Rapport définitif - Rapport No. 408, Octobre 2024

Cas no 3308 (Argentine) - Date de la plainte: 19-AVR. -17 - Clos

Allegations: The complainant organizations allege the unilateral suspension of collective agreements by state corporations and failure to engage in collective bargaining with entities affiliated with the complainant federation

1. 123. The complaint is contained in communications from the Argentinian Federation of Senior Staff of the Electrical Supply Sector (FAPSEE) and the Senior Staff Association of the Córdoba Province Power Corporation (APSE) dated 12 April and 27 September 2017. The FAPSEE and the APSE sent additional information in a communication dated 12 April 2018. The FAPSEE sent new allegations in communications dated 28 November 2018 and 28 July 2022.
2. 124. The Government sent its observations in communications dated 24 October 2018 and 20 May 2024.
3. 125. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 126. In their communications dated 12 April and 27 September 2017 and 12 April 2018, the FAPSEE and the APSE indicate that: (i) the APSE, which is affiliated with the FAPSEE, is a first-level organization with trade union status that represents the managerial and professional staff of the Córdoba Province Power Corporation (“the Córdoba Province Corporation”); and (ii) in 1991, the APSE concluded a collective agreement with the Córdoba Province Corporation, approved by the labour administration under No. 42/91 E, which is still in force.
2. 127. The complainants allege that: (i) on 8 February 2017, the APSE and the Córdoba Province Corporation signed an agreement recognizing that there were questions and interpretations concerning compliance with Collective Agreement No. 42/91 E over which the parties were in dispute, which were grounds for legal action and, with a view to finding common ground within good faith negotiations, they committed to operationalizing the Joint Tribunal established under article 13 of their collective agreement as an institutional dialogue forum where pending disputes are considered and outcomes favourable to both parties are achieved; (ii) the Córdoba Province Corporation approved this agreement through Decision No. 79987 of 14 February 2017; (iii) after the issuance of that decision, the Union of Electricity and Energy Workers of Córdoba, the Regional Union of Electricity and Energy Workers and the Union of Electricity and Energy Workers of Río Cuarto (Córdoba Province) challenged the merits of the decision of the Córdoba Province Corporation, alleging that it was in blatant violation of Collective Agreement No. 165/75 that the said trade unions had negotiated with the Córdoba Province Corporation, and resulted in an unfair practice; the Unions of Electricity and Energy Workers refuted the representation that the APSE claims to have in the corporation and challenged the validity of Collective Agreement No. 42/91 E; and (iv) without any prior consultations, the Córdoba Province Corporation retracted the decision and issued a new one, No. 80108 of 16 March 2017, suspending the validity of Decision No. 79987.
3. 128. The complainants allege that the Córdoba Province Corporation failed to comply with article 12 of the collective agreement it had signed with the APSE in 1991 that is still in force, that is, the involvement of the Joint Committee. The complainants allege that the sudden suspension – without any real reason other than the submission made by the other trade unions that lacks any factual and/or legal basis - constitutes anti-union conduct pursuant to article 53(f) of the Trade Union Associations Act No. 23551 in “declining to bargain collectively with the trade union association authorized to do so or causing delays with the effect of obstructing the bargaining process”. The complainants consider that the conduct of the Córdoba Province Corporation constitutes a clear refusal to engage in collective bargaining with the APSE or at least an obvious delaying tactic that has the effect of obstructing the bargaining process. They also indicate that it is not the first time that the provincial corporation has had this attitude with the APSE, and emphasize that the Córdoba provincial government has still not complied with the Committee’s recommendations in Case No. 2459. The APSE indicates that it wishes to engage in collective bargaining with the Córdoba Province Corporation and considers that the Joint Tribunal is the appropriate forum to settle matters concerning labour relations of the senior staff of the corporation.
4. 129. In a communication dated 28 November 2018, the FAPSEE alleges that the provincial energy services corporation of Chaco (“Chaco Province Corporation”) has systematically failed to comply with the terms of the collective agreement in force, No. 794/06 E, concluded with the Staff Association of the Energy Carrier of Chaco (APCECH) (associated with the FAPSEE), and failed to engage in collective bargaining with it, using evasive and obstructive arguments. The FAPSEE alleges that the APCECH requested the provincial corporation on numerous occasions to establish the bargaining committee provided for under article 49 of Collective Agreement No. 794/06 (that is, to nominate the representatives of the corporation and the APCECH) to discuss wages and bargaining processes and that the corporation systematically failed to establish the bargaining committee. The FAPSEE alleges that the corporation reached a wage agreement as part of a bargaining process with the Union of Electric and Energy Workers of Chaco, a trade union entity that represents only a portion of the workers of the corporation.
5. 130. In a communication dated 28 July 2022, the FAPSEE alleges that: (i) between 1998 and 2020, it requested the establishment of the bargaining committee for a collective agreement applicable to the managerial staff of the energy corporation of Santa Fe Province (the “Santa Fe Province Corporation”); (ii) in 2020, after arduous negotiations, the bargaining committee was formed and they were received by the authorities of the corporation for an update of the steps undertaken; (iii) in 2021, it held virtual meetings with the corporation and a mediator in which it presented an updated draft collective agreement (the majority of the proposed articles in the collective agreement had already been agreed on in initial bargaining in 2007); and (iv) they held a series of meetings until the corporation suspended bargaining on 29 September 2021 at the request of the Electricity and Energy Workers’ Unions in a submission questioning the negotiation of the collective agreement.
6. 131. The FAPSEE indicates that in April 2022, the Ministry of Labour, Employment and Social Security notified it of Ruling No. 1551, which determined that the bargaining would continue, and hence it confirmed its representatives to the corporation and requested it to continue negotiations. The FAPSEE alleges that, although meetings were held and agreement was reached on some proposed articles of the collective agreement, on 17 May 2022 the Ministry notified it of another submission of the Electricity and Energy Workers’ Union insisting that bargaining should not take place between the corporation and the FAPSEE based on arguments already set out in the same file and that, as a result, the corporation decided to suspend negotiations. Consequently, the FAPSEE alleges a failure to comply with agreements and a constant refusal to engage in collective bargaining by a corporation owned by a provincial government.

