Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 359, Mars 2011

1. 227. The complaint appears in a communication from the Mendoza Association of Health Professionals (AMPROS) dated 10 July 2009. The Trade Union Federation of Health Professionals of the Argentine Republic (FESPROSA) endorsed this complaint in a communication of 13 July 2009. FESPROSA presented new allegations in communications dated 24 November 2009, 7 January 2010 and 4 May 2010. AMPROS presented new allegations in a communication dated 3 August 2010.
2. 228. The Government sent its observations in communications dated 15 February and 21 September 2010.
3. 229. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 230. In its communications of 10 July 2009, AMPROS states that, after months of collective bargaining, agreement was reached with the State as the employer on a collective labour agreement, which was ratified by Law No. 7759 on 8 May 2007, published in the Official Gazette on 5 October 2007, with amendments to section 27 and 48, and ratified by the professional workers’ subcommittee of the provincial bargaining committee for the health sector. The agreement signed in the context of collective bargaining put an end to the existing industrial dispute, although the means required for its implementation remained to be provided by the relevant regulations. This gave rise to a new dispute. The complainant organization adds that, while the rule in question had been in effect since July 2007, the transitional provisions contained in section 105 to 113 of the collective labour agreement established a period in which the State undertook to implement the measures required for the effective application of the agreement.
2. 231. For this reason, AMPROS granted the State an extension of 60 days, according to the minutes of the wage bargaining committee dated 30 January 2008. The complainant organization states that the period agreed on for resolving the additional points of the agreement elapsed without the slightest response from the administration, so the assembly decided to declare a state of alert and mobilization for the period from 8 to 10 October 2008. This culminated in a one-day work stoppage on 17 October 2008, a measure that was determined, in accordance with section 1201 of the Civil Code, because of the serious and repeated defaults committed by the employer. Nevertheless, the State docked workers’ wages for the day, even though the work stoppage was characterized as withdrawal of services because of the default by the employer (the State). Faced with such a reaction, the trade union organization, in a note dated 30 October 2008, reported the existence of a labour dispute and requested the Subsecretariat of Labour to order compulsory conciliation. It attached a list of defaults on the collective agreement, which gave rise to administrative report No. 12521-A-08.
3. 232. The complainant organization adds that, while the compulsory conciliation hearings were being held, it requested the establishment of the Standing Bargaining Committee on Interpretation, Application, Wages and Labour Relations in a note dated 5 December 2008, which gave rise to administrative report No. 14627-A-08. Between 13 November 2008 and 11 March 2009, the Subsecretariat of Labour and Social Security of the province held 13 hearings in the context of administrative report No. 12521-A-08 and three hearings in the context of case No. 14627-A-08, both of which originated with the agency. Needless to say, the hearings were fruitless, since after five months of bargaining little progress had been made in dealing with the additional points, which were limited to just three (critical and semi-critical activity, disaster zones and promotion zones). These additional points have not been paid by the Government.
4. 233. This being the case, the trade union organization regarded the compulsory conciliation stage as having ended at the hearing on 11 March 2009, and considered that the time was now right for the use of direct action. In the context of administrative report
5. No. 14627-A-08, three hearings were held to address the “proposal” for a salary increase in 2009. Not only was no agreement reached at these hearings, but, in addition, the Mendoza Government’s proposal was limited to the implementation of the collective labour agreement, which it had not complied with for over a year. Therefore, at a hearing on 16 April 2009, notification was given that “at the hearing called on today’s date, we consider that there has been no proposal from the Government of the province for a general salary increase covering all health professionals. For this reason, the work stoppage involving absence from the work place is confirmed for 22 and 23 April 2009, and it is announced that there will be a work stoppage of similar scope, with mobilizations and assemblies, on 29 and 30 April 2009”.
