Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 355, Noviembre 2009

1. 189. This present complaint is contained in a communication from the National Federation of University Teachers, Researchers and Creators (Historic Federation of Teachers) and from the Riojan Association of University Teaching Staff (ARDU) dated May 2008.
2. 190. The Government sent its observations in a communication dated 27 May 2009.
3. 191. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 192. In their communication of May 2008, the Historic Federation of Teachers and the ARDU state that they are presenting the complaint in order to put an end to the anti-union practices, trade union persecution and violation of national and international protective standards carried out by the National University of La Rioja (UNLaR), the National Inter-University Council – a professional association of employers that groups together each of the national universities of Argentina, including the UNLaR – and the Ministry of Education of the nation.
2. 193. The UNLaR is a public legal entity (article 48 of Act No. 24521, regarding higher education), being an extension of the Provincial University of La Rioja. The national executive power – the Ministry of Culture and Education – in its capacity as authority for the application of Act No. 24521, approved the fundamental statute governing the operation of the UNLaR. Article 19 of the National Budget Act, No. 24447 established guidelines for the procedure of collective bargaining in national universities. This standard will subsequently be included by the National Congress in article 54 of the Permanent Supplementary Budget Act, No. 11672, establishing its permanence. These standards provide, in short, that in collective bargaining the employer side is assumed by the National Inter-University Council, a professional employers’ association to which the UNLaR belongs. The complainants indicate that, having submitted the complaint to the three government bodies mentioned and having exhausted the national authorities, they now find themselves obliged to turn to the Committee on Freedom of Association.
3. 194. The complainants recall that on 26 February 1999 the Council of Governors of the UNLaR ordered that academic proceedings be initiated against the lecturer Estela Cruz de García, in her capacity as trade union representative, and on the grounds of the exercise of her trade union representation work and that the UNLaR had based this decision solely on an article that had appeared in the local daily newspaper El Independiente on 17 February 1999. The complainants state that this allegation was examined by the Committee on Freedom of Association, which accepted it and processed it as Case No. 2065, in its decision of 6 April 2001.
4. 195. The complainants allege that the matter reported was just the beginning of the anti-union practices that culminated in the dismissal of almost all the members of the executive committee of the trade union organization, ARDU. More specifically, they allege the following:
5. – in April 2000, the Secretary-General of ARDU, Estela Cruz de García, the Deputy Secretary, María Alonso, and the Finance Secretary, Eduardo Berra, were dismissed. An appeal for the protection of constitutional rights and precautionary measures were brought in Case No. 20261/00 at the Federal Court of La Rioja, which ordered the reinstatement of the dismissed workers;
6. – in February 2002, on the occasion of a protest by lecturers, parents and students of University College, the UNLaR made a criminal accusation against the members of ARDU for “violation of the constitutional democratic system” in Case No. 2397/02, which was dismissed by the Federal Court of La Rioja;
7. – in August 2005, the UNLaR dismissed three lecturers from University College, all trade union delegates of ARDU, violating their trade union protection; this case is still before the Federal Court of Córdoba;
8. – lastly, in July 2007, the UNLaR reduced the hours of work, affecting the working conditions of three members of the executive committee of ARDU, which was appealed against (with no response) before the National Ministry of Labour; appeals for the protection of constitutional rights were lodged with the Federal Court of La Rioja, which were favourable, but the UNLaR appealed against them;
9. – in August 2007, the Finance Secretary of ARDU, Professor J.C. Ruiz, was dismissed. On 22 February 2008, the Appeal Court of Córdoba, in Case No. 108-P-1007, allowed the appeal, declaring “the omission of the university arbitrary and illegitimate” for leaving the lecturer without appointment and ordering the payment of the income lost over the 2007 period, severely questioning the attitude of the university and its officials;
10. – in August 2007, four members of the executive committee and union auditors had their hours of work reduced. Appeals for the protection of constitutional rights were lodged with the Federal Court of La Rioja, which when appealed against by the UNLaR, were upheld for the lecturers, with trade union protection being recognized;
11. – in December 2007, seven members of the executive committee and union auditors were dismissed, including the Secretary-General of ARDU and a member of the executive committee of the Historic Federation of Teachers;
12. – in January 2008, the trade union secretary of ARDU was dismissed (two months before reaching retirement age) and also one auditor, both researchers with more than 24 years of service, and appeals for the protection of constitutional rights have been lodged with the Federal Court.