B. The Government’s reply

1. 132. In its communications dated 24 October 2018 and 20 May 2024, the Government indicates that the three situations in this case refer to disputes between trade union organizations (the FAPSEE and the Electricity and Energy Workers’ Union) over their areas of representation. The Government states that the three situations are linked to a problem concerning the will of the workers in which the State does not become involved, and the matters raised in relation to the three provincial corporations are related to the representativeness of trade union organizations that have the capacity and legitimacy to engage in collective bargaining.
3. 133. The Government indicates that the problem is not the fact that the State authorized the APSE to engage in collective bargaining, but that there are other organizations in the corporation that have also been recognized as being representative and those organizations are calling into question the representativeness of the APSE. The Government indicates that: (i) the corporation cannot enter into an agreement with an organization whose representativeness is in doubt because it could create obligations that would harm the corporation’s assets and also result in legal consequences, in addition to incorrectly granting rights or potentially removing rights for others; (ii) the decision of the Córdoba Province Corporation to suspend the Joint Tribunal provided for under article 13 of Collective Agreement No. 42/91, pending a decision of the National Ministry of Labour, Employment and Social Security on the submission of the Electricity and Energy Workers’ Unions of Córdoba and Río Cuarto and the Regional Union of Electricity and Energy Workers in Ruling No. 0021 030903/2017, cannot in any way be considered to be an act in violation of the principle of freedom of association; (iii) nor does the conduct of the corporation constitute a refusal to engage in collective bargaining because – while the Joint Tribunal was set up by the corporation for the purposes of settling legal disputes (and not to promote collective bargaining) – it is clearly not for the employer to determine the scope of representation of workers, nor to legitimize organizations when its own workers are questioning them; on the contrary, that would be in violation of Conventions Nos 87 and 98; and (iv) it is the workers themselves who must decide on the scope of trade union representation and settle their internal affairs in the areas established under article 59 of Act No. 23551 “in good faith for the discussion of matters of trade union representativeness recognized by the international system”.
5. 134. The Government indicates that: (i) on 13 February 2019, the FAPSEE requested the continuation of the bargaining it had initiated with the corporation for the staff expressly not covered by the Association of Senior Staff of the Water and Electrical Energy Sectors or any other association; (ii) on 8 March 2022, the National Directorate of Labour Relations and Regulations stated that in accordance with the trade union status held by the FAPSEE, it was eligible to engage in collective bargaining for the workers and geographical areas within its competence; (iii) the General Secretaries of the Unions of Electricity and Energy Workers of Rosario, Santa Fe and Rafaela made a submission challenging the actions undertaken by the FAPSEE with a view to setting up a bargaining committee for the purposes of formalizing a collective agreement with the corporation, on the grounds that the FAPSEE lacked legitimacy to bargain on behalf of the group of workers it claimed to represent in that it was openly incompatible with the trade union status of those entities; (iv) on 22 September 2022, the National Directorate declared that the bargaining committee had formally been established in accordance with the provisions of Act No. 23546, and comprised representatives of the FAPSEE and the provincial corporation; and (v) although the aforementioned entities insisted on appealing the decision, on 18 September 2023 the National Directorate denied the application for review and referred the matter to the Legal Service of the Ministry of Labour, Employment and Social Security, which declared moot the request for review to a higher authority lodged by the Union of Electricity and Energy Workers of Rosario.
6. 135. The Government indicates that the Legal Service emphasized that the application to bargain submitted by the FAPSEE dated from 1998 but that it had thus far been unable to agree or conclude any collective agreement with the corporation as a result of what is known in legal doctrine as trade union representativeness, which alludes to a legal dispute between two or more associations with trade union status on their legal capacity to represent the workers of one or more establishments. As a result, the Legal Service understood that it was necessary in this case to examine whether there was an underlying dispute over trade union representativeness that would have to be settled by applying the specific procedure set out in article 59 of Act No. 23551.
7. 136. The Government emphasizes that the matter of trade union representativeness is the sole preserve of workers in accordance with the aforementioned article, which requires that, prior to submitting a matter to the administrative authority, the trade union organization one level higher than the one to which the association is affiliated must have issued a decision on it, which, the Government indicates, did not happen in the present case. The Government adds that, although it was considered that a dispute over trade union representativeness existed, this does not fall within the Committee’s competence, and has to be settled in the final instance within a country’s national legal system. The Government also recalls that a situation like this case, which does not involve a dispute between the Government and a trade union but results from a dispute within the same trade union movement, is a matter solely for the interested parties.

