Rapport définitif - Rapport No. 6, 1953

A. Analysis of the Complaints

1. 132. The complaints, dating respectively from 1950 to 1952, may be grouped under the three following heads : (a) complaint concerning the maritime industry presented by the International Transportworkers' Federation ; (b) complaints concerning the railroad industry presented by the International Federation of Land and Air Transport Workers' Unions and other organisations ; (c) complaints concerning the trade union situation in general presented by the International Confederation of Free Trade Unions.
2. 133. In view of the fact that these complaints relate to different questions, it is desirable to analyse them separately.
   • Complaint concerning the Maritime Industry
3. 134. The complaint contains the following principal allegations.
4. 135. The Government has taken repressive measures against the General Confederation of Maritime and Allied Trade Unions (C.G.G.M.A.), whose leaders face arrest on the pretext that they act on instructions from the I.T.F, which the Government has described as a communist organisation. The C.G.G.M.A is the victim of the systematic hostility of the General Confederation of Labour (C.G.T.), which organisation occupies a privileged position and is officially supported by the Government. In contradiction with the spirit of free trade unionism and with a statement made on 19 April 1950 by President Perón to the effect that " No Argentine trade union leader has been or ever will be subject to any pressure whatsoever to make him change his way of thinking as regards his organisation's requirements for the attainment of its high trade union aims ", the Minister of Labour declared ten days later that the C.G.G.M.A had no legal status, that it was not identified with the social policy pursued by the national Government, that its activities were disturbing in nature and were contrary to the national interest, and that its programme was inspired from abroad by reason of its affiliation with the International Transportworkers' Federation.
5. 136. The functioning of the bodies for negotiation successively established between 1947 and 1950 to settle labour disputes in the maritime industry-bodies on which the C.G.G.M.A was represented-was paralysed by the hostility of the C.G.T. In 1950, a new joint committee was set up without any representatives of the C.G.G.M.A and in direct violation of an agreement signed with the Director of the Ministry of Transport in 1949.
6. 137. Owing to the absence of machinery for negotiation, the C.G.G.M.A was obliged to resort to strike action in support of its claims. In one strike, the crew members who had participated in it having been dismissed by the company, an official of the Ministry of Transport called in representatives of the unions affiliated with the C.G.G.M.A and told them that the dismissed sailors would be reinstated if the unions repudiated the C.G.G.M.A. Such a condition, according to the complainants, is contrary, not only to the principle of freedom of association, but to the Argentine Constitution as well.
7. 138. Measures of personal victimisation were employed against the strikers, and the personal effects of those leaving the ships were retained.
8. 139. The C.G.G.M.A was subjected to a campaign of the vilest nature in the newspapers controlled by the Government.
9. 140. In conclusion, the complainant asks that the I.L.O investigate the observance of trade union rights in the Argentine Republic.
   • Complaints concerning the Railroad Industry
10. 141. The various complaints submitted in this connection, being similar in substance, may be analysed together.
11. 142. The majority of them are limited to the making of general allegations to the effect that, following the railway workers' strikes which took place between November 1950 and January 1951 and in August 1951, the Government took repressive measures in decreeing the mobilisation of the railway workers, in making mass dismissals, and in arresting a large number of railway workers.
12. 143. In the memorandum joined to his complaint, one of the complainants alleges that more than 500 railway workers were arrested, that they are detained in inhuman conditions, and that the majority of them are shortly to be tried before military courts. He protests against the statement of the Government that the railway workers, in striking without authorisation from the General Confederation of Labour and the Railway Workers' Union, violated the provisions of the Industrial Associations Act and took part in a strike which had been declared illegal by the Minister of Labour because, according to the explanatory preamble to the Mobilisation Decree of 25 January 1951, it had been " started and directed by persons unrepresentative of the railway workers ". Adducing a statement made by General Perón, the complainant declares that the strike was desired by almost all the railway workers who, as a result of the refusal of their official leaders to support their claims, themselves set up an " Emergency Advisory Committee " which was the only body representative of the railway workers, the official leadership of the Railway Workers' Union having lost the confidence of its members. The complainant claims that the strike was motivated by the material situation of the railway workers, which had become impossible, and by various anti-labour measures taken by the Government (appointment to administrative posts of generally incompetent political protégés, unjustified dismissals in violation of the Railway Workers' Code). The strike was started only after a period of two years, during which the railway workers vainly hoped for the satisfaction of their claims, and was wholeheartedly supported by the Argentine people. The strike was twice discontinued when the Government undertook to satisfy the workers' claims, thus implicitly recognising not only the justice of those claims but also the fact that the strike was definitely economic in character.
13. 144. The Decree of 25 January 1951, which ordered the mobilisation of the railway workers, is a real wartime enactment which should not have been applied in time of peace and constitutes an annulment of the right to strike and a violation of the Argentine Constitution.
14. 145. A list-stated to be incomplete-was appended to this memorandum, containing 166 names of workers who were to be tried in connection with the railway workers' strike of November 1950-January 1951.
15. 146. In conclusion, the complainants request intervention with the Government to end the measures of repression, to achieve the reinstatement of the dismissed railway workers, to liberate the prisoners and to repeal the Railway Workers' Mobilisation Decree.
    • Complaints concerning the Trade Union Situation in General
16. 147. A complaint presented by the International Confederation of Free Trade Unions, dated 25 April 1952, which takes up and summarises again a number of other complaints addressed earlier by the same complainants to the Economic and Social Council, groups under the four following heads the infringements of trade union rights alleged to have been committed by the Government of the Argentine Republic:
    • (a) infringements of trade union rights by legislative action;
    • (b) violation of the right to organise by administrative action;
    • (c) infringement of the individual liberties of trade union members ;
    • (d) violence employed by the authorities against workers in their character as trade union members.
      • Infringements of Trade Union Rights by Legislative Action
    • 148. The complainant alleges that trade union rights have been violated by legislative measures relating, first, to the right to organise and, secondly, to the right to strike.
17. 149. Infringements of the right to organise. With regard to the alleged infringements of the right to organise, the complainant, referring especially to Articles 4 and 42 of a Decree of 2 October 1945, maintains that its provisions " open the way to arbitrary action since they empower the Minister of Labour to void, at any moment, the right of a workers' trade union to operate as such ".
18. 150. Infringements of the right to strike. With regard to the alleged infringements of the right to strike, the complainant alleges, first, that, by virtue of Articles 33, 34, and 35 of the Decree of 15 January 1945 for the repression of crimes against the security of the State, all kinds of strikes could be prohibited, and, secondly, that by virtue of Articles 7 and 8 of the Decree of 11 October 1950 respecting the suppression of espionage, sabotage and treason, a Government wishing to end a strike would be able to arrest and sentence to very severe penalties trade union leaders who had decided to resort to a strike for strictly occupational reasons.
    • Violation of the Right to Organise by Administrative Action
19. 151. The complainant alleges that the General Confederation of Labour was established on 2 March 1936 at a time when freedom of association existed in law and in fact. But, after the assumption of power by General Perón, the two largest national federations, the Railway Workers' Union, established in 1932, and the Railway Workers' Brotherhood, established in 1887, were placed under the immediate supervision of the military authorities. An administrator was imposed on both organisations, who decided on their disaffiliation from the C.G.T. Subsequently, the Government used these two national federations, as reorganised, in its coercive campaign against the C.G.T in order to establish the domination of the trade union movement as a whole by the State. The unions, once placed under supervision, reconstituted the C.G.T, following which, those unions which up to that time had been independent were obliged to affiliate with the new C.G.T controlled by the Government and by it supplied with servile administrators who shortly made them inoffensive. The national occupational federations which opposed absorption into the new C.G.T were dissolved one after another or forcibly placed under the control of an administrator and by him reorganised. The same thing was done to the local branches of these federations and the identical fate befell the regional federations and the independent trade unions. By way of example of these interventions of the administration in violation of the right to organise, the complainant cites the appointment of administrators to head several unions of mariners. Although they were apparently nominated by the leaders of the C.G.T, they were, in fact, appointed by the Ministry of Labour and Social Security.
