Rapport définitif - Rapport No. 41, 1960

1. 36. By a communication dated 24 April 1959, which was sent directly to the I.L.O, the association known as "Fraternity" (Association of Railway Engine Staff), Buenos Aires, lodged a complaint of infringement of trade union rights in Argentina. This complaint was forwarded to the Government by a letter dated 7 May 1959, for observations.
2. 37. No observations having been received from the Government the Committee decided at its 22nd Session (Geneva, May 1959) to adjourn consideration of the case to its next session, a decision of which the Government was notified by a letter dated 5 June 1959.
3. 38. The Government forwarded its reply under cover of a communication dated 16 September 1959.
4. 39. Argentina has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but it has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. A. The complainants' allegations

1. 40. The " Fraternity " complaint is concerned with the mobilisation of the railwaymen under a decree of 27 November 1958 and with the consequences of this enactment for railway employees. The complaining organisation gives the following description of what happened.
2. 41. In November 1958 negotiations were begun between the Railwaymen's Federation, represented by its two constituent organisations, the Railway Union and " Fraternity ", and the Argentine State Railways Corporation, regarding the payment of back pay as the result of an agreement whereby the railwaymen had been granted a wage increase with retroactive effect. While the workers were demanding immediate and outright payment of the arrears, the Corporation desired to discharge its debt by means of bi-monthly instalments. Owing to the progress of inflation and the falling off in the purchasing power of money which it entailed, the workers did not feel in a position to accept the method which the Corporation desired to impose on them and in protest against the unbending attitude of the Argentine State Railways and in the hope of making their opinions prevail, the railwaymen's unions launched a series of partial stoppages.
3. 42. In reply to this strike movement, the Government issued a Decree, No. 10394/58 dated 27 November 1958, calling to the Colours the entire staff of the railways and at the same time placing the Railway Union under the control of a military administrator.
4. 43. For its part, "Fraternity" had issued a strike call to its membership as a result of the mobilisation decree, but cancelled the strike call after receiving a promise from the civilian and military authorities that it would not be affected as a union, in spite of the provisions of the mobilisation decree. Despite this promise, the complainants allege, and despite a provision in a later enactment (Decree No. 1391/59) granting " Fraternity " trade union freedom, the military authorities in control of the railways are ignoring " Fraternity " and continuing their authoritarian management of railway affairs.
5. 44. In its reply, the Government begins by stating that as soon as it came to power it endeavoured to restore the ailing economy to health and with that aim in view to set up a system that would make for sound labour-management relations and open an era of industrial peace. To this end the Industrial Associations Act (No. 14455) was promulgated and in addition the Government took steps to safeguard the rights of the workers by all the Constitutional and administrative means at its command.
6. 45. The fact remains, the Government states, that a series of scattered movements, prompted for the most part by political considerations, broke out in Argentina with the object of upsetting the established machinery of Government and obstructing the authorities in the discharge of their Constitutional functions. The country was swept by a wave of strikes launched for reasons other than the defence or furtherance of the workers' interests. The Government quotes several examples of strikes of this nature, which it qualifies as " insurrection strikes ".
7. 46. As regards the appointment of military controllers for certain trade unions, the Government states that this is a normal consequence of the proclamation of a state of emergency. It further points out that only 60 out of a total of 267 were placed under military control and that of those 60 the majority were without leaders at the time the action was taken. In the same way, the Government adds, suspension of trade union activities is a logical and lawful consequence of mobilisation. The Government states that both the High Court judges and the federal Court of Appeal have ruled-in actions brought by certain mobilised railwaymen-that the Government was within the Constitutional rights vested in it in taking the action it did.
8. 47. Summing up its general observations the Government declares that it could not impair the right of the trade unions to strike, since this right is expressly guaranteed in article 14bis of the National Constitution. Naturally, the Government adds, this right, like any other, must be exercised in accordance with the laws that govern it.
9. 48. The Government then replies one by one to the specific allegations made by the complaining organisation.
10. 49. The complainants allege that the mobilisation of the railwaymen had the effect of postponing sine die the conclusion of discussions on the agreement concerning the salary scale (see paragraph 41 above), at a stage when the date of its coming into force, among other matters, remained to be determined. In reply to this allegation the Government states that the State Railways Corporation agreed outright to the workers' demand for a retroactive wage increase. This increase, the Government notes, corresponded to a rise of 125 per cent over the rates of pay applicable on 1 February 1956, and involved a payment by the Corporation of 5,000 million Argentine pesos. There was no adjournment of the negotiations, since the agreement had been accepted ; any delay that resulted was brought about by the workers' refusal to accept the method of payment by instalments which the Corporation suggested.
11. 50. The complainants further allege that all questions concerning staff trade union problems were brought to a standstill in all the railway administrations as a result of mobilisation. The Government does not dispute this fact, and explains it by pointing out that, since the workers had come under military authority and become an integral part of the army by reason of their mobilisation, they no longer enjoyed trade union rights and were subject to military discipline alone.
