Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 349, Mars 2008

1. 383. The complaint is contained in a communication from the Confederation of Argentine Workers (CTA) and the Confederation of Education Workers of Argentina (CTERA) of 25 April 2007.
2. 384. The Government sent its observations in a communication of 19 October 2007.
3. 385. 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. 386. In their communication of 25 April 2007, the CTA and the CTERA report a situation of unusual severity, with adverse effects not only on the education workers in Neuquén Province that belong to the Association of Education Workers of Neuquén (ATEN), a trade union that forms part of the CTERA, but also on all workers in Argentina, which is the reason for submitting the complaint.
2. 387. The complainants refer to the police repression against education workers in the abovementioned province on 4 April 2007, which resulted in the murder of teacher Carlos Fuentealba. According to the complainants, in addition to the violation of the right to life as a result of the crime committed because of the political decision by the Governor of the province to suppress the mobilization of teachers, as a result of the extreme violence that has been reported, the teachers of Neuquén Province have been denied the right to strike. Furthermore, the issuance by the provincial authorities of Decree No. 448 on “educational emergency”, dated 20 April 2007 and published in the Official Gazette of the Province No. 3031, specifically provides for the appointment of teachers on an interim basis until the end of the strike called by ATEN, a first level trade union affiliated to CTERA.
3. 388. The complainants indicate that, in accordance with the statutes of the CTA and the CTERA, which have been duly registered with the National Ministry of Labour, and with the specific provisions of Act No. 23551 on trade union associations, trade unions are guaranteed, in terms of collective freedom of association, the right “to formulate their own action plans and to carry out any lawful activity to defend the interests of workers. In particular, they may exercise the right to bargain collectively, the right to participate, the right to strike and the right to take other forms of legitimate trade union action” (article 5(d) of Act No. 23551). In addition, the National Constitution provides that: “Trade unions are guaranteed the right to enter into collective agreements, the right to have recourse to conciliation and arbitration and the right to strike” (section 14bis, second paragraph). It is clear that, according to the Constitution, the first step is to negotiate, reach agreement, restore balance, correct inequities and ensure bargaining parity between unions and employers through the introduction of legislation negotiated as part of a collective agreement; the next step is to establish dispute prevention mechanisms based on conciliation and voluntary arbitration (although the Constitution does not indicate whether this should be a government activity); and the final step, as a last resort, is to use union power to exercise the right to strike. The complainants indicate that the Constitution does not set any limits or conditions in this regard.
4. 389. The complainants indicate that the right to strike may be invoked and exercised even though there is no regulatory act passed by Congress governing this right, because exercising the right to strike does not require legislative regulation. Section 14bis of the National Constitution is complemented by the recognition of the constitutional status of human rights declarations and treaties provided for under section 75.22. Of the human rights instruments, only the International Covenant on Economic, Social and Cultural Rights explicitly refers to the right to strike (article 8.1(d)). Nevertheless, the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the American Convention on Human Rights encompass the right to freedom of association as part of the right to strike. There are no ILO Conventions or Recommendations specifically governing the right to strike, but the right is seen as being implicit in the right to freedom of association enshrined in Convention No. 87.
5. 390. The complainants state that education is not an essential service and that the resolutions, decisions and opinions of the ILO Committee on Freedom of Association, as demonstrated in its handling of case No. 1679, have established that education is not an “essential service”.
6. 391. The complainants are of the view that the indiscriminate repression of education workers which led to the murder of Mr Carlos Fuentealba and the abovementioned Decree by the authorities of Neuquén Province declaring a state of “emergency” in the province’s education system and establishing a mechanism that clearly prevents teachers from exercising their right to strike are totally unacceptable. It is manifestly inappropriate and no less than absurd to try to claim that education is an essential service just when a measure of direct action is taken, when a demonstration is organized or when any sort of action is taken in protest against what teachers are experiencing, and what makes matters worse is that the behaviour of the Neuquén authorities is dangerously centred on the infamous “victim blaming” theory in so far as explicit reference is made to the intention to make educators fully responsible for ensuring the provision of the service.
7. 392. The complainants indicate that section 14bis of the National Constitution clearly guarantees the establishment of free and democratic trade union organizations on mere registration in a special register. The section adds that: “Trade unions are guaranteed the right to enter into collective agreements, the right to have recourse to conciliation and arbitration and the right to strike …” Likewise, under section 5(d) of Act No. 23551, as mentioned above, as well as under section 31 of the same act, all trade unions have the right to formulate their own action plans and the right to represent the collective interests of all workers who are within the scope of union activity, whether or not they are union members. Decree No. 448/07 issued by the authorities of the province in question is directly aimed at preventing the legitimate enjoyment of the right to strike and at the same time involves an absolute refusal to enter into collective negotiations with the representative trade union regarding the working conditions of the education workers.
