Rapport intérimaire - Rapport No. 30, 1960

1. 168. On 5 February 1958 the International Federation of Christian Trade Unions sent the Director-General of the I.L.O a letter containing allegations of infringements of trade union rights in Argentina on the occasion of the bank strike in February and March of 1958. This complaint was communicated to the Government on 17 February 1958.
2. 169. On 30 January 1958 the organisation known as Argentine Trade Union Action (A.S.A.) filed a series of allegations concerning the same strike, and these were forwarded to the Government by letter of 21 February 1958. The A.S.A. amplified its complaint in a communication dated 16 March 1958, of which the Government was notified on 28 March 1958.
3. 170. On 3 March 1958 the Postal, Telegraph and Telephone International submitted an extensive body of documentation containing allegations of an infringement of trade union rights in connection with the disputes that broke out in the telegraph and telephone services during the months of September, October and November 1957. This complaint was forwarded to the Government on 7 March 1958.
4. 171. The Government of Argentina presented its observations on the various complaints mentioned above in a communication dated 22 October 1958.

Strike of Telegraph and Telephone Personnel

1. 172. The Postal, Telegraph and Telephone International sent detailed documentation dated 3 March 1958 consisting of reports drawn up by various trade union organisations, concerning the circumstances which led to the strike and to the measures involving infringements of trade union rights alleged to have been taken in connection therewith. It is alleged that in the dispute affecting telegraph and telephone personnel which broke out in September 1957, trade unions had their juridical personality withdrawn, and that, even when the dispute had ended, and juridical personality had been restored to the trade unions, the employing companies persisted in refusing to accord any form of hearing to the trade union leaders.
2. 173. In one of the reports comprised in the documentation, that of the Argentine Association of Telegraphists, Radio Telegraphists and Related Occupations (A.A.T.R.A.), it is alleged that the trade union had requested a general increase in wages and had commenced negotiations with the employers who were composed of representatives of public authorities and private enterprises. On the refusal of the employers to meet this request, the trade union decided that the employees should put an end to the "extraordinary collaboration" which had been given; and that in future they would work to order according to the provisions laid down by the law governing telegraphists (Decree 14924/46). Since this manner of working caused considerable delays in the service it was declared illegal by the Ministry of Labour and Welfare. Measures were also taken to increase the number of words which telegraphists were to receive and transmit. This measure was not accepted by the trade union on the grounds that it was impossible to perform it ; the consequence was that the president and the secretary of the organisation were declared to be guilty of a breach of articles 230, paragraph 2, and 20 of the Criminal Code. In protest the personnel resorted to partial suspensions of work which were declared illegal in virtue of article 8 of Decree 1059/57. In addition, by a resolution of the National Director of Labour and Direct Social Action the trade union's status as a recognised association was suspended, thus preventing it from negotiating with the authorities. Finally, a general strike was called, which was terminated on 26 September 1957 after a duration of 40 days.
3. 174. In another of the reports comprised in the documentation, that of the Federation of Telephone Workers and Employees of the Argentine Republic (F.O.E.T.R.A.), it is stated that, after the partial suspensions of work had been declared illegal on 11 September 1957, the employees were ejected from their offices, which were taken over by the army. On 18 September, it is alleged, about 180 leaders and delegates who were denounced by the enterprises concerned were arrested ; those who were not arrested were kept under house arrest for a week. The judge who heard the case rendered a judgment to the effect that there was no reason whatever for their arrest. As a consequence of these arrests a general strike was called since the F.O.E.T.R.A's status as a recognised association had been suspended. The report points out that there followed many further arrests of the more active trade union members. Since the trade union's status as a recognised association had been withdrawn, it could only negotiate with the undertaking in an unofficial capacity, whilst it was also unable to call meetings of its members. Finally, on account of police persecution, and driven by hunger, the telephone workers decided to return to their jobs on 7 November 1957.