13. 196. The complainants state that in Argentina no activities are subject to such a high level of labour precariousness as those in the private sphere, where employers, while subject to certain conditions, can freely dismiss workers. One of the limits they are bound by is, specifically, the rules for the protection of trade union activities: even in the case of contracts concluded “for a trial period”, the ultimate in labour precariousness, which initially last for three months, it is not possible, by law, to deprive workers of the right to join a trade union or to establish one. The trade union protection provided in article 14bis of the Constitution of Argentina – “trade union representatives shall enjoy the guarantees necessary for the management of the union and the stability of their employment” – is embodied in Act No. 23551 regarding trade unions.
14. 197. The application of the legal framework relevant to trade union protection in the sphere of labour relations within universities occurs on the basis and within the limits established by law, and this guarantee is only lifted when there is a general cessation of activities in the establishment or when all duties in the establishment are suspended.
15. 198. In general terms, the specific case of universities as regards the relative stability of appointments, does not constitute an obstacle to the application of the general protective principle of Act No. 23551, as whether the appointment is carried out through a competition or is on an interim basis, there is not, as in the case before the Committee, a general cessation or suspension of duties at the university or academic unit in question.
16. 199. The labour courts have even analysed cases of work in the construction and maritime sectors, and have found that the trade union officials must be granted protection even if they were elected whilst on a specific job that was completed. In such cases, the protection is strengthened when successive contracts are concluded for the same duties and by the same employer, as in the case in hand. To agree to the dismissals mentioned in this case means that the trade union organization endorses an ongoing policy of fait accompli, contrary to the most basic legal, trade union and academic principles.
17. 200. The protection of trade union activities in the legal system of Argentina is not contrary to the principles governing university activities, neither does it affect the university community’s entitlement to its rights, particularly the rights of candidates for teaching posts and the rights of students to have access to an excellent level of university education. “Labour stability” would not even be obtained “by obtaining a trade union post” because trade union posts are not “stable”, neither are they permanent. On the contrary, the refusal to grant trade union protection in university labour relations affects the very existence of trade union activity, guaranteed under the Constitution. Further to the nature of university labour relations, Act No. 23551 establishes a specific procedure that employers must adhere to in order to exclude workers from trade union protection, a procedure – for exclusion from protection – that the employer has not complied with. On the contrary, the rector of the National University of La Rioja, through the insistent, unjustified and illegitimate dismissal of trade union officials, is trying, without any consultation whatsoever, to cause the collapse of the whole system of trade union protection, ordering in a single action the dismissal of the worker in question, that of several members of the executive committee, and the suspension and/or elimination – in fact – of the activities of the local trade union, the ARDU.
18. B. The Government’s reply
19. 201. In its communication of 27 May 2009, the Government maintains that it appears from the complaint that a number of members of ARDU, university lecturers with interim appointments, although with various years of service at the National University of La Rioja (UNLaR), on the one hand had their hours of work reduced before the end of their appointments and, on the other, did not have their appointments renewed once they had finished. The complainant organizations allege that this equates to anti-union action and that the trade union privileges applicable to a number of the affected lecturers were not respected. The Government indicates that its observations are preliminary in nature and that it will later expand on them. It indicates that the acts in question relate to a national university of a provincial state that is autonomous and sovereign in its government and in the documents it issues. By virtue of the principles of autonomy and sovereignty of national universities, the Ministry of Labour, Employment and Social Security sent a copy of the complaint to the National University of La Rioja to enable it to defend itself as appropriate, which the board of governors did in administrative decision No. 2415 dated 15 August 2008, a copy of which was attached to the complaint as a statement by the accused university.
