Rapport définitif - Rapport No. 292, Mars 1994

1. 79. The complaints in this case appear in communications received from the General Confederation of Labour (CGT) and the Urban Transport Workers' Trade Union (UTA), dated 6 November 1992, and in a joint communication from the Aeronautic Workers' Association (APA), the Commercial Airline Administrative Workers' Trade Union (UPSA), the Aeronautic Technical Workers' Association (APTA) and the Commercial Airline Flight Technicians' Association (ATVLA) of February 1993. Subsequently, in communications dated December 1992 and 6 April 1993, the Urban Transport Workers' Trade Union submitted additional information and new allegations. In a communication of 7 January 1993 the International Transport Workers' Federation (ITF) associated itself with the complaint submitted by the UTA.
2. 80. The Government sent its observations in a communication dated 23 November 1993.
3. 81. Argentina has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), as well as the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 82. In its communication of 6 November 1992 the General Confederation of Labour (CGT) alleges that in response to a number of problems faced by the trade union movement the CGT called for a general 24-hour strike on 9 November, to which the Government responded by seeking to apply in respect of several trade unions in the services sector the provisions of Decree No. 2184/90 (concerning "procedures to prevent or resolve labour disputes"), with the threat of sanctions and reprisals.
2. 83. In their communications of 6 November 1992, December 1992 and February 1993, the UTA, the APA, the UPSA, the APTA and the ATVLA add that given the prospect of various conflicts of interest in the transport sector (ground and air) and the prospect of a general strike, the Government promulgated several ministerial resolutions in order to apply arbitrarily Decree No. 2184/90, by establishing transport as an essential service, and thereby undermining the right of workers' organizations in this sector to organize their activities and formulate their programmes of action.
3. 84. Specifically, the complainants object to the classification of transport as an essential service (section 1, paragraph 1), the imposition of minimum services established unilaterally by the public authorities, and the excessively high percentage of compulsory minimum services in the case of air transport (100 per cent for flights to the country's southern region, 70 per cent for the rest of the country, and 100 per cent for international flights) and ground transport (70 and 90 per cent for urban services, and 90 per cent for long-distance services). The complainants also object to the measures which government authorities threatened to apply in the event that the workers failed to provide the minimum services established by the Ministry of Labour. These measures include compulsory arbitration, the declaration of strikes as illegal and the suspension or revocation of the trade union's legal status (sections 9, 10 and 11 of the Decree).
4. 85. Lastly, in its communication of 6 April 1993, the UTA states that the Ministry of Labour responded to a dispute between the Buenos Aires Underground Transport Enterprise (a state-owned enterprise) and its workers by extending to this form of transport the provisions of Decree No. 2184/90, and ordering that a minimum service should be provided during the dispute. The complainant organization alleges that in April 1993 the Ministry of Labour, citing the failure to provide minimum services (which it established unilaterally in the absence of an agreement between the parties), declared illegal the strike which the workers had undertaken, and threatened the trade union with the suspension or revocation of its legal status.

