Definitive Report - Report No 388, March 2019

1. 73. The Committee last examined this case at its March 2013 meeting, when it presented an interim report to the Governing Body [see 367th Report, paras 163–180].
2. 74. The Government sent its observations in communications dated 31 May 2013, 27 May 2015, 1 April and September 2016, and 5 February 2019.
3. 75. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 76. The Committee recalls that at its March 2013 meeting, when it examined the complaints regarding the refusal of enterprises in the railways sector to engage in collective bargaining, as well as acts of anti-union harassment and persecution, it made the following recommendations [see 367th Report, para. 180]:
   • (a) The Committee firmly expects that the necessary steps will be taken so that the Ministry can, without delay, take an appropriate decision with regard to the requests for recognition of representativeness that it has received, and so that the representative workers’ organizations and companies in the railways sector can regulate conditions of employment by means of collective bargaining.
   • (b) The Committee firmly urges the Government to send its observations without delay on the following recommendations that it made at its meeting in November 2011: (a) the Committee requests the Government to keep it informed of the final outcome of the judicial proceedings with respect to unfair labour practices filed with regard to the alleged threats of dismissal of members of the APDFA and with respect to the sanction imposed on delegate Mr Darío Corbalán in the Ferrovías SA  enterprise; and (b) the Committee regrets the Government’s considerable delay in responding and urges it to carry out an investigation into the following allegations of anti-union discrimination: (1) pressure on members to leave the union; refusal to recognize the election of delegates and to engage in dialogue with elected delegates; refusal to provide a notice board; prohibition of trade union assemblies and denial of trade union leave at Ferrosur SA;  (2) denial of the legality of the trade union election procedure and refusal to recognize elected delegates at América Latina Logística Central  and at América Latina Logística Mesopotámica  ; and (3) threats of dismissal of members at Ferrovías SA. The Committee requests the Government to inform it of the results of the investigation.

B. The Government’s reply

1. 77. In its communication of 10 June 2013, and in respect of Committee recommendation (a) (concerning the Ministry making decisions with regard to the requests for recognition of representativeness made by various representative workers’ organizations and enterprises in the railways sector to enable them to regulate conditions of employment by means of collective bargaining), the Government stated that the Ministry of Labour’s National Directorate of Trade Union Associations made the relevant decisions regarding the requests for recognition of trade union representativeness in decisions dated 4 April 2013. The Government attached a copy of the decisions, in which the trade union representativeness of the senior staff officers in various enterprises, including enterprises “A” and “C”, is defined. The Government also attached a copy of a decision dated 12 November 2012 in which the request for the recognition of the trade union representativeness of enterprise “B” was rejected because the enterprise’s request involved the reclassification of workers, a matter that it was not for the National Directorate of Trade Union Associations to resolve.
2. 78. In its communication of 27 May 2015 and in respect of Committee recommendation (a) (specifically the possibility for representative workers’ organizations and companies in the railways sector to regulate conditions of employment by means of collective bargaining), the Government stated that the Association of Management Staff of the Argentine Railways and General Ports Administration (APDFA) (the complainant organization) had concluded a wage agreement with enterprise (A), which was approved by a decision dated 6 March 2015, and also four other agreements with the same enterprise, which were approved in 2014 and registered as Nos 1835/14, 1836/14, 1837/14 and 1838/14. The Government further states that the APDFA also negotiated agreements with enterprises “C” and “D”, which were approved by decision No. 939/12.
3. 79. In its communications dated 1 April and September 2016, the Government stated that while it had been able to locate two judicial proceedings in which the APDFA had been involved, they had been shelved owing to lack of movement since 2008 and 2010, and consequently it had requested that they be reactivated.
4. 80. In its communication dated 4 February 2019, the Government states that the National Labour Court ruled against enterprise “D”, overturning the dismissal, ordering the reinstatement of the trade union delegate Mr Ramón Darío Alcaraz, and ordering the enterprise to pay the outstanding wages.

C. The Committee’s conclusions

1. 81. The Committee recalls that the allegations that were still pending when the Committee examined this case at its meeting in March 2013 related to the decisions to be made by the Ministry in respect of the requests for recognition of representativeness made by various workers’ organizations to enable them to regulate terms and conditions of employment by means of collective agreements (recommendation (a)) as well as to acts of harassment and persecution of the members and delegates of the Association of Management Staff of the Argentine Railways and General Ports Administration (APDFA) (the complainant organization) (recommendation (b)).
2. 82. The Committee takes note of the various communications sent by the Government relating to recommendation (a) from the previous examination of the case and in respect of which the Government states that: (i) in decisions dated 4 April 2013, the Ministry of Labour’s National Directorate of Trade Union Associations made the relevant decisions regarding the requests for recognition of trade union representativeness (the Government attached a copy of the decisions); (ii) the APDFA concluded agreements with three enterprises that were approved by way of ministerial decisions dated 2014 and 2015 (the Government attached copies of the decisions); (iii) while it had been able to locate two judicial proceedings in which the APDFA was involved, they had been shelved owing to lack of movement since 2008 and 2010, and consequently it had requested that they be reactivated; and (iv) the National Labour Court ruled against enterprise “D”, overturning the dismissal, ordering the reinstatement of the trade union delegate Mr Ramón Darío Alcaraz, and ordering the enterprise to pay the outstanding wages (which the Government had already reported on and which the Committee had taken note of in its March 2013 report).
3. 83. While taking due note of this information, the Committee regrets that the Government has not supplied information regarding recommendation (b) from the previous examination of the case, relating to pressure on members to leave the union, refusal to recognize the election of delegates, threats of dismissal and other anti-union acts. The Committee trusts that the Government will review with the APDFA any matter that may have remained pending in respect of the alleged acts of anti-union discrimination dating back to 2010.