Rapport définitif - Rapport No. 253, Novembre 1987

1. 143. The Co-ordinating Council of Managerial Staff Organisations of the Republic of Argentina submitted a complaint in a communication dated 8 June 1987, in which it alleged an infringement of trade union rights in Argentina. It provided additional information in support of its complaint on 22 July 1987. The Government submitted its observations in a communication dated 14 September 1987.
2. 144. 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. The complainant's allegations

1. 145. In its communication of 8 June 1987, the complainant organisation alleges that various aspects of the Bill on occupational associations, at present being examined by Parliament, infringe the principles, standards and international Conventions on freedom of association.
2. 146. The complainant organisation states that, although the Bill stipulates that trade union associations will be able to be set up freely without previous authorisation, it does not mention the possibility for managerial staff to set up or retain their own trade unions, as advocated by the Tripartite Meeting on Conditions of Work and Employment of Professional Workers organised by the ILO in November 1977.
3. 147. The complainant organisation goes on to say that the existence of organisations of managerial staff, technicians and professional workers has been recognised in Argentina since 1955. Subsequently, Act No. 20615 of 1973, supplemented by Decree No. 1045/74, established the right to set up occupational organisations by category of workers and Act No. 22105 of 1979, supplemented by Decree No. 640/80, formally recognised the existence of organisations of managerial staff. This recognition therefore confirmed the existence of these organisations, of which the majority had been actively involved in trade union activities to defend their members and the community as a whole for more than 25 years.
4. 148. After defining what it understands by managerial staff, the complainant organisation concludes by demanding legislation to protect managerial staff within a specific trade union structure.
5. 149. In its communication of 22 July 1987, the complainant organisation analyses the Bill which has already been passed by the Chamber of Deputies and is now before the Senate. It states that in the Executive's message to the Congress which accompanies the Bill, it is pointed out that "the criterion in previous laws whereby the most representative trade union is in a privileged position is maintained, in accordance with a practice which is increasingly widespread at the international level". According to the complainant organisation, the nature of this principle is changed by the paragraph which follows in the same message: "This privilege granted to the most representative trade union does not entail a denial of the principle of trade union plurality because if the organisation which enjoys trade union status is no longer the most representative, this status is transferred to the organisation which has become the most representative." In the complainant organisation's view, this principle is tantamount to stating that the Bill not only provides for the loss of this trade union status, but also provides for the transfer of the legal rights which accompany it to another organisation, even against the wishes of the managerial staff, thereby infringing their freedom of association. As far as the complainant organisation is concerned, the Bill thus establishes a single trade union system, which is an infringement of Convention No. 87.
6. 150. The complainant organisation also refers to sections 21, 22 and 25 of the Bill which require certain formalities to be carried out for the formation of an organisation and which also stipulate that the administrative labour authority has 90 days to decide whether the organisation concerned may be registered as a mere trade union. However, this is only a preliminary stage in the granting of trade union status which is the final administrative step enabling an occupational organisation to operate fully. In fact, an organisation may only request trade union status six months after it has been registered as a simple trade union. According to the complainant, most of the formalities undertaken in connection with this request are subject to a subjective assessment by the authority responsible for the implementation of the legislation, namely the Ministry of Labour. The Ministry has a further 90-day period in which to reach a decision based, according to the complainant, not on the wishes of the workers to unionise but on a degree of representativity at a given point in time. In this way, explains the complainant organisation, trade union pluralism which corresponds exactly to the free choice of workers is impossible.
7. 151. The complainant organisation adds that for more than two years, some managerial staff organisations have had to cope with the disappearance of their files and the bureaucratic mentality of civil servants, who require formalities which are legally inexistent, thereby preventing these organisations from obtaining trade union status. According to the complainant, the fears it has about the Bill are not unfounded but are, on the contrary, corroborated by the fact that there is constant infringement of Conventions Nos. 87 and 98 as regards organisations of managerial staff.
8. 152. The complainant organisation also states that in the event of a failure to observe one of the formalities required to obtain trade union status, the administrative or judicial recognition will be considered null and void. According to the complainant, this is tantamount to acknowledging that the administrative authority has priority over the judicial authority, which in its view is an infringement of the national Constitution.
9. 153. This concept may be found, according to the complainant organisation, throughout the Bill as a whole. For instance, section 56 enables the administrative authority to place a trade union association under supervision without a prior legal ruling; similarly, section 36 enables a confederation or federation to place a lower-level organisation under its supervision. In the complainant organisation's view, this shows the interventionist nature of the Bill, which is contrary to ILO Conventions and to internationally accepted and acknowledged law and practice.
10. 154. In concluding, the complainant states that in view of the unfortunate experiences which the organisations of managerial staff have had to face and the fact that even under Act No. 22105 their representativity was reduced by a Ministerial Resolution, their fears and uneasiness as to the Bill are justified. It is not the first time, it points out, that the legitimate growth of organisations of managerial staff is prevented by a Bill.