B. The Government's reply

1. 86. In its communication of 23 November 1993 the Government states that Decree No. 2184/90, which governs the right to strike, was issued in accordance with the regulatory powers given to the Executive Branch by the National Constitution, that the right to strike is constitutionally guaranteed, and that this right has been regulated successively by Act No. 14786 (on procedures for the handling of disputes), Act No. 16936 (on compulsory arbitration), Decree No. 879/57 (on the resolution of collective disputes between state-owned enterprises and their staff), and lastly, by the Decree in question. The Government states that the regulation of strikes highlights the lawfulness and importance attached to this right in national legislation; moreover, as the right to strike is governed by the above-mentioned Acts, the Executive Branch is constitutionally authorized to regulate its exercise.
2. 87. The Government points out that it not only recognizes the right to strike, but also promotes machinery for the prevention and settlement of labour disputes, although it prefers that the parties themselves establish dispute settlement machinery. It adds that owing to the period of recession, inflation and fiscal deficit which the country experienced in the 1980s, the Government promulgated emergency economic and state reform legislation, and set up machinery to avoid the prolonged or complete interruption of essential services, thereby establishing a balance between the general interest and the rights of parties to a specific dispute.
3. 88. The Government states that the Decree in question contains a conceptual and generic definition of essential services for the purpose of ensuring that minimum services are provided in the event of a strike; the Decree further provides that upon learning of a labour dispute which comes under its competence by virtue of Act No. 14786, the Ministry of Labour shall proceed to determine whether such dispute will affect, in whole or in part, certain of the services mentioned in the Decree. The Government clarifies that in accordance with the provisions of section 5 of the Decree, the parties must agree on the steps to be taken to ensure that the minimum services are provided throughout the dispute, and, in the absence of such an agreement, the determination of minimum services shall be made by the Ministry of Labour, which shall avoid an arbitrary decision by consulting the competent ministry or government agency. Likewise, the Decree provides that in respect of those activities or enterprises in which a collective or enterprise agreement calls for the provision of minimum services, full compliance must be given to such agreement, failing which the public authorities will enforce its application. The Government emphasizes the fact that it has not suppressed the right to strike in the essential services, but has established a procedure to regulate this right, in which the interested parties have a voice.
4. 89. As regards the provision which establishes that recourse will be had to compulsory arbitration in the event that strike action is taken without respecting the requirements concerning the provision of minimum services which have been agreed to or established, the Government states that this is in accordance with the provisions of Act No. 16936, which was never contested by trade union organizations and which has been applied routinely for years.
5. 90. Moreover, the Government states that transport has been included among those services whose complete or partial interruption might endanger the life, health, freedom or safety of part of the population or of persons, since it plays an essential role in the country, by uniting geographically distant points; in addition, account must be taken of the serious consequences which would ensue from an interruption of transport as regards the provision of food, the transfer of sick people, etc. Lastly, as regards the frequencies established for such minimum services, the Government repeats that these frequencies were determined after consultation with the competent government agency, namely, the Transport Department of the Ministry of Economy, Works and Public Services, and that these minimum frequencies do not prevent the exercise of the right to strike, but only limit or restrict it in certain specific cases, to the extent that they represent an essential and necessary service for the community.