20. 152. Another example of the intervention of the Government in the life of trade union organisations is alleged to be given by the following occurrences which took place on the occasion of the last presidential electoral campaign. The Railway Workers' Brotherhood, together with the other unions, was invited to promise its unconditional support for the re-election of General Perón. Invoking its regulations, the Brotherhood refused and decided to raise the question in its annual assembly, which was to take place on 9 May 1951. The authorities, fearing that the Railway Workers' Brotherhood, oldest trade union organisation in Argentina, following the example of other unions, would also declare itself opposed to the re-election of General Perón, ordered units of the army to occupy the premises of the Brotherhood a week before the general assembly. The order came from above and was executed with the complicity of the police. Numerous trade union members were arrested. The Brotherhood decided to resist, and set up a provisional committee charged with the reconstitution of a Brotherhood independent of Government control and with demanding the liberation of those of its members who had been imprisoned in connection with previous strikes. On 1 August 1951 the Railway Workers' Brotherhood started a strike in spite of the Decree of 24 January 1951 which ordered the mobilisation of the railway workers. The strike was suppressed by the police and hundreds of railway workers were arrested and maltreated in the police stations of Buenos Aires and on the premises of the police in the district of Azul, province of Buenos Aires.
21. 153. The Government continually intervenes in the life of the trade unions, supervises them and makes clear its intention of directing them.
22. 154. Among the most recent violations of freedom of association the complainant cites the seizure by armed troops, supported by police, on 28 November 1951, of the furnishings and records of the secretariat of the Workers' Committee for Independent Trade Union Action (W.C.I.T.U.A.), of the Shoe Industry Trade Union and of the Graphic Arts Trade Union. These three trade union organisations had, since 14 December 1949, been dissolved by order of the Bicameral Committee of the Argentine Congress.
    • Infringement of the Individual Liberties of Trade Union Members
23. 155. The complainant alleges that, in violation of freedom of association and without respect for human rights as they are defined in the Declaration of Human Rights which was adopted with the support of Argentina by the Assembly of the United Nations in 1948, arbitrary arrests of trade union members, prolonged detentions without trial, torture and other ill-treatment by the police, banishment from the country by simple administrative decision, compulsory domiciling away from the ordinary residence and other acts of violence were employed against a very large number of trade union members.
24. 156. Two hundred workers were arrested for so-called violation of the Decree of 15 January 1945 respecting the security of the State at the time of the railway workers' strike in January 1951. They were imprisoned without trial for many months.
25. 157. In support of the allegation, the complainant cites the names of several arrested persons particularly well-known in the trade union world. They were all held incommunicado for two weeks, then tried for " illegal association " and violation of the Decree respecting the security of the State mentioned above. In reality, the charge of " illegal association" was, quite obviously trumped up for the occasion, for up to the time of their arrest the prisoners were officially recognised as representatives of the Railway Workers' Provisional Committee, and it was with them that the Government negotiated. A number of detainees were conditionally freed, but many trade unionists had to flee the country to escape certain arrest.
26. 158. Finally, the complainant alleges that several members of the Railway Workers' Brotherhood, whose names are given, were arrested on the occasion of the strike of 1 August 1951 and are still detained.
    • Violence employed by the Authorities against Workers in their Character as Trade Union Members
27. 159. The complainant alleges that the Minister of Labour and Social Security employed every means to prevent strikes from taking place. He succeeded in doing so from 1945 to 1947. Since that time, however, strikes were started in several industries to obtain better working or living conditions, or also for the defence of trade union rights or of the right to elect trade union leaders. The Minister of Labour, having been unable to prevent the strikes from taking place, attempted to win the leaders of the strikes to his side by corruption or otherwise. Being unsuccessful, he inflicted the most cruel ill-treatment on them, adding violence and torture to imprisonment, resulting, in some cases, in death.
28. 160. The complainant cites several examples in support of the allegation, including the case of Mr. Cipriano Reyes, Member of Parliament, stated to have been imprisoned without trial for two years for having demanded the restoration of trade union freedom.

A. Analysis of the Replies

1. 161. In its letters of 26 December 1951, 24 April 1952 and 9 September 1952, the Government first presents a number of general observations and then refers in more detail to the allegations concerning the maritime industry, the railroad industry and the trade union situation in general.
   • General Observations
2. 162. Recalling the opinion expressed by the Employers' member of the Officers of the Governing Body to the effect that " the only obligation which Governments have expressly undertaken entitling us to question their action is where they have ratified a Convention and are said not to be carrying it out ", which opinion is in agreement with that upheld by the Argentine delegate in the Economic and Social Council in 1949, when the question of violation of trade union rights was discussed, the Government states that since it has not ratified the Convention on freedom of association it makes the most express reservations as to the competence of the I.L.O to examine a question of exclusively internal character which has already been settled in a satisfactory manner by means of absolutely legal procedures.
3. 163. The Government next states that freedom of association is absolute in the Argentine Republic, that it is regulated by legal rules which are not only prescribed in special regulations establishing the legal status of occupational associations but which are also contained in the Constitutional law which guarantees the rights of the worker. It states that it fully supports trade union rights and that they have been adopted as fundamental principles of the doctrine of " justicialism ", and that the policy followed by the Government in this connection won for it an overwhelming majority at the last elections. For these reasons the Government considers that the complaints are motivated by exclusively political considerations, that they are lacking in proof since the complainants have not been able, nor will be able, to furnish any, and that they should not be taken into consideration.
   • Allegations concerning the Maritime Industry
4. 164. The good faith of the International Transportworkers' Federation has been abused and the Federation has served as an instrument of the C.G.G.M.A, which organisation is almost entirely controlled by communist elements.
5. 165. The Government makes no observations respecting the attitude of the C.G.T towards the C.G.G.M.A and respecting the attitude of the press, in view of the fact that these two questions in no way engage the responsibility of the Government.
6. 166. As concerns the operation of the bodies for negotiation, it is incorrect to say that negotiations cannot achieve any result, since any representative workers' organisation may at any time negotiate directly with employers in respect of working conditions without any need for the intervention of the State ; if the employers refuse to negotiate, an organisation may appeal to the Industrial Relations Council to declare the existence of an " unfair practice ", which procedure makes it possible to surmount the obstacles which may in practice be encountered in negotiations. In view of these provisions, the Government considers that it is unnecessary to comment on the attitude of the officials which was brought into question in this connection in the complaint.
7. 167. With respect to the strike in the maritime industry, it was justifiable to declare it illegal since it was started in violation of the regulations concerning the exercise of the right to strike, which provide that collective demands must be made in writing and that no change may be made in the existing situation while negotiations are in progress.
8. 168. The Government considers it unnecessary to take into consideration the allegations concerning the attitude of an official of the Ministry of Transport during the strike and concerning the victimisation of strikers, in view of the vague and imprecise character of these allegations.
9. 169. Finally, it states that no one is either detained or under charges consequent upon the disputes in the maritime industry.
   • Allegations concerning the Railroad Industry
10. 170. The intervention of the Minister of Labour in the dispute in the railway industry, both as concerns mediation and the declaration of legality or illegality of the strike, was made in conformity with the legal provisions in force. The strike was declared illegal in accordance with the opinions held on the matter both by jurisprudence and legal doctrine. The establishment of an emergency committee endangered the rights of the workers and the stability of the institutions recognised by Argentine public law. This is a matter of internal law which falls exclusively within the competence of natural judges who will be called upon to apply the penal sanctions should such be pronounced. With respect to the list of names which was joined to the complaint, the Government declares that only five persons have been proceeded against for misdemeanours under ordinary law and by virtue of a warrant for preventive detention issued by the competent judge and confirmed by the Appeals Court. The strike having been declared illegal for the reason that the workers' claims were under consideration, the Mobilisation Decree constituted a normal measure which has also been adopted in other countries where the national economy was seriously endangered and in view of the characteristics of the public services.
    • Allegations relating to the Trade Union Situation in General
11. 171. In its letter dated 9 September 1952, the Government declares that the complaint of the International Confederation of Free Trade Unions refers in substance to allegations contained in earlier complaints and that, consequently, it seems unnecessary to examine it with a view to making further observations. However, out of deference to the Committee on Freedom of Association, the Government makes a number of supplementary observations which are summarised below.
