Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A Government representative said that several issues in the report of the Committee of Experts warranted clarification: the questions related to Decree No. 272/2006 and the complaint made by the Central of Argentine Workers (CTA) concerning the granting of trade union status. She expressed concern that her country might have been included in the list due to reasons other than those which had been mentioned in the request for more information or the analysis of the case from a juridical point of view, other possible reasons having been omitted.

She referred to the provisions of section 24 of Act No. 25877 and its regulatory Decree No. 272/2006 respecting strikes in essential services and the establishment of minimum services. While the report recognized the fact that the new national legislation constituted an improvement, the Committee of Experts should have explained in detail the possible reasons for concern, given that the legislation had followed the principles established by the ILO supervisory bodies and was therefore in full conformity with Convention No. 87. Indeed, section 24 provided that only health care and hospital services, the production and distribution of drinking water, electricity and gas and air traffic control were considered essential. It also provided that, exceptionally, other services could be considered essential, as determined by an independent commission after the initiation of a conciliation procedure, as provided for in the legislation, and only in the following circumstances: (a) when, due to the duration and territorial extension of the activity's interruption, the measure might threaten the lives or safety of all or part of the population; (b) when it involved a public service of extreme importance, in accordance with the criteria of the ILO supervisory bodies. Furthermore, the legislation provided for consultation with employers' and workers' organizations, in accordance with ILO principles.

In conformity with the law, the Executive had issued the above Decree after consulting all the social partners concerned. This Decree expressly provided that the independent committee would be called the Guarantees Commission and would be composed of five members with recognized technical, professional or academic competence in matters relating to work, labour or constitutional law as well as considerable experience. Consequently there had been genuine progress compared to the former legislation.

With regard to the procedure initiated by the CTA to request trade union status, the speaker indicated that the Government had fulfilled the procedure provided for under the current legislation, which the applicant organization had expressly accepted by submitting its request for trade union status within the framework of Act No. 23551 and its regulatory Decree. The authorities had continuously followed the procedures and guaranteed respect for the rights provided by articles 14bis, 17 and 18 of the national Constitution, ILO Conventions No. 87 and No. 98 and the abovementioned legislation, with regard to all the trade union organizations eligible for the procedure. Naturally, respecting the procedures and guaranteeing the exercise of the right to be heard for all those concerned, in an administrative procedure in which first-, second- and third-level trade union organizations are involved in an adversarial process, necessarily implied a certain period of time in accordance with the importance of the procedure.

With reference to the general restrictions on freedom of association that Act No. 23551 respecting trade union organizations allegedly caused, she indicated that the Act was not contrary to the provisions of ILO Conventions Nos 87 and 98. Indeed, in its formulation, not only had the provisions of both Conventions been taken into account, but also the interpretations that had been given with regard to the scope of the concept of freedom of association, both in the discussions that had taken place in the ILO, and in the evaluation that her country had received from the Professor Nicolás Válticos' mission to Buenos Aires in 1984. The purpose of his mission had been to present his observations to the Government with regard to the legislation that was being formulated at the time and would replace Act No. 22105 respecting workers' trade union associations, which had been issued by the military dictatorship in 1979. The report of Valticos' mission had recommended that the legislation contain three major aspects. The first related to the principle of representativeness, in the context of trade union plurality and the resulting diversity. The second concerned the authority of the State to intervene in matters concerning the constitution and the formation of trade union organizations, and guarantees for the representation of minorities. The third addressed the possibility to join international workers' organizations and protection against discriminatory anti-union acts.

With regard to the first aspect, the mission's report accepted two types of organization: those with trade union status and those that were simply registered. With regard to the latter, it was provided that they had to be allowed to carry out their activities which had at the very least to enable them to represent and defend the interests of their members in the event of individual grievances. The powers arising from section 23 of Act No. 23551 strictly complied with this observation. Furthermore, Executive Decree No. 757 of 2001 provided that all registered trade union organizations had the right to defend and represent the individual interests of their members before the State and employers. Along the same lines, the document also provided that the most representative trade unions enjoyed preferential rights, particularly in matters relating to collective bargaining. In this respect, the powers arising from section 31 of the Act concerned were in full conformity with the report's recommendations.

With regard to "trade union monopoly", the country's legislation was also in conformity with the report. In no way did Argentine legislation impose a trade union monopoly, since it accepted the possibility to form trade unions in an unrestricted manner and without prior authorization by the State, granting certain privileges to specific organizations based on the system of representation corresponding to national practice. In this respect, it was important to mention section 28 of this Act, which provided a system to determine which of two associations claiming to represent the same group of workers had majority support for the purposes of granting trade union status.

With regard to the second aspect, the legislation was in full conformity with international instruments, with regard to which her country had not received a single observation from the Committee of Experts. Indeed, Act No. 23551 contained a chapter devoted to trade union protection and specific provisions concerning interference by the administration. It also fully respected the right of organizations to formulate their statutes and administer their assets, in strict respect of the principles of organizations' independence.

With regard to the third aspect as well, there could be no doubt that the legislators had followed the guidelines set out in the ILO Expert's report, as was evidenced by the active international participation of Argentina's trade unions in international organizations. With regard to the CTA, she reiterated that since 2002 it had represented workers in the Conference, participated in the Commission on Employment, Productivity and Minimum Wage, and MERCOSUR, together with trade union organizations from different international forums, without any type of exclusion or discrimination. The legislation had guaranteed the creation and functioning of all the trade union organizations that the workers had considered necessary to form. In Argentina there were currently more than 2,800 first-, second- and third-level trade union organizations. This indicated that, in the 19 years in which Act No. 23551 had been in force, every month a trade union had obtained trade union status, with one trade union organization existing for every 3,500 wage workers. The significance of these numbers clearly indicated that freedom of association in Argentina was not only a right, but was being widely and fully exercised, thereby demonstrating that the Government had faithfully complied with the conclusions made by the Conference Committee in 2005.

Finally, the speaker reaffirmed the Government's commitment to continue to be open and receptive to carrying out technical cooperation activities with the ILO, aimed at promoting social dialogue and achieving consensus among all the social partners concerned.

The Worker members pointed out that, although this case had already been discussed several times, several issues raised by the Committee of Experts over many years still remained. It was therefore a matter of concern that the CTA had still not received a reply to its request, made three years ago, to obtain trade union status, a fact which impacted on its members. As the Committee of Experts had made clear, the very principle of freedom of association was at risk in Argentina and examples of breach of compliance with Convention No. 87 were numerous: dismissals of union representatives or workers affiliated to the CTA, non-recognition by the Government and employers of the CTA in the railway sector or the paper industry. However, in practice the CTA was operating and was recognized both by national and international bodies and its representatives were participating in the Conference. In the context of a country where two organizations were active both geographically and sectorially, it was unacceptable that one of them, the CTA, did not enjoy the same legal conditions. The Government had to act without delay on the request for union status made by the CTA.

The Worker members also drew attention to the situation in the education sector in Neuquén province, and especially to the decree replacing teachers on strike as well as the intervention by the police at a demonstration in support of wage claims during which a union member had been killed.

The way in which the minimum service was determined was also a concern, as the Guarantees Commission which determined these services only had a consultative role and the final decision was always in the hands of the administrative authority. As the Committee on Freedom of Association had requested in examining this situation, the Government had to supply information on the number of cases in which the administrative authority had modified the terms of the Guarantees Commission's opinion.

The Employer members wished to state in light of the selection for discussion of the case of Argentina, i.e. a country which did not appear on the preliminary list of cases, that there was a need to review the methods of work of the Committee. Specific criteria was needed which would make it possible to address additional cases not appearing on the preliminary list. However, in the light of the current methods of work, the care taken in selecting additional cases and the very limited number of cases appearing on the preliminary list, the inclusion of Argentina in the list of cases was correct.

Turning to the present case, they thanked the Government for the information it provided which was both wide-ranging and extensive, going to some extent beyond the comments of the Committee of Experts. The Committee of Experts would need to give its appreciation of the new information presented by the Government before this Committee could discuss it.

This was not a case concerning fundamental matters of freedom of association but more technical in nature. Although the comments of the Committee of Experts were somewhat more extensive than those made during the last discussion of this case in 2005, the Experts had once again confined themselves to a presentation of the issues without making any analysis. In essence, the Committee of Experts requested information to get more clarity on several matters that it highlighted. The Committee of Experts had requested information on the application in practice of the provisions of Act No. 25877 concerning minimum services and the advisory role of employers' and workers' organizations in this context. In the Employer members' view, there was no requirement in Convention No. 87 to provide for this type of procedure and the Government had gone beyond the requirements of the Convention in providing a role to the social partners in determining minimum services. The Committee of Experts had requested further information in this respect.

The Committee of Experts had also raised issues relevant to the length of time it had taken to grant the CTA "trade union status". The hierarchy of different statuses that unions might have was not exclusive to Argentina. Many levels could exist based on quite complex requirements. The matter at issue seemed to be more one of inter-union competition rather than a question of the application of Convention No. 87 in law and in practice.

Not much information was provided with regard to the last three matters raised in the Committee of Experts' observation. On the 30-day suspension of 50 school directors in the province of Neuquén, the Experts noted that the matter had been examined by the Committee on Freedom of Association and appeared to have been resolved. On the assault against a member of the communications sector union and pressure on workers to leave the union, they noted that the National Appeals Chamber had upheld the lower court's decision to sanction the enterprise for discrimination against five union members. Finally, regarding the dismissal of 168 pilots in the context of a collective dispute, the Experts noted that the dismissals had been cancelled and a new collective agreement had been concluded. All this tended to indicate that the matters were resolved and that the law in Argentina worked appropriately. Thus, all that was needed of the Government was more information to clarify the situation with precision.

A Worker member of Argentina stated that it was unacceptable to have any further delays in the commitments his country had made to the ILO with regard to the Committee of Expert's observations concerning freedom of association. The current Act respecting trade unions had been adopted in 1989, been examined by the Committee of Experts on 13 occasions and twice been submitted to the Conference Committee. Despite the two direct contacts missions and more than six technical assistance missions which took place between 1998 and 2005, the Act had not been amended, nor had the Executive sent a bill to the Congress.

The speaker pointed out that the number of cases that had been submitted to the Committee on Freedom of Association from Argentina had increased considerably. A mission had been organized on 30 August 2005 for purposes of implementing the Conference Committee's recommendations. Another mission had been organized for the same purpose in February 2007, giving no results in so far as the Government was concerned. The delay of successive governments in addressing the observations showed that there was no, nor had there ever been, any political intention to amend a single section of the Act respecting trade unions.

He indicated that the Central of Argentine Workers (CTA) was recognized in national and international spheres as one of the two trade union centrals in Argentina and participated in the institutions of MERCOSUR. This, however, did not solve the problem of workers, who, in the absence of legislation guaranteeing freedom of association and democracy in trade union matters, not only could not freely organize, but were also discriminated against when they did. It was not solely an issue of the Argentine legislation being contrary to Convention No. 87, but of the practical consequences for workers who lacked protection and guarantees, which was the result of inadequate representation. According to a recent study by the Ministry of Labour, a mere 12.7 per cent of all businesses enjoyed direct trade union representation in the workplace, and only 52.2 per cent of businesses enjoyed direct trade union representation for enterprises of more than 200 workers. In August 2006, a conflict had broken out between the Alto Paraná enterprise and the chainsaw workers affiliated with the CTA. The reaction of the enterprise had consisted in notifying a series of dismissals and the suspension of the principal activists. Furthermore, a compulsory payment of dues was deducted from the workers' pay for the benefit of the trade union for rural workers, as they were considered to be rural workers. This was a direct consequence of the Act which determines affiliation to one or another trade union in accordance with the activity of the employer, workers wishing to belong to another union having no say in the matter. On 17 November 2006, Mr Guillermo Carrera, the former Secretary of the CTA who had been developing concerted trade union activities in the company, had been dismissed.

Since the CTA belonged to the category of so-called "simply registered" entities, it lacked protection as a trade union and, therefore, the enterprise was, as a principle, able to proceed with a number of dismissals, which was a direct consequence of the current trade union Act, which only protects representatives of entities with trade union status. This protection is what the Committee of Experts referred to as the "privileges" of entities with trade union status, which were denied to those considered to be "simply registered".

The 2001 crisis had been followed by sustained growth in the gross domestic product and a significant recovery in the industrial sector. Nevertheless, the distribution of wealth continued to be unequal and many workers had not benefited from the profits made as a result of the economic growth. As a result, workers needed to organize and fight for an equitable distribution of the wealth.

He expressed his concern that trade union leaders continued to receive threats, trade union premises were the object of continuous robberies and the murder of Carlos Fuentealba, a unionist of the CTA of Neuquén, during a demonstration and a teachers' strike in that province.

This case is important for two reasons: the Government's continuous procrastination with regard to amending the Act and the long period of time the case had been the subject of observations by the Committee of Experts and this Committee, with no evidence to indicate that the Government had the will to implement the commitments made to the ILO supervisory bodies. Such procrastination could only be interpreted as a refusal by the Government to amend the Act respecting trade unions. It is in this context that its refusal to grant full recognition to the CTA had to be interpreted. It had been almost three years since the request for trade union status by the CTA had been made, yet the Government continued to delay the procedure with meaningless administrative measures, thus preventing workers and the organizations affiliated with the CTA from fully enjoying their right to representation. The Committee of Experts had urged the Government to resolve the issue of the CTA's request for trade union status. There were, however, no signs that that procedure was on its way to completion and that trade union status would be granted. He requested the Workers' group to continue to support them, so as to ensure that, through the assistance of the ILO, a draft amendment of the Argentine legislation would be formulated to bring it in full conformity with Convention No. 87.

Finally, he said that in many cases form obstructed substance, just as the Argentine model for trade unions thwarted the fundamental and universal rights of many workers. It was not an issue of majorities or minorities, but of universal principles and rights which characterize humanity. It concerned the centuries-old debate about democracy, freedom and equality, with no discrimination of any kind.

The Employer member of Argentina stated that the employers in his country were aware that the re-establishment of democracy had been achieved at the cost of great sacrifice by society, which had recovered its civil liberties. Argentina had ratified Convention No. 87 and, with it, committed itself to the principle of freedom of association and the Declaration on Fundamental Principles and Rights at Work.

The speaker wished to clarify a number of points. Firstly, no climate of impunity exists in his country. Secondly, social dialogue and collective bargaining existed in Argentina in the context of the issues of employment and the minimum wage and in different forums as the ILO, the OAS and MERCOSUR, in which employers and workers participated. When needed, the employers had requested technical assistance from the ILO concerning the issue of representativeness. This could be a means to resolve the pending issues, as the Government was open to dialogue.

This Committee was not the place to debate the issue of the distribution of wealth. The trade unions were active in the private sector and there was no anti-union discrimination. If such discrimination existed, there were judicial and administrative remedies for the resolution of problems that may arise. Thirdly, both trade union centrals had legal personality. There were unions affiliated with CTA which had trade union status and their leaders enjoyed trade union immunities. Finally, the technical issues would have to be resolved in an equitable manner.

Another Worker member of Argentina expressed, on behalf of the General Confederation of Labour (CGT), his surprise at the fact that this case concerning his country was being heard in light of the progress made, as demonstrated by the actions of the entire Argentinean trade union movement. He stated that since the crisis of 2001 during which unemployment, exclusion and poverty had grown, the trade unions represented the force of opposition and provided a means of finding political solutions, through social dialogue, with a view to guaranteeing the democratic system, the recovery of employment and social cohesion, with an important role for the CGT in this context. The workers' movement in his country was one of the pillars of democracy.

The speaker considered that the concept of freedom of association was based on a permanent tension between two ideas: the freedom to establish trade unions and the effectiveness of trade union action. Both concepts should go hand in hand and pluralism was not necessarily synonymous with quality and effectiveness of trade union action. The trade union system in his country guaranteed the autonomy of the workers to establish trade unions freely, thus strengthening the effectiveness of trade union action. Trade union unity was compatible with the right to trade union pluralism and was therefore in line with freedom of association according to the letter and scope of Convention No. 87. The Argentinean industrial relations system had the largest number of affiliated workers in Latin America and their collective agreements covered the largest number of workers in all of America, both North and South. It was the trade unions, and not the confederations, that negotiated and concluded the collective agreements and undertook through their shop stewards, to verify its effective application in the workplace. Every four years, the trade unions have elections and the affiliates expressed themselves freely through direct and secret vote in order to confirm or withdraw their confidence from the trade union leadership. This was the basis of the force and legitimacy of trade unions, thus there was no need to request the granting of such legitimacy or a document evidencing registration. Trade unions had been the privileged actors in a system of industrial relations in which they had participated in 2006 a thousand successful joint negotiations.

The speaker stated that trade union activity was protected in the general laws and in particular the law which regulated trade union activity. Since 2005, the courts had received a large number of lawsuits alleging anti-union discrimination and had ordered the reinstatement and payment of wages due to the workers who suffered prejudice, in the framework of the application of standards so that no one was left without protection. In Argentina, the right to strike and its exercise was guaranteed. However, isolated and regrettable incidents could take place like the death of trade unionist Fuentealba, in the province of Neuquén. This incident had been unanimously and jointly condemned by both confederations in his country, with the calling of a nationwide strike. He stated that another fact, which proved what he had just said, was that he had undertaken the post of Secretary-General of the Trade Union Coordination of the Southern Cone and, in that capacity, could state that all the confederations grouped in that body strove to strengthen the trade union movement in a democratic and progressive political framework.

The trade union confederations active in Argentina were also represented and fully integrated in all the participatory and consultative institutions provided for in the law. For example, both confederations participated in the social and labour institutions of MERCOSUR. Furthermore, they participated in the collective bargaining processes in the public and private sectors. They also participated in international delegations. There was still, nevertheless, some steps to be taken and problems to resolve. This was the challenge. Certain questions had to be addressed on the basis of the economic, social and cultural reality against which every evaluation of the implementation of standards should be measured.

He concluded by thanking the ILO for the support and assistance provided during the last crisis, emphasizing that Argentina was one of the countries in which the Decent Work Country Programme was in force, with the participation of workers and employers. He praised the history of the trade union movement in his country and pledged to continue moving forward toward the consolidation of democracy, the just distribution of wealth and the full recognition of social justice for workers and the entire population.

The Worker member of Norway expressed satisfaction that the two main labour centres of Argentina, the CGT and CTA, were now active members of the International Trade Union Confederation (ITUC) and active participants in the ILO Conference, both organizations being representative. She noted with satisfaction the recognition of the CTA by the Government but also noted with concern that the CTA had not been granted "trade union status" and was thus prevented from exercising its right to bargain collectively, represent workers in conflicts, go on strike, collect union dues and exercise other trade union rights. Furthermore, Act No. 23551 continued to allow for the recognition of only one union per industry and geographical region and, as a result, new groups of workers were effectively excluded from the right to organize and engage in trade union activities.

A country that truly respected labour rights should be willing to recognize all groups of workers that wished to form national trade unions and trade union confederations, regardless of their political orientation. After one of the most dramatic economic crises in Latin America, the Argentinean economy had achieved a strong growth rate, low inflation and an unemployment rate that had dropped considerably. But for inequality to decline and for all Argentineans to enjoy the benefits of economic growth, there was a need to further strengthen trade union rights so that all trade unions and confederations in the country could carry out their full trade union functions. Both the CTA and the CGT were strong and representative organizations, which deserved the right to bargain collectively, collect union dues, and otherwise represent their members. And the workers of Argentina deserved to be represented by the trade union of their choice. She called upon the Government of Argentina to grant without delay trade union status to the CTA and to modify Act No. 23551 to allow trade union pluralism. It was unacceptable for a democratic country like Argentina not to be in full compliance with Convention No. 87 and full compliance would not be achieved until the CTA was granted trade union status. It was unacceptable to wait any longer.

The Worker member of Uruguay stated that he had not attended the meeting to discuss the recognition of the Central of Argentine Workers (CTA). The subject was not related to that issue, but more to equality, because multinational enterprises could not be affiliated. What was at stake was not the denial of its "trade union status" as much as the limitations set on participation on an equal footing. It was for that reason that employers had to be asked to recognize trade union activity.

