Report in which the committee requests to be kept informed of development - Report No 388, March 2019

1. 85. The complaint is contained in a communication from the Mendoza Association of Health Professionals (AMPROS) and the Federation of Health Professionals of the Argentine Republic (FESPROSA) dated 23 February 2015. The complainant organizations provide additional information in communications of June 2015, April and June 2016, and June 2018.
2. 86. The Government sent its observations in communications of October 2015, October 2016 and February 2019.
3. 87. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 88. In a communication dated 23 February 2015, the complainant organizations indicate that, in May 2007, a collective labour agreement was concluded with the government of Mendoza province, which covered all health professionals in the province for whom career-specific legislation was in place. The collective agreement was approved by Decree No. 1630/07. The decree and the collective agreement were then ratified by Act No. 7759, published on 5 October 2007. At the same time, the Regularization Act (No. 7757) was adopted, which provided for the abolition of ad hoc contracts and contracts for the provision of services, with a view to ending precarious employment in the sector. The complainants emphasize that the provisions of the collective agreement recognized the genuine and subjective right of health professionals to be paid in accordance with the established wage structure, including for overtime worked.
2. 89. The complainant organizations allege that, after many years under this system, the government of Mendoza province, supported by its political majority, attempted to undo the abovementioned social progress with a series of regressive regulations, including with regard to the right to strike, removing the possibility for a group of health professionals to jointly negotiate their pay conditions through their trade union representatives. They refer in this respect to: (i) section 126 of Act No. 8701 of 11 October 2014, and its implications for remuneration and the maximum number of overtime hours in emergency activities; (ii) Act No. 8727 of 27 October 2014, which establishes limitations on pay with reference to the statutory remuneration for the post of governor of the province (Wage Ceiling Act) and, according to the complainants, represents a risk of pay cuts with clear discrimination against the most specialized and senior professionals, or those who cover inhospitable areas; and (iii) Ministry of Health Decision No. 3448 of December 2014, which calls into question the recruitment system set out in the collective agreement and ratified by Act No. 7759.
3. 90. According to the complainants, measures were adopted unilaterally without the necessary negotiation between the parties concerned or even information being made available. They also allege that the government of the province, alongside this violation of collective bargaining, took repressive measures against the trade unions and made personal attacks on union leaders.
4. 91. The complainant organizations also allege that the Labour Reorganization Act (No. 8729 of 12 November 2014) is having an impact on several aspects of freedom of association, in particular: (i) the issue of the classification of direct action measures by the Under-Secretariat of Labour and Employment: under section 79, “the Under-Secretariat of Labour and Employment shall be responsible for declaring whether a direct action measure is illegal. In the event that essential services are affected, the prior decision of the Guarantees Commission is required”; and (ii) the determination of a minimum service in essential services (section 69). This section provides for a hearing to be held before the implementing authority so that the parties can agree on the minimum service to be maintained during the dispute, the arrangements for its implementation and the staff to be assigned to provide it. The complainants indicate, however, that under section 71 of the Act, if the parties do not reach an agreement within the specified time frame, or if the minimum service is insufficient, the implementing authority will refer the case to the Guarantees Commission, which will determine the minimum service. They therefore allege that that this provision, in the absence of specified time frames, represents an obstacle to strike action, as it depends solely on the will of a body which is itself answerable to the Government, thus transforming a simple and swift mandatory conciliation procedure into a unending, tortuous process, with the aim of rendering the right to strike indefinitely conditional in the face of any dissent, which is not in conformity with the Labour Regulations Act (No. 25877).
5. 92. Lastly, the complainant organizations allege that the disregard for collective bargaining was accompanied by attacks on trade union representatives, beginning with the calling into question of trade union leave, which had been established for many years through collective agreements. They allege that the principal rationale used by the provincial government for this practice was that the governor of the province had not approved the agreements. They also report attempts to force union leaders to retire and offensive comments made by the Minister of Health regarding the health sector trade unions.
6. 93. In their communication of June 2015, the complainant organizations report that the implementation of Act No. 8727 has led to significant pay cuts for the most qualified and senior workers in the public administration, who also have the longest working hours. They indicate that, in May 2015, on account of the marked increase in inflation in the country, through joint negotiation in the health sector a pay increase of 35 per cent was agreed upon for all workers to offset the loss of purchasing power. However, this increase was not granted to all workers, as the Wage Ceiling Act was implemented, leading to a pay cut of up to 70 per cent for the most qualified workers who earned more than the governor of the province.
7. 94. In their communication of April 2016, the complainant organizations allege a further violation of the right to collective bargaining through the adoption of Act No. 8834, sections 5 and 6 of which, like the provisions of section 126 of Act No. 8701, allow the executive authority to render workers’ employment situation more precarious, leading to a decline in their conditions of work. They reiterate that professional workers are not only excluded from the overtime system, but there are also no statutory limits on their standard working hours. The complainants also allege that the power granted to the Ministry of Health allows it to transfer health professionals without any restrictions. Furthermore, they allege that collective bargaining is violated by Decree No. 101/2016, which provides for the suspension of the productivity bonus for all providers in the healthcare and assistance network of Mendoza province for 180 days, renewable for the same period or, where applicable, as long as the causes and effects from which it arose persist, in violation of higher-ranking legislation, namely Act No. 7759 of December 2007.
8. 95. In their communication of June 2016, the complainant organizations allege personal attacks on trade union leaders, with attempted dismissals, huge deductions and the abolition of agreements, all aimed at eliminating representation in their workplaces, and draw particular attention to the harassment and discrimination suffered by the AMPROS trade union leader, Ms Gladys Velásquez. They explain that, in the context of pay negotiations between the workers and the employers in 2014, there were demonstrations, assemblies and protests in workplaces and in the city in order to raise public awareness. The provincial government then decided to invoke criminal law and, in response to a demonstration by health workers on 14 March 2014 as part of their call for a wage increase, the judicial authority declared that the demonstrators were violating the Penal Code and charged them under section 194 thereof, which provides as follows: “Anyone who, albeit without endangering the public, impedes, obstructs or hinders the normal operation of land, water or air transport, or of public communication, water, electricity or fuel services, shall be liable to imprisonment of three months to two years.” The provincial judiciary heard that the actions concerned had led to streets being blocked and so they initiated investigations which gave rise to judicial proceedings (case No. FMZ 30096/2015) for the alleged offence of obstructing public services. The complainants report that although the trial began in the ordinary (provincial) courts, it was then transferred to the federal courts, where it remains at present. They also allege that this provision of the Penal Code is being used in a discriminatory manner by the authorities, which is testimony to its sole purpose of social control.
9. 96. In its communication of June 2018, AMPROS requested urgent intervention, indicating that the criminal proceedings against the union leader Ms Gladys Velásquez had not made any progress and that this constituted a permanent threat from the public authorities.