12. 172. The Government maintains that the complainant, in referring to Article 42 of Act No. 12921, which regulates the activities of occupational associations, has incompletely quoted the text with the obvious intention of abusing the good faith of the I.L.O. In its reply, the Government quotes the whole text of the Article and claims that the allegation, therefore, is erroneous and tendentious.
13. 173. It is on the basis of the incomplete quotation of Article 42 that the complainant has been able to allege that (1) " this text can mean almost anything in the hands of a dictatorial Government ", and (2) that trade union rights have been totally suppressed in Argentina.
14. 174. With regard to these last two allegations the Government wishes to bring the following elements of appreciation to the notice of the Committee on Freedom of Association.
15. 175. With regard to the so-called " dictatorial Government ", it states that the triumph of General Perón in the elections of 1946 was gained as the result of entirely free elections, the regularity of which was recognised both by the five political parties in opposition and by foreign observers. The same was true of the last elections (subsequent to the presentation of the complaints), in the course of which the Presidential mandate of General Perón was renewed a second time by a considerably increased majority. This affords irrefutable proof that the present Government of the Argentine Republic is the expression of the will of the great majority of the Argentine people which has thus demonstrated its gratitude to a Government which " has made of Argentina a country of social justice, economic liberty and political sovereignty ".
16. 176. With regard to the allegation concerning " the total suppression of trade union rights ", its lack of foundation is apparent from the fact that the complainant has given only an incomplete citation of Article 42 and has referred, out of their context, to Articles of other enactments which have no connection with the matter in question.
17. 177. With regard to the allegation that, in the Argentine Republic, only unions affiliated to the C.G.T have the right to conclude legally recognised collective agreements, the Government declares that it has never made any distinction in this connection between trade unions affiliated to the C.G.T and independent trade unions. It points out that the organ of the Ministry of Labour and Social Security responsible for registering collective agreements and for co-operating in the settlement of disputes between employers and workers has always exercised the greatest impartiality, in conformity with the legal principles governing labour matters.
18. 178. In support of its statement the Government gives a list of collective agreements to which independent organisations not affiliated to the C.G.T are stated to have been parties and some of which were concluded thanks to the intervention of the Ministry of Labour and Social Security.
19. 179. From the foregoing the Government concludes that the autonomous or independent organisations enjoy, within the limits of the law, full freedom of organisation, functioning and action with regard to the defence of their occupational interests. They are, moreover, entirely free to conclude legally recognised collective agreements.
20. 180. With regard to Act No. 13985 for the suppression of espionage, sabotage and treason, and Decree No. 536/45 for the repression of crimes against the security of the State, the Government maintains that these enactments have no relation to the right to organise or to the lawful exercise of the right to strike. The Articles on which the complainant's case is based relate exclusively to acts of espionage, sabotage, etc., which are repressed in every democratic country whose Government desires to safeguard public order. The Government adds that the necessity to apply these Articles has never arisen.
21. 181. With regard to the case of Mr. Cipriano Reyes, the Government maintains that he was convicted by the civil courts of the country of participation in a conspiracy both revolutionary and political and not on the grounds of his political and trade union activities.
22. 182. It is apparent from the analysis that several of the complaints, although emanating from different sources, deal with similar questions, while others, although emanating from the same complainant, deal with questions which are widely different.
23. 183. The Government, for its part, in its three communications, first raises certain prejudicial questions before presenting its observations on the substance of the complaints transmitted to it.
24. 184. In these circumstances, it has appeared necessary to group the allegations and observations together according to their subject matter.

B. B. The Committee's conclusions

• Preliminary Question as to the Competence of the Committee
  185. 185 In its letter of 24 April 1952, the Government made the most formal reservations as to the competence of the I.L.O to discuss the question of the observance of trade union rights in the Argentine Republic, arguing, on the one hand, that this question is of a purely internal nature and that it has furthermore been settled in that country in a satisfactory and legal manner and, on the other, that the Argentine Republic has not ratified the Convention No. 87 concerning freedom of association and protection of the right to organise. In this connection it adduces the opinion expressed by the Employers' member of the Officers of the Governing Body to the effect that " the only obligation which Governments have expressly undertaken entitling us to question their action is where they have ratified a Convention and are said not to.be carrying it out ".
  186. 186 The Committee considers that it is not called upon to examine further the question of the competence of the I.L.O in matters of examination of allegations concerning infringements of freedom of association which might be committed in countries which are Members of the I.L.O but have not ratified the Convention concerning freedom of association and protection of the right to organise, in view of the fact that this problem has already been the subject of full discussion at the 33rd Session of the International Labour Conference in 1950, at which session the Conference decided to approve the decisions of the Governing Body and of the Economic and Social Council of the United Nations concerning the establishment of a procedure of fact-finding and conciliation in matters of freedom of association.
  187. 187 The Government, while making express reservations as to the competence of the Committee, has nevertheless seen fit to present its observations on the substance of the complaints.
• Preliminary Question as to the Political Nature of the Complaints
  188. 188 The Government maintains that the complaints are purely political in character and, therefore, calculated to be " as political arguments levelled at the sacred interests of Argentina by the kind of ideological elements to which the complaining trade unions belong or by persons representing any other extreme ideology ".
  189. 189 The Committee, in its first report, formulated certain principles with respect to the examination of complaints to which the Government concerned ascribes a purely political character. In particular, following the general principle adopted by the Governing Body on the proposal of its Officers, the Committee decided that, even though cases may be political in origin or present political aspects, they should nevertheless be examined from the point of view of substance if they raise questions directly affecting the exercise of trade union rights.
  190. 190 In the present case the complaints relate, among other things, to questions such as the legal status of trade unions, administrative interference in the life of the trade unions, the application to trade unions of State security legislation and prosecution of trade union leaders, all these being questions which directly affect the exercise of trade union rights.
  191. 191 In these circumstances, the Committee considered that, without prejudging the merits, it should examine the case, whatever the complainants' motives might be and by whatever " ideology " they might be inspired.
• Allegations concerning the Legal Status of Trade Unions
  192. 192 The International Confederation of Free Trade Unions, in its different communications, alleges that Decree No. 23852 of 2 October 1945 respecting industrial associations infringes the right of association. Basing its argument more particularly on Articles 4 and 42 of this Decree the complainant contends that these Articles open the way to arbitrary action because they permit the Secretary of Labour at any time to withdraw the right of any association to function as a trade union.
  193. 193 In its communications of 26 December 1951 and 24 April 1952 the Argentine Government maintains that " freedom of association in Argentina is real and absolute and that it is regulated by legal rules which-apart from the fact that they are specified in Decree No. 23852... which is strictly limited to ensuring a liberty lived by the Argentine people are incorporated in the Constitutional law which expressly guarantees the rights of the worker ".
  194. 194 In its communication dated 9 September 1952 the Government observes that the complainant has not cited the full text of Article 42 of the aforesaid Decree and, by not doing so, has interpreted the provision in a tendentious manner.
  195. 195 In the examination of these allegations it is necessary, therefore, to refer to the two following texts which govern the status of industrial associations : the Constitution of Argentina of 1949 and Decree No. 23852 of 2 October 1945 respecting the legal status of industrial associations of employees.
• Constitutional Guarantee of the Right to Organise
  196. 196 Under the heading " Rights of the Worker ", Article 37, paragraph 10 of the Constitution provides that the right to form unions freely and to take part in other lawful activities for the defence of occupational interests belongs to the essential rights of workers and must be respected and protected by society, which shall ensure the free exercise of the said right and the repression of any act which may impede or hinder it. It is clear from this provision that the right to form unions freely is guaranteed to all workers without distinction whatsoever.
  197. 197 This guarantee assumes its full importance only when it is considered in the light of Article 35 of the Constitution, which provides that " the rights and guarantees recognised by this Constitution cannot be altered by the laws governing their exercise ".
  198. 198 Now the complainant, referring more particularly to Articles 4 and 42 of Decree No. 23852, the precise object of which is to regulate the exercise of freedom of association, maintains that this text directly infringes the principle of freedom of association.
  199. 199 To appreciate the effect of this allegation it is necessary to consider the status of industrial associations as laid down by the aforesaid Decree of 2 October 1945.