The Worker member of Spain spoke on behalf of the two main trade unions of his country, Comisiones Obreras and the General Workers' Union, and considered that the Act respecting trade unions was not in conformity with Convention No. 87, which requires the Government to guarantee the right for all workers to freely establish organizations of their own choosing and ensure that the legislation does not favour one union over another.

He pointed out that the Committee on Freedom of Association had already, on several occasions in the past, criticized the fact that the organizations with trade union status enjoyed a number of exclusive privileges which were denied to other organizations and might influence a worker's decision as to which trade union to join. The denial of trade union status violated the principle of equality among trade unions and the resulting limitation of rights was contrary to the very principle of freedom of association. A trade union without the right to bargain collectively or the right to strike had no raison d'être. The difference in representativeness among trade unions was not reason enough to deny less representative trade union organizations the essential means to defend their members, which without a doubt included collective bargaining, the declaration of trade disputes, trade union protection and the collection of union dues. The Argentine legislation denied such means to organizations which did not have trade union status. He recalled that unity among trade unions had not to be imposed through legislative means and indicated that he hoped that the Government would take steps without delay to bring the trade union legislation into conformity with Convention No. 87 and grant trade union status to the Central of Argentine Workers (CTA).

The Government member of Mexico expressed the surprise of the Group of Latin American and Caribbean States (GRULAC) for the list of cases to be examined at the current meeting of the Conference, as in his view, the necessary transparency had been absent in its elaboration.

He highlighted the questions on which he founded his opinion, in particular: that the preliminary list of potential cases to be considered by the Committee traditionally served as a basis for the elaboration of a reduced list during the sessions; the inclusion of countries which did not figure on the preliminary list had an adverse effect on these countries taking into account that they did not have the necessary time to prepare their comments - moreover, a country which did not figure on the preliminary list could not present abbreviated documents; the same technical criteria which served as a basis for the preparation of the preliminary list should apply to the selection of cases for examination and the inclusion of other countries; the reasons given for the inclusion were surprising, as while certain cases were considered to be cases of progress. He emphasized that the question of process was just as important as the substance and that the main question was that the rules of procedure had not been respected in the preparation of the list of cases.

The Government member of Brazil supported the statement made with respect to GRULAC by the Government member of Mexico regarding the need to assure transparency in the selection of cases. The Government's statement responded to the points raised and also underlined the close collaboration between Brazil, Argentina and other MERCOSUR member States to promote and reinforce social dialogue in the region. With the support of the ILO, the Argentine Government would continue to improve employment conditions while at the same time reinforcing national democratic institutions.

The Government representative said that any help was welcome and that the comments provided by the representatives of the employers and the workers would be taken into account. She assured the Committee that she had taken due note of all the questions and subjects raised and stated that given the technical nature of the legislation, it was not necessary to enter into the details of the debate.

The Worker members concluded by asking the Government to take action without further delay to grant the trade union status requested by the CTA; to adopt the necessary amendments to Act No. 23551; to amend Decree No. 272/06 so that, in case of disagreement between the parties of the determination of minimum service, the final decision did not go back to the administrative authority; to provide information on the number of cases in which the administrative authority had changed the terms of the Guarantees Commission's opinion; and to accept technical assistance in order to revise the legislation and ensure its practical application with respect to attributing union status to the trade unions.

The Employer members recalled, in reply to the comments made on the inclusion of Argentina in the list of cases, that the Committee had just gone through a year-long process of consultations and had reached consensus over a set of methods of work including the criteria for the selection of cases. Furthermore, a briefing had been provided to the members of the Committee to ensure full transparency in the process of selection.

Turning to the issue of Argentina, the Employer members observed that they disagreed with the comments made by the Worker members because there was no indication in the Committee of Experts' report that there was a problem with the law in Argentina. There were requests for more information but no indication that Act No. 23551 fell short of the requirements of the Convention. Although this might prove to be the case in the future on the basis of the information to be provided by the Government, there was no basis for the time being to request the Government to change its law. The Committee of Experts wished to see how the law worked in practice in order to make an assessment. The Government should therefore be asked to provide a report addressing the issues identified by the Committee of Experts.

The Committee took note of the information provided by the Government representative and the discussion that followed. The Committee noted that the issues raised by the Committee of Experts in its observation referred to the delayed response by the authorities with regard to the request for trade union status submitted by the Central of Argentine Workers (CTA), as well as various allegations of anti-union acts and the request for information on the application in practice of the legislation respecting the establishment of minimum services.

The Committee took note of the Government's detailed statements on the legislation regarding essential services and the establishment of minimum services and concerning the creation and functioning of the independent commission by virtue of Decree No. 272/2006, as well as the procedure for the request for trade union status undertaken by the Central of Argentine Workers (CTA) and the provisions of Act No. 23551 respecting trade union organizations. Furthermore, the Committee took note of the Government's statements indicating that the CTA participated in various national and international forums without discrimination. It particularly noted that the Government had indicated that it was open to dialogue and technical cooperation and that a tripartite commission was being considered to examine the issues mentioned by the Committee of Experts.

The Committee urged the Government to reply to the request for trade union status submitted by the CTA, before the next session of the Committee of Experts, taking into account all of the provisions of the Convention. The Committee expressed the hope that the Government would send a full report this year on all of the issues relating to the application of the Convention, including those raised in previous years on trade union legislation, and hoped that the Committee of Experts would be in a position to evaluate all of the information relating to the allegations of anti-union acts, as well as the issues related to the Guarantees Commission advising on the establishment of minimum services.

The Committee requested the Government, with all the social partners and the assistance of the ILO, to elaborate draft legislation for the full application of the Convention, taking into account all of the comments of the Committee of Experts.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative noted that the Committee of Experts in its observation of 2004 had expressed the hope that the dialogue initiated by the Government in 2003 would be reflected in the near future by the full implementation of some strictly normative aspects of Act No. 23551 on trade union associations which had been the subject of comments in previous years.

The speaker announced that her Government had presented on 6 May 2005 its detailed reply to the comments of ICFTU and the Argentine Workers' Central (CTA).

She recalled that, on examination of Act No. 23551, the Committee of Experts had, in 1989, expressed satisfaction at its promulgation, given that it was the result of a full social and political consensus and that it replaced that markedly anti-union standard set by the dictatorship which governed Argentina from 1976 to 1983. The satisfaction expressed by the Committee of Experts was corroborated by the attitude of the Government which began, in May 1984, a complete process of consultation with the ILO, culminating in the report produced by the direct contact mission led by the late. Nicolas Valticos, with the proposal to bring the new legislation into line with the principles of Convention No. 87. Valticos's mission provided the groundwork for the pillars of the future law on union associations, whose parameters were respected by legislators in developing and implementing the new normative regime.

Since the beginning of the legislative process, there had been a genuine intention to adapt the law to ILO principles making it compatible with the specificities and complexities of the country, in particular of the union movement.

Act No. 23551 followed the pattern in which the Argentine union movement had developed throughout the second half of the twentieth century in which the establishment and functioning of all trade union associations was guaranteed. There were 2,716 first-level union associations registered in Argentina, of which 1,380 (more than 50 per cent) had trade union status. In addition, of the total union associations with union status, 55 per cent or exactly 731 had requested and negotiated their union status.

As to the second-level associations, 92 federations were registered in Argentina, of which 74 had trade union status. More than 80 per cent of second-level entities had trade union status.

In addition, there were 14 trade union third-level associations in Argentina and more than 40 per cent of the six confederations also had union status.

In Argentina, the number of public and private salaried workers totalled 9,100,000 men and women, with on average one first-level union association for every 3,350 salaried workers.

In the same way, according to data provided by the respective union associations, there were some 3,750,000 affiliated workers at the first-level, i.e. more than 40 per cent of salaried workers belonged to a union. If trade union associations of the higher level were also included, this figure would rise to 6,250,000 members or over 65 per cent.

The data provided spoke for itself and showed that men and women workers in Argentina freely enjoyed and exercised their inalienable rights to form the associations which they found appropriate and could join if they wished.

Similarly, national practice demonstrated that Argentine legislation relating to trade union associations guaranteed free and full exercise of freedom of association, whose primary purpose was social dialogue, especially the collective negotiation of employment contracts.

Argentina could claim a high level of achievements in collective bargaining. From 1988 to date 1,169 collective agreement had been concluded, 406 of which were current. Collective agreements at the enterprise level concluded in this period numbered 763, or 65 per cent of the total. Since 1988, 97 collective agreements a year had been concluded on average.

The speaker pointed to the sustained economic growth recorded in Argentina in the last biennium, with support for economic, social and labour policies closely linking growth, employment and distribution of wealth, as well as direct measures by the Ministry of Labour, Employment and Social Security to promote collective bargaining. Collective bargaining had recorded unprecedented unheard of development. In 2004, so many collective contracts and wage agreements had been concluded that the figures recorded during the 1990s had been doubled.

The speaker stated that the data provided demonstrated clearly that in Argentina freedom of association was not only a recognized legal right but also a right that was fully exercised to an extent that it placed the country in the leading ranks of the countries of the world that were more advanced in social dialogue, unionization and collective bargaining.

Legislation did not impede the exercise of obtaining trade union status for registered union associations in the full exercise of freedom of association which prevailed in the country. A total of 197 union associations had obtained union status in keeping with the process stipulated by Act No. 23551 and its associated decree. This meant that, on average, over the 16 years in which Act No. 23551 had been in force, a union was granted union status every month.

The previous trend had been accelerated by the development of an administrative policy which used the comparison mechanism for representation established in section 28 of Act No. 23551, which was only brought into action to check that there was no imbalance between the personal and territorial limits of the registered association requesting union status and those of the association which already had union status.

The consensus between the two most representative trade unions in the public sector (UPCN and ATE) was incorporated by the Ministry of Labour in Resolution No. 255 dated 22 October 2003, which allowed competition between already formed unions and new associations which claimed legitimate representation in the public sector. The principle of pluralistic representation was therefore integrated into the public sector.

All the above demonstrated that the will of the social players in the public sector in two unions, one an affiliate of the CGT and the other of the CTA, through dialogue and consensus, was indispensable in order to incorporate changes to the representation of the workers, tailored to the dynamics of the separate sectors.

Regarding the legislative processing of commercial trade unions and those in the trade or professional categories, the speaker recalled that points (a) and (b) of section 4 of Act No. 23551 explicitly guaranteed and promoted the right of workers to form trade union associations that they considered to be appropriate and to join or leave the same, as provided for in Convention No. 87. In addition, section 10 of the same Act considered trade union associations similar to those set up for workers in the same activity or related activities, such as those intended for workers in the same trade, profession or category even though they broke down into distinct activities or workers who offered services within the same enterprise. Three union specifics taken into account for incorporation under Article 2 of Convention No. 87 recognized the right of workers to form organizations that they deemed appropriate: (a) vertical trade unions which grouped workers in the same branch, industry or economic activity; (b) horizontal trade unions which grouped workers in a same trade or profession, even if they divided into branches or distinct sectors; and (c) enterprise-level trade unions.

National legislation (section 23 of Act No. 23551) regulating trade union legislation allowed all trade union associations without distinction to: (a) represent on request the individual rights of their members; (b) promote the setting-up of cooperative and mutual societies, the improvement of labour, social security and social insurance legislation; and promote general education and occupational training of its workers; (c) set membership payments; and (d) hold assemblies and meetings without prior authorization and also to represent collective interests whenever an association with union status was not present in a particular activity or profession.

Registered first-level associations, in affiliating with a second-level organization were provided with all the rights of first-level associations with trade union status as long as the management adhered to and integrated into a first-level association.

Decree No. 757/01 of 2001 established that trade union organizations with registration had the right to defend and represent before the State and before employers, the individual interests of their members on identical terms to the clauses contained in section 22 of Decree No. 467/88, regulated by Act No. 23551.

Tax law had established that all trade unions, without distinction, were subject to exemption from payment of taxes for regular profits and were not obliged to pay other national taxes, such as, for example, a tax on personal wealth or on assumed minimum earnings.

Section 47 of Act No. 23551 featured a highly protective clause on universal coverage, which gave each worker or trade union - without distinction - who was prevented or obstructed in the exercise of their legally guaranteed rights of freedom of association, the protection of these rights before a competent court, in conformity with fast-track proceedings, for which the law had ordained the immediate halting of all anti-union activity. Jurisprudence had determined that the criterion for interpretation of rights of freedom of association must be wide ranging, even if the provisions of Section No. 23551 were not self-contained, but rather derived from article 14bis of the national Constitution.

The speaker maintained that all legislation which regulated the exercise of fundamental rights could always be improved. It had to be acknowledged that national law and practice together with democracy had allowed Argentine workers to enjoy the full exercise of their rights of freedom of association. The Government had always been receptive to carrying out technical cooperation activities with the ILO, which would result in advances in the way designated to improvements in national legislation. Currently, there was a constructive process in hand in Argentina, the foundation of which was social dialogue. This way, which progressed according to consensus, had already recorded significant institutional achievements which reflected the plurality of the separate social actors. Such achievements were borne out by official participation of the CTA, all the social and labour organs of MERCOSUR, the consultation provided for Convention No. 144, the round-table dialogue on the promotion of decent work in which the worker delegation had taken part at the 90th, 91st, 92nd and 93rd Sessions of the Conference.

In 2004, the Government had convened and re-established the functioning of the National Council for Employment, Productivity and Minimum Wages, after years of inactivity, which was attended by both employers' and workers' organizations. The CTA began, in September 2004, the application formalities for union status within deadlines, applying the procedures laid down in Act No. 23551.

The speaker noted that, as indicated by the Committee of Experts in its observation of 2004, her Government had to present its comments on the questions raised before September, in the context of the regular reporting cycle.

In conclusion, the Government representative reaffirmed the political will to bring about social and employment changes but this will would not be sufficient if it were not accompanied by a search for consensus. In order for the legislative changes to be viable and fruitful, they had to be carried out through comprehensive social dialogue and constructive participatory consensus.

The Employer members expressed doubts with regard to the appropriateness, as a basis for discussion before the Conference Committee, of the observation of the Committee of Experts concerning the application of Convention No. 87 by Argentina, given that the brevity of the observation made it difficult to understand the substance of the case. Although technically the presence of an observation in the report of the Committee of Experts meant that the Conference Committee could hold a discussion on this case, this particular observation was included in the report merely because of comments made by the ICFTU and the CTA without any indication as to the position of the Committee of Experts in relation to these comments.

The Employer members suggested that the Committee of Experts needed to reconsider the timing of observations made on the basis of comments sent by employers' and workers' organizations, so as to avoid comments which were so limited in scope that the Committee could hardly find any basis for discussion. The practice was that, if comments were made by employers' and workers' organizations, an observation would be included in the report of the Committee of Experts regardless of whether the Government had answered or not. But, if these comments were simply referred to without any corresponding analysis by the Committee of Experts, then they were not very useful for the work of the Conference Committee. This Committee was not a complaints-based body such as, for instance, the Committee on Freedom of Association. Its mandate was not to examine complaints but to verify whether a country had given effect to a ratified Convention in law and in practice. The introduction of observations in the report of the Committee of Experts, based solely on external comments without any finding by the Committee of Experts, created a possibility of manipulation of the system; it ensured that, if an organization made a complaint, the case would be included in the report and therefore could also be found on the list of cases to be discussed before the Conference Committee. However, the criterion for including cases on the list should not be whether trade unions were active or passive in specific countries. Inclusion in the report of the Committee of Experts should not be automatic every time there was a comment from an employers' or workers' organization, unless the Committee of Experts had something to say on it. Otherwise, it might be better to leave such comments out of the report and address them in the framework of the regular reporting cycle when the Government's report was examined. As to the failure of the Government to reply to the comments by the ICFTU and the CTA, which had been noted with regret by the Committee of Experts, the Employer members would have liked to know the date on which the deadline for providing such a reply had expired, as this element would have enabled them to ascertain the Government's commitment to the supervisory mechanism.

In conclusion, the Employer members emphasized that what mattered was not the number of observations included in the report of the Committee of Experts but their quality. The legislative problems which were the subject matter of the observation under discussion were completely unknown to the majority of the members of the Conference Committee who were not familiar with Argentine law. There was not enough information on the context and no findings as to the facts by the Committee of Experts. The Employer members therefore noted with regret the Committee's inability to properly discuss and give consideration to this case and stated that the conclusions on this case should be appropriately limited.

The Worker members asserted that after careful consideration they approved the inclusion of this case as an individual case. They considered that the respect of every worker's right to join a trade union of his own choice in conformity with the principles set forth by Convention No. 87 was neither a concession to neo-liberalism nor a return of authoritarian interference into trade union activities. The aim was to adapt trade union law to the particular context of Argentina. For over 15 years, several contradictions between Argentine legislation and the Convention had been pointed out, including by the Committee on Freedom of Association, as noted by this present Committee in 1998.

While recognizing the merits of Act No. 23551, the Committee of Experts had criticized the following sections of this Act: section 28, which required an association, in order to contest the trade union status of an association, to have a "considerably higher" number of members ("personería gremial" ); section 21 of implementing Decree No. 467, which qualified this term: as well as sections 29, 30, 38(5), 48 and 52 of the Act. In response to the criticism raised over the years, successive Governments had initially promised measures and had then invoked lack of consensus, with no concrete results. In 1998, the Conference Committee concluded that "Act No. 23551 contained conditions for granting trade union status ("personería gremial" ) which were not compatible with the Convention" and deplored that "the Government did not provide any additional elements in response to the questions raised for number of years". A technical assistance mission carried out the following year did not result in any definite conclusion. Likewise, an additional mission in 2001 did not contribute an adequate response.

The current situation was characterized by the problems of actual relevance concerning trade union status ("personería gremial"), namely anti-unionism and considerable discrimination in collective bargaining and in the protection of trade unionists. Moreover, the situation could turn into a trade union monopoly, which would be unacceptable from the point of view of the Convention in so far as it would not correspond to freedom of choice of workers but would be rather imposed by law.

Given these facts, the Worker members declared that they were obliged to consider this case as one characterizing the continuous lack of implementation and that they were expecting evidence of real political will on the part of the Government to reach a durable solution on the substantive issues raised in the observation of 2003.

A Worker member of Argentina reported that the Committee of Experts had insisted on the incompatibility of the Act on trade union associations with Convention No. 87 for 15 years. Since the adoption of the Act of 1988, four technical assistance missions had been carried out in the country without positive results.

In its report for 2000, the Government explicitly recognized the incompatibility of the law with the Convention. For its part, the Committee of Experts had reiterated on several occasions the necessity to bring the national legislation into conforming with the Convention. Nevertheless, the Government had not taken concrete action to date. In effect, for example, since the mission which took place in 2001 in the country, with the aim of lending technical assistance to a tripartite commission, three decrees had been promulgated which did not meet requirements for compliance. Moreover, one of them, which referred to the possibility of self-financing of registered trade unions, was repealed 30 days after its promulgation.

The speaker stressed that in Argentina two classes of trade unions existed - those which had trade union status and consequently all rights and benefits, and registered trade unions which enjoyed more limited rights.

The sections of the Act criticized by the Committee of Experts referred mostly to the dispute system of " trade union status" classification by a registered trade union against a trade union already holding trade union status.

The Act demanded that the requesting union have a considerably higher number of members; as a minimum, it should exceed the previous organization's paying membership by 10 per cent. Such organizations, which contested union status and which were registered, lacked the most fundamental rights, unlike organizations with trade union status. In effect, these latter enjoyed the right to special protection of their representatives, the right to representation in a dispute, especially the right to strike, and the right to deduct membership contributions from workers' wages.

The Committee of Experts and the present Committee had both raised objections to the section which referred to the awarding of union status for commercial, office, professional or first-level trade unions if a trade union type of activity already existed, since the Act demanded so many requirements that it was practically impossible to incorporate. In this way, the Ministry of Labour recently denied union status to the union of managerial staff of the Banco Provincia of Buenos Aires since the Asociacion Bancaria previously existed with trade union status. The Committee on Freedom of Association had examined a similar situation which affected the trade union of the Lockhead company which had applied for trade union status.

