Rapport définitif - Rapport No. 354, Juin 2009

1. 205. The complaint is contained in a communication from the Association of Customs Brokers (AEDA) dated April 2008. Subsequently, the AEDA sent further information in communications dated June 2008 and 26 February 2009.
2. 206. The Government sent its observations in communications dated 18 February and 22 May 2009.
3. 207. 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. 208. In its communication dated April 2008, the AEDA states that the purpose of its complaint is to request the Government of Argentina to overturn Ministry of Labour, Employment and Social Security (Ministry of Labour) Decision No. 191/2008 of 12 March 2008 because of violations of ILO Conventions Nos 87 and 98. The AEDA considers that the Government, by issuing the administrative act in national law, is violating the ILO Constitution, Conventions Nos 87 and 98 and the recommendations and standards of the Committee on Freedom of Association. The AEDA claims that its right to freedom of association has been damaged, restricted, distorted and hindered, preventing it from adequately exercising its union autonomy and resulting in unauthorized interference in its internal affairs.
2. 209. The AEDA alleges that the Ministry of Labour declared null and void, without any legal grounds for doing so, the assembly of union members held on 26 April 2007 which duly approved by a large majority the report, balance sheet and other account statements of the union relating to the financial year ending 31 December 2006.
3. 210. The complainant indicates that the administrative proceedings brought before the Ministry of Labour, which issued the decision under challenge, are the subject of file No. 1.213.048/07. The file was opened with the formal communication from the trade union informing the administrative labour authority that the ordinary general assembly was held on 26 April 2007. At this assembly the members considered, inter alia, the report, balance sheet, inventory, statement of expenditure and results, and the audit committee’s report for the financial year ending 31 December 2006, which was approved by a large majority.
4. 211. A group comprising just 12 members of the union, which comprises more than 2,100 Argentine customs brokers, filed a challenge at the assembly in an unsigned note and then left the meeting room. This is recorded in the minutes of the ordinary general assembly of 26 April 2007. The persons concerned presented their challenge to the Ministry of Labour and requested the declaration of nullity, stating as grounds for the challenge that they had not been provided with the supporting documentation for the meeting with due notice or been presented with the balance sheet for examination. They did not allege or give evidence of any specific irregularity; the points raised in their challenge were clearly general and abstract issues of principle.
5. 212. The AEDA rejected the challenge as invalid since no irregularity had occurred. The complainant states that it proved that: (1) the supporting documentation was available to the members at its headquarters at Av. Callao 220, 6th floor, Buenos Aires, as from 9 March 2007, thereby meeting the deadlines laid down by the statutes and by law, and (2) the balance sheet was drawn up and signed on 8 March 2007 and was available as from 9 March 2007.
6. 213. The letter sent by the AEDA to the representative of the group of contestants, which clearly stated that “… the report, balance sheet, inventory, statements of expenditure and other instruments have been authorized and are available to the members” (letter No. 841460357, received by the contestants on 20 March 2007), never received a reply. The AEDA considers that the presumptions arising from Argentine national law apply, which provide that silence is construed as consent (according to section 919 of the Civil Code and section 57 of the Employment Contracts Act). The AEDA considers that its reasoning in its response to the challenge showed that the contestants’ arguments were absolutely groundless, since they did not allege that any specific irregularity had occurred, and demonstrated that the latter merely sought to use the administrative appeal machinery for political ends, in blatant abuse of their rights and for the sole purpose of damaging the image of the executive committee before the whole membership, seeking to put themselves forward as a new grouping for the next union elections.
7. 214. On 17 July 2007 a hearing was held before the National Directorate of Trade Unions, under the aegis of the Ministry of Labour, at which the contestants and the AEDA both maintained their previous positions. The contesting party – who requested a declaration of nullity and auditing from the Ministry of Labour – stated: (1) that the report and balance sheet were not made available within the deadline, since the requisite notice of 30 working days was not given, and (2) that for the purposes of an examination of the balance sheet the supporting documentation was not made available at any time, and hence it was clearly impossible to discuss the approval of the balance sheet at the assembly.
8. 215. The AEDA rejected the claim made, stating that “… the contestants fail to furnish any proof which justifies the position adopted … none of the contestants appeared at the AEDA headquarters at any time to certify the documentation made available in due form and time in accordance with section No. 45 of the statutes”. In order to settle the challenge, the proceedings were transferred to the Department of Trade Union Administration, which rejected the challenge on the grounds that (page 53, third paragraph) “… as regards the competence of this department, it should be pointed out that for a review audit to be undertaken, the accreditation of any administrative irregularities is required. Furthermore, on page 7/23 there is a summary of the report and balance sheet as at 31 December 2006 approved at the challenged assembly, in accordance with the regulations in force”.