C. The Committee’s conclusions

1. 137. The Committee observes that in the present case the FAPSEE, a federation of senior-level workers in the electrical energy sector, and various affiliated trade unions allege that the electric energy corporations of the provinces of Córdoba, Santa Fe and Chaco unilaterally suspended the collective agreements concluded with those trade unions and/or declined to engage in collective bargaining with them. The Committee notes that the Government indicates that the matters concerning the three provincial corporations are related to a dispute among various organizations with trade union status (a status which authorizes them to engage in collective bargaining) over which organization is entitled to bargain collectively on behalf of certain categories of workers of those corporations – matters which, the Government argues, should be settled by the workers themselves.
2. 138. In relation to Córdoba Province, the Committee notes that the complaint and the Government’s reply show that: (i) the APSE and the provincial corporation agreed to operationalize the Joint Tribunal established under the collective agreement they signed in 1991; and (ii) various electricity and energy workers’ unions challenged the validity of the collective agreement and refuted the representativeness claimed by the APSE. The Committee observes that, while the complainants allege that the collective agreement was in force (which the Government does not dispute) and that in view of the objections raised by the electricity and energy workers’ unions, the corporation opted not to comply with the agreement with the APSE, the Government indicates that: (i) the purpose of the Joint Tribunal was to settle legal disputes, not to promote collective bargaining; (ii) the corporation suspended the agreement with the APSE pending a decision by the Ministry of Labour, Employment and Social Security on a submission made by the electricity and energy workers’ unions (in relation to which no further information was provided); (iii) the enterprise is unable to conclude an agreement with an organization whose representativeness is in doubt; and (iv) the workers must decide on the scope of their trade union representation and settle their internal affairs in accordance with the procedure under article 59 of the Trade Union Associations Act No. 23551 on the determination of the organization with trade union status that represents various categories of workers.
3. 139. In relation to Santa Fe Province, the Committee notes that it understands from the complaint and the Government’s reply that: (i) the FAPSEE had been requesting the corporation to set up the bargaining committee for a collective agreement for two decades, and after the committee had been set up and a draft collective agreement had been submitted, in September 2021 the corporation suspended the negotiations as a result of a submission from unions of electricity and energy workers which alleged that the FAPSEE lacked legitimacy to bargain and that it was incompatible with those entities’ trade union status; (ii) although the Ministry of Labour, Employment and Social Security determined that the FAPSEE had the legitimacy to engage in collective bargaining, the trade unions challenged it, the negotiations were suspended and the matter was referred to the Legal Service of the Ministry of Labour, Employment and Social Security; and (iii) the Legal Service considered that it was necessary to examine whether there was an underlying occurrence of a dispute over trade union representativeness which must be settled using the procedure set out in article 59 of the Trade Union Associations Act No. 23551.
4. 140. In relation to Chaco Province, the Committee notes that, according to the FAPSEE’s allegations, the provincial corporation did not comply with the terms of the collective agreement in force that was signed with its affiliate, the APCECH (it did not set up the bargaining committee provided for in the collective agreement for the purposes of discussing wages), did not engage in collective bargaining with it and reached a wage agreement with the Union of Electricity and Energy Workers of Chaco, an entity that represents only a portion of the public servants of the corporation. The Committee observes that, although the Government does not refer specifically to the situation of this province in its reply, it indicates that, like the situations of the other two provinces, it concerns matters related to the representativeness of trade union organizations that have the capacity to engage in bargaining.
5. 141. The Committee observes that although the situations of the three provinces are not identical, the Government indicates that they are related to the representativeness of the trade unions that are eligible to engage in collective bargaining which, according to the Government, have to be settled by the workers in accordance with article 59 of the Trade Union Associations Act No. 23551.