As far as collective representation in the case of conflict was concerned, the Committee of Experts had considered that associations with trade union status were given an advantage compared to other organizations in matters of representation of collective interests that were different from collective bargaining. Among these collective interests was primarily the right to strike which was denied to registered-only organizations. For example, in a recent case examined by the Committee on Freedom of Association, which concerned the Workers' Union of commercial employees of Jujuy in which a member of a trade union without union status was fired as a result of strike action, reintegration was not considered possible because the trade union lacked union status. Moreover, when a registered organization had recourse to strike action, the Ministry of Labour initiated the conciliation process with the main union in the conflict setting aside the organization that was at the origin of the conflict.

On the other hand, the possibility of deducting union dues and other contributions was only granted to entities with trade union status. The Committee on Freedom of Association had examined the question in case No. 2050 and had requested that the Government take measures in a manner that did not discriminate against organizations that were registered only. The speaker noted that special protections granted to the trade union representatives in conformity with Conventions Nos. 87, 98, and 135 were only extended in Argentine law to the representatives of organizations that had trade union status. There were innumerable legal examples that demonstrated that representatives of simply registered organizations did not enjoy employment stability and as a consequence could be dismissed.

All of this led to the conclusion that trade union protection in national legislation was not sufficient, contrary to the assertions of the Government. In effect, the special protection established in Convention No. 98 was not a preventive mechanism, but rather provided judicial recourse that could be activated after the dismissal had taken place or for another anti-union act. In this manner it violated the principle of equality between the organizations. The anti-discriminatory arrangements in the Act did not create special protection , rather the opposite, as noted by the Government in 2002. In effect, the Committee of Experts had identified this type of general protection as insufficient.

The speaker noted that the privileges granted to organizations with union Status should not be confused with a system of representative trade unions accepted by the supervisory organs of the ILO. In effect, this set of rules only affected collective bargaining.

The so-called "Argentine model" created real privileges that went beyond collective bargaining to the benefit of certain organizations and, consequently, with discrimination against other organizations. It has to be noted that the Government unjustifiably delayed the recognition procedure for more than six months, adding reasons not grounded in the law. Moreover, in previous meetings of this Committee, the Worker members had referred to the violation of the human rights of certain trade union leaders. In effect, the trade union leaders were tried on numerous occasions simply because they had participated in various strikes and conflicts. In this sense, in conjunction with the National Human Rights Secretary, draft legislation was prepared that the Executive never submitted to the Parliament. In reality, one found more than 4,000 workers and trade union leaders who risked legal action.

Before adopting any conclusions, it had to be noted that the technical assistance missions obtained insufficient results, due to the continued breaches by the Government. The speaker concluded that the Government must be urgently requested to bring its legislation into line with Convention No. 87 and commit itself in the near future and communicate the results obtained at the next session of the Committee of Experts.

Another Worker member of Argentina, speaking on behalf of the General Labour Confederation of Argentina (CGTRA), said that the current Act, in keeping with the spirit and the letter of Convention No. 87, established the principle of "the most representative union" and its respective privileges in conformity with international practices. This Act had consolidated and continued to consolidate the representative unions that had managed to carry on during the worst crises by establishing a broad and efficient social network and dealing with the effects of the decline of the current economic and political model. This Act and its regulatory Decree, through the resulting implementation structures, enabled the current unions, which had been strengthened and organized under the Trade Union Act, to consolidate the rights of employed and unemployed workers and their families, during the terrible crisis that had recently affected the country. This was why strong support for these institutions was important. This Act enabled union unity, allowed unequivocal representation and effective action, and encouraged political pluralism in the union movement. There were no privileged trade unions, but trade unions that cared for the needs of workers.

The Act was based on the existence of free, strong and democratic trade unions organized by the workers themselves according to the principle of freedom, which granted more powers to the most representative unions at the federal, branch, trade and enterprise levels. Representativity was what made it possible to grant trade union status to a registered organization, which gave it collective bargaining and conflict resolution capacity. Any organization could request trade union status, and only in the event that another organization with trade union status already existed at the federal, branch, trade, occupation or enterprise level, would a process to compare representativity be undertaken as provided by the same Act.

The Argentine trade union system guaranteed the unequivocal will of the workers to form trade unions within a context of freedom, while strengthening the effectiveness of trade union action and avoiding fragmentation of this strength, which was the result of workers' unity. Indeed, the unity of trade unions was compatible with the right to trade union plurality and therefore respected freedom of association under the terms and scope of the Convention.

The speaker emphasized that freedom of association should not be defined out of context, but should respond to the social situation and labour relations in the country. Negotiation by workers constituted one of the main elements of freedom of association. In the context of the critical economic situation, Argentine law guaranteed the development of sufficient organizational and negotiation capacities, in conformity with the concepts established in Convention No. 87. The concept of freedom of association took precedence over that of individual freedoms; it was neither an end in itself, nor was it an individual freedom, but an instrument for workers as a group to contribute to the protection of their common interests.

The current Act responded to existing balances in labour relations, as it was respectful of the democratic principles of trade unions and guaranteed the fulfilment of workers as a group. Freedom of association existed in Argentina because there were no restrictions to the right to form workers' organizations or obtain legal status. Neither were there limitations to trade unions or federations, nor obstacles to international affiliation. There was no obligation to belong to a central, nor were there obstacles to free and democratic internal organization independent of the Government and employers. There were no obstacles to the creation of internal movements within organizations, which guaranteed the plurality within and the strength of their external expression. The Act prohibited the suspension or dissolution of a union by administrative authority and thus provided for protection from and punishment of trade union persecution. Furthermore, the Act had proved to be effective in the face of dictatorships, the most extreme neo-liberal policies, and profound crises that had affected the country. On the other hand, even in the event that Parliament agreed to amend the law, there were no guarantees that an excessively rigorous application of the law, not validated by the situation, would ensure better protection for the workers. A discussion of these issues was always possible in the context of democracy and the framework established by the national Constitution.

The Argentine trade union system had the ability and opportunity to help the millions of workers who were unemployed as a result of the crisis, by taking on the responsibility of applying the laws of mutual solidarity between those who had work and those who had lost their jobs. This would not have been possible without the existence of strong trade unions which were the result of the model that had been challenged by some sectors. Thus, the present trade union movement was able to create a system to address the specific needs of unemployed workers and their families so that none of the workers that had lost their jobs and had a trade were deprived of its services. The current model ensured the protection of employment, gave hope to those who had lost their jobs, and provided an active presence in the face of poverty, unemployment, marginalization and the needs of the unemployed.

The Worker member of Italy stated that in the context of globalization it was extremely important that the principle of freedom of association could be defined in a comprehensive way in legislation and fully implemented in practice. The speaker pointed out that the full implementation of this right not only could give further possibilities to workers by making them more responsible and develop the effectiveness of key ILO principles, such as tripartism, social dialogue, industrial relations and collective bargaining, but could also improve the quality of response to the challenges that a country like Argentina was facing. There could be no alternative to such an approach.

The existing limitations to the right to organize did not make negotiations with employers easier. On the contrary, fair legislation that provided the possibility for all workers to establish an organization of their own choosing would create a background of wider participation and responsibility. The Argentinian Government, which had ratified Convention No. 87, should therefore take adequate steps to amend its legislation with a view to eliminating the restrictions that the Committee of Experts had identified over the past few years, and after four technical assistance missions, in particular to review the concept of "considerably higher" number of members, as compared to other organizations, for acquiring trade union status; to repeal provisions permitting only associations with trade union status to benefit from the checkoff of trade union dues; and to revise provisions giving trade union protection only to the organizations with trade union status.

The speaker recalled that in Italy trade union membership not only was still high but continued to grow, despite new forms of work, the precariousness of the labour market and increased unemployment. There were three major trade union confederations and a number of small trade unions, all of them benefiting from the same rights and duties, taking part in collective bargaining and industrial relations and having the right to check-off, even though their membership was less than that of the majority union. Each elected trade union representative both from the big and the small organizations had the right to be protected in the same way and no trade union status was required for a union to be able to negotiate with the employers. Similar rights should be granted to Argentinian workers.

Progress could never come from limitations, but from dialogue and the widest acceptance of ILO instruments. There was an urgent need to create conditions for legislative changes, which would pave the way for sound and inclusive industrial relations and collective bargaining at the company and sectoral level, and for a broad and consistent social dialogue and tripartite consultations for the improvement of workers' life.

The Worker member of Brazil wished to express her opposition to the inclusion of Argentina in the list of countries that did not respect freedom of association. Including Argentina in the list demonstrated that the present Committee sought to condemn those countries whose governments wished to maintain a sovereign development policy.

After having survived one of the bloodiest dictatorships in Latin America, Argentine workers had had to face the lengthy liquidation of their country by a submissive government that had sold its own nation and that maintained a close relationship with the United States. During that period, the Argentine Government had not been questioned before the present Committee. Now that Argentina had a democratic government that wanted to get the country's economic development back on track, now that the country was beginning to adopt a different approach to the problem of debt, and now that it was limiting the activities of the big multinationals and preventing other large companies from reducing rights and hampering the trade union organization of workers, Argentina appeared on the list of countries that did not respect freedom of association.

It was not for the ILO to try to divide Argentine workers. That had nothing to do with freedom of association. The Argentine trade union movement had a long and historical tradition of fighting for workers' rights and of unitary trade union organization. Democracy and freedom of association meant the plurality of ideas within a single organization, without the imposition of any exclusivity or hegemony. In Argentina, only recently, both CGTs had merged to form a single CGT, representing 90 per cent of Argentine workers. Such action had been an important step towards consolidating democracy and freedom of association in the country and should be welcomed enthusiastically by the present Committee.

The Worker member of Spain stated that discrimination and special treatment were not based on any objective system of measuring representation, but simply on the basis of "I arrived first" and "I was already here". Therefore, the trade union that had already been established could collect trade union dues through check-off facilities, a right that was denied to new trade unions. The trade union that had already been established could protect its representatives, while new trade unions could not, even if they had the same number of members. The trade union that had already been established could call a strike, manage it and negotiate it, while new trade unions could not. Finally, the speaker requested that the Committee recommend in its conclusions something more than a technical assistance mission, since it was a not a case of whether the Argentine Government had the knowledge or technical capacity to bring Argentine legislation into line with ILO standards, but a problem regarding the political will to end trade union discrimination.

The Worker member of Norway recalled that during five previous sessions of the ILC the fact that the Government of Argentina had not brought its legislation in line with Convention No. 87 had been lamented. During the ILC in the year 2000, the Government finally had acknowledged the substance of the comments of the Committee of Experts and admitted that Argentine law was in conflict with Convention No. 87. The Nordic workers had waited patiently for the Government to fulfil its promise to remedy this situation, but this had been in vain. Act 23551 gave certain unions privileges not given to others. New unions needed 10 per cent more dues-paying members than already established unions in order to be registered as trade union organizations. A simple majority was not enough. Those unions which were not registered as trade unions were considered associations, with few of the benefits of registered unions. Only registered trade unions were allowed to represent workers in a conflict, engage in collective bargaining, demand legal protection for their members and use the check-off system to collect dues. Only registered unions were allowed to strike.

She further noted that the economic reality of Argentina had changed considerably since the Constitution of Argentina established the practice of recognizing only one national union central. Especially in the last decade of economic crisis, employer-worker relations had become much more complex. Workers' rights were threatened to an unprecedented degree. In this regard, she recalled that the CTA had been founded in 1991. However, because of Argentine law, it was not recognized as a trade union organization until 1997. Despite the fact that the CTA had more than a million members, it was not invited to participate in the ILO Conference until 2003. It was still not allowed to register sectoral unions as trade union organizations. Because it was a new organization without the privileges given by law to established organizations, only 57 of its member organizations were registered as trade unions while 180 were regarded as associations. There had been cases where shop stewards in these associations had been fired for exercising their right to union activity because they did not have the legal protection granted to shop stewards in registered unions.

She concluded by stating that the workers of Argentina deserved the right to be represented by the trade union of their choice. The CTA was a democratic and representative trade union organization. She requested the Government of Argentina to facilitate a change in the law in order to bring it into line with the Convention it had ratified in 1960.

The Worker member of Uruguay, after emphasizing the good work carried out by Mr. Gernigon (the recently retired, former head of the Freedom of Association Branch and who had been ever attentive to workers' needs), stated that he was quite familiar with the Argentine trade union movement, since Uruguay was a neighbouring country and the movement was a long-standing one. He was therefore well aware of its unitary vocation. At present, workers in Argentina had more than one choice as regards trade unions, a situation that he would not comment on. However, that did not mean that both Centrals could not work and contribute jointly with respect to issues that were very important to workers in the region, when participating in the Confederation of Central Unions of the Southern Cone (Coordinadora de Centrales Sindicales del Cono Sur). They did the same institutionally in the Consultative Economic and Social Forum, amongst others.

The failure of Argentine legislation to adapt fully to Convention No. 87 had for years been a subject of discussion in the Committee. The different Governments had not listened to the Committee's recommendations, despite a number of ILO technical missions carried out in Buenos Aires.

The speaker said that he had noted the Argentine Government's willingness to bring its legislation into line with the Convention, but emphasized that the Government must not continue to prolong that process, and that it must promise, before the Committee, and in conjunction with the trade unions, to report the following year that the country had brought itself into conformity with Convention No. 87.

The Government representative welcomed the comments made by the spokesperson for the Worker members, who had acknowledged the importance of Act No. 23551, a product of Argentina's recently recovered democracy and of the strength of the Argentine trade union movement. She reaffirmed that her country had submitted a report on Convention No. 87 in 2003 and that it would do so again in September 2005.

As regards the observations made by the ICFTU and the CTA, referred to by the Committee of Experts at its 75th Session, the speaker reiterated that her Government had submitted its comments in writing to the International Labour Standards Department in May 2005. Consequently, her Government did not owe any reports relating to the issue under examination. She made it clear that Act No. 23551 conferred important rights on registered associations and that section 23 thereof granted a registered association the right to set its membership fee and to receive that fee from its members. That right guaranteed the growth and patrimonial development of trade unions.

The speaker reaffirmed that in Argentina the right to strike was enshrined in article 14bis of the National Constitution and that it was not subject to any restriction in the text of Act No. 23551, indeed all trade union associations were entitled to exercise that right. With regard to the cases that had been cited, she indicated that her Government had submitted its reports as required. As she had said before, Argentine legislation could indeed be improved, within a context of political freedom and democracy. Consequently, she reiterated her country's commitment to carrying out ILO technical cooperation activities, with the active participation of the social partners, in order to achieve the necessary consensus between those who were the true protagonists of freedom of association.

Within that context, she reiterated her desire to find, in social dialogue and consensus, in fulfilment of the mandate set forth in ILO Convention No. 144, the instrument needed to ensure the legitimacy of the regulatory changes that deserved to be made.

The Employer members stated that four elements should be reflected in the conclusions. First, the Government should provide a timely report to the Committee of Experts so that the information could be subject to complete review; secondly, the Committee should insist that the Government implement Convention No. 87 in law and practice; thirdly, the Government should follow up on its stated willingness to accept technical assistance by the Office; and finally, the Committee of Experts should provide a comprehensive and complete examination of the matter in their next report.

The Worker members stated that as a result of the discussion and the information received over the years, they thought they had a precise and exhaustive idea of the problems relating to freedom of association in Argentina. Although all the parties recognized the importance, originality and historical role of the Argentine trade union movement, the fact remained that Argentine legislation did not fulfil all the requirements set forth in Convention No. 87. It was the Government's task to ensure the application, in law and in practice, of all the provisions of that Convention. The Worker members hoped that the Government would not delay in taking all the necessary steps to find appropriate solutions to the problems under discussion, with ILO mediation if necessary, and that the report to be submitted to the Committee of Experts at its next session would show evidence to that effect.

The Committee took note of the information provided by the Government representative and the discussion that followed. The Committee noted from the observation of the Committee of Experts that for several years it had been requesting the Government to amend certain provisions of Act No. 23551 of 1988 on trade union associations and the corresponding Decree, which contained requirements as regards the granting of trade union status to trade union associations, the requirements to contest trade union status and the benefits which associations with trade union status enjoyed over those that were simply registered. The Committee noted that the Government had already sent its reply to the comments of the International Confederation of Free Trade Unions (ICFTU) and the Central of Argentine Workers (CTA) on the application of the Convention which set out the abovementioned legislative questions and certain acts of anti-union repression.

The Committee took note of the statements of the Government according to which trade union legislation, which had respected the guidelines of ILO technical assistance in 1984, had guaranteed the majority of trade union rights set forth in the Convention, as shown by the high number of trade union associations, the rate of unionization (more than 65 per cent), and the number of sectoral and enterprise-level collective agreements (1,169). The Committee noted that, according to the Government, a great majority of the registered organizations enjoyed trade union status and that each month a new union was accorded this status. The Committee noted that the Government was open and receptive for the carrying out of technical cooperation with the ILO to improve national legislation, on the understanding that the right path was broad social dialogue and the participative construction of consensus. The Committee hoped that this information would be examined by the Committee of Experts at its next meeting.

The Committee hoped that the dialogue between the Government and all the social partners, with technical assistance by the ILO, would translate into amendments of the legislation permitting the full application of the provisions of the Convention in national law and practice.

The Committee requested the Government to provide in its next report information on all outstanding issues, so that the Committee of Experts would dispose of all the elements for a complete examination of the situation in the country.

Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

A Government representative thanked the Committee of Experts in the name of his Government for the observation concerning Act No. 23551 which regulated and protected trade union activities in Argentina, and for the opportunity to present the opinion of his Government on the results of almost ten years of application of this Act. In 1992, the Committee of Experts had expressed satisfaction at the adoption of the Act and of its implementing decree and had undertaken an exhaustive study of its provisions, and had made observations on certain of them. Replying to the request of the Committee of Experts, the Ministry of Labour and Social Security had prepared a full two-volume report on the trade unions in Argentina, which reflected their importance and diversity and contained interesting conclusions on the results of the application of the Act in light of the observations made by the Committee of Experts. The satisfaction expressed by the Committee of Experts for the adoption of Act No. 23551 was due first of all to the fact that the Act had replaced the legislation adopted in the period of the dictatorship in Argentina between 1976 and 1983, which had reduced to the minimum, independent trade union activity and had resulted in the persecution of the Argentinian labour movement. The other reason for the satisfaction had been that the adoption of the Act was a product of a broad political and social consensus, as reflected in the very large majority in the Argentinian Parliament, with support from the representatives of the main political parties, both those in power and in opposition, fully respecting the obligations of the country deriving from the ratification of Convention No. 87. In this manner, Act No. 23551 fitted into the constitutional system of Argentina, which guaranteed freedom of expression, trade union representation and the rights of minorities. The establishment of trade unions was not subjected to any condition and did not require legal personality to be obtained by workers' associations. The best proof of this was the high number of trade unions established with legal personality (2,776 trade unions), of which 915 trade unions had been formed in the last ten years, that is since the coming into force of the Act. In addition, the existence of 540 associations which had taken the form of unions at the level of the enterprise, or the branch, clearly showed that there were no limitations on the workers adopting the form of organization which they freely chose. It was important to recall that the Act did not establish any abusive or discriminatory requirements for the granting of the status of the most representative association. The only objective condition imposed was to have the largest number of members. Thus, there were today 1,317 sectoral unions in Argentina and 334 associations had requested the same status, which emphasized the broad diversity of types of organization. These associations enjoyed the exclusive right to collective bargaining in their respective fields. The Act also accorded associations which were merely registered and did not have the most representative status, the right to represent the individual or multiple interests of their members, the right to present petitions in defence of their collective interests, as well as the right to develop any other activity pertaining to the trade union. All these rights were granted without any condition other than the registration of the association. The possibilities offered by the Act were so large that there were at present in Argentina 1,436 associations of this type and another 332 associations had requested to be registered in this category. The Act guaranteed the exercise of the right of freedom of association and established legal procedures before the competent courts without distinction between representatives of the workers who were members of organizations with trade union status or of those associations which were not the most representative in their category. By virtue of section 47 of the Act, all workers and trade unions, without any exception, could initiate the extraordinary procedure of summary judgement, which was the most expedient procedure established under Argentinian legislation to arrive at the judicial decision with the aim of bringing to an end immediately any anti-trade union behaviour, including unfair practices contradicting the industrial relations ethics.