8. 393. Finally, the complainants state that the absurd police repression that resulted in the murder of teacher Carlos Fuentealba and Decree No. 448 of 20 April 2007 on educational emergency issued by the authorities of Neuquén Province are illegal and violate freedom of association because they undermine the most fundamental of all rights, namely the right to life, and the right to strike of all workers.

B. The Government’s reply

1. 394. In its communication of 19 October 2007, the Government states that the complaint filed by the CTA and the CTERA is related to the dispute that ATEN entered into with the provincial authorities, which resulted in the pointless death of teacher Carlos Fuentealba. According to the Government, the situation warrants a thorough and detailed description of the events, which date from 20 February 2007, when the trade union ATEN sent a note to the provincial authorities – the Ministry of Education in particular – calling for the launch of negotiations. At the outset, the Government firmly denies that any action was taken to restrict the freedom of association of the trade union organizations that staged the dispute in question.
2. 395. According to the Government, the unions used their rights under section 14bis of the National Constitution, which governs union activities and the enjoyment of the right to strike. They exercised, in the following order, the exclusive rights of trade unions, as provided for under article 31 of Act No. 23551: “(a) to defend and represent the individual and collective interests of workers in dealings with the State and the employers; (b) to participate in the activities of institutions involved in planning and inspection, in accordance with the respective provisions; (c) to participate in collective negotiations and to monitor compliance with labour and social security regulations; (d) to collaborate with the State in examining and resolving workers’ problems; (e) to establish earmarked funds which shall enjoy the same rights as cooperatives and mutual funds; and (f) to administer their own social welfare activities and, as appropriate, to participate in the administration of those undertaken pursuant to law or to collective labour agreements”. It is the question of the enjoyment of these rights that prompted the series of events described below.
3. 396. On 23 February 2007, the union sent a note to the provincial authorities, in response to which the province’s Minister of Education invited the union on 26 February to attend a hearing in order to give fair consideration to the list of issues raised by ATEN. The following issues were discussed: (1) information regarding the municipal infrastructure; (2) wage scale increases, in response to a call for a pay rise to 2,882 pesos; (3) fixed cash bonuses; (4) the complainant trade union ATEN indicated that it supported the strike to be held on 5 March for an unspecified duration if agreement was not reached. From the list of issues raised by ATEN, workers were offered: (1) the standardization of non-remunerative bonus elements in the basic wage; (2) the elimination of performance-based benefits (for ATEN, “presenteeism”), instead making such benefits an element of the basic wage; (3) a further guarantee of a wage increase of no less than 150 pesos for those who already earned the minimum amount; (4) a commitment to instruct the Neuquén Social Security Institute to make the necessary arrangements to increase the variable percentage of the teachers’ retirement allowance; (5) the establishment of a working group on granting contract staff regular staff status and on social programming in the education sector (non-teaching staff); (6) with regard to wages, the amount offered reached and exceeded the fixed national levels, the base amount offered being 1,140 pesos.
4. 397. The Government indicates that a wage agreement was effectively not reached. This prevented the provincial Government from pursuing a timely dialogue, without prejudice to the industrial action being taken by ATEN at the time. Nevertheless, another working group was established with finance officials from the Neuquén provincial authorities to find a solution to the wage claims raised during the dispute. While the negotiations were under way, the union took direct action which involved: (1) the non-initiation of the academic year; (2) the blocking of bridges; (3) the setting up of road blocks without warning in various parts of the province to cut off towns far from the provincial capital and to prevent commercial activity in the productive sector; (4) demonstrations in towns; and (5) threats of further action.
5. 398. The Government adds that the situation described above prevented the normal progression of the academic year, which meant that children were prevented from attending school in a normal and regular way. This situation led to numerous complaints from parents, causing unrest among civil society. Subsequently, faced with the impossibility of continuing the negotiations, the provincial Government proceeded to issue a compulsory conciliation order with the aim of restoring the pre-dispute status quo, so that education workers could return to their normal and regular jobs and so that dialogue could be resumed with the trade union in a climate of social peace. Although the application of Act No. 14786 on compulsory conciliation was rejected by the union, the provincial authorities nevertheless agreed to increase the pay of new teachers to 1,240 pesos, with due account to the geographical location concerned. This proposal was also rejected. It should be noted that the conciliation process provides an opportunity for settlement and rapprochement and that, by exercising their autonomy and by making mutual concessions, it is the parties themselves that reach an agreement that should in theory reconcile their underlying differences. In such circumstances, it is unacceptable for the parties involved to be subjected to measures which restrict their freedom of negotiation. The power to request compulsory conciliation for a limited period is vested exclusively in the State for the purposes of ensuring social peace, and in no way can it be considered to be a violation of the principles of freedom of association because it will always be established for a limited period.
