Rapport définitif - Rapport No. 349, Mars 2008

1. 353. The complaint is contained in a communication from the Association of State Workers (ATE) dated 5 March 2007.
2. 354. The Government sent its observations in a communication dated 10 September 2007.
3. 355. 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. 356. In its communication dated 5 March 2007, ATE alleges that the authorities of the Unified Autarchic Provincial Social Security Institute (IPAUSS) decided to transfer workers from the Ushuaia branch office, in the Province of Tierra del Fuego, to the Buenos Aires office, whose workers were engaged in a strike.
2. 357. The complainant states that, on 14 December 2006, IPAUSS was informed of the decision taken by an assembly of the workers at its Buenos Aires branch to cease work until certain conflicts were resolved. This direct action was also communicated to the Ministry of Labour, Employment and Social Security. ATE states that the demands being made were in response to systematic irregularities within the Institute that had been reported to its president. In particular, ATE rejected the removal and replacement of Ms Zalazar as head of the IPAUSS Buenos Aires office, as well as the appointment to the post of interim coordinator of persons from outside the institution, considering as it did that those posts should be filled by in-house staff with adequate competencies in the area of institutional management.
3. 358. ATE states that the direct actions were undertaken by a majority of the workers in the sector and that, by way of a response, the Institute’s authorities have taken measures aimed at reducing the effectiveness of the actions and intimidating the workers. ATE alleges that the IPAUSS authorities decided, within the framework of those measures, to transfer workers serving with the Ushuaia and Río Grande branch, in the Province of Tierra del Fuego, to the Buenos Aires branch, with a view to undermining the strike (from the documentation sent by ATE it emerges that ten workers were transferred between December 2006 and January 2007, for periods of up to five days and on different dates). ATE asserts that the replacement of striking workers is a violation of freedom of association.

B. The Government’s reply

1. 359. In its communication of 10 September 2007, the Government outlines the alleged facts as follows:
2. (1) the Tierra del Fuego branch of the ATE union sent IPAUSS a registered letter informing it of the cessation of work on 14 December 2006 to demonstrate its rejection of decision No. 497/2006 of 13 December 2006 appointing staff from outside the institution to the post of interim coordinator and rejecting the promotion of Ms Graciela Zalazar – despite her being a regular in-house staff member with the necessary competencies – to the post of head of the IPAUSS branch;
3. (2) the complainant objects to the cancellation of the appointment of an official and the filling of other posts with staff from outside the institution and alleges that all of this is a political manoeuvre aimed at neutralizing the complaint that the union has been making with respect to the serious situation confronting that branch and the IPAUSS health-care institution on account of constant shortcomings in the medical services they are supposed to be providing to the participants; and
4. (3) on the basis of these arguments the strike was declared, and the IPAUSS authorities are alleged to have decided to transfer workers from the Ushuaia and Río Grande branch to the Buenos Aires branch to undermine the strike.
5. 360. As regards the appointment of the interim coordinator of IPAUSS, the Government states that, in line with the information sent by the Undersecretariat of Labour of the province in question, within the framework of the duties conferred under Act No. 641 and Act No. 22140 and its implementing Decree No. 17976/80, it is the board of directors of IPAUSS that has the authority to appoint staff at the policy-making level, the so-called “cabinet staff” and their concordantes, i.e. the team of public officials who work in association with them. Both the branch and the institution’s coordination unit fall into this category, being officials to whom the right of stability at the cabinet level does not extend.
6. 361. Concerning the specific reference to Ms Zalazar, the Government states that it is important to note that she has been working from 1994 to the present as a staff member holding various posts of different categories, up until the adoption of provision No. 63/04 appointing her a delegate in Buenos Aires. In line with the organizational structure of IPAUSS, the category of delegate forms part of the cabinet staff. This category of official is not covered by the principle of job stability, in line with what is outlined in the previous paragraph. The post in question is of a political nature, with the official expressing opinions on behalf of the State. Therefore, when the official is replaced in the post and ceases to perform the function, he/she automatically returns to his/her regular category, i.e. to his/her permanent position among the regular staff. It is in this situation that Ms Zalazar currently finds herself, being fully active in the post that corresponds to her length of service and level of promotion, it being emphasized that no obstacles have ever been put in the way of her administrative career, as has been shown.
7. 362. The Government states that the administrative acts that are being challenged, which are covered by the abovementioned acts, in no way constitute a violation of freedom of association and do not conceal any attempt to undermine the direct action taken by the union. The Government points out that the direct action lasted for over 45 days. In regard to the services to be provided to the participants, IPAUSS sent the minutes of a meeting held on 7 March 2007, in which a Commission for the Audit and Internal Management of IPAUSS was set up through presidency provision No. 269/07. This document deals fundamentally with the union’s serious accusation regarding the shortcomings on the part of the companies responsible for providing services under the medical coverage in question, with the agreement to set up a commission for the audit and internal management of IPAUSS.
8. 363. Regarding the allegation that the IPAUSS authorities ordered the transfer of workers serving in the Ushuaia and Río Grande branch to the Buenos Aires branch with a view to undermining the strike being carried out by the workers in the provincial branch, the Government states that by Territorial Act No. 442 of 1990, the Social Services Institute of the National Territory of Tierra del Fuego, AeIAS (ISST), was established with the main objective of providing medical services to the staff of the Territory’s Central Administration and Government; autarchic and/or decentralized entities; territorial legislature; municipalities, retirees and pensioners of the Territorial Social Security Institute, as well as the close family members of the aforementioned categories. Also, Territorial Act No. 244 of 1984 provided for the establishment of the Territorial Social Security Institute. In 1990, the National Territory of Tierra del Fuego acquired the status of province, and Act No. 534 of 1991 was passed, establishing IPAUSS. In 2004, Provincial Act No. 641, through the merging of the two institutes, laid down in its article 3 the purpose of the institution: the management and administration of the entire retirement pension and social services system covering the staff of the three authorities of the provincial state, its municipalities and town councils, autarchic and decentralized entities and companies with majority state ownership, according to their type, pursuant to article 2 of Act No. 641, IPAUSS has its registered office in the provincial capital, Ushuaia, with branches in the city of Río Grande and the autonomous city of Buenos Aires; and an office in the capital of the Province of Córdoba. It is clear from the foregoing that IPAUSS encompasses a considerable number of participants, both active and retired, many of whom live in different administrative areas of the Republic of Argentina. The total number of participants is in the order of 45,000, of which 2,600 live outside the province.
9. 364. The Government points out that the existence of the aforementioned branches and offices, remote from the original headquarters, justifies the secondment of permanent staff for the purpose of handling administrative or social security-related matters, all of which is in the interests of the close relationship that exists between the tasks and responsibilities associated with the coverage and health of those concerned. In the specific case at hand, the transfers that were ordered took place in the context of a particular set of circumstances brought about by direct action on the part of the workers from the Buenos Aires branch. The Government emphasizes that Provincial Act No. 22140, in its articles 43 and 45, lays down rules for the assignment of services, whereby officials and employees of the institution are sent “on assignment” to carry out specifically assigned tasks. In this particular case, the tasks carried out at the central office in the city of Buenos Aires to which the staff in question were assigned neither discredit them – as it is argued – nor turn them into some kind of expatriates, inasmuch as the institution’s workforce is a single body. The Government states that the transfers “on assignment” were of short duration (no longer than five days) and not large scale, but rather on an alternating basis, the aim being to ensure the continuity and constancy of the Institute’s priority functions in the interests of guaranteeing the health service that it has an obligation to provide to its participants.
10. 365. The Government concludes by emphasizing that, to avoid falling into anti-trade union conduct, the presidency of IPAUSS made the appropriate administrative approaches to the province’s Undersecretariat of Labour in order to issue a decision as to the lawfulness or otherwise of the direct action being taken, no sanction having thus far been imposed on those having taken part in it. In other words, the free exercise of trade union rights has been respected since the assigned workers belong to the Institute’s workforce, and the duration of the assignments is clearly recorded in the acts being challenged. In short, credence cannot be given to any of the points raised in regard to alleged actions running counter to freedom of association; all of the measures taken by the board of directors were taken in the exercise of its duties and within the bounds of the legal framework by which it is governed, with the sole aim of guaranteeing the service, without intimidating the workers participating in the direct action or seeking to undermine the effectiveness of that action.