B. The Government's reply

1. 155. In its reply, the Government states firstly that the Bill on trade union associations of workers sets out precisely to promote freedom of association.
2. 156. The Government explains that the provisions already approved by the Chamber of Deputies and at present before the Senate do not in any way affect the legitimate interests of the trade union associations of managerial staff. This argument is not called into question by the lack of a standard in the Bill similar to that contained in Act No. 22105 mentioned by the complainant. In fact, the Government notes that this provision infringed freedom of association by banning the joint trade union membership of managerial staff and other workers.
3. 157. The Government adds that section 10 b)of the Bill provides, in the same way as the previous Acts mentioned by the complainant, for the existence of trade union organisations of workers in the same trade, occupation or category, amongst which managerial staff may be included.
4. 158. The Government quotes a series of provisions which clearly protect freedom of association. It points out that the chapter on the duties of the authority responsible for the Bill's implementation defines the powers of intervention of this authority (section 57). The administrative authority is in fact obliged to apply to the Judiciary when requesting that the trade union status of an organisation be suspended or cancelled or that the organisation be placed under supervision (section 56). Furthermore, an appeal to the courts may be lodged against any administrative ruling (section 61).
5. 159. In the Government's view, the complainant's arguments that the Bill would promote a single-trade-union system are also unfounded because the formalities required for the setting up and registration of trade unions are only of a formal nature. The time period allowed the administrative labour authority to examine the case before registration (90 days) seems reasonable, given the mass of administrative tasks the labour administration has to fulfil. Furthermore, at the end of this period, the organisation concerned may bring an appeal before the Labour Court, on the grounds of a tacit refusal to register (section 62(c)).
6. 160. The Government also stresses that under section 23 of the Bill, the registration of a trade union association automatically confers on it legal personality and rights, such as the right to make claims on behalf of its members and to represent them, to represent the collective interests of the branch of activity or category of workers, to collect dues or subscriptions from its members and to organise meetings or assemblies without the need for previous authorisation.
7. 161. Finally, as regards the exclusive rights granted to trade unions having trade union status, the Government states that the provisions of the Bill do not deprive organisations which are merely registered of their general rights. On this point, the Government refers to the decisions of the Committee on Freedom of Association in this respect and to national systems which grant privileges to the most representative trade union.
8. 162. Lastly, the Government considers that the Bill in question does not contain provisions violating freedom of association and that consequently the complaint is not founded.

C. The Committee's conclusions

1. 163. The Committee notes that the complaint of the Co-ordinating Council of Managerial Staff Organisations of the Argentine Republic centres on the new Bill on trade union associations of workers submitted by the Government to Congress. The complainant organisation alleges that the Bill does not specifically provide for the possibility of setting up managerial staff organisations, contrary to the Act previously in force. It criticises the procedure established for the registration of trade unions which, in its view, is too slow, and the excessive powers which will be vested in the administrative authority, in this case the Ministry of Labour. Finally, the complainant organisation considers that the system of exclusive privileges granted to the most representative organisation prevents trade union pluralism.
2. 164. The Committee notes that the Bill in question does not contain any provision specifically providing for the possibility of establishing organisations exclusively representing managerial staff. However, section 10 of the Bill stipulates that there may be organisations comprised of workers in the same trade, occupation and category, even if they are employed in different branches of activity. It therefore seems clear that under this section, organisations of managerial staff may be set up and function. Moreover, the Committee is bound to point out that the provision of the previous Act to which the complainant organisation refers has been subject to comments by the Committee of Experts on the Application of Conventions and Recommendations and this Committee itself because, although it specifically provided for the establishment of managerial staff organisations, it did not allow such staff to join the same organisations as other workers (see 201st Report, Case No. 842 (Argentina), para. 35). The Committee therefore considers that the provision of section 10 of the Bill, which is drawn up in a such a way that managerial staff may either set up their own organisations or join workers' organisations in general, is a step forward compared with the previous legislation.
3. 165. As regards the formalities required for setting up organisations, the Committee points out that under section 22 of the Bill, the administrative labour authority must register an organisation which meets the necessary requirements (filing its rules, together with its name, list of officials and members, etc.) within 90 days. Under sections 61 and 62, an appeal against administrative decisions may be brought before the courts, in this instance the National Labour Appeal Court.
4. 166. To be able to decide whether these provisions are compatible with principles of freedom of association, the Committee must determine whether the formalities required are tantamount to prior authorisation from the authorities or not. In view of the fact that the nature of the formalities and the time period for reaching an administrative decision are reasonable and that there is a possibility of appealing to the courts, the Committee considers that the requirements of the Bill with respect to the setting up of organisations do not infringe the principles of freedom of association.
5. 167. Finally, concerning the privileges granted to the most representative trade union, the Committee notes that such an organisation is given "trade union status", which is accompanied by several exclusive rights, in particular, to take part in collective bargaining (section 31 of the Bill). An association with "trade union status" must be entered in the trade union register, have been operating for more than six months and be comprised of more than 20 per cent of the workers it aspires to represent. The association selected must have the greatest number of subscribing members out of the average number of workers qualified for membership, the average being calculated over the six months prior to the request (section 25). On the other hand, organisations which do not have "trade union status" may represent the individual interests of their members and collective interests when there are no organisations with trade union status in the same branch of activity or category (section 23).
6. 168. On several occasions in the past the Committee has been called on to take a decision on systems of this nature. It has pointed out that during the discussion on the Right to Organise and Collective Bargaining Convention, the International Labour Conference raised the matter of the representativity of trade unions and accepted that there might be, to a certain extent, a distinction between the various trade unions, depending upon their level of representativity. Article 3, paragraph 5, of the Constitution of the ILO also accepts the concept of the "most representative" industrial organisations. Consequently, the Committee has considered that the mere fact that the law of a country draws a distinction between the most representative trade union organisations and other trade union organisations is not in itself a matter for criticism. However, this is provided that such a distinction does not accord to the most representative organisation privileges extending beyond the privilege of priority, on the ground of its having the largest membership, in representation for such purposes as collective bargaining or consultation by governments or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organisations that are not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes, as provided for in Convention No. 87 (see, for example, 218th Report, Case No. 1113 (India), para. 718).
7. 169. In the present case, it would seem that the criteria set out above are respected in the Bill since the most representative organisation is determined according to objective and pre-established criteria (the greatest number of members) and the minority trade unions are able to represent the individual interests of their members. The Committee hopes that, on this basis, managerial staff may be represented in the collective bargaining process by the organisation which the majority of them has chosen.