4. 175. In its communication dated 22 October 1958, the Government, after making certain general observations regarding the situation existing in the country at that time (see paragraph 197 below), points out, in respect to the allegations made by the A.A.T.R.A with regard to the prohibition of a meeting of the said trade union at the end of August 1957, that this relates to an emergency measure of which no records are available. The Government states that the indictment of the president and secretary of the A.A.T.R.A was based on the provision contained in Resolution No. 104, in virtue of which the trade union's status as a recognised association might be suspended. The Government confirms that the suspensions of work adopted by the workers were declared illegal, and observes that the general strike was called off on 24 October 1957 as a consequence of the imminent approval by the Executive Power of the new grades and appointments register (escalafón), and also the adoption of other measures which would benefit the personnel. With reference to the dispute involving the telephone workers, the Government points out that the arrests which took place on 18 September were ordered on the request of the manager of the National Telecommunication Undertaking. Three days later the judge in the case found in favour of their freedom. Reference is made in the note to the origins of the dispute arising out of the request for increases in salary made by the workers, and also to the course of the conflict in which partial suspensions of work culminated in a general strike. The abnormal situation lasted from 27 August to 7 November 1957 when the general strike ended as a result of the wage increases which were obtained.
5. Allegations relating to the Illegality of the Strike.
6. 176. It appears from the complaint and from the observations of the Government, that the strikes by the employees of the telegraph and telephone service were declared unlawful. In the preambles to the relevant Decrees (Nos. 11090/57 and 10822/57), reference is made to Legislative Decree No. 879/57, in virtue of which labour disputes in state undertakings are to be dealt with by the ministries concerned. In sections 2 and 3 of Legislative Decree No. 879 it is laid down that if a direct agreement between the parties to the dispute is not reached, the dispute shall be settled by the Executive Power after consultation with the Ministry of Labour. Before the matter is brought before the Executive Power, the parties may submit a brief regarding their rights.
7. 177. The preambles to Decrees Nos. 11090 and 10822 also indicate as a reason for declaring strikes unlawful, " the necessity to re-establish the normal working of the public service ".
8. 178. As the Committee has indicated in many previous cases, the right of workers and their organisations to strike as a legitimate means of defence for their professional interests is generally recognised. However, this general principle, as indicated by the Committee in several earlier cases, may be subject to restrictions both in essential occupations and in the civil service. In those cases, the Committee stressed the importance of providing some procedure which will ensure peaceful settlement of such disputes so that the workers who are deprived of an essential means of occupational defence such as a legal strike may have appropriate guarantees.
9. 179. As regards the nature of these appropriate guarantees, the Committee, when examining Case No. 60 (Japan), came to the conclusion that allegations relating to the denial of the right to strike did not call for further examination after having noted that this denial was accompanied by " certain guarantees to safeguard the interests of the workers-a corresponding denial of the right of lockout, provision of joint conciliation procedure and, where and only where, conciliation fails, the provision of joint arbitration machinery ". As regards the nature of the system in question, the Committee pointed out that restrictions on the right to strike " must be accompanied by adequate impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage ".
10. 180. Bearing in mind that, in conformity with Decree No. 879/57 the Executive Power is responsible for the final settlement of disputes in state undertakings, the Committee considers that it is perhaps possible that the conditions indicated in the previous paragraph do not all exist in this case. In these circumstances, the Committee recommends the Governing Body to draw the attention of the Government to the desirability of considering the possibility of effecting an improvement in the existing system for the settlement of disputes in state-owned undertakings by affording the guarantee of adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage.
11. Allegations relating to the Suspension of the Registration of Associations.
12. 181. In conformity with the information given by the complainants and with the documentation communicated by the Government, the trade union registration of the Argentine Association of Telegraphists, Radio Telegraphists and Related Occupations A.A.T.R.A and of the Federation of Telephone Workers and Employees of the Argentine Republic F.O.E.T.R.A was suspended in virtue of Resolutions Nos. 104 and 105 of the National Director of Labour and Direct Social Action. According to the preambles of these two decrees these measures were adopted as a result of the infringement by the trade union organisations of section 28 of Decree No. 9270/56. In the preamble to Resolution No. 104 it is indicated that the A.A.T.R.A refused to comply with Legislative Decree No. 10774/57 ; in the preamble to Resolution No. 105 it is indicated that the F.O.E.T.R.A ignored the admonitions and provisions issued by the Ministry of Labour, thus causing serious prejudice to a public service. Both Resolutions were subsequently repealed, according to the documentation communicated by the Government.
