Rapport définitif - Rapport No. 110, 1969

1. 28. The Committee considered this case at its sessions in May and November 1967 and February, May and November 1968, when it submitted to the Governing Body the interim reports contained in paragraphs 231 to 265 of its 98th Report, paragraphs 319 to 406 of its 101st Report, paragraphs 187 to 207 of its 103rd Report, paragraphs 202 to 223 of its 105th Report and paragraphs 192 to 207 of its 108th Report, all of which were approved by the Governing Body.
2. 29. In paragraph 207 of its 108th Report the Committee made a number of recommendations to the Governing Body, some of which were to the effect that the Argentine Government should be requested to supply the information and observations for which it had been asked in order to permit further examination of the allegations. These recommendations were forwarded to the Government, which replied in three communications dated 7, 15 and 21 January 1969.
3. 30. Argentina 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

• Allegations relating to the Detention of the Trade Union Official, Eustaquio Tolosa
  31. 31 When it considered the case at its last meeting, the Committee recalled the substance of the sentence of five years' imprisonment passed on Mr. Tolosa by a court of first instance, for having taken part in a meeting of the International Transport Workers' Federation and having voted for a resolution calling for a boycott of Argentine ships and aircraft and of goods which would normally be carried to or from Argentina. This action by Mr. Tolosa constituted an offence under Act No. 14034, which states that " any Argentinian who by any means whatsoever advocates the application of political or economic sanctions against the State of Argentina shall be punished by a term of from five to twenty-five years' imprisonment and total and permanent disqualification ". The Committee also had the opportunity of examining the judgment of the court of second instance, which upheld the foregoing sentence. In addition, the Committee once again referred to the circumstances which gave rise to the trial, namely the unilateral amendment by the Government of the dock labour legislation without consulting the union concerned, the resulting strike called by this union and the taking over of the union by the Government. In this connection the Committee considered that consultation with the trade union concerned in the preparation of the new dock labour standards-in accordance with the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113)-might have prevented the situation out of which the present case arose. The Committee once again noted that the judge in the court of first instance had placed particular emphasis on the fact that the boycott was not directed against certain employers but against the Argentine State. In connection with this point the Committee stressed the importance of the standard laid down in Article 5 of Convention No. 87 to the effect that any organisation, federation or Confederation has the right to affiliate with international organisations of workers or employers.
  32. 32 In view of all these circumstances, the Committee recommended the Governing Body at its meeting in November 1968 to request the Government to be good enough to keep it informed of any new development with regard to Mr. Tolosa and in particular of any reprieve which might be decided upon.
  33. 33 In its letter dated 7 January 1969 the Government states that the President of Argentina, by virtue of the powers conferred upon him by the Constitution, decreed on 24 December 1968 that the sentence on Mr. Tolosa should be reduced to two years. The Government states that this measure was adopted " as is traditional, on the occasion of the Christmas and New Year celebrations, Mr. Tolosa's status as a trade union officer being taken into account and special consideration being given to the conclusions to this effect that have been transmitted by the Committee on Freedom of Association ". Subsequently, on 21 January 1969, the Government cabled that on the previous day the Federal Chamber had ordered Mr. Tolosa's release.
  34. 34 The Committee notes these communications with the greatest of interest and recommends the Governing Body to express its satisfaction at the reduction in Mr. Tolosa's sentence, a decision in which the Committee's conclusions were taken into account, and at the fact that this union leader has now been released.
• Allegations relating to Measures to Take Over Various Trade Union Organisations and to Suspend Their Trade Union Status, and Other Allegations Outstanding
  35. 35 At its meeting in November 1968 the Committee referred to certain allegations relating to the taking over of various trade union organisations and the suspension of their trade union status which it had previously examined in paragraphs 215 to 221 of its 105th Report. The Committee had referred in paragraph 221 of its 105th Report to the Act of the Argentine Revolution concerning the taking over of trade unions, to the various statements by the Government to the effect that it was hastening the process of a return to normal in the trade union movement, to the time which had elapsed since the taking over of the unions still deprived of their status and to the importance of such a return to normal if these organisations were to exercise their rights under Convention No. 87 to elect their representatives in full freedom and to organise their administration and activities. Accordingly the Committee recommended the Governing Body to urge the Government once more to repeal as soon as possible the measures still in force to suspend and take over certain trade unions and to request the Government to keep it informed about the measures it had taken or proposed to take to this end.
  36. 36 The Committee also recalled at its meeting in November 1968 that one year previously it had examined a series of allegations relating to interference by the authorities in the affairs of the General Confederation of Labour of the Argentine Republic (CGT), measures directed against union leaders and members, and compulsory arbitration and collective bargaining. These allegations were analysed, together with the Government's observations, in paragraphs 380 to 383, 384 to 386 and 391 to 398 of the Committee's 101st Report. In order to come to a conclusion on these aspects of the case, the Committee had requested the Government to supply more precise information or observations, as indicated in paragraphs 383, 386 and 398 of the above-mentioned report.
  37. 37 More particularly as regards the allegations relating to interference by the authorities in the affairs of the CGT, the Committee had asked for information about the alleged administrative obstacles placed in the way of the recognition of the new officials of the CGT in May 1967, as well as the reasons why the Government considered the CGT Action Plan, adopted in February 1967, to be subversive and forbade the broadcasting of news or notices concerning the Plan over radio and television.
  38. 38 The allegations relating to measures taken against trade union leaders and members concerned, in particular, the suspension and dismissal of a number of union members and workers in various public undertakings and services because of their trade union activities and support for a strike called by the CGT. In view of the general nature of the Government's reply, which had denied the allegation that the railway workers had been dismissed merely because they went on strike for occupational reasons and added that it would never tolerate any limitation on the exercise of public authority as a result of actions going beyond the scope of trade unionism and assuming a political form or endeavouring to influence government policy, the Committee had requested more detailed observations on the allegations in question.
  39. 39 Lastly, as regards the allegations relating to compulsory arbitration and collective bargaining, the Committee had asked the Government for details of specific cases in which Act No. 16936 on compulsory arbitration had been applied and for copies of Acts Nos. 17224 and 17131 suspending collective bargaining in the private and public sectors respectively. The Committee considered that these enactments appeared to raise issues which had to be examined in the light of certain generally recognised principles relating to freedom of association and, in any case, in the light of the principle embodied in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Argentina.
  40. 40 At its meeting in November 1968 the Committee noted that, despite the time which had elapsed, it had not received the information and observations referred to in the previous paragraphs, and recommended the Governing Body to regret this fact and to urge the Government to be good enough to send this information as soon as possible in order to permit further examination of these outstanding allegations.
  41. 41 In its communication dated 15 January 1969 the Government refers to this request and supplies the following information. Under resolution No. 415 of 1968 the Secretary of State for Labour defined the duties of trade union trustees indicating that the basis for the measures to take over trade unions is the need to promote the process of reorganisation of the unions concerned and their return to a normal situation in accordance with the aims pursued by the Government of the Argentine Revolution. The letter goes on to say that all the organisations taken over had been engaging in activities outside their powers. As their voting lists are restored to normal, the Government intends to call elections and allow the unions to revert to their normal operation. The Government again states, as it has done to the Committee on previous occasions, that these measures were not directed against the exercise of trade union rights. On the contrary, the Government hopes to count on the participation of the workers in the task of reconstructing the country. But if this participation is to be effective and fruitful, the unions must abide by the law and carry out specifically occupational activities, and their leaders must be genuinely representative. Accordingly, it is of cardinal importance that such organisations should bring their Constitutions into line with the legislation in force. The Government concludes by stating that it will keep the Committee informed, within the briefest possible period, on the return to a normal situation by the unions taken over.