9. 216. The National Directorate of Trade Unions – a department of the Ministry of Labour itself – following the criteria referred to above, dismissed the challenge by means of an administrative act of 1 November 2007, on the basis of the following main arguments: “The challenge to the ordinary assembly refers solely to the availability of the report and balance sheet in due time and form, no objection having been lodged regarding the legality of the convocation of the assembly, its Constitution or any lack of quorum for holding it.” “It can therefore only be concluded that the assembly is the highest entity of the trade union, in which all members participate directly, and as the decision-making body it is the guarantor of the obligation to produce accounts.” “… since the assembly was legitimately constituted, without any objection in this regard, and the report and balance sheet were examined and the accounts for the year were approved, the question raised becomes abstract. What was questioned was whether the report and balance sheet were made available for consideration in due time and form …” “… it endorses the considerations expressed in the report of the Department of Trade Union Administration inasmuch as the accounts for the year comply with the regulations in force”.
10. 217. The AEDA states that the contestants lodged an administrative appeal with the Ministry of Labour, and this was settled in their favour through the decision under challenge. The essence of the contestants’ argument is that at the assembly the trade union supposedly committed serious irregularities undermining the members’ freedom of association and the right to information.
11. 218. AEDA indicates that Decision No. 191 of 12 March 2008 contains the following findings and conclusions:
12. Article 1. The hierarchical appeal filed on a subsidiary basis by Messrs Marcelo Alejandro Gijena, Marcial Perez, Hernan Craia, Jorge Biancotto, Norberto Polio – and others, making a total of 12 persons – in their capacity as members of the Association of Customs Brokers (AEDA) is accepted; point (1) of the resolution issued by the National Directorate of Trade Unions on 1 November 2007 is therefore revoked; and the decisions issued by the ordinary general assembly of 26 April 2007 of the Association of Customs Brokers (AEDA) with respect to item (2) of the agenda (consideration of report, balance sheet, inventory, statement of income and expenditure, and report of the audit committee for the financial year ending 31 December 2006) are declared null and void …
13. Article 4. [The present decision] shall be registered, communicated and filed.
14. 219. The AEDA considers that there has been undue interference in freedom of association, since the union assembly is the supreme decision-making body which approved the union’s accounts, a decision which cannot be disregarded or modified by the administrative labour authority. The decision implies clear and blatant interference by the State in the union’s internal autonomy, inasmuch as it granted primacy to the “will” of a minority political group. According to the provisions of ILO Conventions Nos 87 and 98, the Ministry of Labour cannot interfere in the running of the trade union, since the union assembly is the competent body for deciding whether or not all requirements have been met with regard to the submission of documentation and the intrinsic validity of the report, balance sheet and other account statements for the financial year ending 31 December 2006.
15. 220. According to sections 5 and 20 of Act No. 23551 on trade unions, “the assembly has competence (…) to approve and amend the statutes, reports and balance sheets”, in the context of the “Trade union action programme”. In view of the decisions taken by the highest decision-making body of the union, namely the assembly of members, which approved the account statements by a large majority, the AEDA understands that the Ministry had no competence in this respect, and therefore the ministerial decision implies a clear abuse of administrative power, which violates not only the principle of coherence but also the autonomy of the union.
16. 221. In considering that the union assembly and its approval of the account statements for the 2006 financial year were invalid, the Government has deprived the union’s work and internal affairs of all value, with clear transgression of the union’s autonomy and its right to manage its own affairs “without interference by the public authorities”. The Ministry should take no part in internal political disputes relating to the union, remaining fully impartial towards the various groups competing for leadership. The AEDA advises that it has lodged a formal judicial complaint, requesting the National Labour Appeals Chamber to declare the administrative act null and unconstitutional which has given rise to the present complaint.
17. 222. In its communication of June 2008, the AEDA states that further to the complaint brought before the Committee, the labour administration sought to prevent the consideration of the account statements for the 2007 financial year. Specifically, it declares that further to the presentation of the complaint, the Ministry of Labour sought to interfere with the autonomy and freedom of association of the organization with regard to the 2007 financial year, which was prevented by the National Judicial Authority, since the National Labour Justice Department accepted the appeal for amparo (protection of constitutional rights) brought by the union by means of an injunction dated 28 April 2008, which remains valid and was not appealed against by the Government.
