Rapport définitif - Rapport No. 364, Juin 2012

1. 82. The complaint is contained in a communication dated April 2011 from the Confederation of Workers of Argentina (CTA), the Trade Union Federation of Health Professionals of the Argentine Republic (FESPROSA) and the Trade Union Association of Health Professionals of Buenos Aires Province (CICOP). FESPROSA and the CTA presented new allegations in a communication dated 29 June 2011.
2. 83. The Government sent its observations by communication received on 23 May 2012.
3. 84. 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. 85. In their communication dated April 2011, the CTA, FESPROSA and CICOP state that they are submitting a formal complaint against the Government of Argentina for the violation of Convention No. 87 through actions that restrict the right to strike and are discriminatory.
2. 86. The complainants state that CICOP is a first-level trade union, legal registration No. 1708, whose scope of activity covers the whole territory of Buenos Aires Province. CICOP is affiliated to FESPROSA (a second-level organization, legal registration No. 2580) and the CTA (a third-level organization, legal registration No. 2027).
3. 87. According to the complainants, the present complaint is in response to conduct of the Government of Buenos Aires Province that violates the rights established in ILO Conventions Nos 87, 98, 135, 151 and 154. The complainants consider that the following violations have occurred:
   • (a) The Ministry of Health of Buenos Aires Province, by decision No. 4575/09 of 27 November 2009, issued a threat, without any authority to do so, in response to the direct industrial action undertaken by the unions in the hospitals and health centres of the province, that it would impose salary deductions on workers who took part in strike days, thereby impinging on the free exercise of the right to strike, in clear violation of the legislation in force and the principles of the ILO. In this way, it violated the right to decide whether or not to participate in the strike action called by the trade union.
   • (b) On 16 March 2011, in the context of union action called by CICOP, the Provincial Directorate of Hospitals, which comes under the Ministry of Health of Buenos Aires Province, sent a memorandum to the directors of all hospitals in the province requesting them to state which workers among those whose names appeared on a list – consisting exclusively of CICOP members – were working as normal, with a view to taking disciplinary measures against those who were reported as failing to do so. According to the complainants, this constitutes clear interference and harassment with regard to the union and its members.
4. 88. The complainants report that, on 27 November 2009, the Executive Authority of Buenos Aires Province, by joint decision of the Chief of the Cabinet of Ministers (No. 949), the Minister of Government (No. 47), the Minister for Economic Affairs (No. 248), the Minister for Justice (No. 1525), the Minister for Security (No. 1930), the Minister for Production (No. 447), the Minister for Agriculture (No. 85), the Minister for Infrastructure (No. 898), the Minister for Social Development (No. 183), the Minister for Labour (No. 288), the Secretary-General for Governance (No. 199), the Secretary for Human Rights (No. 701), the Secretary for Sport (No. 275), the Secretary for Tourism (No. 269), the Executive Director of the Provincial Organization for Sustainable Development (No. 126), the President of the Institute of Culture (No. 1166) and the Director-General for Culture and Education (No. 3705), ruled that “... the absences of provincial government employees resulting from the exercise of the right to strike and not justified on any of the grounds established by the regulations in force will be subject to salary deductions for the month in question ...”. According to the complainants, the arbitrary and intimidatory approach on the part of the authority constitutes an obstruction to the regular exercise of the legally protected right to strike. It also impinges on the collective and individual will of those supporting the strike measures called by the trade union.
5. 89. The union action taken by CICOP on various occasions related to pay disputes and to talks concerning the working environment and conditions of work for all health professionals in Buenos Aires Province. The aforementioned action can take various forms, including assemblies, protests and strikes. It is at the assemblies that decisions are taken regarding the duration and nature of the action, and this information is then duly communicated to the relevant bodies. To date, the forceful measures taken have not been described as illegal by any judicial authority. In this context, the provincial Executive, far from trying to settle the dispute through negotiation, is seeking to delay any solution and has adopted an intimidatory measure which violates the legitimate right to strike.
6. 90. The complainants assert that since the adoption of the abovementioned decision and until very recently, the Government of Buenos Aires Province effected salary deductions for strike days in just a few specific and limited cases but refrained from doing so systematically and en masse in view of the various labour disputes and union action measures that occurred in that period. The threat to do so in future is clearly intended to restrict the exercise of the right to strike, undoubtedly in the awareness of the intrinsic illegality of the measure. However, the situation has now changed drastically. As part of a labour dispute which started in early March 2011 and because of the failure to reach agreement on salaries during collective bargaining in the sector, the CICOP congress of delegates decided to take union action in all hospitals in the province on 16 and 17 March 2011, with further action to follow if no agreement was reached. In response to this, the day before the action (15 March), the Provincial Directorate of Hospitals – which comes under the Ministry of Health of Buenos Aires Province – sent a memorandum to the directors of all hospitals under its authority, stating that the Ministry, pursuant to decision No. 4574/09, would affect salary deductions from employees taking part in the union action called by CICOP. The complainants reiterate that no provincial or national administrative authority for labour matters has instructed CICOP to abandon its measures and engage in negotiations. The measures which have been implemented have not been deemed illegal by any judicial authority.
