Rapport définitif - Rapport No. 291, Novembre 1993

92. The complaints in these cases appear in communications from the General Confereration of Labour of the Argentine Republic (CGT) of June 1992 (Case No. 1653), and the Union of Employees of the National Judiciary (UEJN) of July 1992 (Case No. 1660). The Government furnished its observations in a communication dated 27 May 1993.

1. 92. The complaints in these cases appear in communications from the General Confereration of Labour of the Argentine Republic (CGT) of June 1992 (Case No. 1653), and the Union of Employees of the National Judiciary (UEJN) of July 1992 (Case No. 1660). The Government furnished its observations in a communication dated 27 May 1993.
2. 93. Argentina has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant organizations' allegations

• Case No. 1653
  94. 94 In its communication of June 1992, the CGT states that the Supreme Court of Justice of the Nation drew up a set of special standards by means of different orders (resolutions), with the right to strike being expressly recognized at all times. However, in practice this right is restricted, with limitations being placed on its exercise (requiring as a minimum service the presence of no less than two employees of the judiciary per court), and stipulating that workers who refuse to work the minimum duty schedules may be sanctioned. The complainant organization points out that in December 1991, following a labour dispute, the Supreme Court granted workers in the judiciary (Order (resolution) No. 32/91) a wage adjustment, but subsequently, because of the national economic situation, handed down Order (resolution) No. 56/91, which suspended the previous Order and established wage increases for only magistrates and officials and not for other workers. The complainant organization points out that as a result of these decisions measures of force were used, to maintain a minimum service, as required by the standards issued by the Supreme Court.
  95. 95 The complainant organization states that, following the measures of force, the Supreme Court issued Order (resolution) No. 74/91, which established a period of conciliation of 20 working days and the holding of a conciliation hearing, and required workers in the judiciary to refrain from resorting to any direct action during this period. It states that the Supreme Court assumed the right to order the obligatory suspension of the measures of force, in violation of the internal legal order. The complainant organization points out that the attempt to make the judicial service an essential service by a unilateral decision by the employer is a contradiction of the basic concept of the term as used by the ILO, and that although it is not an essential service, the necessary minimum service has been guaranteed at all times. Finally, the complainant organization states that in addition to the arbitrary and illegal nature of the measure, the body which convened the compulsory conciliation is not only incompetent but a party to the conflict, and therefore the necessary impartiality required of any conciliation and arbitration procedure is lacking.
• Case No. 1660
  96. 96 In its communication of July 1992, the UEJN states that further to wage claims made during the months of April and June 1992, and following a long period of fruitless negotiation, it adopted measures of direct action. As a result of these measures, the Supreme Court of Justice of the Nation, in the light of the disruption which the measures of force would have on the proper functioning of the services of the judiciary, issued Order (resolution) No. 25 in June 1992 which established the same measures as Order (resolution) No. 74/91.
  97. 97 The complainant organization states that after the above-mentioned Order (resolution) was issued it proceeded to challenge the Supreme Court, since it considered that the Court was party to the conflict of interests which had led to the measures of direct action adopted. The complainant points out that under national law the competent body to examine the matter is the Ministry of Labour, and that therefore the Supreme Court, in its capacity as employer, assumed the right to issue an Order regulating the constitutional exercise of the right to strike which encroached on a specific function of the legislative branch. It points out that although the Supreme Court has powers to appoint and remove employees in the judiciary, it is not entitled to regulate the exercise of the right to strike.