• Status of Industrial Associations
  200. 200 Under the provisions of Article 1 of the aforesaid Decree, industrial associations may be freely organised without prior authorisation, provided that their purpose is not contrary to morals or to the fundamental laws and institutions of the nation.
  201. 201 Article 2, which defines the term " industrial association " provides that, for the purpose of the Decree, any association formed by manual or intellectual workers engaged in a common occupation, industry or trade, or in similar or in related occupations, industries or trades, with the object of protecting their occupational interests shall be deemed to be an industrial association.
  202. 202 The provisions cited above are entirely general in scope and apply to all industrial associations whatever their legal status may be. It appears, therefore, that in full conformity with the Constitution the right to form associations without prior authorisation and without discrimination is accorded to the workers.
  203. 203 While the regulations do not establish any distinctions with regard to the right of workers to form organisations, the same is not true with regard to the activities these organisations may pursue in defence of occupational interests.
• In fact, the Decree draws a very clear distinction in this respect between the three following categories of association : (a) non-registered associations, (b) associations which are registered but which are not recognised trade unions, (c) associations which are recognised trade unions.
  • Non-registered Associations
    204. 204 Under the provisions of Article 4 of the Decree, upon which in part the complainant's allegation is based, " an association which is not a recognised trade union and has not registered in accordance with the provisions of Article 43 shall not have the right to function as an industrial association of employees ".
    205. 205 Read literally, this provision would mean that non-registered associations, although not unlawful, would nevertheless be subject to civil death or, at least, to a kind of occupational disqualification. But freedom of association implies not only the right for workers and employers to form freely associations of their own choosing but also the right, for the industrial associations themselves, to pursue lawful activities in defence of their occupational interests.
    206. 206 It is important, therefore, to consider whether the conditions attached to registration or to the obtaining of recognition as trade unions are really of a character to bring into question freedom of association. These conditions are not the same in the case of associations which are simply registered, as in the case of associations which are recognised. Hence it is necessary to consider them separately.
  • Registered Associations
    207. 207 Any association may become registered by applying for its name to be entered in a special register maintained by the Ministry of Labour and Welfare. The application for registration shall be accompanied by, firstly, an authenticated copy of the instrument of Constitution, together with the rules and statutes of the association and, secondly, by a list of the names, nationality, occupation or trade of the officers of the committee of management. The application shall be signed by at least 30 members (Article 43).
    208. 208 It would appear from this provision that the conditions attached to registration are purely formal and could therefore not be interpreted as imposing a restriction on the freedom of workers or employers.
    209. 209 Once they are registered, industrial associations shall have the right to:
    1. (1) present demands in the defence of their occupational interests ;
    2. (2) establish welfare and social assistance institutions ;
    3. (3) establish holiday camps, restaurants, sanatoria, hospitals and any social services for the purpose of raising the cultural level, preserving the health and improving the moral and material standard of the members ;
    4. (4) undertake or encourage the formation of co-operatives in respect of production, consumers' goods, credits and housing, in accordance with the legislation in force ;
    5. (5) encourage the general and vocational education of its members by means of appropriate institutions, such as libraries, lectures, publications, technical schools, workshops and exhibitions ;
    6. (6) set up or join federations ;
    7. (7) levy fixed or pro rata dues from its members ;
    8. (8) take any other action in the achievement of its purposes which is not prohibited (Article 32).
    210. 210 This enumeration does not appear, however, to be limitative because, according to Article 3, registered industrial associations shall be entitled to function freely and to take any action to achieve their aims which is not expressly reserved to recognised trade unions.
  • Recognised Trade Unions
    211. 211 Conditions for the granting of recognition. For the purpose of obtaining recognition, an industrial association shall be required to submit an application to the Ministry of Labour and Welfare in the federal capital, or to an office or authority representing the said Ministry in the provinces or national territories, stating the number of its contributing members, the amount of its funds and the social services which it has instituted, together with an authentic copy of the rules or statutes of the association and a list of the names of the members of its committee of management, showing their nationality and occupation or trade (Article 14).
    212. 212 The granting of recognition to an industrial association is subject to a number of conditions relating especially to its objects, rules, period of existence as an association and representative character.
    213. 213 Objects. The objects of the association must comply with the definition in Articles 1 and 2 of the Decree referred to above, that is to say the association must have the character of an industrial association whose objects are not contrary to public order.
    214. 214 Rules. The rules of the association must contain the following particulars:
         • (a) the name, registered address and purpose of the trade union ;
         • (b) the obligations and rights of the members and the conditions of admission to and resignation from membership ;
         • (c) a provision for, and designation of, executive officers, specifying their duties and powers, their terms of office and the manner of their removal, and the procedure to be adopted for appointing and replacing executive officers ;
         • (d) the manner in which the union funds are to be constituted and administered, the manner of disposal thereof in the event of dissolution, the system of contributions ;
         • (e) the method of convening and holding ordinary and extraordinary meetings or congresses, the method of voting and chairmanship to be adopted ;
         • (f) the date and manner of presentation, approval and publication of reports or balance sheets and the procedure to be adopted for the examination and auditing thereof ;
         • (g) the penalties in case of violation of the rules or the decisions of the trade union;
         • (h) the procedure to be adopted in amending the rules and in the event of voluntary dissolution of the association ;
         • (i) the officers who are competent to order the suspension and resumption of work and the procedure to be adopted in such cases (Article 24).
    215. 215 It will be noted that this Article imposes an obligation on associations to deal with certain matters in their rules but does not prescribe the manner in which they shall be dealt with. Moreover, the matters which must thus be regulated appear in fact to be exclusively matters which it is in the interests of the members of the association to have regulated in this way.
    216. 216 It does not therefore appear that Article 24 directly brings into question the right which industrial associations should enjoy to draw up their rules in full freedom.
    217. 217 Period of existence as a trade union. The association must, on the date when it applies for recognition, have carried on its trade union activities for at least six months. This provision, which prescribes a certain period of existence prior to recognition, appears to be inspired by considerations of a purely practical character and does not, therefore, call for any further observations.
    218. 218 Representative character of the association. The most important condition that the association must fulfil in order to become a recognised trade union is certainly the condition that it must be " sufficiently representative in the area in which it carries on its activities, in respect of the proportion of persons engaged in the occupation concerned who are contributing members of the association ".
    219. 219 It does not appear clearly from this text that it is the association that has the largest number of members which shall enjoy recognition. However, it may be deduced from the text of other articles in the Decree that it is in fact this " majority criterion " which shall be the determining factor in the decision of the Ministry of Labour.
    220. 220 Article 9 of the Decree in fact provides that:
  • In the case where a recognised trade union already exists, a second industrial association for the same occupation shall not be granted the status of a recognised trade union unless the number of contributing members in the second association during a continuous period of not less than six months immediately preceding the application for recognition was greater than the number of members in the trade union already recognised.
    221. 221 In this case the association having a minority of members loses its recognition to the association which has a greater number of members (Article 10).
    222. 222 If these various conditions are fulfilled, the Minister of Labour must give a decision within 60 days granting or refusing the status of a recognised trade union. An appeal against the said decision may be brought before the Executive.
    223. 223 The importance of recognition results from the fact that industrial associations which are recognised enjoy more extensive rights than do associations which are simply registered.
    224. 224 Under the provisions of Article 33, recognised trade unions alone shall enjoy the following rights:
    1. (1) to defend and represent their occupational interests before the State and the employers ;
    2. (2) to defend and represent the individual interests of each of their members before welfare institutions, courts of law or any other department of the State ;
    3. (3) to be represented in public bodies set up for the regulation of labour;
    4. (4) to engage in collective bargaining, to conclude or modify collective agreements, to assist in supervising the enforcement of labour legislation and to encourage the extension and improvement thereof ;
    5. (5) to collaborate with the Government in a technical or advisory capacity in the study and solution of problems concerning the occupations which they represent ;
    6. (6) to engage, where necessary, in political activities, provided that the general meeting or congress has decided on this course. Only in the case where an industrial association decides to engage permanently and continuously in political activities shall it be required to comply with the Acts, Decrees and regulations governing political parties.