20. 202. The Government adds that the acts in question were appealed before the judicial authorities through amparo proceedings, a legally established summary procedure providing protection against acts or omissions that affect constitutional rights, in some cases the courts have issued rulings and, in others, appeals are still under examination. In cases like the present one, where the trade union organization lacks official trade union status, legal protection against anti-union acts is established in article 47 of the Argentine Trade Union Act, No. 23551.
21. 203. To that effect, the Federal Appeal Court of Córdoba, in the case “Alonso María E. (one of the dismissed trade union officials) and others versus the National University of La Rioja”, in a second instance ruling, found in favour of the validity of the legal protection of the lecturers with trade union responsibilities. In respect of the relevant issues the decision states that:
22. ... The case in hand is unusual in that despite the plaintiffs being interim lecturers, and consequently their employment status being precarious, transitory and unstable, they have trade union responsibilities and are thus protected in their claim by the trade union protection to which they are entitled under article 52 and concordant articles of the Act concerning professional associations, No. 23551. Therefore, the question to be resolved is to establish whether or not that protection specific to collective labour law should prevail over a public employment relationship (as is that of university lecturers), which is an interim one in this case. For this analysis, it is emphasized that particular note should be taken of the fact that in this specific case the time the plaintiffs have been working in interim positions has created in them a legitimate expectation of permanence in their employment status, which cannot be ignored by this court when it comes to judging the legitimacy of the extent of the trade union protection they cite as the basis of their claim.
23. While aimed at a different area, the Professional Associations Act, by establishing so-called trade union privileges, gives expression to a guarantee granted to certain employees, on the basis of their trade union representative status, to protect them from being dismissed, removed or having their conditions of employment modified without just cause. It is a worker’s right, whereby the employer or business may not, during the time specified by law or while the guarantee of protection remains, freely dismiss the worker or modify his conditions of employment without having the corresponding authorization in the manner determined by law (according to Cabanellas, Guillermo, Tratado de Derecho Laboral, Editorial Heliasta SRL, Buenos Aires, 1989, Volume. III, p. 555).
24. In this regard, article 47 of Act. No. 23551 expressly provides that “Any trade union worker or association that is prevented or hindered in the regular exercise of the rights to freedom of association guaranteed by this Act, may seek the protection of these rights before the competent court ...” and in turn article 52 also states that “workers covered ... may not be dismissed or suspended, neither can their conditions of work be modified, without a prior judicial decision to exclude them from the guarantee, in accordance with the procedure laid down in article 47 ...”.
25. As can be seen, the legal text is categorical and there is nothing to suggest that public employees should be excluded from its scope of application and legal effects, nor, within this category, interim lecturers who, although within a context of precariousness, often distorted by its excessive duration, have a legitimate expectation of permanence, in the absence of certain conditions, such as the post being filled by competition or proven poor performance in their duties.
26. Furthermore, let us also recall that trade union stability has a constitutional hierarchy embodied in article 14bis of the National Constitution, which stipulates that “... Trade union representatives shall enjoy the guarantees necessary for the management of their union and the stability of their employment ....”. Commenting on this rule it has been said that this is a guarantee given to the employee, not on a personal basis, but owing to the trade union duties he performs, and that its purpose is to avoid retaliatory measures or measures that might arbitrarily infringe the rights of the worker during the period of his trade union representation or, once his mandate has been fulfilled, as a consequence of it (according to Badeni, Gregorio Tratado de Derecho Constitucional, La Ley, Buenos Aires, 2004, Volume. I, p. 656).