B. The Government's reply

1. 98. In its communication of 27 May 1993, the Government states that the complaints presented refer to questions which fall outside the competence of the National Executive and which are a matter for the judiciary. It states that the judiciary is one of the three powers of the State which is not only independent of the Executive but is furthermore absolutely autonomous and has its own functions, powers and budget.
2. 99. The Government states that both in December 1991 and June 1992 the measures of direct action carried out by staff in the judiciary resulted in the total paralysis of judicial activities, without minimum services being provided and obliged the magistrates themselves to deal with urgent tasks. In both cases the Supreme Court had to issue a number of Orders (resolutions) suspending the legal procedure which paralysed the dispatch of all judicial cases pending, which shows that the measures taken caused serious prejudice to the administration of justice. There is no doubt that the administration of justice must be considered as an essential service, or at least as a paramount public function in which, according to the principles of the ILO, there is justification for some limitation on the exercise of the right to strike.
3. 100. The Government states that although in principle the Ministry of Labour and Social Security automatically intervenes in a labour dispute, the legal system is such that this administrative intervention occurs at the request of one of the parties concerned. It points out that in neither of the two conflicts did the UEJN request the intervention of the Ministry of Labour, thus establishing the validity of the action taken by the Supreme Court. Furthermore, the Government states that Decree No. 2184/90, in defining essential services, expressedly stipulates that the administration of justice shall be considered such a service only "at the request of the Supreme Court of Justice of the Nation", which means that the legal standard excludes any possibility whereby the Ministry of Labour may intervene in disputes arising within the judiciary if this is not specifically requested.
4. 101. Finally, the Government points out that the content of Orders (resolutions) Nos. 74/91 and 25/92 does not indicate that there was a prohibition of the right to strike but only that its exercise was to be suspended during periods of conciliation. It states that this can be seen from the fact the after the conciliation period of December 1991, the complainant once again carried out measures of direct action in June 1992.

C. The Committee's conclusions

1. 102. The Committee observes that the complainant organizations in this case allege that following different measures of direct action carried out in December 1991 and June 1992 by workers of the judiciary grouped together in the UEJN, the Supreme Court decided to establish a period of compulsory conciliation and to suspend the exercise of the right to strike during this period. Moreover, the complainants state that the Supreme Court is not competent to impose such measures since it is a party to the dispute.
2. 103. The Committee notes that the statements of the complainants and the Government are contradictory as regards certain aspects of this case. According to the complainants, the necessary minimum service was guaranteed at all times whereas according to the Government, the strike carried out by staff in the judiciary resulted in the total paralysis of judicial activities, without the provision of minimum services. Moreover, while the complainants consider that the competent body to examine this dispute is the Ministry of Labour, the Government points out that the organization concerned did not request intervention of the Ministry of Labour in this matter.
3. 104. While noting these contradictory statements, the Committee observes that, in this case, the right to strike of staff in the judiciary is not prohibited by legislation. However, on two occasions - in December 1991 and June 1992 - the Supreme Court of Justice, following strikes organized by workers in the sector, ordered a period of compulsory conciliation of 20 days and the suspension of the right to strike during this period.
4. 105. The Committee has accepted that the right to strike may be restricted or even prohibited in the civil service - civil servants being those who act on behalf of the public authorities - provided that these restrictions are accompanied by certain compensatory guarantees, such as adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage (see Digest of decisions and principles of the Freedom of Association Committee, 1985, 3rd edition, paras. 394 and 397). Moreover, the Committee has considered that recourse to compulsory conciliation and arbitration procedures in industrial disputes before calling a strike cannot be regarded as an infringement of freedom of association (see Digest, op. cit., para. 378).
5. 106. As regards the present case, the Committee considers that staff in the judiciary should be considered as civil servants acting on behalf of the public authorities and that as a result, the authorities were justified in suspending the exercise of the right to strike of this staff.
6. 107. The Committee notes, however, that the complainants claim that in the disputes that are the subject of the complaint, the Supreme Court was both judge and party to the conflict since the Court is the employer of staff in the judiciary, on the one hand, and it suspends the exercise of the right to strike of its staff, on the other.
7. 108. In this respect the Committee has recalled that Article 8 of the Labour Relations (Public Service) Convention, 1978 (No. 151), ratified by Argentina, provides that the settlement of disputes arising in connection with the determination of conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved.
8. 109. It would appear that in the present case, the conciliation procedure imposed by the Supreme Court was not established in such a manner as to ensure the confidence of the trade unions of the staff in the judiciary. The Committee therefore requests the Government to ensure in future that, in case of collective disputes in the judiciary, procedures governing the settlement of disputes are established in such a manner as to ensure the confidence of the parties, in conformity with Article 8 of Convention No. 151.