Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 340, Mars 2006

294. The complaint appears in a communication from the Argentine Cabin Staff Association (AAA) dated 29 March 2005.

1. 295. The Government sent its observations in a communication dated 30 August 2005.
2. 296. 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. 297. In its communication dated 29 March 2005, the Argentine Cabin Staff Association (AAA) alleges that, through the Transport Secretariat, the Argentine State has adopted measures and resolutions that restrict, hinder and/or affect the constitutional right to bargain collectively. It has also undermined trade union autonomy by engaging in disloyal practices – refusal to recognize legitimate trade union representativity and illegally promoting the participation of a specific trade union association by means of manoeuvres that constitute a flagrant and undue interference in union affairs.
2. 298. The complainant organization adds that Argentina’s system of rules and regulations are of a pyramidal nature that is subject to hierarchical relationships and priorities that the system itself determines. Article 14bis of the Constitution guarantees trade unions the right to bargain collectively. Moreover, article 31(c) of Act No. 23551 stipulates that it is the exclusive right of trade unions with recognized legal personality to take part in collective negotiations and to verify compliance with labour and social security standards.
3. 299. The complainant organization states that in 2004 it entered into a process of collective bargaining with the Líneas Aéreas Federales Sociedad Anónima (LAFSA) company, in order to secure the rights of workers represented by it. Despite repeated requests, which were also sent to the labour administration, the company systematically refused to enter into a dialogue with the AAA; instead, with the complicity of the Government, it began negotiations with the Association of Cabin Crews of Commercial Airlines, which claims the same representativity, thus unlawfully excluding the AAA from the negotiation.
4. 300. The complainant organization points out that this is in flagrant violation of freedom of association, of the right to bargain collectively and of the right to trade union autonomy since, with the knowledge of the labour administration, the company is negotiating with a union which: (1) is merely registered as a trade union (it has no legal personality (personería gremial)); (2) has been operating for only one month; (3) has no authority to submit lists of demands to the Ministry of Labour, Employment and Social Security in so far as it has not complied with resolution No. 106/2005 and has not held elections; (4) at the present time has no members; (5) was formed and sponsored by a union organization representing another category of aeronautical workers (the Association of Aeronautical Technical Staff (APTA)); and (6) the association impugned has the same legal domicile as APTA.
5. B. The Government’s reply
6. 301. In its communication dated 30 August 2005, the Government notes that the complainant organization alleges that collective negotiations have been entered into with a trade union that has merely been registered as an organization – the Association of Cabin Crews of Commercial Airlines – to the detriment of the AAA. The Government comments in this regard that the participation of the merely registered association involved nothing more than the defence and representation of the interests of its members and that at no time was it recognized as being empowered to negotiate collectively, this being the exclusive right of the trade union possessing legal personality (personería gremial).
7. 302. The Government emphasises that the merely registered body did not enter into any collective agreement, since at the very first meeting it attended the Government made it clear that, in the event of the privatization of the LAFSA enterprise, as provided for under section 7 of Decree No. 1283/03, it has been agreed that any future list of labour demands will include a clause requiring, as a minimum, that the conditions currently in force under the existing agreement shall be maintained, i.e. none other than those negotiated with the union possessing legal personality, the AAA.
8. 303. The Government states further that the Ministry of Labour, through its General Directorate for Legal Affairs, has duly ruled that the AAA is the sole body empowered to negotiate within the purview of its personal and territorial representativity and that the merely registered body has acted within the framework of the broad authority conferred by Act No. 23551, namely under section 21(a), in defence of the individual interests of its members. The only body empowered to bargain collectively under section 31 of Act No. 23551 is therefore unquestionably the complainant organization, notwithstanding the right that other less representative bodies may have to defend the interests of their members.
9. 304. Consequently, the Government concludes that, since the negotiating right of trade unions with legal personality as such has not been violated, there has been no violation whatsoever of the legislation or of the international Conventions mentioned by the complainant organization.

C. The Committee’s conclusions

1. 305. The Committee notes that the complainant organization, the Argentine Cabin Staff Association (AAA), alleges that, although it is the most representative organization (and as such possesses the exclusive right under the Trade Union Associations Act to negotiate collectively), the Líneas Aéreas Federales Sociedad Anónima (LAFSA) company refused to enter into a dialogue, despite repeated requests submitted both to the company and to the labour administration and, with the complicity of the Government, began negotiations with the Association of Cabin Crews of Commercial Airlines. The complainant states that the latter trade union is merely registered as an organization, that it has been operating for only a month, that it has no members and that it was established and sponsored by a trade union representing another category of aeronautical workers.
2. 306. The Committee notes the Government’s statement that: (1) the Association of Cabin Crews of Commercial Airlines, which is merely registered as an organization, did not enter into any collective agreement; (2) this trade union organization did no more than defend and represent the interests of its members and was never recognized as being empowered to negotiate collectively; (3) the Ministry of Labour, through its General Directorate for Legal Affairs, has duly ruled that the AAA is the sole body empowered to negotiate within the purview of its personal and territorial representativity.
3. 307. While taking note of all this information, the Committee observes that the Government does not deny that the complainant organization has been endeavouring since 2004, unsuccessfully, to negotiate a collective agreement with the LAFSA enterprise (whereas it has responded to the demands of the merely registered organization on behalf of its members). The Committee expresses its serious concern that the LAFSA enterprise should have ignored the AAA in the collective bargaining process and expects that in future it will take duly into account the greater representativity of this organization. The Committee also recalls that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 816]. In these circumstances, the Committee requests the Government to takes steps to encourage and promote the full development and use of voluntary negotiating procedures between the enterprise and the organization most representative of the cabin staff sector, with a view to regulating employment conditions by means of a collective agreement. The Committee requests the Government to keep it informed in this respect.