B. B. The Committee's conclusions

1. 42. The Committee observes that this reply by the Government appears to refer only to the allegations mentioned in paragraph 35 above. The Government justifies its take-over of the unions concerned on the ground that they had departed from their occupational aims, and declares that the measures in question were designed to allow a normal situation to be restored, for which purpose it intended to call new elections of union officers.
2. 43. The Committee notes that, despite the time which has elapsed and the repeated requests made to the Government, the latter has not yet brought to an end those measures to take over unions which were still in force. The Committee considers that in the interval which has elapsed-in the case of the United Argentine Dockers' Union, more than two years-a return to a normal situation and the election of new officers could have been ensured.
3. 44. As regards the other allegations referred to in paragraphs 36, 37, 38 and 39 above, the Government has not supplied the information for which it has repeatedly been asked. The Government has thus failed to provide a good deal of the evidence on which the Committee was relying in order to be able to formulate its conclusions with a full knowledge of the facts.
4. 45. In these circumstances the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to the taking over of various trade union organisations and the suspension of their trade union status, to draw the Government's attention to the fact that, despite the time which has elapsed and the repeated requests made to it, the Government has not yet brought to an end those measures to take over unions which were still in force, and to take note of the Government's statement that it intends to keep the Committee informed, within the briefest possible period, on the return to a normal situation by the unions taken over;
   • (b) as regards the allegations relating to interference by the authorities in the affairs of the CGT, the measures directed against union leaders and members, and compulsory arbitration and collective bargaining:
   • (i) to regret the failure on a number of occasions to supply the information requested on which the Committee was relying in order to formulate its conclusions on the said allegations with a full knowledge of the facts;
   • (ii) to draw the Government's attention once more to the importance of Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which states that workers' and employers' organisations shall have the right to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, while the public authorities shall refrain from any interference which would restrict this right or impede its lawful exercise; and to the principle laid down in Article 4 of the Convention that workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority;
   • (iii) to draw the Government's attention to the fact that the right of free collective bargaining is a fundamental trade union right for all employees who are not covered by the safeguards provided by civil service regulations; and that if, as part of its stabilisation policy, the Government considers that wage rates cannot be settled freely through collective bargaining, this restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and that it should be accompanied by adequate safeguards to protect workers' living standards.