6. 234. After this notice was given, the work stoppages announced for 22 and 23 April took place without incident, and, on 28 April 2009, the Subsecretariat of Labour and Social Security issued ex officio, by means of Resolution No. 2754/09, a new call for compulsory conciliation. This call for conciliation was questioned by the trade union organization, which considered it untimely and inadmissible in the light of the repeated delays in the regulatory activity entrusted to the executive branch and the unchangeable stance of seeking to make the salary increase dependent on the implementation of the collective labour agreement, subjects that had been discussed at length while the trade union had obtained no satisfactory response to its demands.
7. 235. The complainant organization indicates that the notification of direct action was sent to the controlling authorities 12 days before the call for compulsory conciliation was issued and that the second direct action was reported 11 hours before it began (28 April at 1 p.m.). On 29 April, with the direct action in progress, the Subsecretariat of Labour, arguing that it had learned from the media that the trade union organization would not comply with the call for compulsory conciliation, issued a notice ordering the trade union to comply immediately with the compulsory conciliation procedure and to refrain from carrying out direct actions under penalty of law. The complainant considers that as it involves direct action in progress, and as the complainant has been enjoined to refrain from carrying out direct actions, this task becomes impossible to fulfil, because the notice says nothing about the immediate cessation or suspension of the direct action under way, nor does it order the suspension of the action within a legal deadline.
8. 236. According to the complainant organization, “refrain” refers to the direct actions which the trade union organization might take in the future, not those in progress. For this reason, in view of the decisions adopted by the competent authority, the executive committee of the trade union had called an assembly of its members. The assembly took a final decision to suspend the direct actions planned for 7 and 8 May 2009. This was the context in which the union’s executive committee appeared at the conciliation hearing on 4 May 2009, whereby it was simply complying with Resolution No. 2754/09, non-compliance with which was called for by the Subsecretariat of Labour and Social Security of the province.
9. 237. Lastly, in the context of administrative report No. 14627-A-08, the Subsecretariat of Labour and Social Security of the province issued Resolution No. 2895/09, which reads as follows: “Mendoza, 30 April 2009. Having regard to: administrative report
10. No. 14627-A-08, which continues the pay negotiations for the professional health sector represented by the trade union AMPROS, the compulsory conciliation procedure has been decreed in accordance with the legislation in force; ... The Subsecretariat of Labour and Social Security of the province of Mendoza hereby resolves: Section 1: To declare illegal the direct action carried out by the Mendoza Association of Health Professionals (AMPROS) for failing to comply with the compulsory conciliation procedure ordered in this decision, in accordance with section 104 and related provisions of Law No. 4974 and, by extension, Laws Nos 14786 and 25877. It therefore substantially rejects the presentation made by the trade union organization objecting to Resolution No. 2754/09. Section 2: To request the intervention of the Ministry of Labour, Employment and Social Security of the Nation in a timely manner for the pertinent legal purposes, as stipulated in Law No. 23551. Section 3: To notify the parties and order registration and filing. Signed Dr Jorge Guido Gabutti – Subsecretary of Labour and Social Security – Ministry of the Interior, Justice and Human Rights – Government of Mendoza.”
11. 238. The complainant organization states that, under such circumstances, the assembly held on the morning of 4 May 2009 decided to attend the compulsory conciliation session, provided that the relevant legal proceedings were brought and the direct actions scheduled were suspended. It considers that the union’s conduct in this context was always lawful, and that the proven evidence in the case confirms this. In its view, the State’s conduct which it called into question involved the adoption of measures designed to curtail the union’s right to use direct action, with the resulting restriction on the exercise of freedom of association.
12. 239. The complainant organization maintains that the declaration of the strike’s illegality by the Subsecretariat of Labour and Social Security of the province of Mendoza is null and void and constitutes an illegitimate manoeuvre by the State for the purpose of limiting the union’s freedom of association. Its illegitimacy is based in the first place on the inadmissibility of the call for compulsory conciliation. It does not appear from the administrative proceedings that the trade union organization, in spite of questioning the new call for compulsory conciliation, failed to comply with it. The recourse it used, which is based on the exhaustion of that process, did not mean disobeying the competent authority’s orders in any way; the process has been used by the State as a tool for limiting the right of the union and its members to the legitimate exercise of the constitutional right to strike.
