Definitive Report - Report No 350, June 2008

1. 218. The complaint is contained in a communication from the Association of State Workers (ATE) and the Central of Argentinean Workers (CTA) of April 2007.
2. 219. The Government sent its observations in a communication dated 29 January 2008.
3. 220. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 221. In their communication of April 2007, the CTA and the ATE allege that the decision of the Ministry of Education of the Province of Salta to replace striking teachers with substitute teachers is in violation of Convention No. 87. The complainants indicate that article 14bis of the Argentine Constitution guarantees the right to strike as a fundamental right of trade unions. The second indent of article 75, paragraph 22, accords constitutional status to a series of international human rights treaties, including the 1966 New York Covenants, thereby granting the same status to Convention No. 87 (Article 8, paragraph 3, of the International Covenant on Economic, Social and Cultural Rights and Article 22, paragraph 3, of the International Covenant on Civil and Political Rights). The International Covenant on Economic, Social and Cultural rights further specifies that States Parties undertake to ensure the right to strike (Article 8, paragraph 1(d)). This circle of protection for freedom of association is completed by the first indent of article 75, paragraph 22, of the Constitution of the Nation, which grants legal precedence to other international treaties, including ILO Conventions. Moreover, the Constitution of the Province of Salta guarantees all workers the exercise of the right to strike (articles 44(10), 46 and 65). The complainants indicate that, despite all the provisions formally protecting the right to strike, the Minister of Education of the Province of Salta, through resolution No. 602/07, ordered the replacement of all teachers who had joined the strike called by the Association of State Workers. According to the complainants, this resolution is intended to crush the effectiveness of the strike and illegally discriminate against workers for participating in the strike by means of their replacement.
2. 222. The complainants observe that, on 6 February 2007, the Ministry of Education of the Province of Salta was informed of the teaching sector’s concerns over the recovery of their basic wage level. On 21 February 2007, having received no reply to the previous letter requesting a salary increase, the ATE declared a state of alert and permanent mobilization and stated that, in the absence of a favourable response, direct action would be taken. The same letter was sent to the Provincial Directorate-General of Labour of the Province of Salta on the same date. Finally, and in the complete absence of any response, the ATE Provincial Board put into effect its declaration that direct action would be taken by declaring a stoppage and mobilization for an indefinite period as of 1 March 2007. The same letter was sent to the Minister of Education.
3. 223. The complainants explain that the protest measures were very intensive, with the participation of the majority of workers in the sector and that, as a result, the administration took action to undermine the effectiveness of the measures and to intimidate the workers who participated in them. They allege that the measures taken included secret investigations of the strikers and persons connected with them, as well as the union leaders involved in the collective dispute. The investigations were allegedly carried out by the Salta police. A “blacklist” was drawn up on the basis of reports from the above investigations, containing the names of workers who participated actively in the union action. In this context, the Minister of Education for the Province of Salta issued resolution No. 602/07 of 26 March 2007, in which it was decided to “replace” the striking teachers with substitute teachers, which is a clear manoeuvre to crush and destroy the strike.
4. 224. The complainants transcribe the provisions of the resolution which are as follows: “Section 1 – Authorize the General Directorates of General Basic Education and Initial Education, Polimodal Education, Special Schemes and Higher Education to cover the teaching functions currently not being fulfilled due to the withdrawal of their staff as a result of their involvement in the protest action, thereby jeopardizing the effective and continuous provision of the service, and consequently being under the obligation to provide coverage in accordance with the Points Scales until the return of the above to their habitual functions on a regular basis. Section 2 – The staff members designated under these specific circumstances shall effectively discharge the service in practice, ceasing to do so upon the return of the staff responsible for such functions. Section 3 – It shall be the responsibility of the administrative team and/or the Supervisor to adopt the appropriate procedure to give effect to the above provisions.” The resolution was implemented in institutions under the responsibility of the Ministry of Education of the Province of Salta as from 26 March 2007.
5. 225. According to the complainants, it should be emphasized that the court ruling that the Minister invoked as the “basis” for the above resolution nowhere orders the replacement of striking workers, but that education should be guaranteed. What is more, it does not support the claim of amparo (protection of constitutional rights) in relation to the replacement of strikers. Accordingly, if it is interpreted correctly, the Minister has violated the court ruling which she says and claims to be following, thereby aggravating the violation of freedom of association as, in full knowledge that such a measure cannot be taken, she intentionally did so to break the work stoppage. Moreover, on 2 April 2007 the administration announced in the daily newspaper with the biggest circulation that a joint resolution, Nos 248 and 618, had been issued under the terms of which teachers who returned to work on the first working day of April (3 April 2007) and undertook to discharge their functions effectively and without interruption (that is, renouncing the right to strike), would have their wages for the strike days paid in instalments. While this is a much less coercive act by the Ministry, with the intention of “persuading” or “inducing” the strikers to end the stoppage, it is also an act of discrimination as those who refuse to end the strike will have their wages deducted in full. These are the acts that led to the presentation of the present complaint.
6. 226. According to the complainants, this is a manoeuvre by the government of the Province of Salta, through the Ministry of Education and the Salta police, to weaken, obstruct and undermine the effectiveness of the strike. The replacement of the strikers was intended solely to intimidate and discipline state workers in general. The complainants emphasize that, although it is true that some limitations may be imposed on the exercise of the right to strike, especially in relation to public employees as, a priori, certain categories in the public sector could be classified as essential services (although under Argentine law this classification is confined to specific activities that do not include public employment in general), such considerations go beyond the context of the present case. In this respect, the provincial State does not refer to any restriction or difficulty related to this issue, but simply confines itself to penalties which discriminate against those who took part in the strike. The complainants consider that this demonstrates a clear violation of freedom of association by the Province of Salta, which penalized workers for participating in a strike, replacing them with substitute teachers to break the strike, in violation of Articles 3 and 10 of Convention No. 87.