27. Although in the case in hand there is no conclusive evidence that the reduction in the plaintiffs’ hours of work was due to anti-union pressure or practices carried out by the university authorities, and therefore, even if we were in the presence hypothetically of the exercise of ius variandi understood as a contractual prerogative of public law contracts, in the case of personnel granted trade union stability, any change to conditions of work should initially be dealt with using article 52 of Act No. 23551, that is to say one needs to obtain a judicial ruling for the exclusion of trade union protection, which did not happen in the case in hand, rendering unlawful the actions of the defendant.
28. It was thus held that “... any attempt to modify the contract by the employer must be channelled in the manner referred to in article 52 of Act No. 23551 ... and the intended modification must not contain any subjective or unlawful element in violation of freedom of association ...” (Court of Appeal in Labour Matters, Division IV, “Palmer, Alfredo Mateo versus Kraft Suchard Argentina concerning appeal for the protection of constitutional rights”, interlocutory judgement No. 32938, cited by the Supreme Court of Justice in decisions 326:2325, dated 4 July 2003). The above does not mean to imply that the employer cannot modify the relationship, exercise the power of organization and leadership, nor provide criteria for the conduct of the employee, but simply means that the employer’s initiative should be channelled in accordance with the terms of article No. 52 of Act No. 23551.
29. This being the case, and for the reasons given, as the defendant did not respect the trade union protection of the plaintiffs by modifying their conditions of work without respecting the legal procedures, the appeal lodged by the National University of La Rioja should be dismissed and, consequently, the appealed decision should be upheld, which stipulates the payment to the plaintiffs of the difference in outstanding salary in respect of their assigned hours of work up until 12 August 2007.
30. 204. The Government indicates that, as can be observed, the decision is clear in ordering the employer to respect the working conditions of the lecturers in question. The matter at the heart of the allegations has been and is being debated in the courts as can be seen in the annotated decision handed down by the Federal Appeal Court of Córdoba, and there was consequently, as we have seen, a judicial review of the disputed actions.
31. 205. The National University of La Rioja states in its report that before anything else is considered, it must be borne in mind that the individual and collegiate authorities of the National University of La Rioja were elected democratically and unanimously in the elections held on 18 May 2007 and that no judicial or administrative objections were raised about the elections. Consequently, the decisions adopted in this university and those of its internal bodies not only have legal backing, but also the legitimacy conferred by full and complete democratic support. In accordance with the provisions in force, national universities are entitled to appoint “interim” lecturers for fixed periods of time and without employment stability. It should also be considered here that the position and status of trade union representative indicated by the complainants to no extent prevails over or decreases the strict temporary nature of the interim teaching appointment, nor affects the lack of employment stability. The country’s doctrine and jurisprudence have peaceably supported this position.
32. 206. The university indicates, for example, that this is reflected in the decision of the Federal Appeal Court of Córdoba in Case No. 153 – C2007 – entitled “Chade Juan and others versus the National University of La Rioja, concerning protection of constitutional rights”, which states that: “... The above is in no way altered by the fact that the plaintiffs are covered by trade union protection, as this cannot generate in those it covers – interim lecturers – rights comparable to those of lecturers appointed by competition ...”. It then remarks that “... the basis of trade union protection is to ensure that the persons covered can exercise their trade union rights, that they can freely exercise their trade union function, without reprisals or pressure from their employer. But in the case of interim lecturers, it does not imply elevating their employment status to that of lecturers who joined the faculty by way of competition, and for whom neither the duration nor the conditions of exercise of the post filled by competition can be altered ...”.