13. 240. Secondly, the Subsecretariat of Labour does not offer the guarantees of impartiality, independence and confidence of the parties that are required in order to act as conciliator in the industrial labour disputes to which the State is party.
14. 241. Thirdly, from the perspective of the conciliation process, a new call has no purpose other than to suppress the right to strike, especially considering the State’s lack of desire for conciliation which has lasted from 1 January 2008 to the present. In these circumstances, it is inadmissible that a strike by health professionals of the provincial state should be declared illegal by virtue of a judicial ruling, which amounts to a denial of the constitutional right to strike.
15. 242. As regards the exhaustion of compulsory conciliation, the complainant organization states that the right to strike is one of the basic pillars of freedom of association recognized in the Constitution, and that it cannot be subject to restrictions with the appearance of legality. The manner in which the right to strike is recognized in article 14bis of the National Constitution warrants greater protection than other rights, according to national doctrine.
16. 243. In conclusion, the call for compulsory conciliation issued by Subsecretariat of Labour and Social Security Resolution No. 2754/09 is illegitimate and untimely, and its sole purpose is to prevent the legitimate exercise of the right to strike. In the light of the records of administrative proceedings, AMPROS never stopped complying with compulsory conciliation. The conciliation notice, as drafted, imposes a task that is impossible to fulfil because it is issued and executed once the direct action has been carried out, an action that would expire 36 hours and 15 minutes after notification of it has been given, according to report No. 382330. Moreover, section 104 of Provincial Law No. 4974, which regulates the right to strike, provides for a prior injunction to normalize activity within no more than 48 hours, a period that was not taken into account; this directly contravenes the enjoyment and exercise of the right to strike.
17. 244. AMPROS reports that it lodged an appeal for amparo (protection of constitutional rights) with the Seventh Labour Chamber of the first judicial district of the province of Mendoza in order to safeguard the rights which, in respect of the exercise of freedom of association, are allegedly being violated by the governmental authority. At that level of jurisdiction, the court ordered that the dispute be submitted to a mediation procedure which proved to be to no avail, as it ended in failure to achieve conciliation. Nevertheless, these negotiations carried an implicit warning from the Government of Mendoza that the trade union members and the union itself would be fined if no conciliatory agreement that satisfied its conditions was reached. In this connection, the Government proposed to revoke the declaration of illegality of the actions, subject to the abandonment of the proceedings at both the judicial and the administrative levels, as well as at the international level (in respect of the ILO), a position that is plainly coercive in its effect.
18. 245. In its communication of 24 November 2009, FESPROSA states that the Government of the province of Córdoba is responsible, as in most Argentine states, for the provision of public health services through a network of institutions of increasing complexity (primary care centres and hospitals) and that these institutions are clustered in the provincial health system, in which 15,000 professional and non-professional employees work. FESPROSA alleges that, since the beginning of April, the workers, through first-level assemblies, began trade union actions, invoking ILO Conventions Nos 87 and 98, and, with the explicit endorsement of the Association of State Workers (ATE), demanded better wages and greater job security.
19. 246. The complainant organization states that, nonetheless, the Government of Córdoba declared the direct actions illegal and began systematically persecuting the workers. At the end of October, the Government docked up to 50 per cent of the wages of 100 workers who participated in the direct actions, and suspended another 31 strikers for one day, without entering into negotiations in good faith in order to settle the dispute.
20. 247. In its communication of 7 January 2010, FESPROSA alleges that the Government of Santiago del Estero is violating ILO Conventions Nos 87 and 98. FESPROSA indicates that, in August 2009, the Association of Health Professionals of Santiago del Estero –Capital and La Banda (ASPROSSE), the Trade Union of Outreach Professionals (SIPARSE) and the FESPROSA delegations from the cities of Frías and Añatuya began trade union actions demanding a salary review and greater job security. FESPROSA asserts that the wages paid in the province are the lowest in the public health system nationwide. Of the 8,000 workers in the system, 5,600 are in precarious job situations. None of those 5,600 workers has an income equal to the minimum wage set by the National Wage and Employment Council, which is 1,500 Argentine pesos for January 2010 (US$390).
