The Committee notes that the Government in its reply upholds the legality of the decision of the administrative authority of 2 November 2010 to extend the term of office of the CTA leadership. However, the Committee observes that the complaint is not concerned with this issue but with the decision of the administrative authority invalidating the convocation and holding of supplementary elections within the CTA on 9 December 2010. The Committee notes the Government’s statements that: (1) the intervention of the MTESS was legitimate and respected collective autonomy, in conformity with the National Constitution and Convention No. 87; (2) on completion of the electoral process of the CTA on 23 September 2010, the autonomous arbitration tribunal of the CTA ruled that it was necessary to hold supplementary elections in all provincial and local districts and polling stations where the results had been annulled (thereby concluding its tasks and being automatically dissolved); (3) the statement of the complainants that even if the challenges had been accepted they would only represent 10 per cent of the electorate is irrational; according to the Government, this is a dogmatic statement which is not substantiated by any documentation; (4) Division No. 4 of the National Labour Appeals Chamber overturned the first-instance ruling of National Labour Court No. 26 and ordered the supplementary elections held on 9 December 2010 to be declared null and void (the complainant filed an appeal with the Supreme Court of Justice seeking revocation of this judgment); (5) the foregoing confirms that the democratic institutions of the country are wholly functional, and this implies judicial scrutiny of acts of government; and (6) the issue of the CTA elections is currently before the judicial authorities and thus outside the competency of the Ministry of Labour.
4. 161. In the light of the above, as regards the decision of the administrative authority of 6 December 2010, challenged by the complainant, which invalidated the convocation and holding of supplementary elections within the CTA on 9 December 2010, the Committee reminds the Government that any intervention by the public authorities in trade union elections runs the risk of appearing to be arbitrary and thus constituting interference in the functioning of workers’ organizations, which is incompatible with Convention No. 87, Article 3, which recognizes their right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 429].
5. 162. Finally, regretting the time that has elapsed without a definitive solution to the electoral dispute within the CTA, which without doubt seriously undermines the functioning of this organization, the Committee firmly expects the judicial authorities to take a decision on all the pending issues in the very near future. The Committee requests the Government to keep it informed in this respect.

The Committee’s recommendation

1. 163. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee regrets the time that has elapsed without a definitive solution to the electoral dispute within the Confederation of Workers of Argentina (CTA), which without doubt seriously undermines the functioning of this organization, and firmly expects the judicial authorities to take a decision on all the pending issues in the very near future. The Committee requests the Government to keep it informed in this respect.