Rapport définitif - Rapport No. 344, Mars 2007

305. This complaint is contained in a communication from the Trade Union of Judicial Workers of Neuquén (SEJUN), the Association of Judicial Workers of the Province of La Rioja (ATJPLR) and the Judicial Federation of Argentina (FJA) dated November 2005.

1. 306. The Government transmitted its observations in a communication of 29 January 2007.
2. 307. 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 complainants’ allegations

1. 308. In their communication of November 2005, the SEJUN, the ATJPLR and the FJA state that they consider that a legal situation has arisen which is prejudicial to workers in the state judiciary (whose trade unions are both members of the FJA) in the Provinces of Neuquén and La Rioja and constitutes a flagrant disregard of internationally accepted principles which, inasmuch as they have been incorporated into Argentina’s own legislation, guarantee freedom of association and the right to strike.
2. 309. Specifically, the complainant organizations contest: (1) point 3 of Agreement No. 3769 issued by the Higher Court of Justice of the Province of Neuquén on 2 June 2004, placing the services to be provided by employees of the Judiciary within the essential services; and (2) Agreements Nos. 133 and 62 issued by the Higher Court of the Province of La Rioja on 5 November 1988 and 27 April 2005. According to the claimants, Agreement No. 133 requires the designation of judicial employees who are to be on duty on days when there is a strike, even though it is recognized that the origin of the direct action is the non-payment of the remuneration of employees of the judiciary; there is also a requirement that a minimum service be established, which can be increased in size by decision of the relevant lower court or judge (point 5), and that the sanctions provided for in the judicial statutes be imposed on any workers who refuse to provide any or all of the services they are called upon to provide (point 3). Also according to the claimants, Agreement No. 62 stipulates that the ATJPLR must notify the Higher Court of Justice of any direct action it decides upon (point 1) and that each court of justice must communicate in writing a list of the employees who take part in a strike and of those who do not (point 2); the Agreement further instructs the Personnel Department to verify that the said points are adhered to in every office of the judiciary and to indicate the percentage of the staff who participate in any direct action. The complainants add that in the Province of La Rioja there is also Act No. 5593 which, in section 2, clause (e), declares the administration of justice to be an “essential service”, contrary to all national and international practice, and refers the definition of the term to the Higher Court of Justice.
3. B. The Government’s reply
4. 310. In its communication of 29 January 2007, the Government states with respect to the allegations concerning the Province of Neuquén that the conflict with the union of state judiciary workers has been resolved, after arduous negotiations and by means of an agreement on a draft bill consented to by the parties, and that the consideration of judicial services as essential services, in view of the imposition of minimum services in case of a strike, conforms to the principles of the Committee of Experts and the Committee on Freedom of Association, and confirms to the national Constitution, as demonstrated by several judicial decisions. As concerns the conflict in the Province of La Rioja, the Government states that this has been resolved by the signing of agreements, the details of which are given in the Government’s reply, and reiterates that the judicial service is an essential one. Decree 272/06 regulates Law No. 25771 and provides for the functioning of the negotiations committee in order to establish the minimum service.

C. The Committee’s conclusions

1. 311. The Committee observes that the complainant organizations contest Agreement No. 3769 issued by the Higher Court of Justice of the Province of Neuquén on 2 June 2004, placing the services to be provided by employees of the judiciary within the “essential services”, as well as Agreements Nos. 133 and 62 issued by the Higher Court of the Province of La Rioja on 5 November 1988 and 27 April 2005, which the complainants claim impose an obligation to establish a minimum service that can be increased in size by decision of the relevant lower court or judge, as well as penalties in the event of non-compliance, and which they say require the ATJPLR to notify the Higher Court of Justice of any direct action it decides upon, together with a list of the employees who take part in a strike and of those who do not. Finally, the Committee notes that the complainant organizations add that Act No. 5593 of the Province of La Rioja declares the administration of justice to be an essential service.
2. 312. The Committee notes the statements of the Government, according to which: (1) Province of Neuquén: the conflict with the union of judicial service workers has been resolved after arduous negotiations and by means of an agreement on a draft bill consented to by the parties, and that the consideration of judicial services as essential services, in view of the imposition of minimum services in case of a strike, conforms to the principles of the Committee of Experts and the Committee on Freedom of Association, and conforms to the national Constitution, as demonstrated by several judicial decisions; and (2) Province of La Rioja: the conflict has been resolved through the signing of agreements; as in the previous situation, the judicial service is deemed to be an essential service.
3. 313. The Committee observes that it is apparent from the documentation which the complainant organizations and the Government enclose with their communications that in both cases the designation of the work carried out by employees of the judiciary as an essential service is aimed at ensuring the provision of a minimum service. The Committee recalls that it has on a number of occasions emphasized that officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 578] and considers that the restrictions on the exercise of the right to strike invoked by the complainants are not contrary to the principles of freedom of association. Noting that in the circumstances of this case an agreement exists on the minimum service to be respected during strikes in the judiciary, the Committee recalls that a minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption; and that it is important that the provisions regarding the minimum service to be maintained in the event of a strike in an essential service are established clearly, applied strictly and make known to those concerned in due time [see Digest, op., cit., paras 607 and 611].