    225. 225 Moreover, the members of recognised trade unions enjoy priority of engagement, where conditions are equal, in the public services, concessionary public utility undertakings and undertakings contracting for public works (Article 37).
    226. 226 Finally, where application is made by a recognised trade union and a decision to that effect is issued by the Ministry of Labour, employers shall be bound to deduct from the remuneration paid to members of the said trade union the membership dues and contributions payable by them and shall transmit the said amount to the trade union (Article 40).
    227. 227 It appears from this analysis that the legislator certainly confers on recognised trade unions a privileged status in comparison with the status of associations which are simply registered. But the granting of such a status is not a purely arbitrary decision, because the Ministry of Labour must comply with objective criteria laid down by the regulations themselves and which apply in the case of all occupational organisations whatever their nature.
    228. 228 In other words, the regulations establish no distinction, a priori, between the various trade unions which apply for recognition.
    229. 229 Conditions governing the withdrawal of recognition. As industrial associations which are recognised are, in the view of the legislator, called upon to play a role of outstanding importance in the organisation of labour relations, the question of the withdrawal of recognition is clearly of fundamental importance to trade union life, a fact to which the complainant has called the particular attention of the Committee.
    230. 230 It will be remembered that in its various communications the International Confederation of Free Trade Unions, resting its case on Article 42, which lays down the conditions for the withdrawal of recognition, has maintained especially that the conditions under which associations may be deprived of recognition open the way to arbitrary action because they enable the Ministry of Labour to withdraw from an association, at any time, the right to function as a trade union.
    231. 231 In its reply the Government, on the other hand, points out that the complainant, by not citing the whole of the text of the Article in question, has placed an erroneous interpretation upon it.
    232. 232 The Article 42 referred to is as follows:
  • The Secretary of Labour and Welfare may suspend or annul the recognition granted to an association in the case of:
    • (a) violation of statutory provisions or a collective contract of employment;
    • (b) failure to execute directions made by a competent authority in its lawful capacity ;
    • (c) such reduction of the number of its members that it ceases to possess the sufficiently representative character mentioned in subparagraph 3 of section 8.
  • An appeal may be brought before the Executive against suspension or annulment of recognition.
• In no case shall the Government intervene in the management or administration of an industrial association, irrespective of whether the said association is or is not a recognised trade union.
  233. 233 This Article lays down three cases in which recognition may be suspended or withdrawn. The condition laid down in subparagraph (c)-withdrawal of recognition because of such reduction in the number of its members that an association ceases to possess a sufficiently representative character-is no more than a corollary to the provision in Article 8 (3) referred to above, by virtue of which only the most representative organisation shall enjoy recognition. Consequently this involves the ascertaining of a purely factual matter which does not imply any degree of discrimination on the part of the Minister.
  234. 234 The provisions contained in subparagraphs (a) and (b)-withdrawal of recognition in the event of the violation of statutory provisions or a collective contract of employment or failure to execute directions made by a competent authority in its lawful capacity-have, on the other hand, the nature of an administrative sanction. However, rigorous though such a sanction may appear to be, it applies to all organisations which may be guilty of the contraventions mentioned above and does not, therefore, involve any arbitrary discrimination with regard to the associations in question.
  235. 235 Article 42 also provides two safeguards to which the Government has called attention. First, the suspension or withdrawal of recognition may be the subject of an appeal to the Executive. The Article does not indicate whether the appeal-an appeal, incidentally, of a purely administrative nature operates as a stay or whether, in the event of the appeal being rejected, the association concerned may apply to the courts, which would seem to be the normal instances for hearing cases of infringements of provisions either of a legal or of a contractual character.
• Secondly, the Article provides that in no case shall the Government intervene in the management or administration of an industrial association, irrespective of whether the said association is or is not a recognised trade union. It follows that an association which is thus deprived of recognition does not thereby become unlawful but can continue to function and be protected from any intervention on the part of the public authorities.
  236. 236 A fortiori, the suspension or withdrawal of recognition cannot therefore be assimilated to the suspension or dissolution of an association by administrative action.
  237. 237 However, in view of the fact that in the last resort the whole system of industrial relations is based on the associations which are recognised trade unions, it may be asked whether the withdrawal of recognition does not, for this reason, involve an occupational disqualification which is tantamount to dissolution.
  238. 238 This would undoubtedly be the case if the association deprived of recognition became reduced to the status of an " association " which, under the provisions of Article 4 referred to above, enjoys neither recognition nor the status of a registered association and which for this reason " cannot function as an industrial association of employees ". But it does not appear that this is the necessary consequence of the withdrawal of recognition. Article 20 in fact provides that industrial associations which have not obtained recognition or from which recognition has been withdrawn have the right to make application to and to acquire from the national and provincial Governments legal personality as an ordinary association, by bringing the operation of the association into conformity with the provisions of enactments and regulations prescribed to this effect.
  239. 239 By virtue of the acquisition of legal personality (it is important not to confuse legal personality as referred to here with trade union personality or recognition) associations possess the rights normally enjoyed by physical persons : that is to say, inter alia, the right to acquire and to possess property, to enter into litigation and to conclude contracts.
  240. 240 The question then arises, nevertheless, whether these associations are not by virtue of the special regulations governing industrial associations, deprived of essential trade union functions, as for example that of concluding collective agreements and that of being parties to conciliation and arbitration procedures.
  241. 241 Several provisions of the Decree respecting industrial associations relate to this aspect of the problem.
  242. 242 It will be remembered that Article 33 referred to above provides that recognised trade unions shall alone enjoy the right to defend and represent occupational interests before the State and the employers and to engage in collective bargaining, while Article 34 provides that registered industrial associations may exercise the right to defend and represent occupational interests before the State and the employers where no recognised trade union or federation exists in the branch or occupation concerned.
  243. 243 It appears then, a contrario, from this Article that normally associations deprived of recognition are not entitled to defend occupational interests before the State or the employers.
  244. 244 Moreover, Article 49 of the Decree, which defines the essential trade union rights which workers shall enjoy, refers expressly to the right to bargain collectively but provides that this right shall be exercised through the recognised trade unions.
  245. 245 Read literally, therefore, these provisions would mean that recognised trade unions alone enjoy the right to conclude collective agreements under the terms of the regulations.
  246. 246 Apart from the provisions referred to above there does not exist at the present time any law regulating in a detailed manner the status of collective agreements. In fact the only text concerning this matter, and to which the Government referred in its reply, is the Order of the Ministry of Labour and Welfare dated 6 March 1944. Article 6 of this text provides that agreements which lay down general conditions concerning wages and work must be drawn up through the intermediary of the Social Action Directorate and, if necessary, after consultation with the Labour Directorate. These collective agreements are registered and may be declared binding on the whole branch of activity concerned by Decree.
  247. 247 It does not appear specifically from the text of this Decree that only recognised associations may conclude collective agreements and it may therefore be accepted that, by virtue of the principle of freedom of agreements, industrial associations, provided at least that they have legal personality, may conclude collective agreements in accordance with the provisions of the common law.
  248. 248 In its reply dated 9 September 1952, to which further reference will be made subsequently, the Government, while not making any declaration as to the particular question whether associations deprived of recognition may conclude collective agreements, nevertheless states that the Ministry of Labour has never made any distinction in this connection between trade unions affiliated to the C.G.T and autonomous unions. The Government has also observed that the organ of the Ministry of Labour and Social Security, which registers collective agreements and co-operates in the settlement of disputes between employers and workers, has always exercised the greatest impartiality in conformity with the legal principles governing labour matters. In support of its statement the Government gives a list of collective agreements to which it states that autonomous organisations not affiliated to the C.G.T have been parties and some of which, according to the Government, were concluded following the intervention of the Ministry of Labour and Social Security.
  249. 249 It would therefore appear that in practice the provisions of the Decree respecting industrial associations which reserve exclusively to recognised trade unions the right to conclude collective agreements have ceased to be applied or at least are applied in a very liberal spirit.
  250. 250 It appears from the analysis that all workers have the right to form industrial associations without any discrimination and without prior authorisation. These associations in their turn are completely free as regards their organisation, functioning and administration.
