Informe definitivo - Informe núm. 310, Junio 1998

1. 68. The Committee examined this case for the last time at its meeting of March 1997 when it presented an interim report to the Governing Body (see 306th Report, paras. 56-69, adopted by the Governing Body at its 268th Session (March 1997)). Subsequently, the State Workers' Association (ATE) sent additional information in a communication dated 31 July 1997.
2. 69. The Government sent its observations in a communication dated 27 February 1998.
3. 70. 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 Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 71. At its previous examination of the case, when it analysed the allegations made concerning the transfer and subsequent dismissal of a trade union official due to anti-trade union reasons, the Committee noted that the complainant's and the Government's versions of the events were contradictory. In particular, the Committee noted in its conclusions that (see 306th Report, paras. 65 and 66):
2. ... according to the complainant organization, the decision to transfer the trade union official Miguel Hugo Rojo from one workplace to another and the subsequent measures taken against him were on account of his trade union action in a collective dispute which began at the beginning of February 1992. According to the documentation presented by the complainant, strikes took place and accusations were made of financial irregularities and corruption -- such as an administrative resolution which changed the rules pertaining to the "incentive fund" for workers. The Committee also notes that the Government denies that the measures taken against Miguel Hugo Rojo had anti-union motives. The Committee nevertheless notes that the administrative resolutions containing the grounds for the transfer of Miguel Hugo Rojo and the penalties against him, which have been communicated by the complainant organization, indicate the following:
3. -- for reasons of service and with a view to consolidating its skilled staff, the internal auditing department temporarily transferred the employee Mr. Rojo -- tax inspector -- to another department;
4. -- the person concerned refused to comply with this order, despite the fact that it was repeated; he then put in writing that the person who had decided the transfer "lacked the necessary moral fibre to conduct the organization and was totally unable to function", which caused "moral damages to his hierarchical superior, undermining his honour and reputation" ("slander");
5. -- after having "failed to fulfil his duties" and "being disrespectful and insulting to his superiors", which made him "subject to disciplinary measures", he was suspended;
6. -- "the failure to carry out services individually and on a regular basis constitutes a form of misconduct subject to a penalty, particularly in view of the fact that the accused clocked in and out of work with a card and failed to carry out the services he was supposed to do, which implies fraudulent behaviour and a violation of article 11(a) of the Statutes; this is tantamount to a desertion of duties which gives rise to the suspension of an official (article 36(c)) under these Statutes";
7. -- "another charge against the accused is the failure to comply with the requirement under article 11(k) of the Statutes, in other words to maintain a respectful attitude; indeed, on one occasion he displayed physical violence and, on others, made verbal threats".
8. The Committee notes that the versions given by the complainant and the administrative authority concerning the transfer of and the penalties imposed on the trade union official Miguel Hugo Rojo are contradictory.
9. In these circumstances, the Committee made the following recommendation (see 306th Report, para. 69):
10. In order to arrive at its conclusions in full knowledge of the facts, especially concerning whether the transfer of Miguel Hugo Rojo was for anti-union reasons and concerning his non-reinstatement, the Committee requests the complainant and the Government to provide supplementary information, in particular regarding the administrative decisions and judgements that have been rendered on this subject.
11. B. Additional information from the complainant
12. 72. In its communication of 31 July 1997, the State Workers' Association (ATE) rejects the argument of the Province of Salta and the Argentinian Government that the suspension and subsequent dismissal of Mr. Rojo were not questioned and were not related to the participation of the trade union official in trade union activities. The trade union dispute was made public and discussed in the local press through the personal participation of Mr. Rojo; it is undeniable this prompted the employer to apply the discriminatory sanctions of suspension and dismissal. The trade union organization states that the suspension and dismissal sanctions were not ordered for "reasons of service" or "failure to carry out services", as falsely claimed by the Government, but during and on the occasion of or after the trade union dispute, and as a reprisal for the protection of workers' interests which the trade union association and official in question carried out. According to the ATE, the protection of such rights in no way morally damaged his hierarchical superior or undermined his honour and reputation and in no way did he commit an offence of slander, since as can be seen from the sentences handed down in the legal proceedings against members of the General Incomes Board on charges of fraud against the public administration, abuse of authority and desertion of the duties of public officials to the detriment of the Province of Salta, proceedings were taken against several persons of the administration accused of having committed these offences (the complainant sends a copy of these documents). There is no doubt that the dispute and the suspension and dismissal occurred around the same time, since the latter were ordered immediately after the trade union dispute. There could not be any desertion of duties on a personal basis when the trade union official was exercising the right to strike, at the same time as all the employees of the General Incomes Board and other ATE trade union leaders.