The regulations issued under Act No. 23551 and its application in practice had made it possible to guarantee to Argentinian workers the rights established by Convention No. 87, and in particular those referring to the plurality of representation of their interests in collective bargaining and the recognition of the most representative association. This was because it had taken into account the experiences of other countries, so as to prevent it encouraging unnecessary divisions in the trade union movement and fragmentation of union representation, which would have resulted in the loss of negotiating power by the workers. As confirmed by the Committee of Experts and the practice over the last ten years, there was a balance in the Act between the important rights recognized for associations which are merely registered and the precautions to avoid excessive minority representation which was a factor in the fragmentation and loss of bargaining power. It should not be forgotten that the principle of the most representative organization had been established and promoted by the ILO and permitted the reconciliation of freedom of association with the effective practice of having free and strong social organizations. The proof of this was given in the report submitted to the Committee, according to which 2,776 associations which were currently active had more than 4,400,000 members. Comparing this figure with the data on the economically active population, this gave one of the highest rates of unionization in the world. It showed the vision of the legislators in 1988, who had wanted to give the trade union movement real weight in the economic and social life of the country, thereby giving effect to a real tradition of defending the interests of the workers.

Nevertheless, as with any legal text, the Act could be improved. This was why his Government had paid particular attention and interest to the observations of the Committee of Experts. In reply to them, it had tried to promote the recommendations of the Committee by means of the regulations issued under the Act, the manner in which it was being applied by the competent authority, and the submission of a draft reformed Act to the Parliament, as noted in the Committee of Experts' report this year. These measures taken by the Government and the practices of the social partners had gradually closed the gap which might have existed between certain sections of the Act and the understanding of them by the Committee of Experts. For example, what seemed to be the most important observation of the Committee stemmed from its concern for the workers who could not benefit from their collective interests being represented by the organizations having the most representative status. The study undertaken by the Ministry of Labour and Social Security showed, however, that through the links between associations which did not have trade union status with those who did have this status, 98.1 per cent of the trade union members in Argentina in all categories, had the possibility to exercise their rights through associations with trade union status.

In reply to these observations and the comments made by the Committee of Experts this year, the Government had prepared a report for submission to the Committee. The report was intended exclusively to respond to these observations and might need further analysis, which the Committee of Experts was probably better placed to carry out. The Government therefore hoped that it could continue to benefit from ILO assistance in improving its labour legislation and, in this sense, remained open to any possibility for cooperation which might arise in the future with respect to this particular aspect of its labour legislation.

The Workers' members thanked the Government representative for the information provided and the study which it had transmitted. They were a positive sign of favourable development of the case. For many years, the Committee of Experts had criticized the application of the Convention, particularly as concerned the provisions of Act No. 23551 of 1988. Several cases had also been brought before the Committee on Freedom of Association concerning the application of Convention No. 87. In its observation this year, the Committee of Experts once again regretted that the Government had not provided new elements in response to the questions raised by the Committee over a number of years. It had therefore raised once again eight points of contradiction between national law and the requirements of the Convention, and had noted that the Government had not provided any explanation of reasons delaying the adoption of a draft law which had been prepared with the participation of an ILO advisory mission. The Committee hoped that the draft law would soon be adopted and that other provisions contrary to the Convention would be quickly amended, removing any risk of partiality or abuse in determining the degree of representivity of trade unions, or the consequences of such abuse. Rather than referring to each of the eight points that had been raised by the Committee of Experts for a long time, it was necessary to urge the Government to take the measures required to overcome the obstacles which had prevented any progress in this case for many years. The Government representative had stated that the Government was willing to receive the assistance of the ILO in order to harmonize its legislation with the requirements of the Convention. A solution to the problem should be found without delay with the assistance of the Office. Moreover, in view of the nature of the problem, all trade union organizations should be associated in the search for its solution, including those organizations which had been registered but not granted trade union status. The study which had been mentioned, but whose contents were not yet known, might provide useful elements in this respect. Any results that were achieved should be evaluated by the Committee of Experts, so that the Conference Committee could confirm that the situation was developing in the direction towards full respect for the provisions of the Convention.

The Employers' members thanked the Government representative for its well-balanced position on the subject under examination. He had made repeated references to a study which had been undertaken of the problem as a whole. This study should be examined by the Committee of Experts, whose conclusions could then provide a basis for discussion by the Conference Committee. For some years, the Committee of Experts had been criticizing the provisions of Act No. 23551 of 1988, particularly with regard to the criteria applied for the granting of trade union status. In this respect, the Employers' members recognized that a certain level of representativity was required to take part in collective bargaining and to enjoy the advantages deriving from the recognition of trade union status. The relevant criteria were normally set out in trade union legislation.The question of the representativity of trade unions was addressed in the ILO Constitution and the Committee of Experts had emphasized that it could have important consequences for the effectiveness of collective bargaining. The criteria for the granting of trade union status should therefore be objective and determined in advance. One of the criteria applied in the country regarding trade union status at the enterprise level was that for an association to contest such status, it should have a considerably higher number of members than the rival association. This had been set at a level of at least 10 per cent more dues-paying members than the other association. It was not possible under the terms of the Convention to determine whether this was an acceptable criterion. The Committee of Experts had listed other criteria set out in the Act and had stated that excessive conditions had been established in the country for the granting of trade union status, which conferred considerable privileges, including advantages of participating in collective bargaining, certain tax advantages and the fact that only associations enjoying trade union status could collect membership dues directly from wages. What was at issue was the principle of equality of treatment between registered and unregistered trade union organizations. As requested by the Committee of Experts, the Government should be called upon to make rapid progress in the determination of clear criteria concerning trade union representativity since, if such criteria were too vague, they could lead to legal uncertainty and abuse. The Government should also be urged to examine the problems together with the organizations of employers and workers with a view to finding a solution that was in full accordance with the Convention.

The Worker member of Argentina, as the Secretary-General of the CGT, stressed the value of the work of the Committee of Experts in ensuring full enforcement of freedom of association. As regards the trade union system in Argentina, there were no restrictions on the right to establish workers' organizations. Proof of this was given by the 2,776 existing trade unions, including registered trade unions and the most representative organizations. There were no limitations to the establishment of trade unions or federations, nor to their international affiliation, in the climate of absolute political pluralism. There were no obstacles to free and democratic internal organization, in total independence from the Government and employers, and there was no lack of legal protection against persecution of unions, representatives and activists.

In conditions of strong pressure from parties interested in dismantling the unions, the system of labour relations based on the democratic regulation of trade union and collective bargaining legislation had managed to reduce the most negative effects of an injust distribution of income and combat the policy of economic concentration and social exploitation. A high level of coverage of workers by the trade unions and collective agreements had been maintained in the primary, manufacturing, services and the public sector, attaining 45 per cent of employees, thereby avoiding the fragmentation and individualization of labour relations, notwithstanding the pressure from the international financial centres.

He stressed that registered trade unions were given the capacity to pursue their objectives of defending the interests of the workers: they could present their demands to the Government and employers, represent the interests of their members, freely adopt their statutes and elect their representatives, formulate their programmes of action and organize their administration. They could take measures of direct action, promote improvements in the legislation, and conduct collective bargaining in the absence of a most representative organization.

He emphasized that trade union pluralism, as it was promoted by the ILO, meant the freedom in which strong and efficient trade unions could act in defence of the interests of all the workers and withstand the neo-liberal policies imposed on them. Such trade union pluralism was a reality in the labour practice in his country.

In conclusion, he stressed that in order to continue strengthening its work in defence of the genuine interests of the workers, the CGT was looking forward to the comments and recommendations formulated by the Office, multidisciplinary teams, and supervisory bodies of the ILO, in the framework of the Active Partnership Policy which inspired the Organization. With this in mind, he supported the suggestion made by the Workers' members to ask for the technical assistance to ensure compliance with the Convention through dialogue between the Government and the workers.

The Employer member of Argentina fully associated himself with the statement made by the Employers' members. His intervention was aimed at providing certain technical comments to better appraise the political, economic and social context. A stable and democratic political regime could not shed doubt on the Conventions concerning the fundamental human and labour rights. Argentina had ratified seven Conventions on basic human rights, including the Minimum Age Convention, 1973 (No. 138). The employers of Argentina promoted respect for fundamental Conventions on human rights in their enterprises and applied mechanisms of tripartite consultation in accordance with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), which had also been ratified by Argentina. The constitutional reform of 1994 had established the legal superiority of ratified Conventions on fundamental human rights, which made it possible to invoke their provisions directly before the courts.

The technical questions raised in the observation of the Committee of Experts had to be analysed and attention should be paid to the report submitted by the Government to the Office. This analysis could be carried out in the context of the reforms which were currently being discussed, with the technical assistance of the ILO in the framework of tripartite consensus but, at the same time, it had to be admitted that this process should include individual and collective labour institutions; in these areas, there were, however, aspects which did not concern only the internal organization of trade unions but also industrial relations practices in enterprises, such as the quality of the person carrying out collective bargaining, the level of the negotiation (sector or enterprise), the extent of the protection accorded to worker representatives. The employers were ready to participate in the dialogue on these questions, given that full compliance with Conventions Nos. 87 and 98 were equally important to organizations of workers and employers. He affirmed the full cooperation of the Argentinian employers in the observance of the fundamental Conventions.

The Worker member of Spain recalled that both the Committee on Freedom of Association and the Committee of Experts had examined the concepts of trade union unity and plurality. Conventions Nos. 87 and 98 guaranteed freedom of association in the first place. If there was no freedom to create and establish trade unions to defend the interests of their members, it was not possible to talk of either the unity or the plurality of trade unions. Freedom of association was not contradicted if the fragmentation of trade unions was avoided by means of appropriate legislation. In Spain, the legislation provided for the appraisal of the level of representativity of the trade unions by means of organizing union elections every four years. In other countries, the criterion in this respect was the number of members. Both criteria had been accepted by the ILO supervisory bodies.

The Worker member of Uruguay stated that the Government of Argentina had given preference to economic over social interests. To fight inflation, it had increased social marginalization and violations of trade union rights, as illustrated by the dismissal of the trade union leaders in a private electricity enterprise. The Government of Argentina had turned a deaf ear to social and wage claims and the demands of the teachers. He supported the statement made by the Workers' members and trusted that an ILO mission would hold consultations with all the sectors involved so that trade union rights were ensured for all organizations of Argentinian workers.

The Worker member of Ecuador indicated that this case had been examined for several years and that the observations of the Committee of Experts concerned various sections of Act No. 23551, which were contrary to the Convention. He was convinced that the analysis of the Committee of Experts had taken into consideration the unity of the Argentinian trade union movement, which had steadfastly defended the interests of the workers at difficult moments. The worker representatives of Argentina had adopted firm positions in defence of freedom of association and the right to organize in this Committee and in other international fora. He emphasized the importance of the statement of the Government representative which showed the concern of the Government to avoid the division and fragmentation of the trade union movement. He trusted that the technical reforms and principles which would be adopted would not weaken the Argentinian trade union movement and that whatever assistance the ILO could provide would be accepted by the Government. He supported the idea expressed by the Workers' members concerning the value of accepting a technical assistance mission and emphasized that whatever reforms were undertaken should have a tripartite character. Finally, he expressed hope that in the near future progress would be achieved in resolving these problems.

The Worker member of Colombia stated that it was not easy to make comments on the application of a Convention when situations arose concerning not only employers, governments but also the trade union movement. Argentinian trade unions had been a significant model for the trade union movement in Latin America. He supported the views expressed by the Workers' members and hoped that the discrepancies in the application of the Convention would be resolved by way of dialogue and mutual respect.

Trade union unity could not be established by way of law, decree or resolution. It could only be the result of a commonality of ideas developed in the light of democracy and freedom, taking continually into account the defence of the rights and interests of workers against neo-liberal policies, in the eyes of which the best solution was to have no trade union at all. He expressed the hope that ILO support would contribute to a resolution of the problem.

The Worker member of Guatemala endorsed the statement of the Workers' members. This case illustrated the fact that, more important than ratification, was practical application and the concrete fulfilment of the Conventions. The continued attitude of the Government of Argentina was a cause for concern as it did not resolve the issues raised in the observation of the Committee of Experts. The Government should comply with the letter and spirit of Convention No. 87. Government interference constituted a violation of the Convention.

The Worker member of Pakistan paid tribute to the struggles of the people and workers of Argentina to rid themselves of a dictatorial regime and to achieve democracy. He emphasized that the principles of freedom of association set out in the Convention were basic workers' rights contained in both the ILO Constitution and the Declaration of Philadelphia. In view of the fact that it was the 50th anniversary of the adoption of the Convention, an important country such as Argentina should be making great efforts to eradicate any contradictions between its laws and the Convention in order to give full effect to its provisions in practice. The Committee of Experts had been pointing out for a number of years that excessive restrictions were placed on the granting of trade union status. What was at issue was the freedom of Argentinian workers to establish a multiplicity of representative organizations and the lack of transparency in the rules applied in this respect. The Government should therefore be urged to make use of ILO technical assistance to bring the provisions of Act No. 23551 of 1988 into conformity with the Convention with regard to the points raised by the Committee of Experts.

The Government representative of Argentina welcomed the comments of the different speakers and indicated his agreement with the point made by the Worker members of Guatemala and Pakistan, who had said that the implementation of standards in practice was much more important than their simple ratification. The report presented by the Government tended to show that in practice the responsible authority, that is the Ministry of Labour and Social Security, had taken action to reduce the divergencies between national practice and the different points raised in the observation of the Committee of Experts. The Government representative also agreed with the point expressed by the Worker member of Colombia that Argentina should be proud of the strength of its trade union movement, which had been a model for all of Latin America. The development of the trade union movement in Argentina was also due to the manner in which Act No. 23551 had been applied. As the Worker member of Ecuador had mentioned, the Argentinian Government wished to prevent the fragmentation of the trade union movement. However, the Government representative could not subscribe to certain views expressed by the Worker member of Uruguay; he recalled that in 1989 the inflation rate in Argentina had been 3,470 per cent and that today it had been reduced to 1.3 per cent. Of all those affected, inflation penalized wage-earners the most. The defeat of hyper-inflation had safeguarded the interests of workers and their families. As concerned the cases of employment termination raised by the Worker member of Uruguay, it was not possible to know if the workers in question had sought their reinstatement through the courts. The case had also been examined by the Committee on Freedom of Association. In this regard he wished to note that the Committee on Freedom of Association had had before it only seven cases involving Argentina and four dealing specifically with Convention No. 87: three of these cases had been resolved, two were subject to follow-up and one was pending. There were therefore no grounds for referring, as had the Workers' members, to "numerous" cases based on Convention No. 87 before the Committee on Freedom of Association.

Reference had been made in the Committee of Experts' observation to the expected adoption of a draft text modifying Act No. 23551. The National Congress was the best placed to give information on this subject. Meanwhile, it should be noted that the draft text, which contained numerous elements meant to address the comments of the Committee of Experts in relation to the law in question, had been discussed without having been adopted due to the changes which had occurred over recent years. Discussion of the draft text had been interrupted due to the consequences on labour law of the constitutional reforms mentioned by the Employer member of Argentina.

The Employers' members had mentioned the fact that an association claiming designation as the most representative union should have at least 10 per cent more dues-paying members than the petitioning association. In this regard, the Government representative recalled that Convention No. 87 did not set specific criteria, and it therefore seemed logical for the State to set such criteria. He was in complete agreement with the Worker member of Spain on the importance of the full assurance of the right to organize, before deciding the appropriate criteria for trade union plurality, or possibly unity. Act No. 23551 had resulted in the former by guaranteeing absolute freedom of association in the country.

The question raised by the Employers' members concerning the manner by which organizations could function without trade union status was answered in the report provided by the Government. Nothing prohibited employers concluding collective agreements with groups without trade union status.

In conclusion, the Government representative hoped that the Committee of Experts would examine closely the detailed report which he had presented to show how in practice Act No. 23551 responded to the points raised in the observation of the Committee of Experts. The Government was prepared to pursue collaboration with the Office to resolve any technical problems that might remain. The suggestion of the Workers' members was certainly constructive and the Government was ready to accept it.

The Committee took note of the oral information furnished by the Government representative and the discussion that took place in the Committee. The Committee noted from the observation of the Committee of Experts that for several years it had been requesting the Government to amend certain provisions of Act No. 23551 of 1988 on trade union associations and the corresponding Decree, which contained requirements as regards the granting of trade union status which were not compatible with the Convention. The Committee underlined the importance it attached to the right of workers to establish and join organizations of their own choosing, subject only to the rules of the organization concerned, to further and defend the interests of their members. It noted that the Government was willing to have recourse to the technical assistance of the Office. The Committee hoped that this assistance would facilitate the full implementation of the Convention in law and in practice. The Committee trusted that the Government would consult, in this respect, employers' as well as workers' organizations, including those workers' organizations which were registered but which did not yet have trade union status. It also trusted that the Committee of Experts would very soon be able to note substantial progress towards the full application of the Convention.

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The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 24 August 2010 and of the Confederation of Argentinian Workers (CTA) of 31 August 2010, which refer to legislative matters already raised by the Committee, and to violations of trade union rights in practice (including the refusal to register the Branch Association of Workers of Subte and Premetro, the dismissal of workers for engaging in protests, and acts of violence against trade union leaders and members in the provinces of Rio Negro and Chubut). The Committee requests the Government to provide its observations on this subject. The Committee observes that some of the alleged acts of violence are the subject of a complaint to the Committee on Freedom of Association. Taking into account the nature of the alleged acts, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected.

The Committee also notes the comments of the General Confederation of Labour (CGT) dated 13 October 2010.

The Committee further notes the report of the mission undertaken in the month of May 2010 in relation to the application of the Convention, which was of an exploratory nature.

Application by the CTA for trade union status

The Committee recalls that since 2005 it has been noting in its observations that the CTA’s application for trade union status (filed in August 2004) is pending. On several occasions the Committee of Experts, in the same way as the Conference Committee on the Application of Standards and the Committee on Freedom of Association (in Case No. 2477), has urged the Government to secure a decision on this matter without delay. In its 2010 comments, the CTA indicates that up to now there has been no decision on its application for trade union status. The Committee notes that, according to the report of the mission which visited the country in 2010, draft resolutions have been submitted in the Chamber of Deputies and the Senate calling for trade union status to be granted to the CTA. The Committee notes the Government’s indication in its report that there are doubts concerning the interpretation of the legal provisions with regard to the possibility of the coexistence of trade union federations covering multiple sectors and that the intervention in the proceedings of the Office of the Prosecutor General of the Ministry of Finance is being considered in its capacity as the highest legal advisory body of the public administration, with a view to obtaining a decision on the matter. In this respect, while noting the new information provided by the Government, the Committee deeply regrets the length of time that has elapsed – over six years – without any decision from the administrative authority on the CTA’s application for trade union status. In these circumstances, taking into account the importance of this matter, the Committee once again urges the Government to ensure that a decision is reached on the matter without delay and to provide information on any developments in this regard.

Act on Trade Union Associations and its implementing Decree

The Committee recalls that it has been referring for many years in its comments to certain provisions of the Act on Trade Union Associations (No. 23551) of 1998 and its enabling regulations issued by Decree No. 467/88, which are not in conformity with the Convention. The Committee notes the Government’s indications that: (1) the observations relating to the Act were challenged in previous reports and the will of the Government to bring the legislation into conformity was demonstrated once again with the request for ILO technical assistance, which was provided in May 2010; (2) it was indicated to the mission that the views on the need to amend the labour legislation are not unanimous or convergent, and that there has not yet been a decision by the Government on this matter; (3) it is significant that the mission report referred to the existence of positive developments in this respect, emphasizing the broad debate that is being held in society and the convergent opinions of all those concerned to find a solution through dialogue, and that the Government will continue to facilitate dialogue with a view to compliance with its ILO obligations through social dialogue; (4) the climate of social dialogue and the accompanying will to seek solutions is reflected in the statistical trends on existing occupational organizations: 3,025 trade union associations at the first, second and third levels that have been legally registered; 1,534 with trade union status; 1,442 are first level unions or federations; 85 federations; and seven confederations. In June 2009, a total of 3,826,366 workers were members of first-level organizations and 40 per cent of employed persons belong to a union; and (5) when the new officers of the CTA take up their functions, the social partners will be convened in the context of Convention No. 144 to formulate a working agenda covering the subjects which have to be resolved in the light of the Committee’s comments.

