Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 346, Juin 2007

Effect given to the recommendations of the Committee and the Governing Body

1. 14. The Committee last examined its case at its March 2006 meeting [see 340th Report, approved by the Governing Body at its 295th Session, paras 274–293] and, on that occasion, noting that the documentation the Government had attached to its reply showed that the Provincial Education Council (CPE) of Neuquén province had adopted a new resolution (record No. 2503-37259/02) declaring resolution No. 163 of 2002 null and void, removing from resolution No. 1550 of 1999 the obligation to inform on those participating in stoppages, and recognizing that the directors of establishments or anyone in charge thereof may, in the context of protest days, freely exercise the right to strike without any sanction whatsoever, the Committee noted with interest the new resolution of the CPE and requested the Government to report on the implementation of the resolution.
2. 15. In a communication of 30 November 2006, the Government states that, first of all, it should be pointed out that the document referred to in the Committee’s recommendation is not, strictly speaking, a resolution (record No. 2503-37259/02), rather it is a draft resolution prepared by the representatives of the Educational Workers’ Association of Neuquén (ATEN) members of the deliberative body of the CPE, which did not receive the number of votes required to become a legal provision. Therefore, the draft resolution attached to the file before this body, and which is referred to in the recommendation, is merely an initiative of the representatives of the trade union, who, in turn, belong to the group presenting the complaint to the ILO. The said draft has not been approved by the aforementioned body, it has not received the majority support of members that is required if a draft resolution is to become a legal provision, neither was it assigned a resolution number nor did it undergo the relevant process of formalization and therefore it does not fulfil the minimum legal requirements.
3. 16. The Government states that article 3 of Act No. 242/61 establishes that:
   • The Provincial Education Council shall be composed: (a) of a chairperson and two committee members, one belonging to the primary education branch and another to one of the other branches of education, appointed by the executive authority; (b) of two committee members directly elected by active teaching staff, one of whom shall belong to the primary education branch and another to one of the other branches of education; (c) of a committee member representing the consejeros escolares (education councillors), elected at a joint meeting of all the members of the said councils from among those members by a simple majority.
   • The Government states that, through their representatives, trade union organizations have the opportunity to propose, evaluate, examine and finally decide on educational and management matters brought to their attention. Thus, on 11 February 2004, the deliberative body, at the suggestion of those of its members representing the trade union organization, addressed the issue in question, but despite doing so, the majority vote necessary to declare resolution No. 163 of 2002 null and void (removing from resolution No. 1550 of 1999 the obligation to inform on those participating in stoppages, and recognizing that the directors of establishments or anyone in charge thereof may, in the context of protest days, freely exercise the right to strike without any sanction whatsoever) was not achieved. Thus, as the issue in question was not addressed in a way that met with the requirements established by law, this party is able to state that the procedure carried out did not give rise to a valid act of the administration.
4. 17. With a view to the Committee issuing another opinion, the Government states that the recommendation it made is based on a provision that, in the eyes of the province, is null and void, and it should be pointed out that, to date, the facts and legislation in place when the complaint lodged by the Confederation of Education Workers of Argentina (CTERA) and ATEN was contested have not changed, and resolution No. 163/02 is still currently in full force. Furthermore, the Government states that there are administrative proceedings pending regarding non-compliance with resolution No. 163/02. Finally, it should be pointed out that the original reason for establishing resolution No. 163/02 was to prioritize the right to work of those workers who do not support industrial action and fundamentally to safeguard the social function of schools within the current economic and socio-cultural context of the province, taking into account the operation of school dinner halls, on which a large proportion of the children in this district depend for food and the consequent need for school directors to keep their schools open in order to provide this service.
5. 18. The Committee notes this information, in particular, the fact that the resolution (record No. 2503-37259/02) was merely a draft resolution, which was not approved. The Committee recalls that the complainant organizations had objected to resolutions Nos 1550 of 1999 and 163 of 2002, adopted by the Provisional Education Council (CPE) of Neuquén province, because they considered that these resolutions prohibit the directors of educational establishments in the province from exercising the right to strike by requiring them to be present at the establishment whenever protest days are taking place, while at the same time requiring them to draw up a list of those members of staff who participate in a stoppage [see 340th Report, para. 290]. The Committee recalls its statement to the effect that “While the Committee has found that the education sector does not constitute an essential service, it has held that principals and vice-principals can have their right to strike restricted or even prohibited.” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 588]. The Committee also stresses that it has emphasized the fact that essential services or civil service workers deprived of the right to strike should benefit from appropriate guarantees designed to safeguard their interests. In these circumstances, the Committee requests the Government to inform it whether the workers affected by the resolutions in question can have recourse to conciliation or arbitration procedures that have the confidence of all the parties, in order to protect their interests.
6. 19. Finally, the Committee requests the Government to keep it informed regarding the judicial procedure under way against resolution No. 163/02, to which it refers in its reply.