Informe definitivo - Informe núm. 389, Junio 2019

1. 113. The complaint is contained in a communication from the Association of State Workers (ATE) dated 11 February 2015. The ATE sent additional information in a communication dated 29 April 2015.
2. 114. The Government sent its observations in communications dated May, September and October 2015, February and July 2016, and February 2017.
3. 115. 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 Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 116. In its communication dated 11 February 2015, the ATE indicates that, on 22 March 2013 and 16 April 2014, its federal capital executive board issued calls for elections of staff representatives and internal board members in the Ministry of Justice and Human Rights and that both calls were challenged by a group of ATE members and internal board candidates, who argued that the calls did not comply with a decision of the Ministry of Labour, Employment and Social Security (MTESS) requiring elections to be carried out at each facility or building of the Ministry. The complainant organization indicates that the MTESS, through the National Directorate of Trade Union Associations (DNAS), upheld both objections and observed that the calls had not been issued in accordance with MTESS Decision No. 459/12, which provides that: (i) elections must be carried out at each facility belonging to the Ministry of Justice and Human Rights, and (ii) both workers who are union members and workers who are not members of any trade union and who have not participated in the elections of another national State trade union are eligible to vote in elections of staff representatives. On 13 May 2014, the DNAS advised the ATE to carry out the elections in accordance with the above-mentioned decision, by allowing all the employees of the relevant establishment to vote in the elections of staff representatives.
2. 117. The complainant organization states that it was not possible for it to comply with the decision, as it had no means of identifying persons who were not members of any trade union who had not participated in the elections of another State trade union. It adds that, according to the statutes of the ATE, only union members may participate in its elections of staff representatives. The complainant indicates that, after holding elections on 21 May 2014, it filed an appeal for the reconsideration and hierarchical re-examination of the DNAS decision of 13 May 2014 and that the appeal was rejected by the MTESS in September 2014. The complainant also indicates that, in October 2014, the DNAS ordered it to issue a new call for elections within a ten-day period and that when it did not do so, on 15 December, the DNAS proposed the appointment of an official to call elections of staff representatives and internal board members in the Ministry of Justice and Human Rights. The complainant alleges that the State interfered in the internal affairs of the ATE, as the implementing authority unilaterally called elections of staff representatives and internal board members, and it also alleges interference by the employer, as the MTESS is both judge and party. The complainant indicates that it filed appeals for the reconsideration of the administrative decisions and that, when they were rejected, it filed a judicial appeal in accordance with article 62 of Act No. 23.551 on trade union associations.

B. The Government’s reply

1. 118. In its communications of May, September and October 2015, February and July 2016, and February 2017, the Government reports that the national courts have already ruled on the alleged acts in the present case and that, in this regard, final judgments have been handed down. The Government indicates that this case began when a group of ATE members and internal board candidates in the Ministry of Justice and Human Rights challenged the call for elections issued by the federal capital executive board of the ATE. According to the Government, as a result of the objection, the DNAS observed that the terms of the call had not been in line with Ministerial Decision No. 459/2012, which provides that the contributing members of each trade union organization are eligible to vote in the elections of staff representatives, without prejudice to the right of non-member workers to participate in the elections, as long as they do not participate in the elections of representatives conducted by another co-existing trade union organization, as ATE staff representatives represent all workers, regardless of whether they are ATE members or not. In May 2014, the MTESS informed the ATE that all calls for elections must be in line with its decision and, in October 2014, in view of the time that had passed and the ATE’s failure to issue a new call for elections, the DNAS ordered the ATE to issue, within ten days of the notification, a new call that would be in accordance with Ministerial Decision No. 459/2012. The Government indicates that, in December 2014, as there was no evidence that the ATE had complied with the request, it was proposed that an official should be appointed to call elections of staff representatives and internal board members in the Ministry.
2. 119. The Government indicates that the MTSS rejected the ATE’s appeals for the reconsideration and hierarchical re-examination of the decisions in which it was requested to issue a new call for elections and that, in accordance with section 62 of Act No. 23551, the ATE applied to the courts. According to the Government, in a judgment handed down on 14 October 2015, Chamber IX of the National Labour Court of Appeal upheld the administrative decisions that were under appeal. As can be seen in the copy of the judgment provided by the Government, the Court of Appeal: (i) while affirming the need for caution with regard to public authority interference in the internal affairs of trade union associations in accordance with, inter alia, the provisions of Act No. 23551 on trade union associations and the principles of freedom of association enshrined in Convention No. 87, found that the Ministry of Labour acts as an implementing authority of the Act, which gives it, in principle, full supervisory authority, and (ii) found that the intervention in this case is neither arbitrary nor unfounded, since, as the appellant acknowledges, a specific objection was raised by some ATE members and which is significant, especially given that, as workers, they are also entitled to elect their representatives.
3. 120. The Government has also included a copy of the judgment issued on 30 December 2015 by the same Court of Appeal in relation to the extraordinary appeal filed by the ATE. In the judgment, the Court of Appeal dismissed the appeal on the grounds that it did not contain a concrete and reasoned critique of the factual and legal grounds of the judgment in question. In its latest communication of February 2017, the Government states that these judgments are final and approved.