While welcoming this information, the Committee recalls that its comments concerned the following matters:

Trade union status

–           Section 28 of the Act, under which, in order to challenge an association’s trade union status, the petitioning association must have a “considerably larger” membership; and section 21 of implementing Decree No. 467/88, which qualifies the term “considerably larger” by laying down that the association claiming trade union status must have at least 10 per cent more dues-paying members than the organization which currently holds the status. The Committee points out that a requirement of a considerably larger membership, amounting to 10 per cent more members than the union currently holding most representative status, is unduly high and is contrary to the Convention, as in practice, it stands in the way of trade unions that are merely registered being able to claim trade union status.

–           Section 29 of the Act, under which an enterprise trade union may be granted trade union status only when no other organization with trade union status exists in the geographical area, occupation or category; and section 30 of the Act, under which, in order to be eligible for trade union status, unions representing a trade, occupation or category must show that they have different interests from the existing trade union or federation and the latter’s status must not cover the workers concerned. The Committee considers that the requirements that unions representing enterprises, trades or categories have to meet in order to obtain trade union status are unduly demanding, and in practice restrict their access to trade union status, giving preferential treatment to existing organizations even where unions representing enterprises, trades or categories of workers are more representative, in accordance with section 28.

Benefits deriving from trade union status

–           Section 38 of the Act, under which the check-off of trade union dues is allowed only for associations with trade union status, and not for associations that are merely registered. The Committee recalls that, as emphasized by the Supreme Court of Justice of the Nation (SCJN), the “most representative” status should not imply privileges other than priority of representation in collective bargaining, in consultations with the authorities and in the appointment of delegates to international bodies. The Committee consequently considers that this provision adversely affects and discriminates unduly against organizations that are merely registered.

–           Sections 48 and 52 of the Act give special protection (trade union immunity) only to representatives of organizations that have trade union status. The Committee considers that sections 48 and 52 provide preferential treatment for representatives of organizations with trade union status in the event of acts of anti-union discrimination, and that this exceeds the privileges that may be granted to the most representative organizations by virtue of the principle set out in the previous paragraph.

The Committee emphasizes that it has been making these comments for many years and that tangible measures have not been taken to make the requested changes. The Committee recalls that the Conference Committee on the Application of Standards requested the Government in 2007 to join forces with the social partners, with ILO assistance, to formulate draft legislation to give full effect to the Convention.

The Committee notes with interest that the Supreme Court of Justice of the Nation (CSJN) found section 52 of the Act on Trade Union Associations to be unconstitutional in the case Rossi, Adrianna Maria v. National State–Argentine Navy, and that the IVth Chamber of the National Labour Appeal Court found section 29 of the same Act to be unconstitutional in the case Ministry of Labour v. Staff Association of the Catholic University in relation to the Act on Trade Union Associations. The Committee also recalls that in its previous observation it noted the ruling of the CSJN in the case Association of State Workers v. The Ministry of Labour in relation to the Act on Trade Union Associations, in which it found that section 41(a) of Act No. 23551 is in violation of the right to freedom of association, as protected both by article 14bis of the National Constitution and by standards of international rank, since it requires “staff delegates” and the members of the “internal commissions and similar bodies” envisaged in section 40 to be members of “the respective trade union associations with trade union status and to be elected in the elections convened by that association”. With regard to this ruling, the Committee notes the Government’s indication in its report that: (1) section 41 of the Act remains in force in accordance with the constitutional rules as any decision which finds a provision to be unconstitutional, even when issued by the Supreme Court of Justice, is restricted in scope to the particular legal case or question on which it was given and does not in any event imply the repeal or nullity of the provision which will continue to remain in force until it is repealed or amended by the legislative or executive authority which is competent to do so; (2) the system guarantees compliance with the principle of the division of powers, thereby preventing the judicial authorities from taking over areas of competence which are reserved by the National Constitution for other authorities; and (3) the ruling will never have an effect on sections 48 and 52 of the Act on Trade Union Associations, as those provisions were not examined and were not covered by the ruling of the Supreme Court, as they were not applicable to the facts examined in the specific judicial case. The Committee emphasizes that these rulings have the effect of overcoming a significant number of the problems under examination and trusts that they will be taken into account in the process of tripartite dialogue that the Government is endeavouring to pursue.

The Committee also notes that the mission which visited the country in May 2010 noted that various sectors of the Chamber of Deputies submitted draft legislation to amend the trade union laws and that it expressed concern that the proliferation of such drafts would give rise to confusion and delays and that effect would not be given to the Committee’s comments. Under these conditions, the Committee requests the Government, taking into account the court rulings finding various sections of the Act on Trade Union Associations (No. 23551) to be unconstitutional, to take the necessary measures, in consultation with all of the social partners, to make the legislative changes requested in relation to the matters covered by these rulings, as well as in relation to all of the pending issues. The Committee requests the Government to provide information in this respect in its next report.

Determination of minimum services

In its previous comments, the Committee noted that the CTA had referred to Decree No. 272/2006 issued under section 24 of Act No. 25877 on collective labour disputes and, specifically, that it objected to the fact that, under the terms of section 2(b) of the Decree, the Guarantees Commission, which includes representation of workers’ and employers’ organizations and of other independent persons for the determination of minimum services, may only act in an advisory capacity, as the final decision on the determination of the necessary minimum services lies with the Ministry of Labour in final instance in cases where “the parties have not come to an agreement” or “when the agreements are inadequate”. In this respect, the Committee requested the Government to: (1) provide information on the cases in which the Guarantees Commission had intervened regarding minimum services and, more specifically, information on the number of occasions on which the administrative authority had not followed the opinion of the Guarantees Commission; and (2) ensure that the Guarantees Commission becomes operational. The Committee notes with satisfaction Decree No. 362 of the National Executive Authorities establishing the Guarantees Commission and appointing its members (with representatives of the Argentine Industrial Union, the Argentine Federation of Law Societies, the National Inter-University Council, the Confederation of Argentinean Workers, the General Confederation of Labour of the Republic of Argentina and the executive authorities). The Committee notes the Government’s indication that up to now there has been no collective dispute with the characteristics in which the intervention of the Guarantees Commission is envisaged. The Committee requests the Government to provide information in its next report on other cases, during the period covered by the report, in which the Guarantees Commission has intervened in relation to minimum services and whether the administrative authorities followed its recommendations in practice.

Finally, the Committee trusts that, as indicated by the Government in its report, the social partners will meet in the near future to examine the report of the preliminary exploratory mission which was undertaken from 3 to 7 May 2010 with a view to identifying shared solutions for all of the pending matters. The Committee hopes that the outcome of this examination, in which it is to be hoped that the criteria of constitutionality set forth by the judicial authorities referred to above are taken into account, will serve as a basis for the next technical assistance mission with a view to achieving full conformity with the Convention.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee takes note of the Government’s reply to the comments of 2006 and 2007 by the Central of Argentine Workers (CTA), those of 2007 by the International Trade Union Confederation (ITUC) and to comments made in 2007 by the Federation of Employees of the Government of the Autonomous City of Buenos Aires. It also takes note of the comments of 31 August 2008 and 31 August 2009 by the CTA and the comments of 26 August 2009 by the ITUC, which refer largely to legislative matters already highlighted by the Committee. It observes that in particular the CTA’s comments refer as well to numerous allegations of violations of trade union rights. It notes the Government’s statement that it has already commented on some of the CTA’s allegations in the context of a number of cases examined by the Committee on Freedom of Association, and that: (1) most of the issues raised concern the protection of trade union representatives against acts of persecution and unfair practices; (2) such practices are outside the competence of the administrative authority, with the ordinary courts having sole jurisdiction in such matters; (3) in registering communications from trade unions, the National Directorate of Trade Union Associations enters only an administrative file number and, since no such numbers are indicated in the comments, it is impossible to identify the incidents referred to; and (4) information has been requested from the regional delegations, and for some of its allegations the CTA should be asked to specify the incidents and the administrative and/or judicial proceedings. The Committee observes that the trade union organization for the most part refers only briefly to the alleged violations and that the list of cases is fairly long. The Committee invites the Government to take the necessary steps to set up a working group with the CTA in order to examine the issues raised, other than those dealt with in cases that have been, or are being, heard by the Committee on Freedom of Association.

Application by the CTA for trade union status

The Committee points out that since 2005 it has been noting in its observations that the CTA’s application for trade union status (filed in August 2004) is pending. On several occasions the Committee, like the Conference Committee on the Application of Standards and the Committee on Freedom of Association, has urged the Government to secure a decision on this matter without delay. In its comments of 2009, the CTA affirms that there has so far been no decision on its application for trade union status. The Committee notes that the Government states in its report that: (1) the file is active and formalities are ongoing without any delays; (2) the Government is complying with the procedure laid down in the legislation and the competent authority has consistently followed the proceedings and guarantees observance of the rights laid down in the National Constitution and ILO Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); (3) in proceedings involving first-, second- and third-level organizations that have conflicting subjective rights, the fact of complying with procedure and ensuring that all concerned have their say necessarily implies a period of time commensurate with the case itself; (4) it must also be remembered that Argentina is a country with much trade union activity and many trade unions; and (5) formalities are still moving forward with the receipt and analysis of submissions from the first-level unions that belong to the federations making up the Central of Argentine Workers (CTA), and the receipt of submissions from unions belonging to second-level associations affiliated to the General Confederation of Labour (CGT) in order to verify, in the context of the ongoing comparison of representativeness, the number of dues-paying members in each of the first-level organizations; since 5 February 2009, the file has been under examination by the Ministry of Labour’s Directorate General of Legal Affairs. While noting the Government’s information regarding the reasons for the delay, the Committee once again regrets the length of time that has elapsed – more than five years – without any decision from the administrative authority on the CTA’s application for trade union status. In these circumstances, given the adverse effects of this situation for the CTA, the Committee again urges the Government to ensure that a decision is reached without delay and to provide information on any developments in this regard.

Ruling by the Supreme Court of Justice of Argentina

The Committee notes the ruling of 11 November 2008 by the Supreme Court of Justice of Argentina in Association of State Workers v. the Ministry of Labour regarding Act on Trade Union Associations No. 23551 of 1998, in which the Court found that section 41(a) of Act No. 23551 breaches the right to freedom of association provided for both in article 14bis of the National Constitution and in provisions based on international law, in that it requires “the staff representatives” and the members of “works committees and similar bodies” provided for in section 40 of Act No. 23551 to be members of “the corresponding association with trade union status and to be elected in a ballot called by the latter”. The Court found that this restriction undermines the freedom of association not only of the workers taken individually since it forces them, albeit indirectly, to join the association with trade union status despite the existence of another union which is merely registered, but also that of associations which are merely registered by preventing them from carrying on their activities in pursuit of one of the most fundamental aspects and purposes of their existence. The ruling states that the restriction goes well beyond the established bounds within which the award of an exclusive entitlement to the most representative unions might be warranted. The Committee observes that the ruling endeavours to avoid discrimination between trade unions. In these circumstances, it requests the Government to indicate whether section 41(a) of Act No. 23551 has been officially repealed or amended.

Act on Trade Union Associations and its implementing decree

The Committee points out that it has been referring for many years in its comments to certain provisions of Act on Trade Union Associations No. 23551 and its enabling regulations issued by Decree No. 467/88. The Committee takes note of the Government’s response to the CTA’s comments on legislative issues, and of the report, in which it refers to statements it has made in the past, namely: (1) the existing legal framework and national practice show that freedom of association is fully in force in the country; (2) that the provisions of the Act draw on the best principles of social justice, since account was taken of the interpretations in the ILO of the scope of the concept of freedom of association, and the technical assistance from the Office in 1984; (3) that there are currently more than 2,900 first-, second- and third-level trade union associations (more than 2,820 are first-level organizations, of which 1,396 have trade union status; there are 101 federations, 83 of which have trade union status and 16 third-level associations of which seven have trade union status), i.e. one trade union organization for every 3,500 wage workers, which demonstrates that freedom of association is not only a right but is also widely and fully exercised. With regard to the specific provisions addressed by the Committee, the Government reiterates its past observations. The Government also states that pursuant to Resolution No. 502 of 1 July 2005 issued by the Ministry of Labour, Employment and Social Security, a group of experts on labour relations was set up to write a report identifying the main problems faced by the system of labour relations in Argentina. On the matter of Act No. 23551, while recognizing the need to amend some of its provisions, the group of experts found generally that the Act contains a set of precepts regarding the protection of freedom of association in connection with acts by employers and the State that are to be regarded as appropriate and sufficient. The group further indicated that any change seeking to follow the guidelines of the Committee of Experts should be approached with caution and common sense to avoid introducing into the system of labour relations new factors that further complicate its functioning. The Government states that the Ministry of Labour, Employment and Social Security has decided to continue to work with the social partners in working out the necessary agreements to ensure that any changes proposed in the trade union system of Argentina are truly effective.

In these circumstances, while noting the Government’s observations and welcoming the initiative to create a group of experts, the Committee is bound to reiterate its previous comments on the following provisions:

Trade union status

–           Section 28 of the Act, under which, in order to challenge an association’s trade union status, the petitioning association must have a “considerably larger” membership; and section 21 of implementing Decree No. 467/88, which qualifies the term “considerably larger” by laying down that the association claiming trade union status must have at least 10 per cent more dues-paying members than the organization which currently holds the status. The Committee points out that a requirement of a “considerably larger” membership, amounting to 10 per cent more members than the union holding most representative status, is unduly high and is contrary to the Convention. In practice, this requirement stands in the way of trade unions that are merely registered and that wish to claim trade union status.

–           Section 29 of the Act, under which an enterprise trade union may be granted trade union status only when no other organization with trade union status existing in the geographical area, occupation or category; and section 30 of the Act, under which, in order to be eligible for trade union status, unions representing a trade, occupation or category must show that they have different interests from the existing trade union and the latter’s status must not cover the workers concerned. The Committee considers that the requirements that unions representing enterprises, trades or categories have to meet in order to obtain trade union status are unduly demanding, and in practice restrict their access to trade union status, giving preferential treatment to existing organizations even where unions representing enterprises, trades or categories of workers are more representative according to section 28.

Benefits which derive from trade union status

–           Section 38 of the Act, under which check-off of trade union dues is allowed only for associations with trade union status, and not associations that are merely registered. The Committee points out that, as the Supreme Court of Justice emphasized in the abovementioned ruling, the “most representative” status should not imply privileges other than priority of representation in collective bargaining, in consultations with the authorities and in the appointment of delegates to international bodies. Consequently, the Committee considers that this provision adversely affects and discriminates unduly against organizations that are merely registered.

–           Sections 48 and 52 of the Act give special protection (trade union immunity) only to representatives of organizations that have trade union status. The Committee considers that sections 48 and 52 provide preferential treatment for representatives of organizations with trade union status in the event of acts of anti-union discrimination, and that this exceeds the privileges that may be granted to the most representative organizations, by virtue of the principle set out in the previous paragraph. The Committee requests the Government to indicate whether the ruling of 11 November 2008 handed down by the Supreme Court of Justice has any implications for the application of these provisions.

The Committee points out that it has been making these comments for many years. It recalls that the Conference Committee on the Application of Standards asked the Government in 2007 to join forces with the social partners in order to formulate, with ILO assistance, draft legislation to give full effect to the Convention. It notes with regret that no steps have been taken in this regard. The Committee urges the Government to adopt the necessary measures without delay to secure the legislative amendments requested, and asks the Government to provide information in its next report in this regard.

Determination of minimum services

In its previous observation, the Committee noted that the CTA referred to Decree No. 272/2006 regulating section 24 of Act No. 25877 on collective labour disputes and that, specifically, it objected that, by virtue of section 2(b) of the Decree, the Guarantees Commission, which establishes minimum services and which comprises representatives of employers’ and workers’ organizations as well as independent members, may act only in an advisory capacity since the final decision as to essential minimum services lies with the Ministry of Labour when “the parties have come to no agreement” or “when the agreements are inadequate”. The Committee requested the Government to provide information on the cases in which the Guarantees Commission has intervened regarding minimum services and, more specifically, information on the number of instances in which the administrative authority has changed the terms of the Guarantees Commission’s opinion regarding minimum services. The Committee furthermore observes that in its comments of 2009 the CTA states that the Guarantees Commission has not been formed and does not intervene in disputes, and that responsibility for defining minimum service lies with the Ministry of Labour. The Committee notes the Government’s statement that when the Guarantees Commission intervenes regarding minimum services, it will so inform the Committee. The Government also indicates that there is always access to a judicial body, which means that determination of minimum services can be carried out and the rights of workers can be properly protected in observance of the safeguards laid down in the Constitution. Observing the Government’s indication in its report that the Guarantees Commission has not been formed or convened, the Committee emphasizes that it is important that the statutory institutions responsible for the settlement of collective disputes should function effectively. The Committee accordingly asks the Government to ensure without delay that the abovementioned Commission is put into operation, and to provide information in this regard in its next report.

Finally, the Committee takes note of a recent communication from the Government in which it requests the technical assistance of the Office in the treatment of the different issues raised by the supervisory bodies concerning the legislation. The Committee appreciates this initiative and hopes that this technical assistance will take place next year.

[The Government is asked to report in detail in 2010.]

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report. It also notes the comments by the Central of Argentine Workers (CTA) dated December 2006 and 30 August 2007, those by the International Trade Union Confederation (ITUC) dated 28 August 2007 and those of the General Confederation of Labour of Argentina (CGT) dated 4 September 2007, which refer to matters the Committee has already raised. The Committee notes with concern that in its communication of August 2007, transmitted to the Government on 21 September 2007, the CTA refers to computer theft in trade union headquarters and in the offices of the CTA’s legal advisor, raids on the home of a CTA official and the CTA headquarters in Buenos Aires, and assaults on demonstrators – as a result of which one worker died and several were injured – in the provinces of Neuquén, Salta, Santa Cruz and the Autonomous City of Buenos Aires. The Committee observes that no observations from the Government have been received on these comments. Therefore, the Committee asks the Government to undertake the necessary investigations to clarify the facts and punish the guilty parties. The Committee further notes the comments of 4 June 2007 by the Federation of the Professional Staff of the Government of the Autonomous City of Buenos Aires. Lastly, it takes note of the Government’s reply to the CTA’s comments of December 2006.

The Committee also notes the discussion that took place in the Conference Committee on the Application of Standards in June 2007, and in particular the Conference Committee’s conclusions: (1) urging the Government to reply to the CTA’s application for trade union status, and (2) requesting the Government, with all the social partners and the assistance of the ILO, to elaborate draft legislation for the full application of the Convention, taking into account all the comments of the Committee of Experts. The Committee notes the information from the Government that following the conclusions of the Conference Committee, it is implementing various measures for the purpose of seeking alternative solutions with the participation of the various players concerned, that in October 2007 a meeting was held with representatives of workers (CGT and CTA) and the employers and that, in its opinion, the outcome was satisfactory and there will be further meetings to pursue the said objectives.

The CTA’s application for trade union status

In its previous observation, the Committee noted that the CTA’s application for trade union “status” was pending and had been awaiting a decision since 2004. It urged the Government to take a decision on the matter without delay. In its comments, the CTA states that there has not as yet been any decision on its application.

The Committee notes that the Government once again indicates that the file is still active and formalities are ongoing without any delays except for the time spent waiting for submissions, which is unavoidable in so complex a case. The Government also indicates that: (a) it has observed every aspect of the principle of freedom of association and complied with the procedure laid down in the legislation – including the participation of the trade union associations entitled to take part in the proceedings, and the complainant expressly accepted this legislation by filing its application for trade union status under Act No. 23551 and its implementing decree; (b) in administrative proceedings in which first-, second- and third-level organizations are involved in an adversarial process, the fact of complying with procedure and ensuring that all concerned have their say necessarily implies a period of time commensurate with the case itself; (c) in the discussions prior to the adoption of Convention No. 87, freedom of opinion and right to defence as part of a whole complex of fundamental standards on human rights was one of the main subjects addressed, and it is not a matter of delaying proceedings but of giving all parties the opportunity to express their views and to put their case on the basis of their legitimate interests; (d) the ILO has accepted the system of representativeness and acknowledges comparison of representativeness as a means of determining trade union status; and (e) the CGT’s interests as well as those of the CTA must be taken into account in a complex situation that calls for discussion and indeed implies comparing the representativeness of first-, second- and third-level organizations, and given the number of unions in Argentina with trade union status, this takes time and means examining how matters have evolved. There is no delay on the part of the administration, but a rational use of administrative resources in proceedings in which interests are disputed.

