Informe provisional - Informe núm. 58, 1962

1. 532. The Committee already considered this case at its 28th Session (May 1961) and, except for one allegation by the complainants, it submitted its final conclusions regarding the whole case to the Governing Body. These conclusions were adopted by the Governing Body at its 149th Session (June 1961).

533. According to the allegation left pending, Mr. Raúl Ignacio Robacio, General Secretary of the Buenos Aires Bank Employees' Union (S.E.B.B.A.), had been the victim of anti-trade union discrimination when he was transferred by the authorities of the National Bank to a branch situated 670 kilometres from Buenos Aires and an administrative charge was at the same time initiated against him designed to convert this posting into an outright dismissal.

1. 534. The complainants state that the S.E.B.B.A then applied to the labour judge for an injunction to prevent any modification in the situation of Mr. Robacio until judgment had been given on a lawsuit brought by the S.E.B.B.A. Although the judge granted this injunction, the complainants allege that the Bank refused to comply with it, despite a further sentence by the same judge against the Chairman of the Bank for refusal and contempt of court. The authorities of the National Bank having appealed against the labour judge's decision, the court of appeal on 19 April 1960 confirmed the interlocutory injunction granted by the judge. The National Bank is alleged to have refused to comply with this order also.
2. 535. Having noted that the Government's reply made no comment on this point, the Committee decided it should adjourn examination of this particular aspect of the case pending receipt of information from the Government, and it made an appropriate recommendation to the Governing Body.
3. 536. As adopted by the Governing Body, the Committee's conclusions and in particular the above-mentioned request for information were brought to the notice of the Government by a letter from the Director-General dated 7 July 1961.
4. 537. The Government replied by a communication dated 11 September 1961, which does not, however, contain any information concerning the above questions.
5. 538. In these circumstances the Committee recommends the Governing Body to request the Government once again to furnish its observations in respect of the allegations to the effect that the management of the National Bank did not comply with the injunctions granted by the labour judge and subsequently affirmed by the court of appeal relating to the situation of the General Secretary of the Buenos Aires Bank Employees' Union.
6. 539. Although the Government's latest communication does not answer the request for information, it does make several comments regarding the Committee's conclusions as approved by the Governing Body. These conclusions, contained in paragraph 124 (a), (b), (c), and (d) of the Committee's 57th Report read as follows:
7. 124. As regards the case as a whole the Committee recommends the Governing Body:
8. (a) to decide, for the reasons indicated in paragraphs 112 to 117 above, that the allegations concerning the prohibition of National Bank employees from engaging in trade union activities do not call for further examination;
9. (b) to draw the attention of the Government to the fact that the privileged position accorded to associations enjoying trade union status limits considerably the field of action of organisations which do not have this status, and may indirectly operate against the freedom of workers to belong to organisations of their own choosing, and to the desirability of considering the possibility of abolishing the distinction made under the Act between associations with trade union status and other occupational organisations;
10. (c) to draw the attention of the Government to the importance attached by the Governing Body to the principle whereby workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment-dismissal, transfer or other prejudicial measures-and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions;
11. (d) to draw the attention of the Government to the fact that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure respect for the fundamental principle that workers' organisations should have the right to elect their representatives freely.
12. ......................................................................................................................................................
13. 540. The Government states in the first place that it is unable to agree with the Committee when, in its 57th Report, it draws " the attention of the Government to the fact that the privileged position accorded to associations enjoying trade union status limits considerably the field of action of organisations which do not have this status, and may indirectly operate against the freedom of workers to belong to organisations of their own choosing... ".
14. 541. The Government states that this view can only be based on misinterpretation of Act No. 14455 of 8 August 1958 concerning occupational associations. The Government states that Act No. 14455 is based on the broadest democratic concepts and safeguards the workers' rights by permitting more than one trade union to operate, and that the very essence of trade union democracy lies in the possibility for the workers to set up as many trade unions as they wish. The Government quotes section 2 of the Act which recognises the right of the workers to " establish and become affiliated to industrial associations and trade unions in full freedom and without previous authorisation ", it being further understood that " the right to become affiliated shall include the right not to become affiliated ". The Government goes on to declare that workers enjoy maximum freedom in this connection under the law and that it would be difficult to conceive provisions more in keeping with democracy and trade union rights.
15. 542. Nevertheless, the Government goes on to say, within this system of multiple trade unions, it has been essential to establish a legislative procedure enabling collective bargaining to take place, that is to say, drafting contractual standards and providing for their application in the various branches of the economy. To that end, the Act empowers the " most representative " industrial association to bargain collectively on behalf of the whole occupational category (section 16). The Government states that this constitutes " trade union status ", or recognition of the representative nature of the association with the greatest membership, for the purposes of collective bargaining.