The Committee’s conclusions

1. 121. The Committee observes that, in the present case, the complainant organization alleges interference by the National Directorate of Trade Union Associations (DNAS) of the Ministry of Labour, Employment and Social Security (MTESS) in the elections of staff representatives and the internal board members of the Association of State Workers (ATE) in the Ministry of Justice and Human Rights.
2. 122. From the information submitted by the complainant organization and by the Government, the Committee observes that: (i) the call for elections of staff representatives and the internal board members of the ATE in the Ministry of Justice and Human Rights, which was issued first in 2013 and again in 2014, was challenged on both occasions by a group of ATE members and internal board candidates on the grounds of alleged irregularities (the call did not comply with an MTESS decision requiring elections to be carried out at each facility or building of the Ministry); (ii) the DNAS upheld both objections and observed that the calls had not been issued in accordance with MTESS Decision No. 459/12, which provides that elections of staff representatives must be carried out at each facility/building of an entity and that both workers who are union members and workers who are not members of any trade union and have not participated in the elections of another national State trade union are eligible to vote in such elections (the Committee observes in this regard that Ministerial Decision No. 459/2012 refers to the election of staff representatives and not to the election of internal board members of the ATE); and (iii) on 23 October 2014, the DNAS ordered the ATE to call elections within a ten-day period, in accordance with the abovementioned decision and, on 15 December, noting the lack of compliance with its request, the DNAS decided to appoint an official to call elections of staff representatives and internal board members in the Ministry of Justice and Human Rights.
3. 123. The Committee notes that, according to the complainant organization, by ordering it to issue a new call for elections of staff representatives and internal board members, the administrative authority committed an act of interference outside its remit, undermining its freedom of association and union autonomy. The Committee also notes that the ATE filed appeals for the reconsideration of the DNAS decisions and that the appeals were rejected by the administrative authority. The Committee notes that, according to the complainant and the Government, after exhausting administrative remedies, the ATE applied to the courts.
4. 124. The Committee observes that, according to the information provided by the Government, the Labour Court of Appeal rejected the allegations of interference and upheld the administrative decisions under appeal. The Committee notes that the Government has provided a copy of the judgments handed down by the Court of Appeal, dated 14 October and 30 December 2015, and observes that, in the judgments, the Court: (i) while affirming the need for caution with regard to public authority interference in the internal affairs of trade union associations, in accordance with the provisions of Act No. 23551 and the principles of freedom of association enshrined in Convention No. 87, found that the MTESS acts as an implementing authority of the Act, which gives it, in principle, full supervisory authority, and (ii) found that the intervention in this case is neither arbitrary nor unfounded, since a specific objection was raised by some ATE members and which is significant, especially given that, as workers, they are also entitled to elect their representatives. The Committee notes that, according to the Government, the judgments are final.
5. 125. The Committee also observes that, according to publicly available information, on 7 April 2016, the ATE national leadership, together with the general secretaries from the provinces, unanimously approved new rules governing the election of representatives and internal boards of the ATE throughout the country, and observes in particular that article 5 of the rules provides that: “Representatives must be elected in a direct, secret vote by members at the time when the call is published, as well as by workers who are not members of any trade union and who express a desire to participate in the elections, as long as they have not participated in other elections of representatives held by another trade union during the same year. Therefore, workers in the sector who are not members of any trade union must be informed of the call for elections and may register to vote within 10 calendar days, by expressing their desire to the election supervisory body and submitting the necessary paperwork, at the time and place indicated on the call for elections.” Moreover, article 6 establishes that: “When the membership of a body exceeds 100, an internal board must also be elected in a direct, secret vote by members at the time when the call is published.” In the light of the above-mentioned judgments and the amended ATE statutes, the Committee will not pursue its examination of this case.