6. 399. According to the Government, it is of paramount importance to stress that schools in the Republic of Argentina not only provide a natural environment for educating children but also play a very important social role, as in many respects they exert a cohesive influence on various sectors of society, in particular in view of the fact that Neuquén Province occupies a vast territory, which means that many children have to travel many miles, often in adverse weather conditions, in order to attend school. Many publicly run schools in the Republic of Argentina therefore provide children with breakfast and lunch, which means that school attendance is of the utmost importance because the State provides additional support to families, taking into account that there are certain pockets of poverty in the region.
7. 400. The Government states that, because the trade unions felt unsatisfied with the proposals by the provincial authorities, they decided to take direct action, leading to the occupation of the bridges linking the cities of Cipolletti and Neuquén. On 3 April 2007, a road block was set up on national road No. 22, at Arroyito, where there is an intersection of the roads leading to the tourist areas of southern Argentina (Bariloche, Villa La Angostura, Caviahue, El Bolsón and San Martín de los Andes, among others). When they heard about this measure, the Neuquén provincial authorities announced that they would not allow such a blockage and the demonstrators were requested to carry out their protest in the area of the Carancho bridge, in order to provide road users with an alternative route. This request was ignored by the protesters, who at that point included not only teachers but members of different trade unions and political associations. The police force was then called in to enter into dialogue with the union authorities to prevent the demonstrators from blocking the abovementioned road and thus to protect the rights of third parties who had nothing to do with the matter in question to the freedom of movement (a freedom which is protected by the Constitution). No agreement was reached. It was at this point that the police proceeded to clear the way to enable the free movement of the vehicles that had been brought to a standstill. Minutes later, teacher Carlos Fuentealba was unfortunately killed when a tear gas canister was fired. The provincial authorities have since identified those responsible and reports have been prepared leading to the dismissal from the Neuquén police of the perpetrators of the unfortunate event, who have subsequently been handed over to justice. With regard to the legal proceedings, the judge responsible for the case has indicated that the citizen José Darío Poblete was detained after questioning on 6 April 2007 and, after a court hearing on 27 April of the same year, on the basis of a final decision.
8. 401. The contested Decree No. 448 declares a state of educational emergency throughout the province. It gives the Neuquén Province Education Council the power to appoint the interim managers and teaching staff needed in the various schools for the purpose of providing and guaranteeing an educational service and provides that such staff will be appointed until the situation returns to normal. This decision by the provincial authorities is in accordance with the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man and the International Covenant on Economic, Social and Cultural Rights. Even though the education system is not considered to be an essential service, a crisis situation began to emerge when the academic year failed to begin, leading to unrest among parents and society as a whole. Thus, section 3 of the Decree in question that is being challenged by trade unions stipulates that “the staff mentioned in section 1 will be appointed until the educational service returns to normal”. Consequently, the claim that the Decree in question restricts freedom of association is categorically rejected, not only because the Decree was prepared in the spirit of the Committee’s recommendations, but also because the workers hired to provide replacement services for the strikers were recruited on an interim basis, as has been stated unequivocally. Significantly, the right to strike was not violated because the strike took place for the entire period called for by the union (two months) and wages are being paid to date for the days not worked as a result of participation in the strike, in accordance with an order by the board of the Neuquén Province Education Council, which is a tripartite body responsible for the implementation of the abovementioned Decree.

C. The Committee’s conclusions

1. 402. The Committee observes that, in the present case, the complainants allege that Mr Carlos Fuentealba was killed on 4 April 2007 during a demonstration by education workers in Neuquén Province which was suppressed by the police, and object to Decree No. 448 of 20 April 2007 on educational emergency, issued by the authorities of Neuquén Province, authorizing the appointment of teachers on an interim basis until the end of the strike called by ATEN.