B. The Government’s reply

1. 97. In its communication of October 2015, the Government reported that the present complaint was the subject of judicial proceedings brought before the Supreme Court of Justice of Mendoza by the complainant union. In its communication of October 2016, the Government indicated that it had issued a protective measure preventing the province from implementing Act No. 8727 and that the case concerning Ms Gladys Velásquez for the alleged offence of obstruction of public services was, at that time, before the federal courts.
2. 98. In a communication of February 2019, the Government refers to the decision of the Supreme Court of Justice of Mendoza of 30 November 2015 (case No. 111683), filed under: AMPROS et al v. Government of the Province of Mendoza re administrative proceedings, indicating that the filed administrative action was rejected. It also indicates that the following case is currently before the courts:
   • Humberto Notti Paediatric Hospital v. Gladys Irene Velásquez re lifting of trade union immunity, before the Sixth Labour Division of the First District Court of Mendoza (case No. 154891), proceedings initiated to remove the respondent’s trade union immunity (section 52 of the Trade Unions Act (No. 23551)) to enable receipt of retirement benefits. The Government indicates that, on 24 August 2017, the Sixth Labour Division of the province of Mendoza allowed the lifting of trade union immunity for the purpose of lawfully ordering the union leader, who at that time was 66 years of age and had 30 years of service at the hospital, to initiate the relevant procedures for receipt of retirement benefits. The Government indicates that the division ruling (in cases Humberto Notti Paediatric Hospital v. Gladys Irene Velásquez re lifting of trade union immunity and Extraordinary plea of unconstitutionality/appeal for judicial review) was the subject of an extraordinary appeal and, on 10 April 2018, the Supreme Court of the province rejected the appeal. It also notes that, although the plaintiff was elected to full union office and was granted paid trade union leave for a term of four years, by the time the ruling was issued and in view of the time which had elapsed since the original claim, the claim had ceased to have any practical validity.
3. 99. In another communication of February 2019 regarding the alleged offence of obstruction of public services, the Government indicates that in September 2018 the federal courts (Federal Court No. 1 of Mendoza) declared the extinction of the criminal proceedings by prescription.