The Committee once again notes with regret that despite the length of time that has elapsed – more than three years – the administrative authority has not come to a decision on the CTA’s application for trade union status. In these circumstances, the Committee urges the Government to ensure that a decision is reached without delay, and to keep the Committee informed.

Act on Trade Union Associations and its implementing decree

For many years the Committee has referred in its comments to certain provisions of the Act on Trade Union Associations (No. 23551) of 1988 and the decree regulating it (No. 467/88). The Committee notes the Government’s statement that: (1) the provisions of the Act draw on the best principles of social justice, since account was taken of the interpretations in the ILO of the scope of the concept of freedom of association, and the technical assistance from the Office in 1984; and (2) there are currently more than 2,800 first-, second- and third-level trade union organizations in Argentina; and that there is one trade union organization for every 3,500 wage workers, which clearly indicates that freedom of association is not only a right but is widely and fully exercised. The Committee observes that the Government’s only response regarding the specific provisions addressed by the Committee is a general repetition of its past observations. Taking account of the last observations of the Government, the Committee is bound to reiterate its comments on the following provisions:

Trade union status

–      section 28 of the Act, under which, in order to challenge an association’s trade union status, the petitioning association must have a “considerably larger” membership; and section 21 of the implementing Decree No. 467/88, which qualifies the term “considerably larger” by laying down that the association claiming trade union status should have at least 10 per cent more dues-paying members than the organization which currently holds the status. According to the Government, the legislation does not offend against the principles laid down in the Convention, since a registered trade union need only be more representative in order to claim status. The Committee points out that a requirement of a “considerably larger” membership amounting to 10 per cent more members than the union holding most representative status is too high a requirement and is contrary to the Convention. In practice, it stands in the way of trade unions that are merely registered and that wish to claim trade union status;

–      section 29 of the Act, under which an enterprise trade union may be granted trade union status only when another first-level organization does not already operate in the geographical area, activity or category concerned; and section 30 of the Act, under which, in order to be eligible for trade union status, unions representing a trade, occupation or category must show that they have different interests from the existing trade union and the latter’s status must not cover the workers’ concerned. The Committee notes that the Government indicates, in respect of section 29, that enterprise trade unions exist and function freely. They exercise the rights granted to them by law; as concerns section 30, the Government indicates that this provision had put an end to a flagrant violation of freedom of association, comprised of a “de facto” law prohibiting the presence, in a trade union, of officials and members lacking this status. The Committee nonetheless reiterates that the requirements that unions representing enterprises, trades or categories have to meet in order to obtain trade union status are excessive, and in practice restrict their access to trade union status and give preferential treatment to existing organizations even where unions representing enterprises, trades or categories of workers are more representative, according to section 28.

Benefits which derive from trade union status

–      section 38 of the Act, under which check-off of trade union dues is allowed only for associations with trade union status, and not associations that are merely registered. The Committee notes that, according to the Government, most first-level trade union associations are members of federations which have trade union status, so the first-level unions receive the trade union dues of their members through the federation, which receives them from the employer, who deducts them directly. The Government adds that there is nothing to prevent organizations which are merely registered from arranging with the employer to have the dues deducted directly from the workers’ wages. The Committee reminds the Government that for unions that obtain it, “most representative” status should not imply privileges other than priority of representation in collective bargaining, in consultations with the authorities and in the appointment of delegates to international bodies. Consequently, the Committee considers that such discrimination against organizations that are merely registered cannot be justified;

–      sections 48 and 52 of the Act give special protection (trade union immunity) only to representatives of organizations that have trade union status. The Committee notes that, according to the Government, all workers or trade unions enjoy the general protection established under section 47 and may commence an action “in amparo” in case of violation of their freedom of association rights guaranteed by law. The law contains no restrictions respecting this matter. The Committee nevertheless considers that sections 48 and 52 provide preferential treatment for representatives of organizations with trade union status in the event of acts of anti-union discrimination, and that this exceeds the privileges that may be granted to the most representative organizations, as noted in the previous paragraph.

The Committee points out that it has been making these comments for many years and that although the Government has received technical assistance from the ILO on several occasions, the necessary measures to make the requested changes have not been taken. The Committee accordingly once again requests the Government to take steps to amend all the provision referred to in order to bring them fully into conformity with the Convention. It trusts that it will be able to note tangible progress in the very near future.

Determination of minimum services

In its previous observation, the Committee noted that the CTA had referred to Decree No. 272/2006 regulating section 24 of Act No. 25877 on collective labour disputes, and that specifically, it objected that by virtue of section 2(b) of the Decree, the Guarantees Commission, which establishes minimum services, and which comprises representatives of employers’ and workers’ organizations as well as independent members, may act only in an advisory capacity since the final decision as to essential minimum services lies with the Ministry of Labour when “the parties have come to no agreement” or “when the agreements are inadequate”. The Committee requested the Government to provide information on the application in practice of the new provision, and more specifically information on the number of instances in which the administrative authority has changed the terms of the Guarantees Commission’s opinion regarding minimum services.

The Committee notes that information sent by the Government on section 2(b) of Decree No. 272/2006 to the effect that: (1) this provision must be analysed in conjunction with the rest of the regulations, since section 10 of the Decree establishes that “if the parties fail to meet the obligations laid down in sections 7, 8 and 9 of this Decree within the time limits prescribed thereby, or if the minimum services agreed by the parties are inadequate, the implementing authority, in consultation with the Guarantees Commission, shall establish the minimum services that are essential to ensure performance of the service, the number of workers to be assigned for their provision, the work schedules and the assignment of functions and equipment, while endeavouring to safeguard both the right to strike and the rights of the users affected”; (2) section 24 of Act No. 25877 empowers the Guarantees Commission to determine as essential only services that are not provided for in the law, and it is inappropriate in legal terms to extend the Commission’s authority by regulation beyond assigning to it supplementary and consultative duties as provided, and (3) the authority ultimately assigned to the Ministry of Labour, Employment and Social Security cannot be described as unilateral and discretionary since section 10 and section 2(b) of the regulatory decree state that the implementing authority shall consult the Guarantees Commission on the establishment of minimum services, and the Ministry’s discretion is expressly limited by a requirement to “safeguard both the right to strike and the rights of the users affected”.

The Committee requests the Government to send information on the cases in which the Guarantees Commission has intervened regarding minimum services and in particular the number of instances in which the administrative authority has changed the terms of the Commission’s opinion.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments by the Central of Argentine Workers (CTA) dated May 2006, those by the International Confederation of Free Trade Unions (ICFTU) dated 12 July 2006 and those by the General Confederation of Labour of Argentina (CGT) dated 30 August 2006 (the gist of which is that the problems raised by the ICFTU are being dealt with or have been resolved). The Committee notes the Government’s response to the ICFTU’s observations.

1. Determination of minimum services. The Committee notes that in its observations, the CTA refers to the recent adoption of Decree No. 272/2006 regulating section 24 of Act No. 25877 on collective labour disputes. Specifically, the CTA objects that, by virtue of section 2(b) of the Decree, the Guarantees Commission, which establishes minimum services, and which comprises representatives of employers’ and workers’ organizations as well as independent members, may act only in an advisory capacity since the final decision as to essential minimum services lies with the Ministry of Labour when “the parties have come to no agreement” or “when the agreements are inadequate”.

The Committee observes that the Committee on Freedom of Association has examined this matter (see 343rd Report of that Committee, November 2006, Case No. 2377) and has pointed out that although the new system is an improvement over the old one (in that the membership of the Guarantees Commission, which advises the administrative authority, includes representatives of employers’ and workers’ organizations and independent members), the final decision as to the minimum services still lies with the administrative authority. The Committee on Freedom of Association therefore asked the Government to provide information on the application in practice of the new provision and, more specifically, to indicate the number of cases in which the administrative authority has changed the terms of the Guarantees Commission’s opinion regarding minimum services. The Committee has the same concerns and would appreciate receiving such information.

2. Other matters. With regard to the ICFTU’s observations, the Committee notes that, for the most part, they refer to matters that the Committee has been raising for many years and that concern certain restrictions on freedom of association arising from Act No. 23551 of 1988 and its regulatory decree, and to:

–         the Government’s refusal to grant the CTA “trade union status”. The Committee notes that, according to the Government, since 1998 the CTA has had full official recognition and “trade union registration”, and is awaiting a decision on an application for “trade union status” filed in August 2004. In view of the significant benefits enjoyed by workers’ organizations that have “trade union status” (including the right to collective bargaining), the Committee regrets that so long a period has elapsed – more than two years according to the Government – without any decision from the administrative authority. The Committee urges the Government to take a decision without delay regarding the CTA’s application for trade union status;

–         the 30-day suspension applied on 31 December 2004 to 50 school directors in the province of Neuquén who are members of the Association of Education Workers of Neuquén (ATEN) for participating in a strike. The Committee observes that this matter has been examined by the Committee on Freedom of Association;

–         the assault of a member of the communications sector and pressure on workers to leave the union. The Committee notes that, according to the Government, the National Appeals Chamber upheld the lower court’s decision to sanction the enterprise for discrimination against five union members;

–         the dismissal of 168 pilots in the context of a collective dispute. The Committee notes that, according to the Government, the dismissals were cancelled and the unions concerned have concluded a new collective agreement.

The Committee also requests the Government to send information on the other matters raised by the Committee in its 2005 observation (76th Session), for examination in the context of the regular reporting cycle in 2007.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that Act No. 25877 to organize labour was adopted on 18 April 2004.

The Committee notes that section 24 of the above Act requires minimum services to be provided in the event of direct action involving activities that may be deemed essential services. The Committee observes that essential services are defined in the Act as health and hospital services, the production and supply of drinking water, gas and electricity and air traffic control. The Committee also notes that activities not included in the above list may be deemed essential exceptionally by an independent committee composed in accordance with regulations to be issued by the National Executive after consultation with employers’ and workers’ organizations in accordance with the principles of the International Labour Organization. The Committee notes that, according to the Government, a regulatory decree establishing the independent committee is in the process of enactment. The Committee expresses the firm hope that it will be approved shortly and requests the Government to keep it informed on this matter.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report, the discussion that took place in the Conference Committee on the Application of Standards in June 2005, and the report of the mission conducted in August 2005. It also notes the cases concerning application of this Convention examined by the Committee on Freedom of Association.

For many years, the Committee has been commenting on certain provisions of Act No. 23551 of 1988 on trade union associations and its regulatory Decree No. 467/88. The Committee refers in particular to:

1. Trade union status (personería gremial)

-  section 28 of the Act, under which, in order to challenge an association’s trade union status, the petitioning association must have a "considerably larger" membership; and section 21 of the implementing Decree No. 467/88, which qualifies the term "considerably larger" by laying down that the association claiming trade union status should have at least 10 per cent more dues-paying members than the organization which currently holds the status. According to the Government, the legislation does not offend against the principles laid down in the Convention, since a registered trade union need only be more representative in order to claim status. The Committee points out that a "considerably larger" membership amounting to 10 per cent more members than the union holding most representative status is too high a requirement and is contrary to the Convention. In practice, it stands in the way of trade unions that are merely registered and that wish to claim trade union status;

-  section 29 of the Act, under which an enterprise trade union may be granted trade union status only when another first-level organization does not already operate in the geographical area, activity or category concerned; and section 30 of the Act, under which, in order to be eligible for trade union status, unions representing a trade, occupation or category must show that they have different interests from the existing trade union and the latter’s status must not cover the workers’ concerned. The Committee notes that the Government repeats its earlier comments indicating that in Argentina there are 180 unions representing categories, trades and/or enterprises, 85 of which have trade union status. The Committee nonetheless reiterates that the requirements that unions representing enterprises, trades or categories have to meet in order to obtain trade union status are excessive, and in practice restrict their access to trade union status and give preferential treatment to existing organizations even where unions representing enterprises, trades or categories of workers are more representative, according to section 28.

2. Benefits which derive from trade union status (personería gremial)

-  section 38 of the Act, under which check-off of trade union dues is allowed only for associations with trade union status, and not associations that are merely registered. The Committee notes that, according to the Government, most first-level trade union associations are members of federations which have trade union status, so the first-level unions receive the trade union dues of their members through the federation, which receives them from the employer, who deducts them directly. The Government adds that there is nothing to prevent organizations which are merely registered from arranging with the employer to have the dues deducted directly from the workers’ wages. The Committee reminds the Government that for unions that obtain it, "most representative" status should not imply privileges other than priority of representation in collective bargaining, in consultations with the authorities and in the appointment of delegates to international bodies. Consequently, such discrimination against organizations that are merely registered cannot be justified;

-  sections 48 and 52 of the Act give special protection (trade union immunity) only to representatives of organizations that have trade union status. The Committee notes that, according to the Government, all workers’ representatives enjoy general protection under section 47. As to the special protection granted in section 52, the Government indicates that by virtue of section 50, this extends to workers standing for representative office, in whatever capacity. The Committee nevertheless considers that sections 48 and 52 provide preferential treatment for representatives of organizations with trade union status in the event of acts of anti-union discrimination, and that this exceeds the privileges that may be granted to the most representative organizations, as noted in the previous paragraph.

The Committee notes that as a result of the conclusions of the Conference Committee, a mission took place in Argentina in August 2005. The Committee notes that the Government indicated to the mission it had conducted informal consultations with the trade unions concerned with a view to achieving progress on possible amendments to the legislation, and the Government expressed its commitment to international labour principles and standards. The Committee also notes the statistics sent with the Government’s report which show that there is a large number of trade unions and a membership rate of 40 per cent taking account only of first-level associations, and 65 per cent if second-level associations are counted.

The Committee observes, however, that it has been making the same comments for many years, but - as the mission conducted in August 2005 also pointed out - there has been no tangible progress in terms of eliminating discrimination against organizations that are merely registered in all areas other than collective bargaining, consultation with the authorities and the appointment of delegates to international bodies.

In these circumstances, the Committee urges the Government to take steps to amend all the provisions referred to above in order to bring them into conformity with the Convention.

In its previous observation, the Committee took note of the observations sent by the Central of Argentine Workers (CTA) and the International Confederation of Free Trade Unions (ICFTU) referring in general terms to matters pertaining to the legislation that the Committee has been raising for years.

Lastly, the Committee notes the recent observations sent by the CTA and requests the Government to respond to them in its next report. The Committee notes that the Minister of Labour informed the abovementioned mission that the CTA’s application for trade union status is being processed, and that the CTA participates in the main national and international forums and bodies. The Committee requests the Government to report on the outcome of the CTA’s application for trade union status.

The Committee raises other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) and the Central of Argentine Workers (CTA) on the application of the Convention.

The Committee notes that the ICFTU and CTA comments refer to matters raised by the Committee in the observations that it has been making to the Government for many years concerning certain provisions of Act No. 23551 respecting trade union associations (for example, relating to the requirements to be able to contest the trade union status of an association and the conditions for the granting of trade union status to trade unions at the level of the trade, occupation or category). The ICFTU further refers to acts of anti-union repression against the leaders and members of the Central Union of Professionals of Telecommunications Enterprises (CEPETEL) and the Buenos Aires Graphical Federation.

The Committee regrets that the Government has not provided its observations in respect of these comments. The Committee notes that the legislative matters raised by the ICFTU and the CTA were examined the previous year in the context of the regular reporting cycle. Under these conditions, the Committee requests the Government to provide its comments on these matters, particularly on the allegations concerning acts of anti-union repression, as well as on the other outstanding issues raised by the Committee (see 2003 observation, 74th Session) for examination during the regular reporting cycle in 2005.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report. The Committee also notes the comments made by the Central of Argentine Workers (CTA) and requests the Government to send its observations on these comments in its next report.

The Committee recalls that its comments relate to certain provisions of Act No. 23551 of 1988 respecting trade union associations and implementing Decree No. 467/88. More specifically:

-  section 28 of the Act requires a 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 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 organization which currently has that status;

-  section 29 of the Act 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 activity or category concerned";

-  section 30 imposes excessive conditions (existence of a difference of interests justifying separate representation and the lack of representation of the workers concerned under the status of the existing association or trade union) for granting trade union status to unions representing a trade, occupation or category;

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

-  sections 48 and 52 of the Act provide that only the representatives of associations which have been granted trade union status may benefit from special trade union protection (fuero sindical).

The Committee notes the Government’s indication that: (1) it is making gradual progress with a process of generating the political and institutional conditions that will make it possible to achieve further compliance with the comments of the Committee of Experts based on consensus with the social partners, given that the current legal system is the result of a situation affected by historical, socio-economic and political factors and that the amendment of the legal provisions therefore requires a change in the balance of these factors, with the outcome affecting the rights guaranteed therein; (2) the implementation of specific measures has to be encouraged so that trade union organizations benefit from the necessary facilities to guarantee effectively the right of workers to freedom of choice and, in this respect, the proposal is intended to make progress in the legislation in strengthening the organizations established under section 23 of Act No. 23551 respecting trade union associations, by optimizing the protection of trade union delegates of such organizations (extending the scope of protection provided under Act No. 23542 to combat discrimination), strengthening the economic capacities of such organizations by providing for the employer to check off trade union dues and reducing the percentage referred to in section 28 of the Act respecting trade union associations; (3) the viability of the relevant legislative amendments and their subsequent sustainability require not only the political will of the Government, but also the achievement of a sufficient level of consensus between trade union organizations so that the collective interest can be maintained; and (4) contacts between the various trade union federations are being promoted and established to facilitate an agreement to simplify the task of the State in the adoption of the reforms, by incorporating the results of negotiations in the legislation and backing up the consensus solutions resulting from dialogue with the political force for their immediate implementation through a sufficient level of agreement between trade union organizations.

In this connection, the Committee observes with concern that for many years it has been referring to the above provisions of the legislation which raise serious problems of compliance with the Convention. The Committee hopes that the dialogue with the social partners, the beginning of which has been announced by the Government, will be reflected in the near future in the amendment of the legislative provisions upon which it has been commenting. The Committee requests the Government to provide information in its next report on any measures adopted in this respect.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report. It also notes the comments made by the Congress of Argentinian Workers (CTA) and the Government’s reply in this respect.

I. The Committee recalls that for a number of years its comments have been referring to Act No. 23551 of 1988 respecting trade union associations and implementing Decree No. 2184/90, as follows.

1. Section 28 of the Act requires a 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 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 organization which currently has that status. The Committee notes the Government’s statement that: (1) the Bill to reform section 28 of Act No. 23551, which it noted in its observation of 2001, deletes the phrase "considerably higher" and establishes an objective criterion for reversing the granting of trade union status by providing that the petitioning association must have 5 per cent more dues-paying members than the existing association with trade union status, and that the Bill is before Parliament and ready to be examined by the National Legislative Authority, in accordance with the schedule of parliamentary work; and (2) the Government is currently assessing whether it is appropriate and timely to issue a Decree amending section 21 of Decree No. 467/88 to reduce the envisaged percentage from 10 to 5 per cent. In this respect, the Committee considers that, while the amendment of Decree No. 467/88 would constitute a positive step in bringing the legislation into conformity with the provisions of the Convention, it is necessary to amend Act No. 23551 respecting trade union associations. In these conditions, the Committee hopes that the Bill to amend Act No. 23551 will be adopted in the near future and requests the Government to provide information in its next report on any developments in this respect (including the amendment of Decree No. 467/88, if it is adopted).

