Rapport intérimaire - Rapport No. 306, Mars 1997

1. 56. The State Workers' Association (ATE) submitted a complaint against the Government of Argentina for infringement of trade union rights in a communication in December 1995. The ATE sent additional information in a communication dated 3 April 1996.
2. 57. The Government sent its comments in a communication dated 14 February 1997.
3. 58. 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. 59. In its communications of December 1995 and 3 April 1996, the State Workers' Association (ATE) alleges that Miguel Hugo Rojo (Secretary General of the provincial Executive Council of the ATE) suffered reprisals for his trade union action during a collective dispute at the General Incomes Board of the Province of Salta in 1992. These consisted of: (1) a change in his workplace (he was transferred from being Inspector of the External Finance Department to the Department of Internal Auditing); and (2) suspension from his post without pay for 90 days (for having refused to change his workplace), as a result of a summary indictment. Both measures hindered the freedom of movement of the person concerned, thus preventing the exercise of his rights with respect to freedom of association. Moreover, Miguel Hugo Rojo has not received his wages since then because he has still not taken up his post.
2. 60. As a result of these measures, Miguel Hugo Rojo lodged successive appeals which went as far as the Supreme Court, which decided that as he was a provincial official, he would have to exhaust all the administrative procedures and submit his case to the Administrative Court. The first judgement handed down by the courts, however, had ordered the reinstatement of the person concerned in his job.
3. 61. The complainant organization feels that the constitutional and legal provisions pertaining to protection against anti-union discrimination were incorrectly interpreted and applied (in particular, section 47 of Act No. 23551, concerning occupational associations - considered not applicable to the public employees of the federal State of Salta by the judicial authorities - which provides for swift judicial proceedings in the event of an obstruction to the free exercise of trade union rights.

B. The Government's reply

1. 62. In its communication of 14 February 1997, the Government stated that the order which suspended Mr. Hugo Rojo (Decree No. 1127/92) was not brought into question in the appeal which he lodged as it was an administrative order which benefits from the presumption of legitimacy. According to national jurisprudence, as a consequence of this presumption, judges are prohibited from issuing decrees ex officio invalidating such administrative orders and their illegitimacy must be proven. In this case, the State does not need judicial authorization for the suspension of functions to the extent that Decree No. 1127/92 has not been called into question. Moreover, at no point in time was it raised in the allegations that Mr. Hugo Rojo was separated from his post due to his trade union membership or participation in trade union activities.

C. The Committee's conclusions

1. 63. As regards the allegation that legal standards were incorrectly applied or interpreted by the judicial authority, to the effect that section 47 of Act No. 23551 concerning occupational associations (which provides for a speedy judicial proceeding in the event of obstruction of freedom of association) is not applicable to public officials in the Province of Salta and that, under the provincial legislation of Salta, employees must exhaust all administrative procedures before lodging an appeal with the Administrative Court, the Committee notes that the position of the complainant and the Government are contradictory. The Committee considers that it is not its role to determine in federal States which are the internal standards regulating protection against anti-union discrimination and, in particular, whether the standards of general application or those of the province in question should be applicable.
2. 64. The Committee nevertheless recalls that irrespective of the procedural or substantive laws applying to public officials or employees in provinces of a federal State, it is bound to examine whether the actual alleged anti-union discrimination measures are or not in accordance with the provisions of ratified ILO Conventions and the principles of freedom of association.
3. 65. In this respect, the Committee notes that, according to the complainant organization, the decision to transfer the trade union official Miguel Hugo Rojo from one workplace to another and the subsequent measures taken against him were on account of his trade union action in a collective dispute which began at the beginning of February 1992. According to the documentation presented by the complainant, strikes took place and accusations were made of financial irregularities and corruption - such as an administrative resolution which changed the rules pertaining to the "incentive fund" for workers. The Committee also notes that the Government denies that the measures taken against Miguel Hugo Rojo had anti-union motives. The Committee nevertheless notes that the administrative resolutions containing the grounds for the transfer of Miguel Hugo Rojo and the penalties against him, which have been communicated by the complainant organization, indicate the following:
   • - for reasons of service and with a view to consolidating its skilled staff, the internal auditing department temporarily transferred the employee Mr. Rojo - tax inspector - to another department;
   • - the person concerned refused to comply with this order, despite the fact that it was repeated; he then put in writing that the person who had decided the transfer "lacked the necessary moral fibre to conduct the organization and was totally unable to function", which caused "moral damages to his hierarchical superior, undermining his honour and reputation" ("slander");
   • - after having "failed to fulfil his duties" and "being disrespectful and insulting to his superiors", which made him "subject to disciplinary measures", he was suspended;
   • - "the failure to carry out services individually and on a regular basis constitutes a form of misconduct subject to a penalty, particularly in view of the fact that the accused clocked in and out of work with a card and failed to carry out the services he was supposed to do, which implies fraudulent behaviour and a violation of article No. 11(a) of the Statutes; this is tantamount to a desertion of duties which gives rise to the suspension of an official (article 36(c)) under these Statutes";
   • - "another charge against the accused is the failure to comply with the requirement under article 11(k) of the Statutes, in other words to maintain a respectful attitude; indeed, on one occasion he displayed physical violence and, on others, made verbal threats".
4. 66. The Committee notes that the versions given by the complainant and the administrative authority concerning the transfer of and the penalties imposed on the trade union official Miguel Hugo Rojo are contradictory.
5. 67. In the numerous cases involving allegations of anti-union discrimination that it has examined, the Committee has consistently stressed that no person shall be prejudiced in employment by reason of his or her trade union membership or legitimate trade union activities, whether past or present (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 690). This protection should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers (see Digest, op. cit., para. 695). In addition, the remedy of reinstatement should be available to those who were victims of anti-union discrimination (see Digest, op. cit., para. 755).
6. 68. In the case at hand, the Committee considers that the available information is insufficient to permit a determination of whether anti-union motives underlay the transfer of Mr. Miguel Hugo Rojo. Under these circumstances, in order to arrive at its conclusions in full knowledge of the facts, the Committee requests the complainant and the Government to provide supplementary information, in particular regarding the administrative acts and decisions, as well as the judgements that have been rendered on this subject.