21. 248. The complainant organization adds that at no time during the course of the dispute did the Government agree to negotiate with the legitimate representatives of the workers, despite the repeated requests made by them with support from the National Federation. This situation still persists. Indeed, the provincial Government implemented repressive measures, such as: (1) the suspension for 60 days without pay, plus 60 days with pay, of Dr Gustavo Cáceres, physician, Vice-President of SIPARSE and Director of the Hospital de Bandera Bajada. The suspension was extended without summary proceedings; (2) the dismissal of three trade unionists, Dr Teresa Santillán, Mr Juan C. Chazarreta, employee, and Ms Silvia Capellini, employee; and (3) the indiscriminate docking of wages, in amounts ranging from 200 to 500 pesos, of personnel who participated in the direct actions.
22. 249. Lastly, the complainant alleges that Ms Nemesia Feiffer, a pharmacist and a delegate from the Hospital Independencia, was transferred in an untimely manner 100 kilometres from her home, and that six other professionals at the Hospital de Añatuya who were trade unionists and members of the hospital’s FESPROSA delegation – Dr Carlos E. Díaz, surgeon; Dr Fernando Pedraza, paediatrician; Dr Matías Fernández, general practitioner; Dr Sergio Alderete, obstetrician/gynaecologist; Valeria Páez, surgical technologist; and José Cañete, anaesthesia technician – were dismissed.
23. 250. In its communication of 4 May 2010, FESPROSA alleges that a prolonged dispute in the province of Tucumán had reached a preliminary settlement in an agreement signed on 26 November 2009, but that the Government of Tucumán nonetheless defaulted on this agreement and issued Resolution No. 06/10, which violates the right to strike by unilaterally declaring all health services to be essential services.
24. 251. In its communication of 3 August 2010, AMPROS states that it is supplementing the complaint which gave rise to the case and alleges that, on 18 June 2010, the Government of the province of Mendoza (Subsecretariat of Labour), with the obvious intention of persecuting the trade union, drew up a violation report against AMPROS, No. 401316 (non-compliance with the call for compulsory conciliation), on account of incidents that had occurred more than a year earlier and had already been subject to sanctions (the declaration of the strike as illegal). The complainant adds that all of this is in clear violation of the principle “non bis in ídem” and due process. This means that the action in question, besides being tainted by gross defects which render it legally non-existent in the light of the National Constitution – according to the complainant, under Law No. 25212, fines of 1,000 to 5,000 pesos can be imposed for each worker affected by the infraction – and the ILO Conventions, has a clearly threatening and intimidating objective and therefore blatantly violates freedom of association.
25. 252. According to AMPROS, the aim is simply to intimidate the union representatives in order to prevent them from properly defending the rights of their workers. In other words, and in sum, Violation Report No. 401316 was drawn up on account of incidents that had already been subject to sanctions. That report, besides containing irremediable defects which render it null and void, was drawn up in a manner involving a clear abuse of authority.
26. 253. After Resolution No. 2895/09 had been issued and report No. 382330, ordering the union to comply with the conciliation decree, had been drawn up, AMPROS contested that measure. This proceeding was finally settled through the imposition of serious criminal and administrative punitive sanctions, such as declaring the strike illegal and notifying the national authority for the purposes of empowering it to request the judicial suspension or revocation of the trade union’s legal personality, or to order its intervention (section 56, paragraph 3, of Law No. 23551); in the end, no sanction was imposed for the alleged non-compliance with Law No. 25212 as the outcome of this proceeding. Trying to impose other sanctions more than a year and a half after these penalties were adopted, in respect of incidents for which AMPROS was served notice, under penalty of sanctions under Law No. 25212, implicates a clear violation of the principle of “non bis in ídem”.