C. The Committee’s conclusions

1. 100. The Committee notes that the allegations in the present case refer to: (i) the calling into question of collective bargaining and collective agreements in the health sector in the province of Mendoza through the unilateral adoption of new regulations as from 2014; (ii) the calling into question of trade union rights through these regulations, particularly with regard to the classification of direct action measures (section 79 of Act No. 8729 of November 2014) and the definition of minimum services (section 69 of the Act); and (iii) discriminatory practices against union representatives.
2. 101. The Committee notes that the complainant organizations allege that the regulations adopted in 2014 in the province of Mendoza endanger the favourable collective agreements that have been in force for some time in relation to wage levels, working time and the staff recruitment system. In particular, it notes the unions’ indications regarding: (i) section 126 of Act No. 8701 of 11 October 2014, and its implications for remuneration and the maximum number of overtime hours in emergency activities; (ii) Act No. 8727 of 27 October 2014, which provides for limits on pay with reference to the statutory remuneration for the post of governor of the province (Wage Ceiling Act) and, according to the complainants, represents a risk of wage cuts with clear discrimination against the most specialized and senior professionals, or those who cover inhospitable areas; and (iii) Ministry of Health Decision No. 3448 of December 2014, which modifies the recruitment system provided for in the collective agreement and ratified by Act No. 7759. It notes that the Government provides information regarding Act No. 8727, which is currently the subject of judicial proceedings brought by the complainant union before the Supreme Court of Justice of Mendoza. The Committee further welcomes the efforts in the meantime to issue a protective measure preventing application of Act No. 8727.
3. 102. The Committee recalls that it is not competent to give opinions on the above-mentioned matters which were amended by legislation in 2014. However, it considers that legislation that modifies collective agreements that have been in force for some time and tends to restrict the scope of collective bargaining runs counter to voluntary collective negotiation, since it is for the parties concerned to decide on the subjects for negotiation. In this respect it recalls that, with regard to allegations concerning the refusal to bargain collectively on certain matters in the public sector, the Committee previously recalled the view of the Fact Finding and Conciliation Commission on Freedom of Association that “there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation”. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and that such matters should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of mutual good faith and trust [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1289 and 1300]. The Committee requests the Government to keep it informed of the outcome of the plea of unconstitutionality (Act No. 8727) pending before the Supreme Court of Justice of Mendoza and of any measure that may be adopted pursuant to it.
4. 103. With regard to the Labour Reorganization Act (No. 8729 of 12 November 2014), the Committee notes the complainant organizations’ allegations that, under section 71 of this Act, if the parties do not reach an agreement on establishing a minimum service in essential services within the specified time frame, or if the minimum service is insufficient, the implementing authority will refer the case to the Guarantees Commission, which will determine the minimum service. According to the complainants, this would represent an obstacle to strike action, as it depends solely on the will of a body which is itself answerable to the Government.
5. 104. The Committee notes in regard to the health sector that the hospital sector may be considered to be an essential service [see Compilation, op. cit., para. 840], in which strikes may be restricted. As to the allegations concerning the competent authority to determine the minimum services and its impact on their trade union rights, the Committee wishes to recall that the workers who do not perform duties in essential services in the strict sense of the term should be able to participate in the definition of minimum services and any disagreement between the parties on this matter should be resolved by an independent body.
6. 105. Regarding the classification of direct action measures (section 79 of Act No. 8729), the Committee notes that this section provides that “the Under-Secretariat of Labour and Employment shall be responsible for declaring whether a direct action measure is illegal. In the event that essential services are affected, the prior decision of the Guarantees Commission is required”. The Committee wishes to recall in this respect that responsibility for declaring a strike illegal should not lie with the government, but with an independent and impartial body [see Compilation, op. cit., para. 909]. In view of the above, the Committee requests the Government to ensure that the provincial government takes the necessary measures, including of legislative nature, to ensure that responsibility for declaring a direct action illegal does not lie with the provincial government but with an independent and impartial body.
7. 106. As regards the allegations of anti-union discrimination and in particular the pressure exerted on the AMPROS trade union leader Ms Gladys Velásquez, the Committee notes the ruling of 24 August 2017 of the Sixth Labour Division of the province of Mendoza, which allowed the lifting of trade union immunity in order to oblige the union leader (who at that time was 66 years of age and had 30 years of service) to initiate the relevant procedures for receipt of retirement benefits. Regarding the allegations of harassment and discrimination suffered by the union leader, who was prosecuted by the federal authorities for having participated in a social protest in 2014, the Committee notes the Government’s indication in its communication of February 2019 that in September 2018 the federal courts (Federal Court No. 1 of Mendoza) declared the extinction of the criminal proceedings by prescription. While noting that for this reason there are no longer any charges against the trade union leader, the Committee trusts that this provision of the Penal Code will not be used in a manner as to stigmatize trade union leaders legitimately exercising their functions.
8. 107. With regard to the alleged calling into question of trade union leave which had been established through collective agreements for many years, the Committee notes the complainants’ indications that the principal rationale used by the provincial government for this practice was that the governor of the province had not approved the agreements. In the absence of further details from the Government, the Committee considers that collective agreements enter into force at the time of signature, while the requirement for their registration by the competent authorities is valid when they affect the interests of third parties.