13. 182. The Committee notes that section 28 of Legislative Decree No. 9270/56 provides as follows:
14. The Ministry of Labour and Welfare or the authority acting on its behalf may suspend or annul the registration of any industrial association, federation or Confederation of employees if it acts in violation of the law or of the provisions of its Constitution. An appeal against suspension or annulment of registration may be lodged with the competent judicial authority by the industrial association, federation or Confederation concerned.
15. 183. The Committee also notes that according to section 16 of Legislative Decree No. 9270/56, registered industrial associations had the right to represent and defend the individual or collective occupational interests of their members, vis-à-vis the State, provident institutions, courts of law or employers ; engage in collective bargaining ; levy dues from their members ; hold their ordinary and general meetings in full privacy without requesting prior permission, etc.
16. 184. The Committee notes that registered industrial associations benefited from the principal trade union rights. This means that when registration was suspended, the trade unions lost the said rights as they were no longer able to exercise the normal functions of a trade union. In the present case it is claimed, on the one hand, that as a result of the application of such a measure, the F.O.E.T.R.A was unable to hold a meeting of its members and, on the other hand, that the undertaking refused to meet officially the leaders of the federation in question.
17. 185. The Committee notes with regard to the last two allegations that: (1) it has pointed out on various occasions that " the right of trade unions to hold meetings freely in their own premises, without the need for previous authorisation and without control by the public authorities, is a fundamental element in freedom of association " ; and (2) it has emphasised " the importance which it attaches to the principle that employers, including governmental authorities in the capacity of employers of wage earners, should recognise for collective bargaining purposes the organisations representative of the wage earners employed by them ".
18. 186. As regards the suspension of the registration of a trade union, the seriousness of which measure is shown in the present case, the Committee, when examining Case No. 11 (Brazil) in its Sixth Report, came to the following conclusion in paragraph 64 " Considering that it is a generally accepted principle that the suspension or dissolution of an employers' or workers' organisation should be pronounced only by the courts, the Committee, while observing that dissolution was pronounced ultimately by the competent court in the present case, recommends the Governing Body to draw the Government's attention to the fact that, where suspension measures are issued by administrative authority, there may be a danger that they will appear to be arbitrary, even though they are issued only temporarily or over a limited time and as a preliminary to subsequent court action." In that particular case, in virtue of the legislation in force the administrative measure was not a final step, as the public prosecutor requested the competent court to dissolve the trade union ; in the present case, however, according to the legislative provisions referred to, it is for the trade union in question to appeal against the decision by which registration was suspended.
19. 187. In these circumstances, the Committee recommends the Governing Body to decide to inform the Government of the importance which it attaches to the right to hold meetings and to the principle that organisations representing the workers should be recognised for collective bargaining purposes ; and to draw the attention of the Government to the fact that the suspension by administrative measures of a trade union is contrary to one of the fundamental principles of freedom of association.
20. Allegations relating to Prosecutions of Trade Unionists.
21. 188. It is alleged in the report of the A.A.T.R.A that the president and secretary of this organisation were detained on charges of having committed the offence defined in sections 230 (2) and 20 of the Penal Code, and the Government states in its reply that the prosecution of both leaders was based on the preamble to Resolution No. 104 of the National Director of Labour and Direct Social Action.