18. 223. The AEDA indicates that it convened the general assembly of members for 29 April 2008, in order to deal with the account statements for the 2007 financial year, complying with all the formal requirements imposed by national law. On 24 April 2008, the day after the presentation of the complaint, the National Directorate of Trade Unions (DNAS), under the aegis of the Ministry of Labour, sought to suspend the aforementioned assembly of members by means of notification No. 769/2008 contained in file No. 1.266.136/2008. The National Directorate of Trade Unions, in compliance with the political decision of the higher administrative authority and disregarding the judicial appeal brought before division IV of the National Labour Appeals Chamber, which was formally allowed by the court in Buenos Aires, sought to suspend, prevent and obstruct the ordinary assembly scheduled for 29 April 2008.
19. 224. The decision to suspend the new assembly was absolute, in view of the fact that the DNAS had issued an official decision to the effect that Decision No. 191/2008, which had been appealed against, was fully applicable, and this was clearly illegal and arbitrary. Indeed, the illegality of such action was quite clear since the administrative labour authority disregarded the fact that Decision No. 191/2008 had been appealed against by the AEDA, with suspensory effect, in the National Labour Appeals Chamber and had given rise to a complaint before the ILO, with both proceedings in progress at the time of a further attempt to crush the union’s autonomy and examine the account statements for the 2007 financial year.
20. 225. The AEDA points out that requesting judicial protection of its union rights was legitimate since the administrative authority had no right to seek to impede the union’s access to legal action, undermining its defence against illegal Decision No. 191/2008 and interfering in its autonomy, with the sole purpose of benefiting the political interests of Mr Gijena and his group of 12 opposing members. The damage to the trade union was clear in that without amparo proceedings AEDA could neither examine nor approve the account statements for the 2007 financial year before the expiry of the deadline set by the Argentine tax authority – the Federal Public Revenue Administration – for the presentation of the account statements; that being 13 May 2008, with the consequent possibility of losing the exemption on income tax and serious damage occurring to the union’s assets, which required protection as quickly as possible.
21. 226. Consequently, on 25 April 2008, the AEDA instituted formal amparo proceedings at the National Labour Justice Department in Buenos Aires. The case – Association of Customs Brokers (AEDA) v. National Executive Authority – Ministry of Labour, Employment and Social Security – amparo proceedings (file No. 9.603/08) – was heard by National Labour Court of First Instance No. 4. The amparo proceedings were settled in favour of the AEDA on 28 April 2008. According to the AEDA, the judicial authority decided: “to allow the requested injunction and instruct the Ministry of Labour – as a preventive measure – to refrain from suspending, preventing or obstructing the ordinary general assembly of the AEDA convened for 29 April 2008, 7pm, and to designate the National Directorate of Trade Unions as the supervisory body for inspection of the proceeding, without prejudice to the interested parties’ rights of appeal”. This ruling was implemented and the account statements for the 2007 financial year were dealt with in the assembly and approved unanimously, as shown in the attached record of proceedings.
22. 227. In its communication of 26 February 2009, the AEDA states that the National Labour Appeals Chamber decided to revoke Ministry of Labour Decision No. 191 of 12 March 2008. AEDA also states that although the judicial authority has declared the administrative decision null and void, it is still very interested in the examination of the substance of the complaint by the Committee.
23. B. The Government’s reply
24. 228. In its communications of 18 February and 22 May 2009, the Government states that the purpose of the ILO supervisory apparatus is to determine whether the State has violated any of the provisions of the international instruments which protect the principles of freedom of association. Its conduct is examined in terms of both law and practice. In formal terms, section 2 of Act No. 23551, which comes under the preliminary title concerning protection of freedom of association, states that workers have the right to participate in the internal affairs of the union. This concept is also upheld by Convention No. 87.
25. 229. Freedom of association – whether individual, as in this case, or collective – constitutes an essential human right and therefore the workers’ capacity to take part in the internal affairs of the union must be guaranteed by the State. This capacity must be preserved irrespective of the number of persons who allege that a right has been violated. Hence the issue of numbers cannot be used as grounds for invalidating the submission made by the State, as claimed by the complainant organization. It would be contrary to the protection of freedom of association if the State had failed to exercise its jurisdiction supposedly for the reasons put forward by the complainant.