12. 51. The Government's reply to the allegations that negotiations for an emergency pay increase based on the sharp rise in the cost of living had been brought to a standstill, is that the dispute was not about the wage increase as such, but rather about the way in which the increase was to be paid, as stated above. Moreover, it would have been beyond the Corporation's powers to lay its hands on a sum of 5,000 million Argentine pesos within a month as the workers were then demanding, and as they had continued to demand ever since.
13. 52. The complainants contend that the closure of trade union premises, which are under military guard, prevents the holding of trade union meetings and regional congresses. While recognising that certain trade union premises were shut down when it was considered necessary to do so, the Government states that the complaining organisation has not been placed under military control and that the mobilisation order did not have the effect of hampering this organisation's activities, so long as those activities did not infringe the provisions of the mobilisation decree.
14. 53. According to the complainants, elections to the management and executive organs of the trade union have had to be adjourned, together with the election of representatives on the General Directorate of Social Assistance and Welfare for the Railways, the Directorate of the Railway Superannuation Fund, the Directorate of the Argentine Railways Corporation and the Central Confederation Committee. The Government's answer is that suspension of the exercise of trade union rights is a consequence of mobilisation. It explains that mobilisation does not entail the abolition of those rights, but merely suspends the exercise thereof to a certain degree.
15. 54. The complainants allege that sentences of imprisonment ranging from a few days to more than a year have been passed on more than 100 persons of " Fraternity ". These sentences, which are served in army or in other disciplinary units, are said to have been imposed for infringements of military regulations. In its reply, the Government points out that the mobilised workers were under military discipline and that any breach of such discipline carries the punishments duly laid down in the Code o€ Military Law.
16. 55. Lastly, it is stated by the complainants that mobilisation has brought with it a proliferation of typical military orders, which are incompatible with the agreement on the wage scale and with the regulations and laws presiding over labour-management relations on the railways. The complainants' assertion is that these measures spell the loss of the railwaymen's hard-won rights and gains over a period of many years. The Government does not deny that such measures have been taken, for they follow logically from mobilisation. It does, on the other hand, deny that they imply the loss or suspension of rights derived from agreements on wages or other occupational questions.
17. 56. In conclusion, the Government states that the most convincing evidence of the respect it professes for workers' rights is the fact that it has repealed the temporary mobilisation measures. Decree No. 8200 of 30 June 1959 demobilised the railwaymen and the situation throughout the trade union movement has again returned to normal.
18. 57. The Committee has already examined in an earlier case t a complaint relating to the same mobilisation of workers on the Argentine railways. The facts then alleged were similar and the Government's reply was, to all intents and purposes, identical with that submitted in the present case.
19. 58. On that occasion the Committee found that the mobilisation of the workers concerned resulted in their becoming subject to the provisions of the Military Code and to the administrative disciplinary regulations. It further noted that, although the measure adopted by the Argentine Government was not designed to curtail trade union rights as such but was intended to cope with the emergency created by the railway strike, in practice these rights were nevertheless affected.
20. 59. It considered on that occasion that there did not appear to have existed a state of acute national emergency such as the Committee had observed in a case involving the United States, in which it had had to deal with a seizure of the railroads, which had been placed under army control, and in which it had found that the case did not call for further examination only after observing that the seizure in question did not constitute an arbitrary measure, but was essentially dictated by considerations of public interest in a national emergency situation, since it was a question of guaranteeing despatch of supplies and munitions to the United Nations forces in Korea and since the measure had been taken only after exhaustion of all other methods of settlement of the dispute provided by law.
21. 60. Accordingly, when examining the previous case mentioned above relating to the mobilisation of Argentine railwaymen, the Committee recommended 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.
22. 61. As the circumstances in the present case are the same as those in the case on which the Committee made the recommendation set out in the previous paragraph, the Committee considers it appropriate to come to the same conclusion.
23. 62. With respect to the placing of certain trade unions under military control, the Committee had to inquire into a similar situation in the Argentine case to which reference has been made above (Case No. 192), as well as in Case No. 172, also relating to Argentina.) On that occasion the Committee recommended the Governing Body 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.
24. 63. As the Committee is confronted with a similar situation in the present case, it considers it appropriate to make the same recommendation to the Governing Body.
25. 64. As for the sentences imposed on certain mobilised workers, it appears from the explanation afforded by the Government that these measures result from the application of the Military Code to which the persons concerned were subject by virtue of the mobilisation order and the proclamation of a state of emergency.
26. 65. In many cases in which the Committee has had before it complaints regarding alleged violation 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.
27. 66. In the present case the Committee observes-as it did in Case No. 192 mentioned above-that a certain number of mobilised workers have, as the Government itself admits, been sentenced pursuant to legislation which can be assimilated to emergency legislation.
28. 67. In these circumstances, the Committee, as it has done in several previous cases, recommends the Governing Body to express the hope that the Government, desirous of seeing labour relations develop in an atmosphere of mutual confidence, will have recourse, when dealing with situations resulting from strikes or lockouts, to measures provided 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.
29. 68. The Committee notes with satisfaction the Government's statement to the effect that the order mobilising railwaymen has been rescinded, thereby enabling the trade unions to resume their normal activities. For this reason, and subject to the foregoing observations, it recommends the Governing Body to decide that no useful purpose would be served by a further examination of the case.