13. 73. The ATE emphasizes that the discrimination was evident since only Mr. Rojo was sanctioned and no penalty was applied against any other trade union leader or member participating in the dispute. However, the apparent disciplinary sanction was no such thing because Mr. Rojo did not commit any malicious acts, or display any physical violence or make any verbal threats, or fail to comply with the obligations required by the Public Service Statutes. This can be seen in the lack of evidence from the Government, whether administrative or judicial, concerning the charges and action taken against Mr. Rojo in respect of the supposed offences (the complainant includes several press cuttings on this allegation).
14. 74. The complainant adds that it appears from the file of Graciela Castro (Director of the General Incomes Board) on the compulsory conciliation hearing with staff of the General Incomes Board submitted to the Provincial Labour Directorate that the Province of Salta, through the Director of the General Incomes Board, requested compulsory conciliation in the labour dispute concerning its staff who, from 5 March 1992, took direct action measures following the modification and reduction of salaries. The ATE agreed to halt the direct action measures following the intervention of the regional delegate of the General Confederation of Labour. In the same way, the complainant states that it is clear from resolution 231/87 and the minutes of 18 August 1987 that the collective dispute was clearly of a trade union nature and thus arrangements were made for compulsory conciliation, it having been expressly agreed in point 6 "on the basis of the present structure of the General Incomes Board to draw up the corresponding list of posts by common agreement by 21 August 1987, for approval by 31 August 1987, with the participation of the trade union representation in this process, it being established that no person currently providing effective services in this body may be excluded". The complainant points out that in the final analysis the collective dispute and the personal situation of Mr. Rojo at his workplace were subjects of negotiation during the conciliation stage. The complainant also includes a copy of the different judicial decisions handed down concerning Mr. Rojo.
15. 75. The trade union organization states that on 1 September 1992, the Chamber of Deputies of the Province of Salta examined and adopted the following draft declaration: "The Chamber of Deputies of the Province of Salta ... declares: ... its total disagreement with the procedure adopted by the Executive Branch of the Province, which by means of Decree No. 1127, ordered the dismissal of Mr. Rojo, an employee in the General Incomes Board and currently Secretary General of ATE, and would welcome arbitration by the Provincial Executive Branch concerning the necessary measures to be taken with a view to reconsidering the measure adopted". During the debate, an analysis was made of the validity and application of national Act No. 23551 at the provincial level, and a decision was adopted by majority vote that the trade union official should be reinstated in his job since he had been the victim of an act of discrimination, in reprisal of his trade union functions.
16. 76. The complainant adds that in addition to the initiation of summary proceedings applicable to cases involving trade union protection in the Administrative Court, Mr. Rojo also challenged Decrees Nos. 1127/92 and 1825/92 as being null and void and unconstitutional as well as the entire administrative procedure ordering his dismissal and, having exhausted the administrative appeal procedure without having obtained his reinstatement, took the matter to the Administrative Court on 23 February 1993. According to the complainant, this documentary evidence refutes the false argument of the government of the Province of Salta and the national Government which claim that Mr. Rojo did not challenge his dismissal. On the contrary, it shows that having made use of the legal recourse of the summary procedure applicable to cases involving trade union protection, the plaintiff obtained in the first instance a ruling in favour of his reinstatement which was overturned in the second and third instances on purely formal grounds, in violation of ILO treaties and Conventions. (The complainant appends a copy of the above-mentioned file.)
17. C. The Government's reply
18. 77. In its communication of 27 February 1998, the Government states that the complainant alleges infringement of the guarantee of stability provided for by the Act respecting trade union associations, No. 23551, and that this legal right is typified as a form of explicit protection by ILO Convention No. 135, without prejudice to the fact that both Convention No. 98 and Convention No. 151 oblige States to take measures to guarantee appropriate freedom of bargaining, whether as regards private activity or public activity proper, but without requiring any specific conduct by the State to guarantee the legal protection in question. Convention No. 135 establishes that workers' representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers' representatives. For its part Convention No. 98 does not make any specific reference to a form of trade union protection but, in accordance with the provisions of Articles 1, 3 and 4, it can be inferred that States may decide for themselves the form for implementing and adopting the provisions of the Convention in national legislation. In this last case -- Convention No. 98 -- it should also be noted that the international instrument itself does not deal with the position of public servants directly engaged in the administration of the State as well as officials in lower categories who act as assistants to persons in such categories, and therefore this instrument does not cover Mr. Rojo, since he was employed in the central administration and more specifically in the General Incomes Board of the Province of Salta. The Government points out that neither Convention No. 98 nor Convention No. 135 are applicable to the matters raised in the present complaint, and that it does not see how Convention No. 87 is applicable to the plaintiff's situation.