26. 230. The Government asserts that the Ministry acted in response to a complaint from a union member who appeared to have been denied the possibility of exercising his right inasmuch as he had not been provided in due time and form with the requisite material for doing so. The Ministry acted in accordance with section 58 of Act No. 23551. According to the Government, the present case involves a complaint regarding the exclusion of 12 union members who were denied the possibility of examining the report and balance sheet, and this justified the intervention of the State in protecting this guaranteed workers’ right which was violated in a democratic State. The Government points out that in the present case there was no violation of the provisions of ILO Conventions Nos 87 and 98. The State’s action was directed at defending a fundamental right, namely worker action within the trade union.
27. 231. The Government underlines the fact that when a complaint is presented under section 62 of Act No. 23551, all that the Ministry of Labour can do is refer the matter to the [Appeals] Chamber. In other words, in the context of the judicial oversight of action taken by the administration, the Ministry is prohibited from making any pronouncement on any aspect thereof, as acknowledged by the complainant. Even though the State is informed of the appeal, it must await the ruling of the division of the Chamber in which the appeal has been brought to decide on its course of action. Section 62 of the aforementioned Act says nothing about the effects of the appeal being filed, i.e. whether the State’s activity is suspended or not. The continuity of the State’s administrative activity is legitimate, as long as no contrary judicial ruling has been issued in human rights matters, as is the case here, because States have a primary duty to protect these guarantees.
28. 232. The Government adds that this situation is recognized in the submission to the Appeals Chamber, where the complainant expressly called for a ruling from the Chamber granting suspensory effect to the appeal. The complainant organization instituted the amparo proceedings, which gave rise to the injunction. This judicial ruling, issued in the context of the judicial oversight of action taken by the administration, was fully complied with by the State, in accordance with constitutional guarantees and Convention No. 87.
29. 233. The Government asserts that it is untrue that the administration cannot exercise administrative control inasmuch as a complaint of irregularity is provided for by section 58 of Act No. 23551, which states that control of trade unions, even if they have obtained legal personality under the provisions of common law, shall be solely the responsibility of the Ministry of Labour. Since such powers are subject in turn to the appropriate judicial controls, the administration accepted the amparo action in accordance with the decision referred to above by the other party.
30. 234. The Government states that the arguments connected with the specific dispute are not an issue for international control. All arguments regarding whether the documentation had been presented in due time and form or if it was sufficient to justify the accounts on the balance sheet should be a matter for national judicial evaluation since they refer to individual conduct which must be dealt with by judicial means. This submission denotes precisely the “light” use of the ILO supervisory apparatus given that there is no reason to justify it. Consequently, there are no grounds for calling on the Committee to declare Ministry of Labour Decision No. 191/2008 of 12 March 2008 null and void.
31. 235. The Ministry of Labour is competent to intervene with regard to a basic principle of administrative organization, in accordance with section 58 of Act No. 23551 – to which no objection was ever raised – which states that control of the functioning of trade unions shall be the responsibility of the Ministry of Labour, and this obviously includes any complaints made by union members. Naturally its actions, being subject to judicial control, are consistent with the principles of freedom of association.
32. 236. Finally, the Government emphasizes that it acted in the context of the international principles which protect freedom of association. Its intervention was based on a possible violation thereof, and when the judicial ruling containing the injunction was issued, the intervention of the Ministry of Labour ceased. The action taken by the administration was appropriate in the context of its administrative powers according to sections 58 and 62 of Act No. 23551. Since the judicial phase following the amparo appeal filed by the complainant – which gave rise to the preventive suspension of the challenged decision and this was complied with by the administration – is in full progress, dealing with the matter in the Committee is a purely abstract exercise.

C. The Committee’s conclusions

1. 237. In the present case, the AEDA challenges Ministry of Labour, Employment and Social Security (Ministry of Labour) Decision No. 191/2008 of 12 March 2008 which, at the request of 12 union members (according to the AEDA, the union has a membership of 2,100 employees), declared null and void the decisions taken by the AEDA ordinary general assembly of 26 April 2007, with regard to item 2 of the agenda (consideration of the report, balance sheet, inventory, statements of income and expenditure, and the report of the audit committee for the financial year ending 31 December 2006). (Decision No. 191 was revoked by the National Appeals Chamber on 30 December 2008). The AEDA also alleges that after it brought the complaint before the Committee, the National Directorate of Trade Unions, under the aegis of the Ministry of Labour, sought to suspend the members’ assembly scheduled for 29 April 2008, for dealing with the account statements for the 2007 financial year (the complainant states that the administrative authority was instructed by a judicial decision to refrain from suspending, preventing or obstructing the AEDA ordinary general assembly and that this ruling was complied with, so this matter has been settled).