B. The Government’s reply

1. 254. In its communication of 15 February 2010, the Government states that, upon consultation with the Labour Ministry of the province of Mendoza, the Ministry transmitted a copy of the judgment handed down in the case captioned “AMPROS, Mendoza Association v. Government of the province of Mendoza, for amparo [constitutional protection]”, report No. 361 of 3 December 2009. The judgment denies the trade union constitutional protection and dismisses the action on grounds of unfair practice, rejecting any violation of the right to strike by the Government of the Mendoza province (the text of the judgment indicates that the strike was illegal because it failed to comply with the provision concerning minimum services, that the conciliation procedure was not exhausted, and that there was no requirement to return the deductions for the strike days). This judgment has been appealed, and therefore it is deemed appropriate to await the decision of the provincial court, a matter on which the Committee will be kept informed.
2. 255. In its communication of 21 September 2010, the Government states, with regard to the allegations concerning the province of Córdoba, that upon consultation with the Secretariat of Labour of the province, the Secretariat replied that the action and intervention of the provincial labour authority were recorded under cases Nos 0322-0150040/09 and
3. 0322-015001/09, and that, on 21 September 2009, the compulsory conciliation procedure was opened in accordance with Provincial Law No. 7565, in order to channel the dialogue between the parties into a tension-free phase, under penalty of declaring the strike illegal, inasmuch as the direct actions were continuing during this period. In this context, and at this point in the dispute, both the Trade Union of Public Employees (SEP) and the Association of Health Workers (ATSA) accepted the effects and scope of the compulsory conciliation procedure ordered by the labour administrative authority; the two organizations are endowed with legal personality, which guarantees their status as trade unions with the power of representation, as recognized by law and by the Government in its capacity as employer. The provincial labour authority advises that FESPROSA has only recently appeared in these proceedings, and rejects the measure without attaching any documentation that confirms its representative capacity, simple registration and/or legal personality. Under such circumstances, the Provincial Secretariat of Labour obtained information on the extent of FESPROSA’s sphere of action. It was found that, by means of Resolution No. 1157/07 of the Ministry of Labour, Employment and Social Security of the Nation, FESPROSA was registered in the Registry of Workers’ Trade Union Associations as a second-level trade union association, serving as an umbrella organization for first level trade union associations with legal personality which are recognized or simply registered, and which represent health professionals employed in public and private health institutions and organizations operating in the province of Mendoza. It also serves as an umbrella organization for trade union associations in the public sector operating in the provinces of Buenos Aires, Salta and Jujuy. Its sphere of action in the rest of the country is recognized as being merely statutory.
4. 256. The provincial authority adds that FESPROSA did not appear in any proceeding in the dispute, nor did it confirm the scope of its representative capacity. That is, it did not participate in different administrative proceedings, and did not intervene or take part in the negotiation or request any formal participation. It did not comply with compulsory conciliation, nor did it agree to the different negotiating phases, in contrast to the two trade unions with legal personality, with which an agreement was finally reached.
5. 257. Lastly, the Government states that the analysis of the complaint should be reconsidered, bearing in mind that, on the basis of the facts and the law, the negotiation was conducted with two trade unions operating in the province of Córdoba with sufficient legal personality to represent the workers affiliated with them, both of which negotiated and reached an agreement with their employer, and that neither of them complained; FESPROSA, however, did so independently, having appeared in the dispute almost at the last minute and with no authority to act in the province of Córdoba.

C. The Committee’s conclusions

1. 258. The Committee observes that, in the present case, AMPROS alleges that, following a work stoppage in the health sector of the province of Mendoza on 17 October 2008, the strikers’ pay was docked, and that after two stoppages on 22 and 23 April 2009, the administrative authority called for compulsory conciliation in an untimely and inadmissible manner, and finally declared the direct action illegal for having failed to comply with the conciliation procedure (according to AMPROS, in June 2010, the Subsecretariat of Labour of the province of Mendoza drew up a violation report in this regard, and a fine could be imposed). For its part, FESPROSA alleges that: (1) in the province of Córdoba, after the health sector workers began to carry out trade union actions, the actions were declared illegal on 29 October 2009, up to 50 per cent of the strikers’ pay was docked, and 31 strikers were suspended; (2) in the province of Santiago del Estero, the health sector workers began to carry out trade union actions in August 2009, the provincial Government did not agree to negotiate and, in retaliation, suspended the physician Vice-President of SIPARSE, dismissed nine trade unionists, transferred a trade union delegate, and docked the wages of employees who participated in the direct actions; and (3) in the province of Tucumán, the provincial Government issued Resolution No. 06/10, which violates the right to strike by declaring all health services to be essential services.