  251. 251 However, in the view of the legislator the whole system of industrial relations should rest essentially on the recognised trade unions. The idea underlying this system is evidently the belief that only genuinely representative trade unions, that is to say trade unions having the largest membership, are capable of assuming the rights and responsibilities accorded to them under the regulations.
  252. 252 But the procedure for the granting or withdrawal of recognition, while it is essentially an administrative procedure, cannot be regarded as arbitrary, because the Minister of Labour is bound with regard both to the granting of recognition and to its withdrawal to comply with objective criteria laid down by law.
  253. 253 Finally it would appear from the Government's reply that, in fact, trade unions which are not recognised but which are registered and which possess legal personality may carry out certain essential trade union functions, as for example the functions of concluding collective agreements and of being parties to conciliation and arbitration procedures.
  254. 254 In these circumstances the Committee considers that the complainant has not furnished proof that the regulations concerning industrial associations infringe the principle of freedom of association on the ground that " they permit the Secretary of Labour to withdraw from an association, at any time, the right to function as a trade union ".
  255. 255 Having regard to the fact that the privileged status accorded to recognised trade unions may indirectly operate against the freedom of workers to belong to the organisation of their own choosing, the Committee, however, recommends the Governing Body to draw the attention of the Argentine Government to the desirability of considering the possibility of suppressing the distinction at present made between recognised trade unions and other trade union organisations.
• Allegations relating to the Violation of Trade Union Rights by Administrative Action, Particularly with Regard to the Maritime Industry and the Transport Industry
  256. 256 Under this head an examination will be made of certain allegations contained in the complaints of the International Confederation of Free Trade Unions and in the complaint emanating from the International Transportworkers' Federation. These allegations relate, firstly, to what is described as the taking over of the trade union movement by the Government and, secondly, to the exclusion of the independent trade unions from collective bargaining machinery.
• Allegation concerning the Taking Over by the Government of the Trade Union Movement
  257. 257 The complainants allege that after its rise to power the present Government of the Argentine Republic took control of the Railway Workers' Union and the Railway Workers' Brotherhood, two of the most important federations affiliated to the General Confederation of Labour founded in 1936 which was at that time an organisation entirely independent of the Government. These organisations were obliged to form the nucleus of a new General Confederation of Labour placed entirely under the control of the Government. The majority of the other trade unions and federations were subsequently obliged to affiliate with the new Confederation under pain of being dissolved or placed under the control of administrators appointed by the Government. In May 1951 the premises of the Railway Workers' Brotherhood were occupied by the police because, it is alleged, it refused to give its support to the re-election of General Perón as President of the Republic. On 28 November 1951 the police, aided by armed troops, took possession of the furniture and files belonging to the Workers' Committee for Independent Trade Union Action (C.O.A.S.I), the Shoe Industry Trade Union and the Graphic Arts Trade Union, all of which organisations had previously been dissolved (14 December 1949) by order of the Bicameral Committee of the Argentine Congress.
  258. 258 In its reply dated 24 April 1952 the Government states, among other things, that it has never interfered in any way in trade union administration and that it has never made any distinction between trade unions affiliated to the General Confederation of Labour and other unions.
  259. 259 With regard to the relations between the General Confederation of Labour and the independent organisations the Government states that this is an inter-union matter in which the Government must not intervene.
  260. 260 With regard to the election of the President of the Republic the Government emphasises that both the electoral campaign and the election itself took place under conditions of complete regularity as attested both by the opposition parties and by foreign observers.
  261. 261 The allegations have a twofold aspect : a legal aspect in respect of which the Government states that it assumes full responsibility and a factual aspect in respect of which it declines all responsibility.
  262. 262 With regard to the legal aspect the Government states that by virtue of the Decree respecting industrial associations-a Decree analysed in detail above-the State may not interfere in the direction and administration of industrial associations, whatever their status may be, and that it has strictly adhered to this principle. The Government points out in this connection that the autonomous or independent organisations enjoy, within the limits of the law, full freedom of organisation, functioning and action with regard to the defence of their occupational interests.
  263. 263 As for the factual allegations relating particularly to acts of trade union pressure exercised by the General Confederation of Labour against the autonomous organisations, the Government, while denying the facts alleged in this connection, confines itself to a statement that it declines all responsibility in the matter and consequently refrains from expressing any view with regard to the various allegations made by the complainant.
  264. 264 In these circumstances the Committee considers that the complainant has not furnished proof that the Government has intervened directly in trade union life. However, the Committee wishes to emphasise that freedom of association should be ensured in fact as well as in law, and consequently to draw the attention of the Argentine Government to the desirability of taking appropriate measures, if necessary, to ensure the free exercise of the right to organise of workers and employers even in their relations with other organisations or third parties.
• Allegations relating to Restrictions Placed on Collective Bargaining
  265. 265 In its communication dated 30 June 1951 the International Confederation of Free Trade Unions alleges, among other things, that only trade unions affiliated to the official General Confederation of Labour may legally conclude collective agreements, which has in practice suppressed the right of negotiation of the workers, and that in this way the old trade union organisations, which were genuinely independent, have been progressively eliminated.
  266. 266 A similar allegation is contained in the complaint of the International Transportworkers' Federation. The complainant affirms that the General Confederation of Maritime and Allied Trade Unions (C.G.G.M.A.), an organisation independent of the General Confederation of Labour, was deliberately excluded by the competent authorities from collective bargaining machinery, although it was the most representative organisation of workers in the maritime industry. The complainant alleges in particular that the bodies for negotiation successively instituted from 1947 to 1950 to settle labour disputes in the maritime industry-bodies on which the C.G.G.M.A was represented---were paralysed. In 1950 a new joint commission was set up without the participation of the C.G.G.M.A and in formal violation of an agreement signed with the Ministry of Transport in 1949.
  267. 267 With respect to the allegation made by the International Confederation of Free Trade Unions the Government states, as indicated earlier, that it is not true to say that only trade unions affiliated to the General Confederation of Labour can legally conclude collective agreements. In fact, the Ministry of Labour, which is the competent authority for this question, has always examined impartially every labour dispute without making any distinction between trade unions affiliated to the General Confederation of Labour and independent trade unions. In support of its statement the Government refers to several collective agreements to which independent organisations were parties.
  268. 268 With regard to the allegation made by the International Transportworkers' Federation the Government, while stating that it intends to refrain from making observations concerning the rivalry existing between the General Con federation of Labour and the C.G.G.M.A, in view of the fact that this concerns interunion matters for which the State assumes no responsibility, nevertheless points out that organisations of a representative character may negotiate directly with employers without any need for intervention on the part of the State. If the employers refuse to participate in such negotiations the organisations concerned may make application to the National Industrial Relations Council set up by Decree of 2 October 1945, which is competent to deal with cases concerning " unfair practices ", among which is included the refusal of an employer to negotiate with a trade union.
  269. 269 The Government adds that negotiations with the C.G.G.M.A finally resulted in the conclusion of a collective agreement.
  270. 270 The complaint in general terms made by the International Confederation of Free Trade Unions raises from the factual point of view the question whether organisations independent of the General Confederation of Labour are entitled to conclude collective agreements, a question which was examined in detail from the legal point of view under the heading " Allegations relating to the Status of Industrial Associations ".
  271. 271 It may be remembered that in principle the right to conclude collective agreements appears to be reserved to the most representative recognised organisations, irrespective of whether they are affiliated or not to the General Confederation of Labour.
  272. 272 In its reply the Government confirms that any representative organisation may, without State intervention, bargain collectively with the employers and, if the latter refuse to negotiate, it can make application to the National Industrial Relations Council for a judgment that the employer has been guilty of an unfair practice in his relations with the workers. The Government refers to Article 50 of the Decree respecting industrial associations, which lists among the " unfair practices contrary to the ethics of industrial relations on the part of an employer " the act of " refusing to bargain collectively with employees in accordance with legal procedure ". Any employer who is guilty of unfair practices shall be liable to a fine of 300 paper pesos, which fine may be raised to an amount equivalent to the wages or salary normally paid for two weeks' employment to the employees of the establishment where the unfair practices occurred. In the case of a repetition of the offence the establishment may be directed to close for a period of from one day to two weeks, according to the gravity of the offence ; during this period the employees who are as a result deprived of employment shall be paid their usual wages (Article 51). The National Industrial Relations Council, consisting of seven members, is established to deal with complaints relating to unfair practices. However, such complaints will be submitted to the Council only if the Minister of Labour or a recognised association deems them to be well founded. The decision of the Council is by majority vote and has the force of a judgment at law. An appeal may be brought in the courts only where the closing of the establishment is ordered or a fine of more than 1,000 pesos is imposed, and then only with respect to the duration of the closure or the amount of the fine.