19. 78. The Government states that the newspaper cuttings presented by the complainant do not show that the conduct of the parties reflected a situation of dispute suggesting an outcome such as that which occurred, since at all times trade union action has been free of any influence by the State; there is no indication of any activity by the government of Salta which tends to limit this right or hinder its legal exercise. The Government adds that the proceedings against Mr. Rojo referred to aspects which had nothing to do with trade union claims and that it was a recognized fact that he did not present himself for work at the required place and that his reasons for non-appearance were not consistent with the alleged argument of persecution; according to the Government, the reasons given were more indicative of a culpable attitude and these reasons were further supplemented in the statement of general references to corruption, matters which without prejudice to their serious nature fall outside the scope of Convention No. 87 and which are regulated by disciplinary procedures unrelated to this international instrument and punishable by the respective laws on the subject. According to the Government the dispute developed without any kind of interference by the administration.
20. 79. The Government states that the only international instrument ratified by Argentina which should be specifically applied to the activity of the plaintiff is Convention No. 151 but once again the provisions of the international instrument are not applicable to this case in a way which could result in an observation on the international adaptation of the principle. Convention No. 151 does not indicate to the State the manner in which this protection should be exercised; this may be through a variety of means and instruments. Therefore the Government states that the question arising in the present case lies outside any international jurisdiction and that it would only fall within the competence of the Committee if the dismissal were due to trade union membership or to normal activities carried out in the organization, but in this respect no evidence has been presented to demonstrate any action by the State in this sense. The Government adds that the complainant merely produces the documents used in the legal proceedings without even referring to the sufficiency of the legislation of the Province of Salta to guarantee the protection of trade union representatives in the public administration and that the case has been side-tracked by considerations of whether the standards established in sections 47 and 52 of Act No. 23511 may or may not be considered as powers which have or have not been delegated by the Province of Salta to the State, a matter which is not for the latter to decide, but which falls within the jurisdiction of the Province itself.
21. 80. The Government states that the question which needs to be asked in this case is whether the government of Salta has established a protection system which prevents discriminations in the sphere of freedom of association or not. The Government replies in the affirmative, since irrespective of whether it is or is not a power which has been delegated and the validity in the Province of the procedure established by Act No. 23511, the legal scheme for the stability of public officials in the Province was never called into question and this scheme, together with the constitutional provisions, provided sufficient guarantees under the Act respecting trade union protection to comply with the provisions of Convention No. 151. According to the Government, no one in the public service may be dismissed without justified cause and without prior summary proceedings, which implies that the administrative authority may only dismiss workers on particular and justified legal grounds, a procedure which fully guarantees the provisions of Article 4(b) of Convention No. 151. The suspension of Mr. Rojo is not contrary to stability but is a preventive procedure pending the substantiation of the summary proceedings; in the same way, there has been no judicial ruling which has declared these summary proceedings null and void. The Government emphasizes that it is not correct that no guarantee is provided in Argentina of the protection of trade union rights by means of rapid and efficient procedures, and if the plaintiff makes a mistake in the choices available to obtain justice this is not a matter which concerns the administration, as the Court itself emphasized when it stated that he should have exhausted the administrative means available to him.
22. 81. Finally, the Government states that the grounds on which the suspension and dismissal of Mr. Rojo were based were not due to his membership in an organization of public employees or his participation in the normal activities of such an organization, but to specific disciplinary measures which were not refuted in the proceedings carried out.

D. The Committee's conclusions

1. 82. The Committee observes that the complainant has alleged in this case the transfer of the trade union official Mr. Rojo due to anti-union reasons and his subsequent dismissal.
2. 83. First of all the Committee observes that the Government states that it is not appropriate in this case to refer to the application of Conventions Nos. 87, 98 and 135, since Mr. Rojo worked in the central administration of the Province of Salta and that, as regards Convention No. 151, both the legislation of the Province of Salta and the national legislation provide the necessary protection against possible acts of anti-union discrimination in the public administration. In this respect, the Committee emphasizes that, as the Government itself has indicated, Convention No. 151, ratified by Argentina, grants protection against acts of anti-union discrimination which can be committed at the level of the national public administration as well as at the provincial level. Furthermore, the Committee notes that the Government does not indicate whether Act No. 23551 respecting trade union associations (which provides protection against the dismissal of trade union officials) is applicable in the provincial public administration, and points out in any event that the public administration is governed by a provincial "system of public official stability".
