Rapport définitif - Rapport No. 66, 1963

1. 76. The Committee has already examined this case at its 28th Session (May 1961) and, with the exception of one allegation by the complainants, submitted its final conclusions to the Governing Body concerning the case as a whole. These conclusions were adopted by the Governing Body at its 149th Session (June 1961).
2. 77. At its meeting in May 1962 the Committee further examined this case, considering the sole allegation which remained outstanding, namely the alleged refusal by the management of the National Bank to comply with certain court orders in respect of the trade union leader Mr. Raúl Ignacio Robacio, and made the following recommendation to the Governing Body (paragraph 143 of its 62nd Report, approved by the Governing Body at its 152nd Session in June 1962)
   • In consequence the Committee recommends the Governing Body to ask the Government specifically whether the Labour Court of Appeal, before giving its final judgment, ordered the Bank not to proceed with Mr. Robacio's posting until such judgment was pronounced.
3. 78. The Argentine Republic has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 79. By a communication dated 24 July 1962 the Government forwarded certain additional information in relation to this allegation.
2. 80. The allegation still outstanding concerns the posting by the management of the National Bank of Mr. Raúl Ignacio Robacio, General Secretary of the Buenos Aires Bank Employees' Union (S.E.B.B.A.), to a branch 670 kilometres away from Buenos Aires - this is said to be a measure of anti-union discrimination - while at the same time an administrative charge was initiated against him designed to convert this posting into an outright dismissal.
3. 81. The LF.C.T.U stated that the S.E.B.B.A then applied to the judge for an injunction to prevent any modification in Mr. Robacio's position until judgment had been given in a lawsuit brought by the union. Although the judge granted this injunction, the Bank refused to comply with it, despite a further sentence by the same judge against the Chairman of the Bank for contempt of court. The Bank authorities having appealed against the labour judge's decision, the Labour Court of Appeal on 19 April 1960 affirmed the interlocutory injunction granted by the judge. The National Bank refused to comply with this order also. These statements of the I.F.C.T.U have been supported by the International Federation of Christian Trade Unions of Salaried Employees, Technicians, Supervisors and Commercial Travellers.
4. 82. Having noted that the Government in its reply had refrained from making any comment on this point, the Committee took the view at its 28th Session (May 1961) that it would be advisable to adjourn examination of this particular aspect of the case pending receipt of information from the Government, and it made a recommendation to the Governing Body to this effect.
5. 83. The Committee's conclusions as adopted by the Governing Body, and in particular the request for information on the matters mentioned above, were brought to the notice of the Government by a letter from the Director-General dated 7 July 1961.
6. 84. The Government replied by a communication dated 11 September 1961. This reply, however, still contained no information on the points referred to above.
7. 85. In these circumstances the Committee at its 29th Session (November 1961) recommended the Governing Body to request the Government once again to furnish information in respect of the allegations to the effect that the management of the National Bank had not complied with the injunction granted by the labour judge, and subsequently affirmed by the Labour Court of Appeal, relating to the situation of the General Secretary of the S.E.B.B.A.
8. 86. In a communication dated 21 November 1961 the Government forwarded further information concerning the allegation.
9. 87. In its communication dated 21 November 1961 the Government stated that Mr. Raúl Ignacio Robacio's posting was a normal one for which provision was made in the statutory regulations governing public employees, and that in any case Mr. Robacio had not accepted his posting and had refused to take up the new duties assigned to him. The Government added that Mr. Robacio had then lodged an appeal for protection with the sitting labour judge, who ordered the Bank not to proceed with the posting, but the Bank had refused to acknowledge the competence of the labour court and lodged an appeal to have the decision quashed. The Labour Court of Appeal-continued the Government-had affirmed the decision in that the court was competent to hear the case, but quashed the judge's decision in favour of protection. The Government concluded by stating that Mr. Robacio had open to him all legal avenues for establishing his rights, " which proved the existence of effective legal guarantees such as characterise a system of justice ".