C. The Committee's conclusions

1. 91. The Committee notes that the allegations submitted in this case concern the content and application of Decree No. 2184/90 (concerning the "procedures to prevent or resolve labour disputes"), as regards the establishment of minimum services in the transport sector.
2. 92. In the first place, as regards the statutory requirement for maintaining a minimum service (section 5 of the Decree) during strikes in the transport sector, whether by land, air or rail, the Committee agrees with the Government's statements which emphasize the need to attend to the general interest and highlight the fundamental function of transport in the country, which covers a large geographical expanse, as well as the negative consequences for the population deriving from the absence of a minimum service (the distribution of food, the transport of sick people, etc.). The Committee considers that the transportation of passengers and commercial goods is not an essential service in the strict sense of the term (one the interruption of which might endanger the life, safety or health of all or part of the population); however, this is a public service of primary importance in the country, where the requirement of a minimum service in the event of strike can be justified. In these conditions, the Committee considers that, in this case, the requirement of a minimum service in the transport sector in the event of a strike does not violate the principles of freedom of association.
3. 93. As regards the allegation concerning the unilateral establishment of minimum services by the Ministry of Labour, the Committee notes that, according to section 5 of the Decree, such a measure is taken only in the absence of agreement between the parties, which are consulted in any event. In this connection, the Committee has already had occasion to give its opinion on similar allegations concerning the establishment of a minimum service in the public services, and reiterates its pertinent conclusions, to the effect that in the event of differences of opinion among the parties concerning the scope of a minimum service in the public sector, "legislation should provide that such a dispute should be resolved by an independent body" (see 291st Report of the Committee, Cases Nos. 1648 and 1650 (Peru), para. 467), and not by the Ministry of Labour or the ministry or public enterprise concerned.
4. 94. As regards the power of the Ministry of Labour to declare a strike illegal in the event that the parties fail to comply with the minimum service requirements (section 10 of the Decree), and to submit the dispute to compulsory arbitration (section 9 of the Decree), and, if applicable, to request the courts to suspend or revoke the legal status of the trade union organization concerned (section 11 of the Decree), the Committee notes the Government's statement to the effect that trade union organizations had never previously objected to Act No. 16936, which establishes compulsory arbitration. In this connection the Committee had previously noted that the recourse to compulsory arbitration in the event of strikes should be confined to essential services in the strict sense of the term (those whose interruption would endanger the life, personal safety or health of all or part of the population) (see 286th Report of the Committee, Case No. 1620 (Colombia), para. 384), and that transport is not one of these services.
5. 95. Moreover, the Committee notes that the administrative authorities may declare a strike illegal if the minimum service agreed between the parties is not provided, but that Decree No. 2184/90 allows administrative authorities to declare a strike illegal in other cases, specifically, in the event of the infraction of other legal requirements. In this connection the Committee has previously considered that in the event of strikes "the final decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute (see 284th Report of the Committee, Case No. 1586 (Nicaragua), para. 942).
6. 96. As regards the possible suspension or revocation of the legal status of trade union organizations for not providing the mininum service throughout the strike, the Committee considers that such measures are not acceptable. In this respect, it notes that section 11 of the Decree in question states that "in respect of trade union organizations which provide, encourage or support strike action which is considered illegal, the competent authority may proceed to implement the provisions of clauses 2 and 3 of section 56 of Act No. 23551 (concerning trade union associations)". In this connection the Committee notes that clause 2 of Act No. 23551 concerns the request by the Ministry of Labour to trade union organizations to renounce measures which entail the infraction of legal or statutory provisions, or the non-compliance with provisions issued by the competent authority in the exercise of its legal prerogatives; and that clause 3 provides that the courts may suspend or revoke a trade union's legal status when the trade union fails to comply with requests issued under clause 2, and when it is proved that the trade union is guilty of serious administrative irregularities. In these conditions, while noting that the final decision to suspend or revoke a trade union's legal status is made by an independent judicial body, the Committee reiterates that such measures should not be adopted in the case of non-compliance with minimum service.
7. 97. As regards the allegation concerning the high requirements established for the minimum service, the Committee notes that the Government states only, and then in a general way, that the levels of minimum service are determined after consultation with the competent agency, in this case the Transport Department of the Ministry of Economy, Works and Public Services, and that these minimum levels do not prevent the exercise of the right to strike, but only limit or restrict it in specific cases which constitutes an indispensable service for the community. In this respect, the Committee notes that the Government has not, at first sight, commented on the high percentages of minimum service cited by the complainants which, in certain cases, stand at 90 or 100 per cent, which effectively constitute a prohibition to the right to strike. The Committee therefore cannot exclude the possibility that excessive minimum service levels were in fact established, even though the strike in question never materialized. Nevertheless, as it has done on previous occasions, the Committee emphasizes that "a definitive ruling on whether the level of minimum services was indispensable or not - made in full possession of the facts - can be pronounced only by the judicial authorities, in so far as it depends, in particular, upon a thorough knowledge of the structure and functioning of the enterprises and establishments concerned and of the real impact of the strike action" (see 254th Report of the Committee, Case No. 1403 (Uruguay), para. 447).
8. 98. As regards the allegation submitted by the UTA concerning the declaration that strike action taken by the workers of the Buenos Aires Underground Transport Enterprise was illegal, and the alleged threat to suspend or revoke the trade union's legal status, the Committee notes that the Government has not furnished specific information. Nevertheless, the documentation submitted by the complainant organization indicates that when the parties failed to reach an agreement, the labour authorities established the level of minimum service to be provided during the dispute, that the UTA as well as the Buenos Aires Underground Transport Supervisory Staff Association were warned to rescind all measures which would affect the provision of a minimum level of service, and that the strike action was ultimately declared illegal when the minimum service levels were not met. The Committee notes that since the complaint was submitted in April 1993, the complainant has not sent new information that would enable the Committee to determine whether effect was given to the threat of suspending or revoking the trade union's legal status. In these conditions the Committee refers to its earlier conclusions on the importance of ensuring that any decision concerning the illegality of a strike in the public services and the establishment of minimum service in the absence of agreement between the parties should be handled by an independent body.
9. 99. In consideration of the foregoing conclusions, the Committee requests the Government to take the necessary measures with a view to amending legislation so that final decisions concerning the illegality of strikes and the establishment of a minimum service in the absence of an agreement between the parties are left to an independent body. Furthermore, the Committee brings this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.