Rapport définitif - Rapport No. 300, Novembre 1995

1. 58. The complaints in this case are contained in communications from the World Confederation of Labour (WCL), dated 1 June 1994, the Congress of Argentine Workers (CTA), dated 1 August 1994 and the Union of Employees in the Tramway and Coach Services (UTA), dated 1 August 1994. These organizations subsequently sent additional information (WCL: 24 April 1995; CTA: 5 August and 1 September 1994; UTA: 2 August and November 1994). In a communication dated 20 December 1994, the International Transport Workers' Federation (ITF) expressed its support for the complaint made by the UTA.
2. 59. The Government sent its observations in communications dated 5 September 1994, 30 May and 10 July 1995.
3. 60. 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 complainants' allegations

1. 61. The World Confederation of Labour (WCL) alleges that the Government, in making a restrictive interpretation of the Trade Union Act in force and in violation of Convention No. 87, refuses to register as a trade union the Congress of Argentine Workers (CTA) (a third level organization, made up, inter alia, of the Confederation of Education Workers of the Argentine Republic, the Argentine Judicial Association, the Association of State Workers, the Argentine Trade Union of Naval Workers, etc.).
2. 62. The Congress of Argentine Workers (CTA) states that it is a third level trade union body, made up of trade union organizations of the first and second levels, but that a request made for its trade union recognition in May 1993 was rejected by the Government. Furthermore, the CTA states that as a result of the social and economic policy of the Government, it decided to convene a strike (along with the Movement of Argentine Workers, a workers' organization whose registration was also rejected) to be held on 2 August 1994, and which was supported by other trade unions with legal personality. The complainant organization states that the strike and the petition made to the Executive had, inter alia, the following objectives: the preparation of a national employment policy; the restructuring of the domestic market and the regional economies; job stability and protection; freely concluded collective agreements; free education at all levels; a national public health system, etc. The CTA adds that the Ministry of Labour issued a resolution declaring the strike illegal and ordered the organizations to refrain from strike action, which would result in the application of sanctions. Finally, the CTA states that for the purpose of declaring the strike illegal, the Government invoked, as one of its principal arguments, that the organizations which had convened the strike lacked legal personality. The CTA emphasizes that the right to strike is enjoyed by occupational organizations and is not a right which is granted exclusively to trade unions which have been granted legal personality.
3. 63. The Union of Employees in the Tramway and Coach Services (UTA) also refers to the strike of 2 August 1994, and emphasizes that the strike was not of a political nature nor intended to disrupt public order, but was a multi-sectoral expression of protest against the social and economic policy of the Government. The UTA states that the Ministry of Labour declared the strike illegal and threatened to apply sanctions against the organizations which joined the strike. A few days after the strike preliminary legal proceedings were initiated against the organizations, including the UTA. Finally, the UTA says that the decisions of the administrative authority are contradictory, since on the one hand authorization was granted for participation in the strike if the minimum services were guaranteed, and on the other, the strike was declared illegal and any participation in it was subject to sanctions.

