Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s reports.

The Committee recalls that for several years its comments have been referring to the following provisions of Act No. 23551 of 1988 respecting trade union associations and implementing Decree No. 2184/90:

- section 28, which requires the petitioning association, in order to contest the trade union status of an association, to have a "considerably higher" number of members; and section 21 of implementing Decree No. 467/88, which qualifies the term "considerably higher" by laying down that the association claiming trade union status should have at least 10 per cent more dues-paying members than the petitioning association;

- section 29, which provides that a "trade union at the enterprise level may be granted trade union status only when another first-level association and/or trade union does not already operate within the geographical area or the area of activity or category covered";

- section 30, which imposes excessive conditions for granting trade union status to unions representing craftsmen, occupations or categories of workers;

- section 31(a), which grants privileges to associations enjoying trade union status in comparison with other associations in relation to the representation of collective interests other than collective bargaining;

- section 38, which only permits associations enjoying trade union status, and not associations which are merely registered, to benefit from the check-off of trade union dues;

- section 39, which only exempts associations with trade union status, and not associations which are merely registered, from taxation;

- sections 48 and 52, which provide that only the representatives of associations which have been granted trade union status may enjoy special protection (trade union protection, fuero sindical);

- the imposition of minimum services by the Government in the event of the failure of the parties to reach agreement (section 5 of Decree No. 2184/90).

The Committee notes the Government’s indications that: (1) the current system with regard to trade union associations (Act No. 23551) dates from 1988 and its provisions show the intention of giving effect to the principles of Conventions Nos. 87 and 98 in a period of democratic reconstruction which replaced the obscurity of a de facto government which had limited respect for human rights, and the legislator therefore placed emphasis on strengthening the institutions which had suffered from repression and interference; (2) coincidentally, this was accompanied by the massive promotion by workers of the process of concentration into major trade union organizations; (3) the proliferation of workers’ organizations at the enterprise level and trade union associations which are merely registered illustrates the search by the workers for different models of organization and representation and the deficiencies of the current legislation in promoting the defence of the interests of their members; and (4) the authorities indicate their total readiness to convene all the social partners with a view to making the relevant modifications to Act No. 23551 (in this regard the Government has established by Decree No. 1096/00 of 21 November 2000 a joint tripartite committee) and achieving a draft text by consensus which can be submitted to the Congress and that the technical assistance of the International Labour Office will be essential for that purpose.

In this respect, the Committee takes due note of the Government’s readiness to make the necessary changes to the Act respecting trade union associations with a view to bringing it into full conformity with the provisions of the Convention and requests the Government to provide information in its next report on any measure adopted in this respect. The Committee notes that the technical assistance of the Office is at the Government’s disposal.

Finally, the Committee recalls that it had also referred to section 5 of Decree No. 2184/90 respecting the power of the Ministry of Labour and Social Security to determine the arrangements for the provision of minimum services in the event of a strike in essential services, in the absence of agreement between the parties. In this respect, the Committee notes with satisfaction that Decree No. 2184/90 has been repealed and that the new Decree No. 843/2000 respecting essential services permits strikes in essential services in the strict sense of the term. The Decree also provides that the parties shall reach agreement on the minimum services which shall be maintained during the dispute, and that the Ministry of Labour may determine such services where agreement is not possible (in no case may it impose coverage of greater than 50 per cent upon the parties).