33. 207. The UNLaR notes that minimal reflection and a degree of reasonableness cannot contradict these premises, as it would be sufficient for a handful of interim university lecturers to set up a trade union and to do away with the compulsory academic status. It states that in carrying out a concrete and preliminary summary of the issue raised it must be borne in mind that: (a) the “interim” lecturers are appointed “on a fixed-term basis” and “without employment stability”, and (b) such “precariousness” in the employment relationship of “interim” lecturers is not subject to the alleged trade union protection, which applies solely and exclusively during the period of their teaching appointments. This circumstance was rigorously respected by the university. Once the specific term of appointment as an “interim” lecturer has finished, the mere fact of being a “trade unionist” does not entitle the worker in any way to demand – as they are trying to do – another appointment in the same circumstances as the completed one. This is because interim positions – in accordance with abovementioned article 51 of the Higher Education Act, No. 24521 – do not have employment stability. That very clear legal position means that the university has the authority, from the point of view of both internal and external regulation, to decide whether or not to reappoint its lecturers. In all public universities, job stability is acquired only by competition, not by mere trade union membership.
34. 208. As to the methodology for appointing lecturers at the university, and according to express provisions in its statutes, the latest revision of which was approved by the Ministry of Education and published in Boletín Oficial de la Nación (Official Gazette of the Nation), No. 29838 of 14 February 2002, the institution’s lecturers are appointed by the councils of each academic department – “proposal by the dean”. Bearing in mind that the former lecturers, supposedly dismissed, belonged, according to verified certification and records, to three different academic departments (social sciences; law and economics; sciences of health and education and humanities), means that in order to carry out the alleged persecution, 39 honourable and democratically and unanimously elected people would have had to be involved in a conspiracy. In turn, the complainants having taken the matter to the courts, and closely linked to what has already been said, the local Federal Court, in its ruling No. 94/08 dated 9 April 2008, taken up in Case No. 24872/08, entitled “Olmedo Orello María Cecilia and others versus the National University of La Rioja, concerning an appeal for the protection of constitutional rights – precautionary measures”, at the time of refusing the measure sought for the reappointment of the person mentioned and of Aníbal Magno and Estela Cruz de García as interim lecturers, paragraph 6(1) of the decision stated: “... For these reasons, it is necessary to clarify the situation of lecturers who, beyond their status as interim lecturers, remained in a dependent employment relationship for considerable periods of time. It is imperative for the university against which the legal action has been brought, in order to demonstrate its legitimate conduct in the event it does not further contract the lecturers who form or have recently formed part of its faculty, to issue the relevant administrative act, duly justified, putting forward the academic grounds for its decision ...”.
35. 209. The university indicates that at no time did the judicial authorities order the university to reappoint the interim lecturers, now the complainants. The legal decision was fully executed by the academic departments of the university, through the issuance of the corresponding decisions. In these administrative documents it was specifically stated that the complainants flagrantly failed to fulfil their academic responsibilities. Coinciding with this, particularly in the fact that it is the objectively evaluated personal performances that determine whether or not interim lecturers are reappointed, documents were issued by the academic Departments of the Sciences of Health and Education (decision No. 381/08 not to reappoint Estela Cruz de García; No. 382/08 for Cecilia Olmedo Orello; No. 383/03 the decision not to reappoint Aníbal Magno, all dated 29 April 2008), and the academic Department of Humanities (decision No. 290/08 not to appoint Elena del Carmen Camisassa, and decision No. 291/08 for Eduardo José Berra).
36. 210. The university states that the alleged dismissals did not occur. Moreover, it should be stressed that the rector of the university has not – nor could – interfere in the appointments in any way, nor in the decisions not to appoint and/or the dismissals of the teaching staff, as he has neither the jurisdiction nor the competence to do so. It goes without saying that quality and academic excellence must be inherent to the performance of the lecturers of any university, and consequently also to those of the UNLaR.