C. The Committee’s conclusions

1. 366. The Committee notes that in this case the complainant organization alleges that the authorities of IPAUSS decided to transfer workers in the service of the Ushuaia and Río Grande branch, in the Province of Tierra del Fuego, to the Buenos Aires branch in order to undermine the strike being conducted by the latter’s workers (according to the complainants, the strike had been called in response to systematic irregularities within the Institute, including the removal of the head of the Buenos Aires branch and appointment of staff from outside the institution).
2. 367. The Committee notes, in relation to the grounds for the strike, that the Government: (1) has sent detailed information explaining the reasons for the decision that Ms Zalazar, who had been appointed delegate and formed part of the cabinet staff, should cease carrying out those duties and return to her regular post within the permanent staff; and (2) has reported that the IPAUSS authorities and the representatives of the workers from the Buenos Aires branch came to an agreement on 7 March 2007 for resolving the conflict, with the establishment of a commission, to include workers’ representatives, for the audit and internal management of IPAUSS. The Committee notes with interest that the conflict has been resolved.
3. 368. With regard to the alleged transfers of workers in service with the Ushuaia and Río Grande branch to the Buenos Aires branch with a view to undermining the strike being conducted by the workers of the latter branch, the Committee notes the Government's information that: (1) the purpose of IPAUSS is the management and administration of the entire retirement pension and social services system covering the staff of the provincial state, its municipalities and town councils, autarchic and decentralized entities and companies with a majority state ownership; (2) the existence of branches and offices remote from the original headquarters justifies the secondment of staff for the purpose of handling administrative or social security related matters; (3) the transfers were ordered within the context of a particular set of circumstances brought about by direct action which had lasted for over 45 days; and (4) the duration of the transfers did not exceed five days, and they were not large scale but alternating, the aim being to ensure the continuity and constancy of the Institute’s priority functions in the interests of guaranteeing the health service that it has an obligation to provide to its participants. In this respect, the Committee is of the view that in the specific circumstances of this case, social security is a service in which it might be necessary to consult with the parties on the establishment of a minimum service, particularly in the event of a lengthy strike, as the Government points out. The Committee recalls that a certain minimum service may be requested in the event of strikes whose scope and duration would cause an acute national crisis, but in this case, the trade union organizations should be able to participate, along with employers and the public authorities, in defining the minimum service [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 609]. There would thus appear to be no grounds for complaint in regard to the transfers for a short period of time of a small number (ten) of workers to which the complainant organization objects. In these conditions, the Committee will not pursue its examination of these allegations.