B. B. The Committee's conclusions

1. 543. This is not the first time that the Committee has had to examine the consequences of the distinction made in Argentine legislation between organisations with trade union status and others. Nor is it the first time that the Argentine Government has disputed the validity of conclusions reached by the Committee and the Governing Body in this connection. It would, therefore, seem essential to state the exact position of the Committee and the Governing Body in regard to this matter.
2. 544. The Government's comments would seem to indicate that it believes the Committee's and the Governing Body's remarks to relate essentially to the fact that certain particular privileges are granted only to the most representative organisations. This was not in fact the position adopted either by the Committee or by the Governing Body.
3. 545. On several occasions, and particularly during discussion on the draft of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the I.L.O states the concept of " most representative " organisations.
4. 546. Thus, the mere fact that the law of a country draws a distinction between the most representative trade union organisations and other trade union organisations is not in itself a matter for criticism, provided that such distinction does not accord to the most representative organisation privileges extending beyond the privilege of priority, on the ground of its having the largest membership, 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, this distinction should not have the effect of depriving trade union organisations not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes, as provided for in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Argentina.
5. 547. In this respect the Government's reply to the Committee's and the Governing Body's conclusions concerning the section of the Committee's report quoted in paragraph 540 above states that the fact that an association does not enjoy trade union status does not prevent it apart from the right to participate in collective bargaining-from fulfilling its functions of defending the workers' occupational interests and pursuing its economic, cultural and sporting and other activities perfectly normally. In the Government's opinion, Act No. 14455 does not confer any " privileged status " on associations having trade union status nor is it correct that it " limits considerably the field of action of organisations which do not have this status "; similarly, it is stated that it would be wrong to suggest that the system of law in Argentina " can indirectly affect the right of workers to join the organisations of their own choosing ".
6. 548. At this stage reference should be made to the text of the Act itself. The consequences of the distinction drawn between organisations which respectively have or have not trade union personality would appear to be determined in sections 15 and 16, defining the functions and rights of these two classes of organisations. Section 16 provides that the rights and functions listed shall be enjoyed exclusively by organisations having trade union status. The rights thus granted under section 16 only to organisations having such status include: participation in the work of the public bodies concerned with the regulation of labour and social security; collective bargaining and concluding collective agreements; collaborating with the State in a technical and advisory capacity in the study and solution of problems of concern to the occupation that they represent; holding meetings without obtaining prior permission; defending and representing the individual interests of members vis-à-vis the social security institutions, courts of law and other public bodies; and the defence and representation of the occupational interests of employees vis-à-vis the State and the employers. Although the last of the above-mentioned rights is also granted to ordinary organisations, section 15 states that such organisations shall enjoy these rights only provided that there is no organisation with trade union status for the particular occupational category.
7. 549. Among the activities in which ordinary organisations may engage, section 15 mentions the establishment of provident institutions, holiday camps, canteens, hospitals and the like, the formation of co-operatives of producers and consumers, the promotion of general and vocational education by means of libraries, schools and so on.
8. 550. It cannot be disputed that the functions which organisations not having trade union status are allowed to fulfil in the field of trade union activities are exceedingly limited. Article 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Argentina, defines the term " occupational organisation " as meaning " any organisation of workers or of employers for furthering and defending the interests of workers or of employers ". Examination of the Act would appear to indicate that ordinary organisations do not enjoy the means to achieve this end and that their scope of action is greatly restricted.
9. 551. The Committee and the Governing Body already arrived at the same conclusions when they examined Case No. 190, also concerning Argentina. In that instance, considering the limited functions open to ordinary organisations, the Committee felt that the distinction made in national legislation could have the indirect consequence of restricting the freedom of the workers to belong to the organisations of their own choosing.
10. 552. The reasons which led the Committee and the Governing Body to adopt this position are as follows. As a general rule, when a government can grant an advantage to one particular organisation or withdraw that advantage from one organisation in favour of another, there is a risk, even if such is not the government's intention, that one trade union will enjoy an unfair advantage or disadvantage in relation to the others, which thereby constitutes an act of discrimination. More precisely, by placing one organisation at an advantage or at a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organisation to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons. Thus, the freedom to choose is a right expressly laid down in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which Argentina has ratified.
11. 553. The Committee considers that the latest observations submitted by the Government do not add any new elements, with regard to the question as a whole, to the arguments which it presented earlier, and that, consequently, the Committee has no reason to modify its previous conclusions, as stated in paragraph 124 of its 57th Report, which, as stated above, were approved by the Governing Body.