2. 238. In this regard, the Committee notes the Government’s statement that: (1) according to the provisions of Act No. 23551, section 2, which comes under the preliminary heading concerning the protection of freedom of association, workers have the right to participate in the internal affairs of their union, freedom of association – whether individual, as in this case, or collective – constitutes a fundamental human right, and hence the exercise of the workers’ right to intervene in internal union affairs must be guaranteed by the State; (2) that capacity must be preserved irrespective of the number of persons who allege that a right has been violated. Hence, the issue of numbers cannot be used as grounds for invalidating the submission made by the State; (3) the Ministry acted in response to a complaint from a union member who appeared to have been denied the possibility of exercising his right inasmuch as he had not been provided in due time and form with the requisite material for doing so; (4) the Ministry acted in accordance with section 58 of Act No. 23551. A complaint was brought regarding the exclusion of 12 union members who were denied the possibility of examining the report and balance sheet, and this justified the intervention of the State in protecting this guaranteed workers’ right which was violated in a democratic State; (5) there was no violation of the provisions of ILO Conventions Nos 87 and 98. The State’s action was directed at defending a fundamental right, namely worker action within the trade union; (6) when a complaint is presented under section 62 of Act No. 23551, all that the Ministry of Labour can do is refer the matter to the [Appeals] Chamber. In other words, in the context of the judicial oversight of action taken by the administration, the Ministry is prohibited from making any pronouncement on any aspect thereof. The State must await the ruling of the division of the Chamber in which the appeal has been brought before deciding on its course of action; (7) the continuity of the State’s administrative activity is legitimate, as long as no contrary judicial ruling has been issued in human rights matters, as is the case here, because States have a primary duty to protect these guarantees; (8) the State complied with the injunction issued by the judiciary; (9) it is untrue that the administration cannot exercise administrative control inasmuch as a complaint of irregularity is provided for by section 85 of Act No. 23551, which states that control of trade unions, even if they have obtained legal personality under the provisions of common law, shall be solely the responsibility of the Ministry of Labour. Such powers are subject in turn to the appropriate judicial controls; and (10) since the judicial phase following the amparo appeal filed by the complainant – which gave rise to the preventive suspension of the challenged decision and this was complied with by the administration – is in full progress, dealing with the matter in the Committee is a purely abstract exercise.
3. 239. The Committee observes firstly that, according to the statements made by the complainant organization in its communication of February 2009 further to the Government’s reply, the judicial authority ordered the revocation of the decision challenged in the present complaint. The Committee observes that the issue raised by the complainant in the present complaint has been settled but that an examination of its substance would still be of great interest to the complainant.
4. 240. With regard to the Government’s arguments justifying its intervention in order to declare the AEDA general assembly null and void on the basis of a complaint from 12 union members and section 58 of Act No. 23551 concerning trade unions, which states that control of trade unions shall be solely the responsibility of the Ministry of Labour, the Committee recalls that it has emphasized in this regard that “there should be outside control only in exceptional cases, when there are serious circumstances justifying such action, since otherwise there would be a risk of limiting the right that workers’ organizations have, by virtue of Article 3 of Convention No. 87, to organize their administration and activities without interference by the public authorities which would restrict this right or impede its lawful exercise. The Committee has considered that a law which confers the power to intervene on an official of the judiciary, against whose decisions an appeal may be made to the Supreme Court, and which lays down that a request for intervention must be supported by a substantial number of those in the occupational category in question, does not violate these principles” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 465]
5. 241. In this regard, the Committee considers that 12 workers, representing 0.6 per cent of the 2,100 members of the trade union, do not constitute a substantial number of those in the occupational category in question such as to permit the administrative authority to restrict the activities of a trade union and disturb its normal functioning, especially where such administrative action is taken, as in the present case, without clear evidence or proof as expressly referred to by the ruling of the judicial authority (the complainant sent a copy of the ruling). The Committee therefore expects the Government to ensure that in the future the administrative authority refrains from intervening in trade union activities, for example by declaring a union assembly null and void, except in serious cases and at the request of a significant proportion of the members of the organization in question, or when intervention has been ordered by the judicial authority in conformity with the principles of freedom of association.