22. 189. According to the clauses in the preamble to the said Resolution No. 104, the A.A.T.R.A drew up circulars in which it rejected the amendment made to Decree No. 14954/46 (Telegraphs Workers Law) by Legislative Decree No. 10774/57, deciding on the other hand to continue working in accordance with the original text of the Telegraphs Workers Law. The Committee observes that it is also stated in the report of the A.A.T.R.A that the trade union resolved not to recognise Decree No. 10774/57, " because it was impossible to comply with it ". In the preamble to Resolution No. 104 it is declared that the attitude adopted by the A.A.T.R.A implied non-recognition and total defiance of provisions of a legal character issued by the competent authority.
23. 190. The relevant part of section 230 of the Penal Code contained in the chapter relating to " sedition ", provides as follows:
24. Any person shall be punishable with imprisonment for from one month to two years:
25. ......................................................................................................................................................
26. (2) who publicly commits acts of defiance for the purpose of hindering the application of national or provincial laws or of resolutions issued by national or provincial public officials, in cases in which such acts do not constitute an offence entailing more severe punishment under this Code.
27. Section 20 refers only to the special disabilities which may apply in the case of persons sentenced in respect of certain offences.
28. 191. The Committee notes that the documents before it contain no details as to the results of the proceedings instituted against the two trade union leaders.
29. 192. The Committee has followed the practice in earlier cases of not proceeding to examine matters which are the subject of pending judicial proceedings, provided that these proceedings are attended by proper guarantees of due process of law, because the pending judicial decision may make available information of assistance to the Committee in appreciating whether or not allegations are well founded. In these circumstances, in view of the fact that proceedings may be pending against the two trade union leaders, the Committee has adjourned its examination of this aspect of the case and requested the Director-General to ask the Argentine Government to furnish information concerning the results of the judicial proceedings.
30. Allegations relating to the Detention of Trade unionists.
31. 193. It is alleged in the report of the F.O.E.T.R.A that on 18 September 1957 some 180 trade union leaders and delegates were detained after charges had been made by the company employing them ; police were stationed, for one week, before the houses of those who were not arrested. The magistrate who took cognisance of these detentions decided in three days that there were not proper grounds for such detentions. These facts are admitted by the Government in its reply. It is also stated in the report that after the status of the F.O.E.T.R.A as a recognised organisation had been suspended, many detentions took place. The Government does not refer to these allegations.
32. 194. In certain respects these allegations are similar to those made in Case No. 133 (Netherlands-Netherlands Antilles), in which the Committee found that when various trade unionists had been detained on certain charges the magistrate who heard the case dismissed those charges. In that case, the Committee took the view that the arrest and proceedings taken were " uncalled for " and that they must of necessity have interfered with the trade union activities of the persons concerned. In that case moreover, as in the case now before the Committee, the persons detained were set at liberty, and at the same time a settlement was reached in the disputes which had given rise to the respective strikes. In these circumstances, the Committee recommends the Governing Body to draw the attention of the Government to the importance of ensuring respect for the principle that the public authorities shall refrain from any interference which would restrict trade union rights or impede the lawful exercise thereof, but to decide, having regard to the fact that the examining magistrate found that there were no proper grounds for the detentions and the persons concerned were released within three days, that no useful purpose would now be served by examining further this aspect of the case.
33. 195. With respect to the other detentions alleged by the complainants, concerning which the Government makes no comments in its reply, the Committee has requested the Director-General to ask the Government to furnish its observations on this aspect of the case, it being understood that the Committee will report further thereon when the observations of the Government have been received.
34. Bank Employees' Strike
35. 196. The International Federation of Christian Trade Unions and the Argentine Trade Union Action (A.S.A.) submitted allegations on 5 February, 30 January and 16 March 1958 regarding violations of freedom of association said to have occurred in connection with the bank employees' strike which started in January 1958, following alleged failure by the competent authorities to negotiate with respect to wage demands. It is alleged that, in connection with the strike, over 500 trade union leaders and members were arrested on 29 January 1958 in the offices of their organisation, the premises were closed down and the officials of the Argentine Bank Employees' Association were relieved of their posts and a controller for the unions was appointed, after which the Ministry of Labour refused to undertake any negotiations with the rightful officials of the unions. The controller appointed a wages board which was not, however, considered to be representative by the employers and received no support from the workers. As a result of the dispute the police raided the offices of the A.S.A. and arrested a number of trade unionists. It also carried out a number of additional arrests during the resulting demonstration. In view of the scale of the strike the Government called up the bank staffs and some thousands of clerks were put into barracks. The strike had already been declared illegal and this, in the complainants' view, involved a breach of the right to strike guaranteed under the Constitutional reform of 1957. This right was also violated by the arrest of a number of trade union leaders and by the issue of a decree calling up the employees. Lastly the right to strike is also stated to have been violated by a decree issued at the same time which prohibited all trade union action in support of workers' claims for a period of 40 days.