2. 259. The Committee notes that the Government reports that: (1) with regard to the allegations by AMPROS concerning the province of Mendoza, the administrative authority of the province of Mendoza reported that the judgment rendered by the judicial authority in the case “AMPROS, Mendoza Association v. Government of the province of Mendoza for amparo” concluded that the strike was illegal because it failed to comply with the rules concerning minimum services, that the right to strike was not violated, that the conciliation procedure was not exhausted and that there was no requirement to return the wages deducted for strike days; the Government adds that, bearing in mind that an appeal has been lodged against this judgment, it deems it appropriate to await the decision of the provincial judicial body; and (2) with regard to FESPROSA’s allegations concerning the province of Córdoba, the labour administrative authority of that province reported that, within the framework of the dispute in the health sector, the compulsory conciliation process was opened, and the Trade Union of Public Employees and the Association of Health Workers (which are endowed with legal personality, the status of more representative organizations) accepted the effects of conciliation, and only recently did FESPROSA appear in that proceeding, rejecting the measure – without attaching documentation confirming its simple registration and/or legal personality. The provincial Government adds that FESPROSA did not appear in any other proceedings in the dispute, did not confirm its representative capacity, did not participate in the negotiation and did not comply with compulsory conciliation, nor did it participate in the various negotiating phases, in contrast to the other organizations with legal personality, with which an agreement was reached.
3. 260. The Committee observes, first, that the disputes which gave rise to work stoppages and trade union actions and to calls for compulsory conciliation occurred in the health sector, and that, in Argentina, workers in the health sector may exercise the right to strike, subject to the performance of minimum services. The Committee recalls that when establishing a minimum service in the event of a strike in an essential service in the strict sense of the term not only the public authorities, but also the organizations of workers and employers concerned should be able to participate in such a determination.
4. 261. With regard to the allegations concerning the calls for compulsory conciliation in the context of collective disputes, the Committee recalls that it has stated on earlier occasions that “Legislation which provides for voluntary conciliation and arbitration in collective disputes before a strike may be called cannot be regarded as an infringement of freedom of association” and that “In general, a decision to suspend a strike for a reasonable period so as to allow the parties to seek a negotiated solution through mediation or conciliation efforts, does not in itself constitute a violation of the principles of freedom of association” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 549–550]. This is particularly valid when essential services in the strict sense of the term are concerned. Moreover, as regards the allegations concerning the docking of wages for the strike days (which the organizations, in their complaints, consider illegitimate), the Committee underlines that “Salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles” [see Digest, op. cit., para. 654].
5. 262. As regards the allegations concerning the sanctions that could have been or have been imposed in the context of disputes with health sector workers (AMPROS alleges that a fine could have been imposed for not complying with the call for compulsory conciliation; FESPROSA alleges the suspension of 31 strikers in the province of Córdoba, as well as the suspension of the physician Vice-President of SIPARSE, the dismissal of six trade unionists and the transfer of a trade union delegate in the province of Santiago del Estero), the Committee notes that the Government reports that judicial proceedings are under way in connection with the allegations presented by AMPROS. The Committee requests the Government to keep it informed of the judgment rendered in this case. With regard to the sanctions alleged by FESPROSA, the Committee has not been informed whether the penalized workers have initiated judicial proceedings in connection with the sanctions imposed, or of the possible grounds for those sanctions. Under these circumstances, the Committee requests the Government to clarify whether these workers have lodged appeals before the courts and, if so, to keep it informed of the outcome. In addition, the Committee invites the complainant to provide any additional information it considers necessary in this regard.