37. 211. The UNLaR indicates that the former lecturers in question never joined any of the alternatives legally stipulated in the institutional plan for the increase of activities of excellence in teaching and research. All this also makes it necessary to point out that the complainants (at one time interim lecturers, as has been indicated) performed their work for several years while systematically opposing any attempt to fill their posts by competition and without producing any research, taking part in any refresher courses or being involved in any human resource training. However, they appear before the ILO falsely claiming immaculate teaching careers and saying that they are the victims of persecution for their trade union work. This is far from being the truth. Mere ongoing presence in university lecture halls without the proper credentials cannot be protected by any law. The UNLaR also indicates that ARDU only represents 3.64 per cent of all the teaching staff in the university, which numbers 1,118 academics. The university maintains without hesitation or question of any sort the most absolute respect for the guarantee of free and democratic trade union organization, as stipulated in article 14bis of the Constitution. It has never carried out nor decided anything which could obstruct it in the slightest. There is, moreover, another trade union of lecturers, called the Trade Union of Teaching and Research Staff of the National University of La Rioja (SIDIUNLAR) which has 962 members – in other words 86 per cent of the academics at the university. In addition, it should be recalled, as noted by the honourable council in decision No. 2208/08, that the SIDIUNLAR trade union has been registered at the Ministry of Labour, Employment and Social Security, in accordance with the provisions of decision No. 137/08, dated 26 February 2008.
38. 212. The university states that the trade union organization, ARDU, lacks real representative status among the staff of the university owing to its negligible number of members, and although this does not in itself infringe upon the constitutional guarantee of freedom of association, this circumstance must necessarily be compared with the existence of the other trade union of lecturers, SIDIUNLAR. According to the university, this also contradicts in its scope the supposed “persecution” of the complainants in respect of the alleged violations of freedom of association. Likewise, the trade union organization SIDIUNLAR, which is the most representative one, has never expressed any concern in respect of this issue.

C. The Committee’s conclusions

1. 213. The Committee observes that in this case the complainant organizations allege various acts of anti-union discrimination by the National University of La Rioja (UNLaR) since 1999 when it initiated academic proceedings against the lecturer, Estela Cruz de García, Secretary-General of ARDU (an allegation that was examined by the Committee in Case No. 2065). The complainant organizations specifically allege the following anti-union acts: (1) the anti-union dismissals in April 2000 of the Secretary-General of ARDU, Estela Cruz de García, the Deputy Secretary, María Alonso, and the Finance Secretary, Eduardo Berra (according to the complainants an appeal for the protection of constitutional rights and precautionary measures have been brought and the reinstatement of the dismissed workers has been ordered); (2) in August 2005 three lecturers were dismissed from University College, all trade union delegates of ARDU (according to the complainants judicial proceedings are under way in respect of these dismissals); (3) in August 2007, the finance secretary, J.C. Ruiz, was dismissed (according to the complainants in the context of the judicial proceedings the university was severely questioned and was ordered to pay the lost income for the 2007 period for the financial damages suffered; (4) in December 2007, seven members of the executive committee and union auditors were dismissed, including the Secretary-General of ARDU and a member of the executive committee of the Historic Federation of Teachers; (5) in January 2008, the trade union secretary of ARDU and one auditor were dismissed (according to the complainants an appeal for the protection of constitutional rights has been lodged); (6) in February 2002, following a protest by lecturers, parents and students, the UNLaR made a criminal accusation against the members of ARDU for violation of the constitutional democratic system, which was dismissed by the judicial authority; and (7) in July 2007, the working conditions of three members of the executive committee of ARDU were changed (reduction in the number of hours of paid work), and the same happened in August 2007 to another four members of the committee (according to the complainants judicial proceedings were initiated in respect of these issues and the decisions in favour of the workers were appealed against by the UNLaR). The Committee observes, lastly, that the complainant organizations allege that the dismissals were carried out without respecting the rules for the protection of trade union activities and that the labour courts have found in some cases that the trade union official must be granted protection even if he was elected whilst in a specific job that was completed.