2. 403. With regard to the allegation concerning the murder of teacher Mr Carlos Fuentealba, on 4 April 2007, during a demonstration of education workers in Neuquén Province which was suppressed by the police, the Committee notes that, according to the Government: (1) in the context of a dispute between ATEN and the authorities of the province in question, trade unions decided to take direct action which led to the occupation of bridges linking two cities and on 3 April 2007 the establishment of a road block on national road No. 22, where there is an intersection of the roads leading to the tourist areas of southern Argentina; (2) the provincial authorities announced that they would not allow such a blockage and requested the demonstrators to carry out their protest in the area of the Carancho bridge, in order to provide road users with an alternative route; (3) the request was ignored by the protesters and consequently members of the police force were called in to enter into dialogue with the union authorities to prevent the demonstrators from blocking the road; (4) no agreement was reached and the police proceeded to clear the way to enable the free movement of vehicles; minutes later, teacher Carlos Fuentealba was killed when a tear gas canister was fired; (5) the provincial authorities identified those responsible and reports have been prepared leading to the dismissal of the perpetrators from the Neuquén police force, who have been handed over to justice; (6) as part of the legal proceedings, Mr José Darío Poblete was detained and tried.
3. 404. The Committee deeply regrets the death of the teacher, Mr Carlos Fuentealba, after a tear gas canister was fired by the police, and requests the Government to keep it informed of the outcome of the legal proceedings against the person accused of causing his death. Likewise, the Committee recalls that it has underlined on numerous occasions that, although “trade union rights include the right to organize public demonstrations, the prohibition of demonstrations on the public highway in the busiest parts of a city, when it is feared that disturbances might occur, does not constitute an infringement of trade union rights, and the authorities should strive to reach agreement with the organizers of the demonstration to enable it to be held in some other place where there would be no fear of disturbances” [see Digest of decisions and principles of the Freedom of Association Committee, 2006, fifth edition, para. 139]. The Committee notes in this respect that the Government tried to dissuade the demonstrators from setting up a road block and that only after they had refused did the Government send in the police force to enable the movement of vehicles. Nevertheless, taking into account the tragic consequences in this specific case, the Committee recalls that “the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace.” [see Digest, op. cit., para. 140]. At the same time, the Committee emphasizes that trade union organizations should conduct themselves responsibly and respect the peaceful manner in which the right of assembly should be exercised. The Committee requests the Government to ensure that the above principles are respected and to give instructions to its security forces to this effect, so as to ensure proportionality and balance in the use of force and avoid any excesses.
4. 405. With regard to the contested Decree No. 448 of 20 April 2007 on educational emergency issued by the authorities of Neuquén Province, authorizing the appointment of teachers on an interim basis until the end of the strike called by the Association of Education Workers of Neuquén (ATEN), the Committee notes that, according to the Government: (1) this Decree declared a state of educational emergency throughout the province, gave the Neuquén Province Education Council the power to appoint the management and education workers needed in the various schools for the purpose of providing and guaranteeing an educational service and provided that such staff would be appointed until the situation returned to normal; (2) this decision by the authorities is in accordance with the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man and the International Covenant on Economic, Social and Cultural Rights; (3) even though the education system is not considered to be an essential service, a crisis situation began to emerge when the academic year failed to begin, leading to unrest among parents and society as a whole; the Decree in question does not violate freedom of association, not only because it was drawn up in accordance with the recommendations of the Committee but also because the staff who were going to provide replacement services for the strikers were hired on an interim basis; and (4) the right to strike was not violated because the strike took place for the entire period called for by the union (two months) and wages are being paid to date for the days not worked as a result of participation in the strike, in accordance with an order by the board of the Neuquén Province Education Council, which is a tripartite body responsible for the implementation of the abovementioned Decree.
5. 406. The Committee recalls that, on numerous occasions, it has emphasized that the education sector does not constitute an essential service in the strict sense of the term and that “the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association” [see Digest, op. cit., paras 587 and 632]. Nevertheless, the Committee recalls that it has also indicated that “minimum services may be established in the education sector, in full consultation with the social partners, in cases of strikes of long duration” [see Digest, op. cit., para. 625]. In the present case, the Committee observes that the Government has not supplied information on the number of workers replacing the workers on strike and has not denied that this measure was the result of a decree adopted without consultation with the trade unions concerned. In these circumstances, the Committee expects that, in the future, in the event of a dispute in the education sector in Argentina involving a strike of long duration, priority will be given to the establishment of minimum services, in full consultation with the social partners concerned, and that the appointment by the authorities, without consultations with the trade unions concerned, of staff to replace the striking workers will be avoided.