10. 88. The Committee observed at its 30th (February 1962) Session that the complainants' statements and those of the Government were not in themselves contradictory with each other. The Committee also observed, however, that while the Government confirmed the complainants' statement to the effect that when Mr. Robacio had appealed to the labour judge for protection the latter had ordered the Bank not to proceed, and that later the Labour Court of Appeal had affirmed the decision as to the competence of the court to hear the case, it made no reference to the contempt of court, alleged by the complainants to have been committed by the National Bank in declining to accept the rulings of the labour judge and of the Labour Court of Appeal that it should not go forward with Mr. Robacio's posting.
11. 89. In these circumstances the Committee considered that it was essential, if it was to reach a decision on this aspect of the case, for it to know whether it was correct-as the complainants alleged-that the National Bank had on a number of occasions flouted the decisions of the judicial authorities and, if so, what measures had been taken by the Government in this respect.
12. 90. Furthermore, the Committee felt that it would be difficult for it to take a decision without knowing the exact circumstances surrounding this particular allegation, and to this end it would be advisable, in accordance with its usual practice, to request the Government to forward copies of the judgments, together with all the conclusions of law and findings of fact given in this connection by the judge of first instance and the Labour Court of Appeal, instead of a summary of the dispositive part of these judgments such as the Government had given in its communication of 21 November 1961.
13. 91. In its communication of 27 April 1962 the Government repeats what it stated in its communication of 21 November 1961 and adds that " it should be borne in mind that under Argentine law the lodging of an appeal in protection cases has a suspensive effect, whereby in virtue of the appeal by the President of the Argentine National Bank against the ruling of the judge of first instance the proceedings remained in a state of suspense until the Labour Court of Appeal pronounced its final judgment quashing the decision of the judge of first instance in favour of protection ". The Government adds that this procedural formula does not imply, " as the complainants mistakenly claim, a refusal to bow to the authority of the judge of first instance ".
14. 92. The Committee observed at its preceding session (May 1962) that in its communication of 27 April the Government had affirmed that under Argentine law the lodging of an appeal in protection cases has a suspensive effect, and that in consequence there was a stay of execution of the ruling of the judge of first instance in the case in question until the Labour Court of Appeal pronounced its final judgment. The Committee also observed, however, that the complainants had alleged that the injunction not to proceed with Mr. Robacio's posting was granted in the first place by the judge of first instance and subsequently (19 April 1960) affirmed by the Labour Court of Appeal. Noting that the Government, in its various communications, had never expressly denied that the Labour Court of Appeal-as alleged by the complainants-ordered the Bank not to proceed with Mr. Robacio's posting until final judgment was pronounced, the Committee felt that if it was to come to a decision in full awareness of the facts on this aspect of the complaint it would be helpful to have this point cleared up by the Argentine Government. Accordingly, it recommended the Governing Body to ask the Government specifically whether the Labour Court of Appeal, before giving its final judgment, ordered the Bank not to proceed with Mr. Robacio's posting until such judgment was pronounced.
15. 93. In its reply of 14 July 1962 the Government states that at no stage did the Labour Court of Appeal issue an order not to proceed with Mr. Robacio's posting. Furthermore the Government repeats a number of minor points figuring in its previous statements, to the effect that the complainants confuse the machinery of appeal with suspensive effect and an alleged refusal to comply, which never occurred.

B. B. The Committee's conclusions

1. 94. The Committee notes the Government's statement that the Labour Court of Appeal at no time issued an order not to proceed with Mr. Robacio's posting; it would appear to follow from this answer that the National Bank did not refuse to comply with any decision by the Labour Court of Appeal, since the said Court did not issue an order " not to proceed " but did issue a decision by which-because it considered the application for protection to have been unfounded-it quashed the decision of the labour judge. It would seem, moreover, that Mr. Robacio had open to him all legal means of establishing his rights and that accordingly there is no further object in proceeding with this aspect of the case.