36. 197. The Argentine Government submitted its observations on these allegations in a communication dated 22 October 1958. The Government refers to the special circumstances which existed in the country at the time when these events took place. The country was going through an election campaign-the provisional authorities who took over after the 1955 revolution had called general elections for 23 February 1958. The Government acknowledges that the economic situation justified the wage claims but adds that other elements outside the trade union movement tried to give the workers' unrest a political turn. As a result a decree was issued (No. 934/58) suspending the right to strike for a period of 40 days. Its aim was to foil the manoeuvres of certain individuals who were trying to prevent a return to normal in the country's institutions. Decree No. 2638/58, under which the bank employees were called up into the army, had the same purpose. The Government adds that these measures enabled the emergency to be overcome and that the present authorities have settled all the disputes referred to in the complaints.
37. 198. As regards the specific allegations the Government states that the arrests which took place on 29 January 1958 were carried out under the decree referred to above ; 422 persons were taken into custody and all were released within a few hours. The same decree (No. 934/58) was used as authority for the arrests carried out on 3 February at the offices of the A.S.A. and in the neighbourhood of the Ministry of Labour. Some of the persons arrested were set free on the same day and the others on 5 February. The order for the mobilisation of bank employees was issued on 7 March and was rescinded on 18 March as soon as the strike came to an end. Subsequently the Committee of Ministers (whose secretary had, it is acknowledged, previously refused to negotiate over any wage increase) held a meeting and reached an agreement which resulted in the issue of a number of government decrees granting the bank employees' claims. Those who had been dismissed were reinstated and salaries were paid for the strike period.
38. Allegations relating to the Appointment of a Controller, the Arrest of Trade Unionists and the Illegality of the Strike.
39. 199. The Committee notes from the accounts supplied by both the complaining organisations and the Government that this dispute between bank staffs and their employers apparently originated in a wage claim which was rejected out of hand by the secretary of the Committee of Ministers dealing with questions affecting bank staffs. This dispute culminated in a strike movement which took place during a period in which Decree No. 934/58 (suspending the right to strike for a period of 40 days) was in force. The Government states in its reply that the country was in the middle of an election campaign and even though economic circumstances justified a wage claim certain elements outside the trade union movement took advantage of the workers' unrest to give it a political turn in an attempt to prevent the institutions of the Republic from reverting to normal.
40. 200. The Committee likewise notes that the right to strike is recognised in Argentina under the revised Constitution of 1957 which states: "Trade unions shall be guaranteed... the right to strike." Nevertheless, even though this right was suspended by Decree No. 934/58, there are certain factors which must be borne in mind in assessing its effect. Firstly, the order only covered a period of 40 days and expired on 24 February 1958, i.e. the day after the general elections; secondly, section 2 of the decree prohibits disciplinary action in the shape of dismissals or staff transfers ; lastly, the Government states that the ban on strikes was not aimed at the trade union movement but was designed to prevent certain political groups from hampering the return of the country's institutions to normal.
41. 201. From this action and the legislation in force at the time, the Committee concludes that it was as a result of the violation of Decree No. 934/58 dated 27 January 1958 that the Argentine Government took the action which led the complaining organisations to lodge their allegations. The Committee notes that in the preamble to Decree No. 987/58 appointing a controller for the Bank Employees' Association, reference is made to the breach of Decree No. 934 by the trade union authorities. The arrests referred to in the complaint were carried out under section 3 of Decree No. 934 which states that any persons who take part in a stoppage of work or contribute thereto are liable to be punished under section 7 of Act No. 13985 ; under Decree No. 934 the strike was automatically illegal.