B. The Government's reply

1. 64. In its communications of 5 September 1994, 30 May and 10 July 1995, the Government states that the CTA is a third level trade union body whose structure has certain special characteristics as regards the scope of its representation, since provision is made for possible direct affiliation by individual persons - including retired or unemployed persons and workers exercising an autonomous activity - contrary to the provisions of Act No. 23551 respecting trade union associations. The Government adds that trade union organizations must choose one of the forms established by the Act and that confederations or third level associations are those which group together associations, unions or trade unions of the first level and federations or trade union associations of the second level; compliance with this legal requirement does not affect freedom of association, since it is merely an elementary rule for organizing and facilitating harmony and peaceful coexistence within a social organization. The Government points out that the by-laws of the complainant organization must be brought into line with the Act in force before it can be granted legal personality. The Government encloses with its reply an opinion by the Ministry of Labour which states the grounds for rejecting the request for registration: they include the possibility for individual persons to join a third level organization directly, since for example the general assembly of the trade union organization requires "some degree of homogeneity between the members represented in order to establish a genuine internal democracy" and the fact that "a confederation groups together only trade union associations".
2. 65. As regards the declaration of the illegality of the strike, the Government states that the right to strike recognized by the national Constitution means the concerted and collective abstention from work by workers with a view to bringing pressure to bear on employers to obtain trade union objectives, and not, as in the present case, to bring pressure to bear on the public authorities to force them to carry out, or to refrain from carrying out, acts related to their own functions. The Government points out that the national Constitution, in considering strikes together with the right to conclude collective labour agreements and the right to conciliation and arbitration procedures, emphasizes that the right to strike is intended to defend the workers, but that almost all the trade union organizations which responded to the call for a general strike were not at that time engaged in any trade union dispute with their members' employers. The Government states that the stoppage in question was a strike of a clearly political nature, since it did not involve the defence of the particular or specific interests of workers in a given activity, but was the expression of pure and simple opposition to the social policy of the Government which the convening organizations said they could not accept. The action could not therefore be considered as a legitimate exercise of the right to strike. The Government states that although initial legal proceedings were initiated, no sanctions were applied against the organizations which participated in the general strike.
3. 66. Finally, the Government states that the continuous economic upheavals which Argentina has been experiencing for a number of years cannot be overlooked. Its citizens have been affected by the inflationary process which existed in previous years, and to attribute the responsibility for its effects to the present national authorities or the socio-labour policies which they are applying would be a distortion of the facts. It adds that the present policy of the Government has resolved the endemic problem of inflation affecting the country and that the Framework Plan for Employment, Productivity and Social Equity, which was concluded between the Government and the most representative organizations on 25 July 1994, is proof of the existing political will to address the claims of the workers.

C. The Committee's conclusions

1. 67. The Committee observes that the allegations made in this case refer to the refusal to register a trade union ("trade union registration") and the declaration of the illegality of a strike, as well as the threat of sanctions against trade union organizations which participated in the strike.
2. 68. As regards the allegation concerning the refusal to grant legal recognition ("trade union registration") to the Congress of Argentine Workers (CTA), the Committee notes that the Government states that the legal registration of the CTA has not been made because it is a third level trade union body which has certain special characteristics in its structure as regards its representation, whereby provision is made for direct affiliation by individual persons, contrary to the provisions of Act No. 23551 respecting trade union associations (section 11 of the Act stipulates that "Trade union associations may take one or more of the following forms: (a) trade unions or unions; (b) federations, when they are made up of base-level trade union associations; (c) confederations, when they are made up of associations described in clauses (a) and (b) above.").
3. 69. In this respect, the Committee notes that the CTA meets the requirement established by the Act for third level organizations, since it groups together first and second level organizations. However, the Committee also notes that, as the Government states, the CTA by-laws make provision for the possible direct affiliation to it of unemployed or self-employed workers or pensioners or retired persons (article 4 of the by-laws, a copy of which is appended to the Government's reply). The CTA's registration was refused on the basis of this provision of the CTA's by-laws.
4. 70. In this respect, the Committee recalls that organizations of employers and workers should have the right to draw up their constitutions and rules in conformity with Article 3 of Convention No. 87. The Committee therefore considers that the prohibition of the direct affiliation of certain persons to federations and confederations is contrary to freedom of association principles. It is for these organizations themselves to determine what the rules relating to their membership should be. In these conditions, the Committee requests the Government to take the necessary measures so that the CTA is registered immediately.
5. 71. As regards the allegation concerning the declaration of illegality of the strike called by the CTA and other trade union organizations protesting the social and economic policy of the Government, the Committee notes that the Government states that the work stoppage in question was a clearly political strike, since it was not an attempt to defend the special or specific interests of workers in a given activity, but an act of pure and simple opposition to the Government's social policy, which could not in any way be considered as a legitimate exercise of the right to strike. In this respect, the Committee reminds the Government that on various occasions it has pointed out that "trade union organizations should have the opportunity to call for protest strikes particularly with a view to exercising criticism of the social and economic policy of governments" (see 238th Report, Case No. 1309 (Chile), para. 360 and 277th Report, Case No. 1549 (Dominican Republic), para. 445) and that "the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members' interests" (see 292nd Report, Case No. 1698 (New Zealand), para. 741). In these circumstances, the Committee requests the Government to ensure that in future protest strikes against the social and economic policy of the Government are not declared illegal.
6. 72. As regards the allegation of sanctions applied against the trade union organizations which participated in the strike (initiation of preliminary legal proceedings), the Committee takes due note of the Government's statement that although such proceedings were initiated, no sanctions were applied to the bodies which participated in the general strike of 2 August 1994.