2. 214. The Committee notes that the Government indicates that: (1) the acts in question relate to a national university of a provincial state that is autonomous and sovereign in its government and in the documents it issues; (2) by virtue of the principles of autonomy and sovereignty the Ministry of Labour, Employment and Social Security sent a copy of the complaint to the University to enable it to defend itself as appropriate; (3) the acts questioned by the complainant organizations have been appealed against before the judicial authorities – in some cases the courts have issued rulings and others are still under examination; (4) in the present case, where the trade union organization lacks official trade union status (which is granted to the most representative organization), legal protection against anti-union acts is established in article 47 of Act No. 23551; (5) in one of the cases brought by a number of trade union officials the Federal Appeal Court of Córdoba – in second instance proceedings – found in favour of the validity of the legal protection of the lecturers with trade union responsibilities and, for example, considered that “in the case of personnel granted trade union stability any change to conditions of work should initially be dealt with using article 52 of Act No. 23551, that is to say a judicial ruling for the exclusion of trade union protection should be obtained, which did not happen in the case in hand, rendering unlawful the actions of the defendant” and that “this being the case, and for the reasons given, as the defendant did not respect the trade union protection of the plaintiffs by modifying their conditions of work without respecting the legal procedures, the appeal lodged by the University should be dismissed and, consequently, the appealed decision should be upheld, which stipulates the payment to the plaintiffs of the difference in salary outstanding in respect of their assigned hours of work up until 12 August 2007”; (6) the decision is clear in ordering the employer to respect the conditions of work of the lecturers in question; and (7) the matters at the heart of the allegations have been and are being debated in the courts.
3. 215. The Committee also notes that the University states in the report forwarded by the Government that: (1) the national universities are entitled to appoint interim lecturers for a fixed period of time and without employment stability (the employment relationship of interim lecturers is not subject to trade union protection, which applies solely and exclusively during the period of their teaching appointments); (2) the position and status of trade union representative of the officials in question to no extent prevails over or decreases the strict temporary nature of the interim teaching appointment (according to the university this was confirmed by the judicial authority); (3) once the term of appointment as an interim lecturer has finished the mere fact of being a trade unionist does not entitle the worker in any way to demand another appointment in the same circumstances; (4) in all public universities employment stability is acquired through competition and not through trade union membership; (5) the supposedly dismissed lecturers belonged to three separate academic departments, which implies that to carry out the alleged persecution 39 democratically elected people would have had to be involved in a conspiracy; (6) at no time did the judicial authorities order the university to appoint the interim lecturers in question; (7) the lecturers in question flagrantly failed to fulfil their academic responsibilities; (8) the university respects the constitutional guarantee of free and democratic trade union organization; and (9) the ARDU organization represents 3.64 per cent of the 1,118 lecturers and 86 per cent of the academics at the university belong to another trade union organization.
4. 216. While noting the argument of the University pointing out the “interim” status of the trade union officials subject to detrimental measures and the fact that the complainant organization ARDU has a very small membership, the Committee notes that it appears from the judgement transcribed by the Government, that by virtue of the officials’ legally stipulated trade union protection – even if these are interim and not permanent lecturers – the university should have requested exclusion from that protection from the courts before carrying out dismissals or changes to working conditions. In this context, the Committee expresses its concern about the fact that according to the judgement transcribed by the Government, the University has not respected the procedures that protect trade union officials and that require judicial authorization for them to be dismissed or for their conditions of employment to be changed. The Committee expresses its concern, observing in particular that between April 2000 and January 2008 a number of trade union officials from the ARDU organization have been dismissed and/or have suffered changes to their conditions of employment, which has given rise to various judicial proceedings, some of which are still pending.
5. 217. This being the case, observing that the legal system of protection against violations of trade union rights has been used by the complainants in the various cases indicated since 2000, the Committee requests the Government to keep it informed of the results of all the judicial proceedings under way relating to the allegations. Likewise, the Committee requests the Government to take measures to ensure that, in the future, if the University envisages dismissing or changing the conditions of employment of trade union officials, it is done in conformity with the trade union protection provided for under national legislation.