42. 202. The Committee has already pointed out in a number of other cases that in the majority of countries strikes are recognised as a legitimate means whereby trade unions can safeguard their members' interests, provided that this right is exercised peacefully and subject to such temporary restrictions as may be imposed. Thus, in a number of instances in which complaints have been submitted regarding alleged violations of freedom of association under emergency or special legislation or under a state security Act, the Committee (while stating that it was not called upon to give an opinion on the necessity or desirability of such legislation, which is a purely political matter) has consistently maintained that it must examine any repercussions that this legislation might have on trade union rights. In other words the Committee has called attention to any temporary restrictions on the right to strike and at the same time has considered that it is not called upon to express an opinion on the desirability of emergency legislation except as regards its effect on trade union rights.
43. 203. In the present case the rights of the trade union were restricted as a result of an exceptional temporary measure which, according to the Government, was solely designed to prevent political manoeuvres, i.e. it was not directly against the exercise of freedom of association as such. Moreover, according to the Government, no trade unionists were in fact detained under Decree No. 934/58 as those who were dismissed were reinstated when the strike ended. It is not clear whether the appointment of a controller of the Bank Employees' Association has ended.
44. 204. Accordingly, the Committee recommends the Governing Body:
45. (a) to decide, with respect to allegations relating to arrests of trade unionists and the illegality of the bank employees' strike, to express the hope that the Government, desiring to see labour relations develop in an atmosphere of mutual confidence, will have recourse when dealing with situations resulting from strikes and lockouts, to measures provided for under common law rather than to emergency measures, which involve a danger by reason of their very nature of certain restrictions being placed on fundamental rights;
46. (b) to decide, with respect to the appointment of a controller to the Argentine Bank Employees' Association, to draw the attention of the Government to the importance which it attaches to the generally accepted principle that the public authorities should refrain from any interference which would restrict the right of workers' organisations to elect their representatives in full freedom and to organise their administration and activities, and to request the Government to furnish information as to whether the appointment of the controller for the unions has now been cancelled, it being understood that the Committee will report on this aspect of the case when the Government's observations have been received.
47. Allegations relating to the Mobilisation of Bank Employees.
48. 205. According to the statements made by both the complainants and the Government, bank staffs were mobilised under Legislative Decree No. 2638/58 dated 7 March 1958. The preamble to the decree refers to the very serious harm caused by the bank strike to the national economy and states that the emergency thus created demanded immediate action to ensure the running of the services needed for the proper functioning of the State and the community. Section 1 of the legislative decree calls up bank employees by virtue of sections 27 and 28 of the National Organisation (Wartime) Act (No. 13234).
49. 206. In the present case the Argentine Government states that its action was due to the existence of a state of emergency and the need to restart essential services in order to allow the State to function properly. In calling up the bank employees it availed itself of the National Organisation (Wartime) Act, section 27 of which states that " the mobilisation of the auxiliary forces may only be decreed by the Government whenever this is necessary for purposes of national defence or in event of catastrophes or serious emergencies which affect substantial sections of the country or its population ". Section 3 of the legislative decree calling up the bank clerks states that they are subject to the provisions of the Military Code and to the administrative disciplinary regulations.
50. 207. The Committee observes that although, according to the Government, its action was not designed to curtail trade union rights as such but was intended to cope with the emergency created by the bank strike, in practice these rights were affected. Accordingly, in view of the fact that mobilisation in order to break a strike movement may imply very serious consequences for the workers and for the exercise of their trade union rights, the Committee recommends the Governing Body to draw the attention of the Government to the possibility of abuse involved in the mobilisation of workers in industrial disputes and to emphasise the undesirability of recourse to such measures except for the purpose of maintaining essential services in circumstances of the utmost gravity.