Observación (CEACR) - Adopción: 1989, Publicación: 76ª reunión CIT (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.