  273. 273 As evidence of the effectiveness and impartiality of this procedure the Government cites, as indicated earlier, a list of collective agreements to which organisations independent of the General Confederation of Labour have been parties.
  274. 274 It would appear from this survey that, in fact as well as in law, trade unions even if not affiliated to the General Confederation of Labour can be parties to collective agreements, provided that they are sufficiently representative.
  275. 275 With regard to the more specific allegation of the International Transportworkers' Federation concerning the C.G.G.M.A, according to which the General Confederation of Labour paralysed the operation of the bodies for collective negotiations successively instituted from 1947 to 1950 to settle labour disputes in the maritime industry, the Government observes that with the assistance of the Ministry of Labour the negotiations finally terminated in the conclusion of collective agreements between the parties concerned.
  276. 276 The allegations of the complainant refer to events which took place during the years 1947 to 1950 and which terminated finally in an open conflict which still subsisted at the time when the complaint was presented (2 June 1950). Now the Government's reply, dated 24 April 1952, although making no mention of the different stages in the dispute notes the result of the negotiations arrived at since the date on which the complaint was presented, that is the conclusion of collective agreements between the employers in the maritime industry and the trade unions of the C.G.G.M.A.
  277. 277 In view of this outcome the Committee considers that there is no longer any reason to examine the allegations which relate exclusively to the earlier phases of the dispute.
• Allegations relating to the Restriction of the Right to Strike by Virtue of Public Security Legislation
  278. 278 The International Confederation of Free Trade Unions alleges that the Argentine Government is able to prohibit or terminate any strike and to arrest and sentence to severe prison terms trade union leaders who organise strikes, by virtue of Articles 33, 34 and 35 of the Act for the Repression of Crimes against the Security of the State (Decree No. 536/45 of 15 January 1945) and Articles 7 and 8 of Act No. 13985 for the Suppression of Espionage, Sabotage and Treason, dated 11 October 1950.
  279. 279 In its reply the Government maintains, first, that Decree No. 536/45 does not relate to the lawful exercise of the right to strike and, secondly, that Act No. 13985 has no connection whatever with trade or industrial association. The two enactments exist, in substance, solely for the repression of all acts of sabotage, espionage, etc. The Government observes that it has never found it necessary to apply the provisions complained against.
  280. 280 It is necessary, therefore, to refer to the two texts which are cited both by the complainant and by the Government.
• Legislative Decree of 15 January 1945 respecting Crimes against the Security of the State
  281. 281 The provisions of this Legislative Decree cover the three following kinds of offences : (1) the offence of inciting to a political strike ; (2) the offence of promoting a strike in the public services ; (3) the offence of supporting a strike which has been declared illegal by the competent authority.
  282. 282 Article 33, relating to the offence of incitement to a political strike, declares that " a term of imprisonment of from six months to three years shall be imposed on any person who causes a stoppage of work for reasons not related to the work, or who tendentiously raises economic, social or political questions in order to hinder the execution of work ".
  283. 283 Article 34, relating to the offence of promoting strikes in the public services, provides that " a term of imprisonment of from six months to three years shall be imposed on any person who in any way promotes a strike of workers or salaried employees in the service of the national, provincial or local Governments or employed in private or semi-public enterprises which undertake public services ".
  284. 284 Finally, Article 35, relating to the offence of supporting a strike declared illegal by the authorities, states that " a term of imprisonment of from one month to two years shall be imposed on any person who by any means whatsoever supports a strike in any particular establishment where a strike has been declared illegal by the competent authorities ".
  285. 285 The complainant states that this Decree, as a result of the intentional ambiguity of the phrases " reasons not related to the work " and " tendentiously " in Article 33, in substance condemns all strikes in private undertakings, just as Article 34 prohibits them in public undertakings.
  286. 286 It is contended that these provisions are further strengthened by those contained in the Act of 11 October 1950 respecting the suppression of espionage, sabotage and treason.
• Act of 11 October 1950 for the Suppression of Espionage, Sabotage and Treason
  287. 287 By the terms of Article 7 of this Act, "a term of imprisonment of from one to 25 years shall be imposed on any person who, by any means whatsoever, disorganises, destroys, injures or immobilises, in whole or in part, temporarily or permanently, any documents, objects, materials, installations, services or industries of any sort, with the object of disturbing, retarding or impeding the military, financial, social, scientific or industrial development of the Nation ".
  288. 288 Article 8 of the same Act provides that " a term of imprisonment of from one to eight years shall be imposed on any person who, by any means whatsoever, incites public alarm or depresses the public spirit thereby causing damage to the Nation ".
  289. 289 The complainant contends that by reason of the imprecise nature of the wording these two articles enable a Government wishing to prevent or terminate a strike to arrest and sentence to extremely severe penalties trade union leaders who have decided to resort to a strike for strictly occupational reasons.
  290. 290 In its various replies the Government first points out that these two texts have no connection with trade union rights and the right to strike under its legal form. It further points out that the Ministry of Labour, by virtue of an Order of 6 March 1944, can declare a strike illegal only where the workers do not present their demands in writing or where they have resort to a strike while the labour dispute is still subject to conciliation procedure.
  291. 291 It appears in fact from the Order cited by the Government that resort to a strike or lockout is lawful subject to the twofold condition mentioned above, namely, the presentation of the parties' demands in writing and the exhaustion of the attempt at conciliation. During conciliation procedure the status quo with respect to conditions of work must be observed by the two parties.
  292. 292 This procedure appears to apply not only to strikes which may arise in private industry but also to those which occur in public undertakings or services.
  293. 293 With regard to the laws concerning public security it should be observed that the provisions complained against relate only to the offence of incitement to unlawful strikes and not to the simple act of participation in such strikes.
  294. 294 Nevertheless it would appear from a careful perusal of the provisions that because of their imprecise terminology they could be applied to trade union leaders in respect of the normal exercise of their functions in defence of occupational interests.
  295. 295 In these circumstances the Committee considers that the complainant has not furnished proof of the allegation that every kind of strike may be prohibited by virtue of the laws respecting public security.
  296. 296 The Committee, while noting the statement of the Government that it has never found it necessary to apply the provisions relating to strikes contained in the laws respecting public security, recommends the Governing Body to draw the attention of the Government to the desirability of amending these provisions in such a manner that they cannot be applied to trade union leaders in the normal exercise of their functions in connection with the defence of occupational interests.
• Allegations relating to Proceedings Stated to Have Been Taken Arbitrarily against Certain Workers and Trade Union Leaders
  297. 297 Under this head are grouped the allegations made in respect of this matter in the complaint of the International Federation of Land and Air Transport Unions (Bucharest), supported by communications from different national federations, and certain allegations contained in complaints emanating from the International Confederation of Free Trade Unions.
  298. 298 The complainants allege that following the occurrence of strikes a number of workers and trade union leaders were arrested by the Argentine authorities. Subsequently several of them were liberated conditionally, others were exiled, but a number of the persons arrested are still detained. In several cases the prisoners were stated to have been maltreated by the police ; in two cases the victims, it is claimed, died as a result of the ill-treatment which they had to endure.
  299. 299 Reference is made below to the principal facts cited in support of their allegations by the complainants.