6. 142. The Committee observes that that article makes reference to the occurrence of a dispute over trade union representativeness – a dispute between associations that have trade union status over their legal capacity to represent specific personnel. The Committee observes that the article provides that: (i) to submit matters of trade union representativeness to the administrative authority, the relevant associations must have first exhausted the remedies available within the association through a ruling from the trade union organization one level higher than the organization to which they are affiliated, or to which their federations are affiliated; (ii) if the dispute has not been settled within 60 working days, any of the trade union associations involved in the dispute may submit the matter to the Ministry of Labour, Employment and Social Security, which shall issue a ruling within 60 working days; (iii) once the administrative procedure has been exhausted, legal action may be taken; and (iv) the decision on representativeness, whether from the administrative authority or within the association, may be appealed before the National Labour Appeals Chamber and shall have the effect of determining the eligibility of the respective trade union to represent workers in the scope of the dispute.
7. 143. While noting the indications of the Government concerning the occurrence of a dispute over trade union representativeness in the situations arising in the three provinces which should be settled by the trade unions involved pursuant to article 59 of the Trade Union Associations Act No. 23551, the Committee observes that: (i) it has not received evidence of the applicability in the cases to which the complaint refers of the pursuit of a remedy to the dispute within the association, which means that the trade unions in dispute would have to belong to a structure with the same higher-level organization; (ii) in two of the three cases (Córdoba and Santa Fe Provinces), recourse was had to the labour administration in order to settle the dispute but the cases have not been resolved; and (iii) it has not received any information indicating the existence of legal action to resolve the aforementioned disputes.
8. 144. The Committee observes with regret that, despite the time that has elapsed, the organizations with trade union status in the three provinces have been unable to resolve or make progress on the outstanding matters concerning collective bargaining. The Committee recalls that in order to encourage the harmonious development of collective bargaining and to avoid disputes, it should always be the practice to follow, where they exist, the procedures laid down for the designation of the most representative unions for collective bargaining purposes when it is not clear by which unions the workers wish to be represented. In the absence of such procedures, the authorities, where appropriate, should examine the possibility of laying down objective rules in this respect [See Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1382]. Observing that it has apparently not been possible to achieve a consensual solution among the trade unions involved, the Committee trusts that the Government will ensure that the trade unions in question have the necessary administrative and legal resources to allow them to resolve the disputes effectively.
9. 145. In the meantime, observing that the matters raised in the complaint related to Córdoba and Chaco Provinces essentially concern the alleged non-compliance with provisions of a collective agreement that are allegedly still in force, the Committee recalls that agreements should be binding on the parties [Compilation, para. 1334] and trusts that the Government will take all necessary measures in this respect. The Committee also encourages the Government to take all measures at its disposal to encourage and promote the full development and utilization of machinery for voluntary negotiation between the organizations and corporations in the three provinces in question.
10. 146. Lastly, in relation to the allegation that the Committee’s recommendations in Case No. 2459 concerning the APSE and the Córdoba Province Corporation have not been implemented, the Committee, while observing that the Government did not send its observations on this matter, recalls having urged it to take without delay the necessary measures so that the APSE may join the works council of the corporation and take part in policy and economic decisions affecting the functioning of the corporation [see 358th Report of the Committee on Freedom of Association, para. 21]. The Committee recalls that these recommendations remain in force.

The Committee’s recommendations

1. 147. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Observing that it has apparently not been possible to achieve a consensual solution among the parties involved concerning the matters raised in the case, the Committee trusts that the Government will ensure that the trade union organizations in question have the necessary administrative and legal resources to allow them to resolve the disputes effectively.
   • (b) The Committee trusts that the Government will take the necessary measures to ensure compliance with the terms of the collective agreements in force in relation to Córdoba and Chaco Provinces. The Committee also encourages the Government to take all measures at its disposal to encourage and promote the full development and utilization of machinery for voluntary negotiation between the organizations and corporations in the three provinces in question.
   • (c) The Committee recalls that the recommendations issued in Case No. 2459 remain in force.
   • (d) The Committee considers that this case is closed and does not require further examination.