2. Section 29 of the Act 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 activity or category concerned", and section 30 imposes excessive conditions (existence of a difference of interests justifying separate representation and the lack of representation of the workers concerned under the status of the existing association or trade union) for granting trade union status to unions representing a craft, occupation or category of workers. The Committee notes the Government’s statement that: (1) with regard to section 29, the legislation permits the existence and operation of enterprise trade unions, and of unions representing a craft, occupation or category of workers, and that the granting of trade union status is only conditional upon the absence of a first-level trade union association or union in the geographical area, activity or category concerned (the Government adds that there is a significant increase in collective bargaining at the enterprise level); and (2) with regard to section 30, this endorses the principle of the differentiated representation of sectors within the same world of workers, discharged by trade union associations which are also differentiated, and that trade unions representing a craft or occupation have continually concluded collective agreements representing their category of workers. The Committee once again points out that these provisions are not in conformity with Article 2 of the Convention with regard to the right of workers to establish and join organizations of their own choosing. Indeed, although the legislation allows the establishment of trade union associations at the enterprise level and trade unions representing a trade, occupation or category of workers, no workers’ organization, even if it has demonstrated that it is the most representative, in accordance with section 28 of the Act, can acquire trade union status which, among other benefits, grants the exclusive right to collective bargaining, if there is already a trade union with trade union status representing the activity in the field concerned. In this regard, the Committee requests the Government to provide information in its next report on any measure that it is considering adopting to amend the above sections.

3. With regard to the abovementioned situations where legislation in Argentina distinguishes between trade unions with "trade union status" and trade unions that are merely "registered", with the former being granted certain preferential rights in law, the Committee for a number of years has commented on the following points:

(a)  Section 38 of the Act only permits associations with trade union status, and not associations which are merely registered, to benefit from the check-off of trade union dues. The Committee notes the Government’s statement that: (1) following the technical assistance mission which visited the country in May 2001, it issued Decree No. 758/01 establishing that associations which are merely registered can apply for the check-off of dues to the banking establishment which pays the wages, but that the above Decree was repealed shortly afterwards by Decree No. 922/01; (2) even though the emergency measures adopted in the context of the financial crisis have given rise to a general refutation by the population of the banking system, the Government plans to implement this system, as approved by the social partners in the Joint Tripartite Commission established by Decree No. 10/2001; and (3) federations with trade union status to which the majority of trade unions are affiliated by simple registration have authorized them to receive trade union dues through the second-level association, and even associations which have merely been registered have been able to agree with employers concerning the check-off of trade union dues. In this respect, the Committee considers that this inequality of treatment between trade union associations with trade union status and trade union associations which are merely registered is not justified and that an appropriate arrangement should be found to overcome this inequality, which does not necessarily have to involve the banks. The Committee therefore requests the Government to take measures to amend section 38 of the Act to place all trade union associations on an equal footing, permitting them to benefit from the check-off of the dues of their members, and to provide information in its next report on any measure adopted to this effect.

(b)  Section 39 of the Act only exempts associations with trade union status, and not associations which are merely registered, from taxation and other levies. The Committee takes due note of the information provided by the Government that, in accordance with the national legislation, the scope of section 39 now covers all Argentinian trade union associations.

(c)  Sections 48 and 52 of the Act provide that only the representatives of associations which have been granted trade union status may benefit from special trade union protection (fuero sindical). The Committee notes the information provided by the Government that: (1) the National Constitution in article 14bis provides that trade union representatives shall enjoy the necessary safeguards to discharge their trade union functions and that section 47 of the Act respecting occupational associations provides that all workers (without exclusion) who are impeded or prevented from the regular exercise of the rights of freedom of association guaranteed by the law may seek the protection of these rights through the competent judicial tribunal, by express summary procedure; (2) national case law has found that the criteria for the interpretation of the rights of freedom of association must be broad, although the provisions of Act No. 23551 are not self-standing, but are derived from article 14bis of the Constitution; (3) the range of constitutional provisions, the provisions of Act No. 23551 and of Act No. 23592 on the exercise of constitutional rights and guarantees/measures against discriminatory acts mean that any person who arbitrarily impedes, obstructs, restricts or in any way prejudices the full exercise of the fundamental rights and guarantees recognized in the National Constitution shall be compelled, at the petition of the victim, to end the discriminatory act or nullify it, and to compensate the victim for any moral or material damage caused, with particular reference to discriminatory acts or omissions on grounds such as political or trade union opinion, with the above measures constituting adequate protection for each worker in the exercise of their trade union activities; and (4) the trade union representatives of an association that is merely registered, but is affiliated to a federation with trade union status, enjoy the protection set out in sections 48 and 52 of Act No. 23551. The Committee considers that, even though the legislation provides for general protection against acts of anti-union discrimination, the trade union leaders of associations with trade union status enjoy special protection in addition to that available to the leaders or representatives of associations which are merely registered. Furthermore, the Committee notes that the general protection afforded by Act No. 23592 is of a limited nature with regard to the exercise of trade union rights, as it is confined to discriminatory acts or omissions on grounds of trade union opinion. The Committee considers that such discrimination is not compatible with the requirements of the Convention. In this respect, the Committee requests the Government to take measures to amend the provisions in question and to indicate in its next report any measure adopted to this effect.

II.  Decree No. 843/2000

The Committee also notes that the Government refers in its report to Decree No. 843/2000 which permits strikes in essential services in the strict sense of the term, and adds that it is assessing the possibility of providing greater guarantees for the system than those envisaged in the Decree by including the consultation of an impartial commission composed of persons of recognized technical expertise with a view to determining the essential nature of a service which is not included in the services strictly defined as such and which by its characteristics could be assimilated to them. In this respect, the Committee suggests that the Government, if it is planning to make amendments to the Decree, should examine the possibility that the determination of the minimum services to be maintained during a strike, where the parties do not reach agreement, should not be the responsibility of the Ministry of Labour, but of an independent body. The Committee requests the Government to keep it informed of any measure that it is considering adopting in relation to Decree No. 843/2000.

Finally, the Committee notes with interest the Government’s indication of its intention to continue making progress in harmonizing national legislation with the provisions of the Convention, and that significant progress has been made at the institutional level, reflecting the firm will of the Government to promote the coexistence of the various actors (the Government emphasizes the official participation of the Congress of Argentinian Workers in all the socio-labour bodies of MERCOSUR and in the tripartite consultation body envisaged in Convention No. 144). The Committee hopes that the Government’s intentions in this respect will be reflected in the amendment of the legislative provisions referred to above and calls upon the Government and the social partners to bring the legislation into full conformity with the Convention by means of the strengthening of the debate which has been commenced.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the observations made by the Congress of Argentinian Workers (CTA) on the application of the Convention and requests the Government to provide its comments in this respect.

The Committee notes that, at the request of the Government, a technical assistance mission visited the country in May 2001 to provide guidance to the Mixed Tripartite Commission established by the Government to analyse the observations made by this Committee on the application of the Convention. Following this mission, measures were adopted which give effect to some of the Committee’s previous comments.

In this respect, the Committee notes with satisfaction that, in accordance with the requests made by the Committee for many years, the National Executive Authority issued Decree No. 757/2001 providing that trade union associations which have merely been registered are entitled to defend and represent the individual interests of their members before the State, employers and the Sub-Secretariat of Labour Relations. It also notes with interest that the Federal Public Revenue Administration issued joint resolution No. 103/2001 and general resolution No. 1027 establishing that the activities and assets of trade union associations, which have been registered for the exercise of the rights deriving from sections 5 and 23 of the Act respecting trade union associations, benefit from the same tax status as non-profit organizations. The Committee requests the Government to indicate whether, under the terms of this joint resolution, associations which are merely registered are exempt from the payment of taxes and duties, as provided in section 39 of Act No. 23551 respecting trade union associations.

The Committee also notes with interest that the Executive Authority has prepared draft legislation to amend section 28 of Act No. 23551 with regard to the size of the membership an association is required to have in order to contest the trade union status of another trade union and to repeal section 21 of Decree No. 467/88, which stipulates that the association must have a membership of at least 10 per cent higher than the union with current trade union status.

The Committee will address all of the matters that it raised in its previous observation at its next session during the regular examination of the application of the Convention, in the light of the information provided by the Government in its next report.

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).

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee recalls that its previous comments referred to:

Executive Decree No. 2184/90 which was criticized by the Congress of Argentinian Workers (CTA) for including in the list of essential services "primary, secondary, tertiary and university education" (section 1(e)). Similarly, the Committee observes that in Case No. 1679, the Committee on Freedom of Association examined the allegations regarding the classification of transport as an essential service (section 1(b)), the power of the Ministry of Labour to declare a strike illegal (section 10), and the classification by that Ministry of measures for the provision of minimum services in the event of lack of agreement by the parties (section 5).

The Committee notes the Government's information to the effect that the purpose of Decree No. 2184/90 is to limit the provision of essential services for the community, defined in section 1 of the Decree as "those the total or partial interruption of which would endanger the life, health, freedom or safety of part of the population or of particular persons".

The Committee recalls that, in the absence of agreement between the parties in determining the methods for providing minimum services (section 5) it would be desirable for the final decision to be determined by a bipartite or tripartite body or another independent body. The Committee requests the Government to provide information on the application in practice of these provisions and to transmit, in its future reports, a copy of any decision taken by the Minister of Labour and Social Security in this respect.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided by the Government representative to the 1998 Conference Committee and the discussion that followed, as well as the supplementary information subsequently provided by the Government. The Committee also notes the detailed information provided by the Government during the Conference with regard to the provisions of Act No. 23.551 respecting trade union associations, which take into account the Committee's comments, as well as the statistical data and information covering trade union activities in Argentina in the decade which has elapsed since the above Act came into force.

The Committee recalls that its previous comments referred to:

-- section 28 of the Act, which requires the petitioning association, in order to contest the trade union status of an association, to have a "considerably higher" number of members;

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

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

-- section 31(a) of the Act, which provides that "associations which have been granted trade union status have the exclusive right to defend and represent the individual and collective interest of workers";

-- section 38 of the Act, which permits only associations enjoying trade union status, and not associations which are merely registered, to be retained for the purposes of trade union quotas;

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

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

Firstly, with regard to the comments made by the Government in its report in respect of Act No. 23.551 guaranteeing the right to freely organize and register trade unions and for trade unions to acquire legal personality, the Committee wishes to emphasize that it has not criticized these provisions, but the requirements to acquire trade union status and the privileges which organizations with trade union status enjoy. Similarly, the Committee wishes to state that, in general terms, it is not opposed to the most representative trade union organizations acquiring "trade union status", nor to these organizations enjoying certain privileges arising from their status of the most representative organization.

Whilst recognizing that an excessive proliferation of trade union organizations may weaken the trade union movement and ultimately prejudice the interests of workers, the Committee has always considered that a legislative provision which recognizes the most representative trade union is not in itself contrary to the principles of freedom of association, provided that certain conditions are met. In this respect, the Committee has emphasized that the determination of the most representative trade union must be based on objective, pre-established and precise criteria, so as to avoid any possibility of bias or abuse. Furthermore, the distinction should generally be limited to the recognition of certain preferential rights -- for example for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 97).

1. Criteria for representativeness

With regard to the term "considerably higher" referred to in section 28 of Act No. 23.551 and section 21 of the implementing Decree, the Committee notes the Government's statement to the effect that, in the decade which has elapsed since these provisions came into force, in practice no refusals of requests to grant trade union status have been registered, which suggests that the level set of at least 10 per cent more dues-paying members as established by law, has not prevented rival associations from acquiring trade union status. In this respect, the Government nevertheless acknowledges that of the 2,776 trade unions registered, 1,317 enjoy trade union status and in the last decade only 130 new trade unions with trade union status and 915 associations have been registered. The Committee considers that the requirement of a "considerably higher" number of members constitutes a practical difficulty for associations that are merely registered to acquire trade union status. Under the circumstances, the Committee urges the Government to adopt the necessary measures to repeal this requirement, particularly since section 25(b) of the Act lays down that an organization may not acquire trade union status unless it has a minimum membership of at least 20 per cent of the workforce which it seeks to represent.

With regard to sections 29 and 30 of Act No. 23.551, the Committee notes the Government's comments but nevertheless insists that the additional conditions for granting trade union status to unions representing enterprises, workshops, occupations or categories of workers are excessive and in practice prevent these organizations from acquiring trade union status, thereby privileging trade unions representing sectors of activity. In fact, where a trade union with trade union status representing a sector of activity exists and represents workers in this activity, a union representing an enterprise, workshop, occupation or category of workers in this sector of activity may not acquire the status of the most representative organization, as provided for under section 28, even though it may be shown that it is the most representative trade union. Furthermore, taking into account the number of privileges accorded in law to trade unions with trade union status, the Committee emphasizes that, in practice, this type of provision may restrict the right of workers to establish and become members of organizations of their own choosing and the right of organizations to organize their activities without interference from the public authorities.

2. Privileges derived from trade union status

With regard to the provisions of the Act respecting the privileges accorded to trade unions with trade union status (representing various collective interests other than through collective bargaining (section 31), entitlement to have trade union dues deducted from wages (section 38), tax exemption (section 39), and special protection granted to trade union leaders (sections 48 and 52)), the Committee emphasizes that this accumulation of privileges could have a negative impact on workers in their choice of trade union membership. In this respect, the Committee notes the Government's statement to the effect that 91 per cent of workers belong to trade union organizations with trade union status whereas only 9 per cent belong to organizations which have merely been registered. The Committee considers that this disparity could be interpreted as workers wishing to belong to organizations which are able to develop a real trade union activity through the nature and number of privileges granted under sections 31, 38 and 39 of the Act, as is the case of trade union organizations with trade union status, thereby prejudicing unions which are merely registered and only able to represent the individual interests of their members, at their request, as provided for under section 23 of the Act.

The Committee again recalls that the distinction of the most representative union should not result in the trade union being granted privileges, as already stated, extending beyond that of priority in representation for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, the Committee shares the view of the Committee on Freedom of Association that this distinction should not have the effect of depriving trade union organizations that are not recognized as being amongst the most representative organizations of the essential means of defending the occupational interests of their members, of organizing their administration and activities and formulating their programmes of action, provided for under Articles 3 and 10 of the Convention (see Digest of decisions and principles of the Freedom of Association Committee, 1996, paragraph 309).

The Committee also recalls that when legislation confers on the most representative trade unions certain privileges in connection with the defence of their occupational interests, by virtue of which they alone are in a position to act effectively, the granting of such privileges should not be made subject to such conditions as to influence unduly the choice of workers regarding the organization to which they intend to belong (see the report of the Committee of Experts 1989, pages 125 and 126).

The Committee notes with interest the Government's request for ILO technical assistance within the framework of the application of Convention No. 87, confirming the statement of the Government representative to the Conference Committee and the written communication of the Government dated October 1998.

Furthermore, the Committee notes with interest that in its previous communication the Government confirms its willingness and openness to reaching an understanding taking into consideration the realities of the country and the issues raised by the Committee. In this context, it announces that a decree implementing Act No. 23.551 has been drafted, to be signed by the President, taking into consideration the comments of the Committee, which will be forwarded to the Office in due course.

The Committee also notes with interest that the Government has set up a working group responsible for analysing the provisions that have been criticized by the Committee which raise particularly complex legal and political concerns; the Government expresses its hope that it can count on the technical assistance of the ILO to assist in this task. The Committee hopes that the mission in question will shortly take place and will encourage productive dialogue to facilitate the application of the Convention in law and in practice.

The Committee trusts that the Government will send in the near future a copy of the decree implementing Act No. 23.551 as soon as it has been adopted.

The Committee is also addressing a direct request to the Government.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information supplied by the Government in its report.

With regard to the comments made by the Confederation of Education Workers of the Argentine Republic (CTERA), in its previous direct request the Committee requested the Government to ensure that Decree No. 5863/94 of the Entre Ríos Province on the deferred payment of salaries in the civil service, should not be applied in such a way as to restrict the right to strike of staff working in education. In this regard, the Committee notes with interest that, according to the Government's indication, the Decree in question has been repealed.

The Committee also referred to Executive Decree No. 2184/90 which was criticized by the CTA for including in the list of essential services "primary, secondary, tertiary and university education" (section 1(e)). Similarly, the Committee observes that in Case No. 1679, the Committee on Freedom of Association examined the allegations regarding the classification of transport as an essential service (section 1(b)), the power of the Ministry of Labour to declare a strike illegal (section 10), and the classification by that Ministry of measures for providing minimum services in the event that the parties fail to agree (section 5).

The Committee notes the Government's information to the effect that the purpose of Decree No. 2184/90 is to limit the provision of essential services for the community, defined in section 1 of the Decree as "those the total or partial interruption of which would endanger the life, health, freedom or safety of part of the population or of particular persons".

The Committee recalls that, in the absence of agreement between the parties in the determining methods for providing minimum services (section 5) the final decision should better be determined by a bipartite or tripartite body, or by another independent body. The Committee requests the Government to provide information on the application in practice of these provisions and to transmit, in its future reports, a copy of any decision taken by the Minister of Labour and Social Security in this respect.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information supplied by the Government in its report and recalls that its previous comments related to the following provisions of Act No. 23551 of 1988 which are contrary to the Convention:

-- section 28 of the Act, which requires the petitioning association, in order to contest the trade union status of an association, to have a "considerably higher" number of members;

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

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

-- section 31(a), (b), (d) and (e) of the Act which gives exclusive rights to associations which have been granted trade union status over the other associations as regards representing various collective interests other than collective bargaining;

-- section 38, which permits only associations enjoying trade union status, and not associations which are merely registered, to be funded by membership fees;

-- section 39, which exempts only associations enjoying trade union status, and not associations which are merely registered, from taxes and levies;

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

The Committee regrets that, once again, the Government has not provided any new information on the issues it has been raising for many years and has merely limited itself to informing that the draft text to amend Act No. 23551, prepared with the participation of an ILO advisory mission in 1992, and which provides for the repeal or amendment of certain provisions (sections 28, 30, 38 and 39 of the Act and 21 of the implementing Decree), has still not been approved.

The Committee reminds the Government that by ratifying the Convention it has undertaken to guarantee the rights of workers to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing (Article 2 of the Convention). It has also undertaken to guarantee that the acquisition of legal personality by such organizations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 of the Convention (Article 7 of the Convention).

The Committee expresses once again the strong hope that the long-awaited approval of the amending text will take place soon and that the necessary measures will be adopted to amend the provisions of Act No. 23551 which were not included in the draft in question (section 29 on the excessive conditions imposed for an enterprise union to obtain trade union status, and sections 31, 48 and 52 which give priority over other associations to associations which have been granted trade union status in regard to representing various collective interests other than collective bargaining and in relation to trade union protection (fuero sindical)), for the purpose of avoiding any possibility of partiality or abuse in the determining of greater representativity of trade union organizations and the consequences thereof.

The Committee urges the Government once again in its next report to inform it of any positive developments in the matter and trusts that it will be able to note that, finally, the new legislation is consistent with the principles and provisions of the Convention.

The Committee is also addressing a request directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 86th Session.]

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee recalls that its previous comments which read as follows:

With regard to the comments made by the Argentinean Workers' Congress (CTA), criticizing Executive Decree No. 2184/90, the Committee observes that the Committee on Freedom of Association has already examined a complaint on the content and application of the Decree (see 292nd Report of the Committee on Freedom of Association, Case No. 1679 (Argentina), paras. 79-100). The Committee shares the view of the Committee on Freedom of Association and wishes to state in particular that with regard to the imposition of minimum services during strikes, this should be possible only: for services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; in cases of strikes where the extent or duration could cause an acute national crisis such that the normal living conditions of the population could be in danger; and in "public services of essential importance". The Committee therefore requests the Government to take measures with a view to modifying the law to the effect that the final decision on the illegality of strikes (section 5 of the Decree) and the provision of minimum services in the event of lack of agreement between the parties (section 10 of the Decree) is not taken by the Government but by a tribunal, a bipartite or tripartite body, or another independent authority. The Committee requests the Government to inform it in its next report of all measures adopted in this matter.

With regard to the comments made by the Confederation of Education Workers of the Argentine Republic (CTERA), the Committee observes that this organization criticizes Decree No. 5863/94 of the Entre Ríos Province on deferred payment of salaries in the civil service, complaining that the provisions of section 3 of the Decree violate the right to strike of workers. The Committee states that the section in question provides that "non-payment of wages within a time-limit less than that provided in the preceding article shall not be considered a justified reason for not providing the usual work or not attending the place where this is usually provided". The Committee observes that while the Decree in question does not expressly prohibit the right to strike, the provision under criticism is confused and could be interpreted in such a way as to affect the exercise of this right. The Committee recalls that the prohibition of the right to strike in the public service is admissible only in regard to public servants exercising authority in the name of the State or to workers in essential services, to which the education sector does not belong. The Committee requests the Government to ensure that the Decree in question is not applied in such a way as to restrict the right to strike of staff working in education.