B. The Government’s reply

1. 227. In its communication of 29 January 2008, the Government indicates that, as the complainants are challenging the action of a provincial government, it should be recalled that under the federal system of government the provinces are free to take the action that they consider appropriate in terms of managing their respective provincial administrations, without interference by the national Government. In that regard, and as this case concerns resolution No. 602 of the Ministry of Education of Salta, which authorizes the use of substitute teachers to cover the duties of the teachers on strike for an indefinite period of time, the Government notes that the dispute was resolved by voluntary conciliation between the government of the Province of Salta and the union representatives of the teachers on 12 and 13 April 2007, with classes recommencing in schools on 15 April as a result of the cessation of the protest action. Under the terms of the agreement, it was envisaged that effect would not be given to resolutions Nos 602, 671 and 618 of the Ministry of Education and the related administrative measures, and a proposal was made for a wage increase and the payment of strike days, with the recuperation of the classes that had been lost. Finally, the Government observes that the disputed provincial resolution was not given effect and that the grounds that gave rise to this freedom of association case no longer exist, with the result that the matter has therefore been resolved.

C. The Committee’s conclusions

1. 228. The Committee notes that in the present case the complainant organizations challenge resolution No. 602/07 of 26 March of the Ministry of Education of the Province of Salta, which envisaged the replacement of all the teachers who participated in the work stoppage and mobilization for an indefinite period as of 1 March 2007. The complainants indicate that the work stoppage was decided upon in view of the absence of a reply by the authorities of the Ministry of Education of the Province to the communication that they sent on 6 February expressing the concern of teachers to recover the level of their basic wage and requesting a wage increase. The Committee also notes the serious allegations of the complainant organizations that the resolution was intended to undermine the effectiveness of the stoppage (they add that, in this respect, under the terms of resolutions Nos 248 and 618, workers who returned to work on the first working day of the month of April and who undertook to discharge their functions effectively and without interruption would, if they had participated in the stoppage, be paid the strike days in instalments): the resolutions were also intended to intimidate workers who participated in the strike (according to the complainants, in particular the police of the Province had undertaken secret investigations on the strikers and a blacklist was drawn up containing the names and number of strikers, based on the reports of the investigations).
2. 229. The Committee notes the Government’s indications that: (1) the dispute was resolved through voluntary conciliation between the government of the Province of Salta and the union representatives of the teachers on 12 and 13 April 2007, with classes recommencing on 15 April as a result of the lifting of the protest action; and (2) under the terms of the agreement, it was envisaged that effect would not be given to resolutions Nos 602, 671 and 618 of the Ministry of Education and the related administrative measures, combined with a proposed wage increase and the payment of the strike days, with the recuperation of the classes that had been lost.
3. 230. Taking into account the information on the agreement that was reached, under the terms of which effect was not given to the administration measures and penalties were not imposed for participation in the strike, the Committee will not proceed with its examination of the allegations made in the present case. The Committee nevertheless feels it is necessary to recall the principle that the “hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 632], and the importance of the principle that workers who exercise their right to strike peacefully should not be subject to intimidation of any type.