  300. 300 In January 1951, it is stated, the Government arrested hundreds of railway workers after having ordered, in consequence of a strike declared to be political, the mobilisation of the railway employees, by virtue of Decree No. 473 of 25 January 1951. The Government is said to have accused the persons detained of having constituted an illegal association and of having violated the Decree respecting the security of the State. The complainants allege that the railway strike was called exclusively for reasons of an occupational nature, such as inadequate wages, wrongful dismissals, etc. After having waited, in fact, for more than two years for satisfaction to be given in respect of their demands, it is stated that the workers went on strike, the Railway Workers' Union affiliated to the General Confederation of Labour having refused to give consideration to their demands. They allege further that they were obliged to set up an Emergency Committee outside the General Confederation of Labour, which Committee the Government declared to be an illegal association, but by establishing which they had simply made use of their rights to associate. The Government itself is stated to have recognised the representative character of this Committee by entering into negotiations with it and by promising to give consideration to their demands. On the faith of the assurances thus given by the Government it is claimed the strike was twice interrupted; but as the Government failed to keep its promises the workers were obliged, on 24 January 1951, to call a strike for the third time, and this strike was broken by the Government by means of the Mobilisation Decree referred to above.
  301. 301 It is contended that further arrests were made on the occasion of a railway strike called on 1 August 1951 by the Railway Workers' Brotherhood.
  302. 302 The International Confederation of Free Trade Unions cites several examples of persons who are claimed to have been arrested and subjected to maltreatment by the police. The Confederation refers particularly to the case of Mr. Cipriano Reyes, Member of Parliament, who, because he demanded trade union freedom, was accused of subversive activities, deprived of his parliamentary immunity and imprisoned.
  303. 303 In its reply the Government states that the railway workers' strikes were declared illegal not by virtue of the Decree respecting public security but in conformity with the Order of 6 March 1944 respecting conciliation and arbitration of collective disputes. The strikes were fomented, states the Government, by disturbing elements who on the one hand endangered the rights of the workers by the Constitution of an Emergency Committee alien to the real body representing the workers and on the other hand endangered the stability of legal institutions by the violation of the Decree of 1945 respecting the status of industrial associations. The Government states that this was a matter of internal law falling exclusively within the competence of the natural judges. Once the strike was declared illegal it was necessary to decree the mobilisation of the railways to prevent the serious damage to the national economy which would have resulted from a stoppage of transport.
  304. 304 As to the arrests alleged to have been made, the Government states that in fact only five persons are detained, pursuant to a judicial warrant confirmed by the Court of Appeal, and have been proceeded against in respect of common law offences.
  305. 305 With regard more particularly to the case of Mr. Cipriano Reyes, the Government states that he was convicted by the ordinary courts of participation in a conspiracy both revolutionary and political, and that his sentence, therefore, has no connection with his previous political and trade union activities.
  306. 306 In order to appreciate the various allegations it appears necessary to examine, in the first place, the reasons for measures of repression having been taken against the members or leaders of certain trade union organisations.
  307. 307 The complainant alleges, in the first place, that the Emergency Committee set up by the railway workers was wrongfully declared to be an illegal association, because it represented a majority of the workers concerned and because the Government itself recognised its representative character by negotiating with it. The Government, on the other hand, urges that the Constitution of such a Committee was alien to the real body representing the workers and violated the Decree respecting the status of industrial associations.
  308. 308 In order to appreciate this aspect of the complaint it will be necessary to refer to the Decree respecting industrial associations which was examined in detail earlier (see " Allegations concerning the legal status of trade unions ").
  309. 309 It should be remembered that under this enactment only recognised trade unions are, in principle, entitled to represent the interests of the workers before the State and the employers and to engage in collective bargaining. The Railway Workers' Emergency Committee was apparently constituted outside the Railway Workers' Union affiliated to the General Confederation of Labour and which alone was entitled to represent the railroad workers. It is evidently on the basis of this fact that the Government was able to declare that the Constitution of the Emergency Committee violated the Decree respecting industrial associations.
  310. 310 The complainant has alleged, in the second place, that the strikes in the railroad industry were declared arbitrarily to be political strikes and that for this reason reprisals were taken by applying the Decree respecting public security.
  311. 311 The Government maintains, on the other hand, that the strike was declared illegal not by virtue of the Decree respecting public security but by virtue of the Order of 6 March 1944 respecting collective disputes, which Order is a measure of general application.
  312. 312 It has been pointed out earlier that under the provisions of this Order workers and employers, before they may resort to a strike or lockout, must present their claims in writing to the Secretary of Labour and await the outcome of the conciliation procedure. Article 4 of this Order provides further that conciliation talks cannot be held if, at the moment when the list of demands is presented, strikes or lockouts have already occurred or if the parties announce that their recourse to strikes or lockouts is mentioned. The Government points out in its reply that strikes had actually occurred at a time when the negotiations were still in progress and accordingly that they had to be declared illegal in accordance with the provisions of the Order respecting collective disputes. The Government adds that the strike once having been declared illegal the sole purpose of the Mobilisation Decree was to ensure that effect would be given to this decision (declaration of the strike to be illegal), in order to spare the national community the serious repercussions of a transport stoppage.
  313. 313 It would follow, then, that the sanctions applied in consequence of the strikes were not applied by virtue of the Decree respecting public security, as the complainants contend, but by virtue of common law provisions of general application.
  314. 314 In connection with the lists of names of arrested persons annexed to the various complaints the Government states that only five persons have been prosecuted for common law offences and pursuant to a warrant for preventive arrest issued by the competent judge and confirmed by the Court of Appeal. Thus it would appear from the Government's reply that practically all the persons who, according to the complainants, were arrested have since been liberated.
  315. 315 With regard more particularly to the case of Mr. Cipriano Reyes, Member of Parliament, the Government maintains that the person concerned was sentenced by the civil courts of the country not because of his political or trade union activities but solely on the ground of his participation in a conspiracy of a political and revolutionary nature.
  316. 316 It would appear from this analysis that the complainant has not presented sufficient proof in support of the allegation that hundreds of workers have been arbitrarily arrested under emergency legislation respecting public security.
  317. 317 From the examination of the case as a whole the Committee has reached the following conclusions
  318. 318 With regard to the allegations relating to the status of industrial associations the Committee notes that under the provisions of the regulations at present in force all workers have the right, without discrimination whatsoever and without prior authorisation, to form industrial associations, and that the associations which they form are in their turn completely free with respect to their organisation, functioning and administration, but that there are important distinctions between unregistered, registered and recognised trade unions. Having regard to the fact that the privileged status accorded to recognised trade unions may indirectly operate against the freedom of workers to belong to organisations of their own choosing, the Committee considers it desirable that the Argentine Government should reconsider the distinction at present made between recognised trade unions and other trade union organisations.
  319. 319 With regard to the allegations relating to the violation of trade union rights by administrative action, the Committee notes that under the provisions of the regulations at present in force the Government is not legally entitled to intervene with respect to the formation, functioning and administration of industrial associations, whatever their status may be, and that the complainant has not furnished proof that the Government has failed to conform to this principle. In view of the fact that with regard to the allegation that the Argentine General Confederation of Labour has exercised pressure against the autonomous trade unions the Government has stated that it declines to assume any responsibility, on the ground that this is a matter of purely inter-union concern in which it must not interfere, the Committee nevertheless considers it desirable that the Argentine Government should take appropriate measures, if necessary, to ensure the free exercise by workers and employers of their right to organise and also to protect their organisations against any pressure exerted by rival organisations or by third parties.
  320. 320 With regard to the allegations relating to the power which the Government is stated to possess of suppressing the right to strike by virtue of the laws respecting public security-laws upon which the Committee is not competent to express an opinion-the Committee notes that the complainant has not furnished proof of the allegation that every kind of strike could be prohibited under this legislation, in view of the fact that strikes are lawful if the parties comply with the requirements laid down in the laws and regulations concerning conciliation and arbitration. The Committee also notes the assurance given by the Government that it has never found it necessary to apply the provisions complained against. The Committee, however, noting the imprecise terminology of certain articles relating to strikes contained in the laws respecting public security, considers it desirable that the Government should re-examine the relevant provisions with a view to taking any action necessary to ensure that they may not be invoked against trade union leaders in respect of the normal exercise of their functions in connection with the defence of occupational interests.
  321. 321 With regard to the allegations relating to the prosecution of certain workers and trade union leaders, the Committee notes that the sanctions applied were not applied by virtue of the laws respecting public security, as the complainants contend, but by virtue of provisions of the common law of general application. The Committee also notes that with the exception of six persons, five of whom were sentenced in respect of common law offences and one for conspiring against the State, all the other persons arrested after strikes had occurred have been set free.