While it was sitting, the Committee received the Government's report which it will examine at its next meeting.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee recalls that its previous comments referred to the following points:

In its previous observation, the Committee noted that a draft text to amend Act No. 23551 had been prepared with the participation of an ILO advisory mission, providing for the repeal or amendment of the following provisions which were contrary to the Convention: section 30 (which required excessive conditions for granting trade union status to unions representing workshops, occupations or categories of workers); section 28 (which, in order to contest the trade union status of an association, required the petitioning association to have a "considerably higher" number of members); section 38 (which permitted only associations enjoying trade union status, and not associations which were merely registered, to be retained for the purposes of trade union quotas); and section 39 (which exempted only associations with legal personality, and not associations which were merely registered, from taxation).

In addition, the Committee noted that the above draft text had not provided for the modification of the following provisions (recommended by the Committee of Experts for several years now): the excessive conditions set out in law for an enterprise union to obtain trade union status (section 29 of the Act, which provides that "a trade union at the enterprise level may be granted trade union status only when another first-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered"), nor the provisions which grant privileges to associations which have been granted trade union status in comparison with other associations as regards the representation of collective interests other than through collective bargaining (section 31(a) of the Act, which provides that "associations which have been granted trade union status have the exclusive right to defend and represent the individual and collective interests of workers") and as regards trade union protection (sections 48 and 52 of the Act, which provide that only the representatives of associations which have been granted trade union status enjoy special protection).

While noting that, in its previous report, the Government stated that the draft text to amend Act No. 23551 was passed by the Chamber of Senators in November 1992 and was before the Chamber of Deputies for study by the relevant committee, the Committee regretted that after an extremely long period of time the Act in question had not been adopted.

The Committee expressed once again the strong hope that the amending text would be approved as soon as possible with the aim of avoiding any possibility of partiality or abuse in the determination and consequences of greater representativity of trade union organizations. The Committee requested the Government to inform it on this matter in its next report.

The Committee is also addressing a request directly to the Government on various matters raised by two trade union organizations.

While it was sitting, the Committee received the Government's report which it will examine at its next meeting.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the comments made by the Argentinian Workers' Congress (CTA) and the Confederation of Education Workers (CTERA).

With regard to the comments made by the Argentinian Workers' Congress (CTA), criticizing Executive Decree No. 2184/90, the Committee observes that the Committee on Freedom of Association has already examined a complaint on the content and application of the Decree (see 292nd Report of the Committee on Freedom of Association, Case No. 1679 (Argentina), paras. 79-100). The Committee shares the view of the Committee on Freedom of Association and wishes to state in particular that with regard to the imposition of minimum services during strikes, this should be possible only: for services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; in cases of strikes where the extent or duration could cause an acute national crisis such that the normal living conditions of the population could be in danger; and in "public services of essential importance". The Committee therefore requests the Government to take measures with a view to modifying the law to the effect that the final decision on the illegality of strikes (section 5 of the Decree) and the provision of minimum services in the event of lack of agreement between the parties (section 10 of the Decree) is not taken by the Government but by a tribunal, a bipartite or tripartite body, or another independent authority. The Committee requests the Government to inform it in its next report of all measures adopted in this matter.

With regard to the comments made by the Confederation of Education Workers of the Argentine Republic (CTERA), the Committee observes that this organization criticizes Decree No. 5863/94 of the Entre Ríos Province on deferred payment of salaries in the civil service, complaining that the provisions of section 3 of the Decree violate the right to strike of workers. The Committee states that the section in question provides that "non-payment of wages within a time-limit less than that provided in the preceding article shall not be considered a justified reason for not providing the usual work or not attending the place where this is usually provided". The Committee observes that while the Decree in question does not expressly prohibit the right to strike, the provision under criticism is confused and could be interpreted in such a way as to affect the exercise of this right. The Committee recalls that the prohibition of the right to strike in the public service is admissible only in regard to public servants exercising authority in the name of the State or to workers in essential services, to which the education sector does not belong. The Committee requests the Government to ensure that the Decree in question is not applied in such a way as to restrict the right to strike of staff working in education.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and regrets that it does not provide further information on the questions raised in previous observations.

In its previous observation, the Committee noted that a draft text to amend Act No. 23551 had been prepared with the participation of an ILO advisory mission, providing for the repeal or amendment of the following provisions which were contrary to the Convention: section 30 (which required excessive conditions for granting trade union status to unions representing workshops, occupations or categories of workers); section 28 (which, in order to contest the trade union status of an association, required the petitioning association to have a "considerably higher" number of members); section 38 (which permitted only associations enjoying trade union status, and not associations which were merely registered, to be retained for the purposes of trade union quotas); and section 39 (which exempted only associations with legal personality, and not associations which were merely registered, from taxation).

In addition, the Committee noted that the above draft text had not provided for the modification of the following provisions (recommended by the Committee of Experts for several years now): the excessive conditions set out in law for an enterprise union to obtain trade union status (section 29 of the Act, which provides that "a trade union at the enterprise level may be granted trade union status only when another first-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered"), nor the provisions which grant privileges to associations which have been granted trade union status in comparison with other associations as regards the representation of collective interests other than through collective bargaining (section 31(a) of the Act, which provides that "associations which have been granted trade union status have the exclusive right to defend and represent the individual and collective interests of workers") and as regards trade union protection (sections 48 and 52 of the Act, which provide that only the representatives of associations which have been granted trade union status enjoy special protection).

While noting that, in its report, the Government states that the draft text to amend Act No. 23551 was passed by the Chamber of Senators in November 1992 and is currently before the Chamber of Deputies for study by the relevant committee, the Committee regrets that after an extremely long period of time the Act in question has not been adopted. The Committee expresses the strong hope that the amending text will be approved as soon as possible with the aim of avoiding any possibility of partiality or abuse in the determination and consequences of greater representativity of trade union organizations. The Committee requests the Government to inform it on this matter in its next report.

The Committee is also addressing a request directly to the Government on various matters raised by two trade union organizations.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes that a draft text to amend Act No. 23551 on trade union associations which has been submitted to Parliament requires, in section 18(D), that in order to stand for executive office candidates must be or have been delegates or have held a representative function set out in the union's by-laws. It also notes that the last subsection of the above section provides that by-laws may contain lower requirements.

The Committee would be grateful if the Government would explicitly state whether, under the last subsection of the above section, it is permitted to provide in the by-laws of a trade union association that it is not necessary to be or have been a delegate or to have held a representative function set out in the by-laws, in order to stand for executive office.

Furthermore, with regard to section 41(a) of the current Act on trade union associations (which it is not envisaged to amend in the above draft text), which requires affiliation to a body which enjoys trade union status in order to exercise the functions of workers' representatives in an enterprise, the Committee once again requests the Government to supply information on the effect given in practice to this section in the event that a trade union association which is amply representative, but which does not have trade union status, exists alongside an organization which enjoys trade union status.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's report and the draft text to amend Act No. 23551 on trade union associations, which was prepared with the participation of an ILO advisory mission.

The Committee notes with interest that the above draft text, taking into account the Committee's previous observations, provides for the repeal or amendment of the following provisions which were in contradiction with the Convention: section 30 (which required excessive conditions for granting trade union status to unions representing workshops, occupations or categories of workers); section 28 (which, in order to contest the trade union status of an association, required the petitioning association to have a "considerably higher" number of members); section 38 (which only permitted associations enjoying trade union status, and not associations which were merely registered, to be retained for the purposes of trade union quotas); and section 39 (which only exempted associations with legal personality, and not associations which were merely registered, from taxation).

Nevertheless, the Committee notes that the above draft text has not provided for the modification of the following provisions, whose modification has been suggested by the Committee of Experts and the advisory mission: the excessive conditions set out in law for an enterprise union to obtain trade union status (section 29 of the Act, which provides that "a trade union at the enterprise level may be granted trade union status only when another first-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered"), nor the provisions which grant privileges to associations which have been granted trade union status in comparison with other associations as regards the representation of collective interests other than through collective bargaining (section 31(a) of the Act, which provides that "associations which have been granted trade union status have the exclusive right to defend and represent the individual and collective interests of workers") and as regards trade union protection (sections 48 and 52 of the Act, which provide that only the representatives of associations which have been granted trade union status enjoy special protection).

The Committee therefore requests the Government to continue to take measures with a view to further harmonizing its legislation with the Convention and hopes that the draft text to amend Act No. 23551 on trade union associations will be adopted as soon as possible and that it will take fully into account the comments of the Committee and will be in complete conformity with the principles of the Convention.

The Committee is also addressing a request directly to the Government.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 2 of the Convention. The right of workers, without distinction whatsoever, to form and join organisations of their own choosing. The Committee noted that under section 23(a) of Act No. 23551, the trade union association has the right to represent its members' individual interests, while associations which are granted trade union status under section 31(a) of the Act, have the exclusive right to further the individual and collective rights of workers. The Government states in its report that the definition of "worker" in section 1 of implementing Decree No. 467/88 does not prevent the establishment of trade unions of self-employed workers and that a trade union association can, at the request of the party concerned, represent the individual interests of workers in accordance with section 23 of the Act. The Committee requests the Government to indicate explicitly whether such representation can be carried on in the event that an organisation having trade union status exists in the same field of activity.

Article 3(1). The right of workers to elect their representatives. Section 18(c) of the Act on trade union associations requires, as one of the conditions to become a member of an executive body, membership of the trade union association and to have been engaged in the activity represented by the association for at least two years; the Committee considered that greater flexibility should be given to these clauses, that persons who have worked previously in the occupation should be acceptable to have access to trade union office and that the requirement of exercising the occupation should be withdrawn for a reasonable proportion of the officers of the organisations.

The Government states that section 18(c) ensures that trade union officers have acquired sufficient practical experience, particulary since in the Argentinian trade unions there are in fact no full-time trade unionists. The Committee considers that in general it should be for the statutes of trade unions and not the legislation to impose, where appropriate, conditions as regards whether persons should belong to a profession in order to hold trade union office.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the Government's report.

In its previous comments, the Committee pointed out that various provisions of Act No. 23551 of 14 April 1988 on trade union associations and its implementing Decree No. 467/88 did not appear to be in conformity with the Convention:

- Section 25 of the Act provides that the trade union association which, in terms of the geographical area and the persons falling within its scope has, as dues-paying members, more than 20 per cent of the workers which it claims to represent during the six-month period preceding its request, shall be considered the most representative and therefore granted trade union status. Section 28 provides that where there already exists an organisation enjoying this trade union status, another trade union association may be granted such recognition for the purposes of undertaking action in the same area and activity or category only if the petitioning association has a "considerably higher" number of dues-paying members for a minimum continuous period of at least six months. Implementing Decree No. 467 of 1988, in section 21, qualifies the term "considerably higher" by laying down that the association claiming this trade union status should have at least 10 per cent more dues-paying members than the association which has already been granted this status. The Committee considered that this additional percentage seemed excessive.

- Section 29 of the Act provides that "a trade union at the enterprise level may be granted trade union status only when another first-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered", and section 30 establishes that "when a trade union association which has been granted recognition has decided upon the form of the union, association or trade union covering a particular activity, and the petitioning association has adopted the form of a trade union covering a particular occupation, profession or category, such status may be granted if there are different trade union interests which justify special representation ... provided that the pre-existing trade union or union does not already include such workers within its scope of representation". The Committee considers that this type of provision could have the effect of restricting the right of workers to establish and join organisations of their own choosing (Article 2 of the Convention).

- By virtue of sections 38 and 39 of the Act, workers' trade union associations which have been granted trade union status enjoy a number of privileges such as the deduction of trade union dues and fiscal exemptions. In addition, the right to represent workers in the enterprise can only be exercised by members of those associations enjoying trade union status (section 41 of the Act) and only the representatives of these associations enjoy special protection (sections 48 and 52 of the Act). The Committee pointed out that where the legislation confers on the most representative unions certain privileges in connection with the defence of the occupational interests of their members, the granting of such privileges should not be made subject to such conditions as to influence unduly the choice of workers regarding the organisation to which they intend to belong.

With regard to sections 29 and 30 of the Act, the Government states that the scope of trade union activity set out in the legislation ("the defence of the interests of the workers"), whether or not trade union organisations enjoy trade union status, is sufficiently broad to cover their work within the terms of the Convention. The Government emphasises that, in accordance with section 23 of the Act, the mere fact of registration confers upon all trade union associations the acquisition of legal personality and the exercise of rights such as the right to petition and to represent the collective interests of an activity or category of workers, the right to set contributions or dues from their members, and to hold meetings or assemblies without needing to obtain prior authorisation. This list is only indicative and trade union organisations, being legal entities, by virtue of their legal personality can exercise rights and contract obligations with the result that they have a full field of activities irrespective of the supposed privileges that the granting of trade union status might endow upon certain associations. Sections 29 and 30 of the Act do not therefore diminish the right of workers to establish in full freedom, to join or leave organisations as set out in the provisions of Article 2 of the Convention. The aim is to avoid the fragmentation of the trade union movement, which could in itself be violation of the Convention.

The Committee considers that sections 29 and 30 of the Act have the effect, through granting trade union status by virtue of which exclusive rights are obtained as regards collective agreements and other important matters, of favouring trade union organisations that represent an area of activity in contrast with those representing enterprises and professions, even in the event of the workers preferring to organise at the level of the enterprise or profession. The Committee considers that this situation is not in full conformity with Article 2 of the Convention.

As regards the privileges granted to organisations enjoying trade union status under sections 38 and 39, the Government states that they do not constitute a limitation on the principles of the Convention since the nature of the "holding agent" through which trade union contributions are deducted (section 38) simply serves as an administrative procedure to avoid the non-payment of such dues. This has no effect on the worker's willingness or not to join a trade union. With reference to the fiscal exemptions set out in section 39, the Government indicates that these measures have their parallel elsewhere in the law for trade unions that are merely registered: namely, in the exemption from taxation of the earnings of non-profit-making associations whose income is used for the purposes laid down in their constitutions.

The Committee considers that sections 38 and 39 grant important privileges to organisations which enjoy trade union status as compared with those that are only registered. These privileges may influence the workers' choice of organisation to which they wish to belong.

With regard to section 41, the Government points out that, in requiring that an organisation be affiliated to a body that enjoys trade union status so as to have the right to represent workers in an undertaking mentioned in section 40, section 41 sets out the functions and the precise powers accorded by law to these representatives. This provision is not therefore aimed at listing exclusions; indeed, a staff representative could belong to a body that was simply registered provided that no other body with trade union status existed for the activity or field in question. The Committee requests the Government to supply information on the effect given in practice to section 41 in the event that a trade union association representing the majority of workers, but which does not have trade union status, exists alongside an organisation that enjoys trade union status.

The Committee trusts once again that the Government will take the appropriate measures to ensure that the legislation is in complete conformity with the Convention.

The Committee is addressing a direct request to the Government concerning the criteria for eligibility for trade union office.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Article 2 of the Convention: The right of workers, without distinction whatsoever, to form and join organisations of their own choosing. The Committee requests the Government to supply details on the definition of the term "worker" in section 1 of implementing Decree No. 467/88, according to which "for the purposes of the Act, 'worker' means any person who engages in a lawful activity on behalf of another person who is entitled to direct such activity". In particular, the Committee wishes to obtain a clarification on whether this definition includes self-employed workers.

The Committee notes that under section article 23(a) of Act No. 23551, the union association has the right to represent its members' individual interests. However, it notes that the associations which are granted trade union status have the exclusive right to further the individual and collective rights of workers (section 31(a)). The Committee requests the Government to indicate whether or not, in view of these circumstances, a union association may represent its members' individual interests, where there already exists in the same branch of activity or the same category a union association which has been granted trade union status.

Article 3(1): The right of workers to elect their representatives. Section 18(c) of the Act on trade union associations requires, as one of the conditions to become a member of an executive body, membership of the trade union association and having engaged in the activity represented by the association for at least two years; the Committee considers that greater flexibility should be given to these clauses, that persons who have worked previously in the occupation should be acceptable and that the requirement of exercising the occupation should be withdrawn for a reasonable proportion of the officers of the organisations. In its 1983 General Survey (see paragraph 158), the Committee considered that provisions of this type may prevent qualified persons, such as pensioners or full-time union officers, from carrying out union duties.

The Committee requests the Government to send its comments on the points raised above.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes with satisfaction the promulgation of Act No. 23551 on trade union associations, dated 14 April 1988, and its implementing Decree No. 467 of 1988, which repeals "de facto Act No. 22105" of 1979. The new Act on trade union associations, which was a product of consensus, according to the Government, ensures the operation of trade union organisations in accordance with democratic principles. The Committee notes that by virtue of this Act, the provisions of Act No. 22105, which had been the subject of the Committee's comments, cease to exist. These comments concerned restrictions on the right to establish organisations, on trade union autonomy, on the right of organisations to draw up rules and determine their own geographical competence.

The Government points out in its report that the new Act provides that trade union associations may, without any legislative interference, affiliate with or join international organisations. Federations and confederations enjoy the same guarantees regarding their establishment, operation and dissolution as first-level trade union associations. Act No. 23551 permits the Ministry of Labour and Social Security to request the suspension or cancellation of the trade union status of a union organisation only by decision of the courts and then only in cases in which a violation of legal provisions or by-laws has been detected (section 56(3)(a) and (b)).

While noting this information with interest, the Committee wishes to refer to several points which do not appear to be in conformity with the Convention.

Section 25 of the Act provides that the trade union association whose activities are the most representative in terms of the geographical area and the persons falling within its scope, and has, as dues-paying members, more than 20 per cent of the workers which it claims to represent during the six-month period preceding its request, shall be granted trade union status. Section 28 provides that where there already exists an organisation enjoying this trade union status, another trade union association may be granted such recognition for the purposes of undertaking action in the same area and activity or category only if the petitioning association has a "considerably higher" number of dues-paying members for a continuous period of at least six months prior to the request. Implementing Decree No. 467 of 1988, in section 21, qualifies the term "considerably higher" by laying down that the association claiming this trade union status should have at least 10 per cent more dues-paying members than the association which has already been granted this status. In the Committee's opinion, this additional percentage of 10 per cent more members than the association already granted trade union status seems excessive.

Section 29 of the Act provides that "a trade union at the enterprise level may be granted trade union status only when another first-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered", and section 30 establishes that "when a trade union association which has been granted trade union status has decided upon the form of the union, association or trade union covering a particular activity, and the petitioning association has adopted the form of a trade union covering a particular occupation, profession or category, such status may be granted if there are different trade union interests which justify special representation ... provided that the pre-existing trade union or union does not already include such workers within its scope of representation".

The Committee considers that this type of provision could have the effect of restricting the right of workers to establish and join organisations of their own choosing (Article 2 of the Convention).

By virtue of sections 38 and 39 of the Act, workers' trade union associations which have been granted trade union status enjoy a number of privileges such as the deduction of trade union dues and fiscal exemptions. In addition, the right to represent workers in the undertaking can only be exercised by members of those associations enjoying trade union status (section 41 of the Act) and only the representatives of these associations enjoy special protection (sections 48 and 52 of the Act). In this respect, both the Committee of Experts and the Committee on Freedom of Association have expressed the opinion that where the legislation, without being bent on discrimination, confers on the most representative unions - a description based on their greater number of members - in certain privileges in connection with the defence of the occupational interests of their members, by virtue of which they alone are in a position to act effectively, the granting of such privileges should not be made subject to such conditions as to influence unduly the choice of workers regarding the organisation to which they intend to belong. (See paragraph 146 of the 1983 General Survey of the Committee of Experts and paragraphs 234, 235 and 238 of the Digest of decisions and principles of the Committee on Freedom of Association.)

The Committee trusts that the Government will examine attentively the conclusions and observations that it has made and will take appropriate measures to bring the legislation into complete conformity with the Convention.

The Committee is addressing a direct request to the Government on the definition of the term "worker" in the Act, on the representation of the interests of individual members of associations which do not have trade union status and on the conditions of eligibility of trade union leaders.