3. 84. In this respect, the Committee notes that it has already ruled on this aspect in its previous examination of the case and it refers in this connection to the conclusions made on that occasion, which state as follows: "The Committee considers that it is not its role to determine in federal States which are the internal standards regulating protection against anti-union discrimination and, in particular, whether the standards of general application or those of the province in question should be applicable. The Committee nevertheless recalls that irrespective of the procedural or substantive laws applying to public officials or employees in provinces of the federal State, it is bound to examine whether the actual alleged anti-union discrimination measures are or not in accordance with the provision of ratified ILO Conventions and the principles of freedom of association" (see 306th Report, paras. 63 and 64).
4. 85. As regards specifically the transfer and subsequent dismissal of Mr. Rojo, the Committee notes that the complainant repeats that these acts were committed as a reprisal to the protection of the workers' interests by the trade union association and the official in question, and that there is no doubt that the dispute and the measures taken against Mr. Rojo were directly related since the latter immediately followed the trade union dispute. The Committee notes that the Government also repeats that the reasons for which the suspension and dismissal of Mr. Rojo were ordered were not due to membership in a trade union organization or participation in the normal activities of such an organization, but to specific matters of discipline, which according to the Government have not been refuted in the procedures taken to date. Furthermore, in the view of the Government, Mr. Rojo did not make use of the appropriate legal means for dealing with his case.
5. 86. In this respect, the Committee notes that, even after the previous examination of the case, the versions of the complainant and the Government continue to be contradictory concerning the anti-union motivation of the transfer and subsequent dismissal of Mr. Rojo. The Committee also notes that it appears from the documentation and the judicial rulings sent by the complainant that: (1) the Administrative Court of First Instance of the Province of Salta stated that "Act 23551 has established a protective legal procedure with regard to anti-trade union conduct" (section 52 of this Act stipulates that "workers protected by the guarantees for which provision is made in sections 40, 48 and 50 of this Act may not be dismissed or suspended and their conditions of work may not be changed without prior judicial resolution excluding them from the guarantee ...") and thus ordered the reinstatement of Mr. Rojo in his workplace; and (2) the Court of Justice of the Province of Salta overturned the ruling of the Court of First Instance on the grounds that Act No. 23551 is not applicable to public employees of the province but "without prejudice to the possible administrative and judicial revision of the legitimacy of the administrative acts (transfer, suspension and dismissal of the trade union official) in question by means of the appropriate appeals". The Committee notes that in this way the Court of Justice of the Province of Salta did not rule on whether or not there had been anti-trade union discrimination and indirectly referred the dispute between the parties, which dates from 1992, back to the administrative level and in this case to the administrative courts.
6. 87. Bearing in mind all these elements, the Committee concludes that: (i) the collective dispute between the parties and the transfer of Mr. Rojo occurred at approximately the same time (the dispute began at the end of February 1992 and his transfer was ordered on 30 March); and (ii) although the administrative resolution dismissing Mr. Rojo refers to "slander" by the official against his hierarchical superior ("lacked the necessary moral fibre"), this occurred within a context of accusations about financial irregularities and corruption in the institution made by the complainant, which resulted in the legal proceedings against Mr. Rojo's superiors, which does not exclude the possibility that the measures against this official constitute a form of reprisal.
7. 88. The Committee recalls in this respect that it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he or she has been the victim (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 740). In any event, the Committee believes that in this case account should be taken of: (1) the important trade union post held by Mr. Rojo at the time when the dispute began (Secretary General of the Provincial Executive Council of the State Workers' Association of the Province of Salta); (2) the importance of this case for the Province of Salta (the Chamber of Deputies of the Province declared in September 1992 "its total disagreement with the procedure adopted by the Executive Branch of the Province, which by means of Decree No. 1127 ordered the dismissal of Mr. Rojo, and that it would like to see the provincial Executive Branch take the necessary steps with a view to reconsidering the measure adopted"; (3) the fact that the judicial appeal authorities have not ruled on the substance of this case (the existence or non-existence of anti-union discrimination) but merely examined whether Act No. 23551 (and in particular the provisions respecting trade union protection) was applicable to the trade union official of the Province of Salta, Mr. Rojo; (4) the absence to date of any definitive judicial ruling on whether the said (federal) Act and in particular the trade union protection which it regulates are applicable in the Province of Salta, so that the measures taken against Mr. Rojo (transfer and subsequent dismissal) are part of a context of legal uncertainty concerning its validity; and (5) the extremely long period of time which has elapsed (seven years) since the measures were taken against Mr. Rojo, without any final ruling having been made by the judicial authority. In these circumstances, the Committee considers that serious and concordant elements of presumption exist which lead it to believe that Mr. Rojo has been a victim of anti-union discrimination. The Committee requests the Government to take the necessary steps for the reinstatement of the trade union official, Mr. Rojo, in his previous post and, if this is not possible because of the time which has elapsed, to ensure that he is fully compensated.