7. 91. On 17 March, the President of CICOP sent a letter to the Minister of Health of Buenos Aires Province and to the Provincial Director of Hospitals, which read as follows:
   • We have taken note of a memorandum issued on 15 March 2011 by the Provincial Directorate of Hospitals of this Ministry, informing the authorities of various hospitals in the province that the relevant department will make salary deductions from employees who take part in the union action planned by CICOP for 16 and 17 March. The purpose of the present letter is to point out to the Minister that such a measure is based on grounds that are legally erroneous and therefore unconstitutional, so that you may review the decision and cancel the illegal deduction measure proposed therein. According to the correct legal view, which we hereby uphold, strike days cannot be deemed equivalent to days not worked, as if it was a question – among other things – of a unilateral decision made by the health workers. It is not an arbitrary act of volition; a strike is a measure to which we, the health workers, are bound to have recourse in view of the lack of a solution to the labour and public welfare issues raised by our sector. The right to strike exists without any limitations or restrictions and it cannot be deemed equivalent, as incorrectly claimed in the measure referred to above, to individual absence from work. While the first type of action, of a collective nature, is governed primarily by the National Constitution and the Constitution of Buenos Aires Province, and also by ILO Convention No. 87 and others related to it, the second type of action, of an individual, isolated and sporadic nature, of not attending work, whether in the public or private sector, which consequently does not qualify for remuneration, is governed by individual labour law and public or private employment laws, as the case may be. The strike with assemblies in the workplace which we are obliged to conduct is the result of non-compliance by the provincial Government, our employer, which you represent, in particular with the provisions of the law governing employer–worker negotiations, as well as with article 39 of the Constitution of Buenos Aires Province, a fact that can solely be ascribed to the State. Local and national jurisprudence, in the cases of teachers, government employees and officials of the judiciary, repeatedly and systematically support the obligation of the State to refrain from making salary deductions for strike days, on the basis of the legal grounds set forth above. For all the above reasons, Minister, we call for the review that this case would appear to merit. We hope to be informed within 24 hours of receipt of the present communication that the erroneous and illegal approach in ordering deductions for strike days has been modified. Your silence with regard to our request will be construed as a refusal in legal terms, and recourse will be had to the corresponding legal channels in order to secure application of the National Constitution and the Constitution of Buenos Aires Province (CD Nos 177535870 and 177535883, copies of which are attached).
8. 92. To date, no reply to these communications has been received. Meanwhile, on 16 March, while the union action was taking place as planned, the Provincial Directorate of Hospitals sent a new memorandum to all hospital directors, ordering them to provide, the following day, a list of the employees who were exercising their legitimate constitutional right to strike, with a view to making salary deductions. The memorandum read as follows:
   • With reference to note No. 1, please find attached the list of professionals in your department. Kindly send particulars of workers on active duty or on call on 16 and 17 March. Any persons off duty or on vacation, or on sick leave, ART leave [for occupational accident or disease] or any other official leave that constitutes an exemption from any deduction, should be taken off the list. The non-extendable deadline for providing this information, in order to avoid the imposition of deductions, is 11.00 hours on 18 March 2011.
9. According to the complainants, this memorandum, which is already of a serious nature since the publication of the text amounted to a threat against fully exercising the right to strike, can only be described as blatant discrimination, inasmuch as the memorandum came with a list containing only the names of union members, so that each director would remove from the list those who were working as normal and those who were on leave, off duty, etc. with a view to subsequently deducting pay from all staff on the list about whom no information had been supplied.
10. 93. In other words, in order to determine which workers should be subjected to the illegal salary deduction, the Ministry of Health takes it for granted that only CICOP members take part in union action – when in reality such action usually has total support from health professionals in the province, whether or not they are union members – and also presumes that all members take part in union action unless evidence is provided to the contrary.
11. 94. The complainants state that, in view of this escalation of the dispute, the President of CICOP sent a letter to the Minister of Labour, Employment and Social Security, which read as follows:
    • On the day concerned, the Minister of Health of Buenos Aires Province sent a circular to all directors of hospitals under his authority ordering them to provide, the following day, a list of employees who were exercising their legitimate constitutional right to strike. This memorandum, which is already of a serious nature since the publication of the text amounts to a threat against fully exercising the right to strike, can only be described as blatant discrimination, inasmuch as the circular came with a list containing only the names of members of our union. I call on the authority that the State has conferred on you to find the means to preserve the exercise of the rights established in the National Constitution with regard to labour matters and we request you to adopt the corresponding measures to stop this illegal conduct, since the threat of deductions, together with the dispatch of a specific list of workers who would then be liable to such harassment, constitutes conduct that is no longer governed by the rule of law. Without prejudice to the above, our union has its own contribution to make, taking the corresponding legal action against those responsible for the intimidatory text, and also personally against those in the hospitals who implement the illegal instructions.
12. According to the complainants, the Minister of Labour has not yet replied to this letter.
13. 95. According to the complainants, in decision No. 4575/09, the Ministry of Health of Buenos Aires Province states that “the absences of provincial government employees resulting from exercise of the right to strike and not justified on any of the grounds provided for by the regulations in force will be subject to salary deductions for the month in question ...”. The interference of the provincial Executive, obliging those in charge of hospital units to send a copy of the list of CICOP members, and the threat to make salary deductions for strike days imply a clear violation of freedom of association, and of the right to strike and to engage in collective bargaining, inasmuch as the strike is part of the context of negotiations concerning pay and conditions of work.
14. 96. The complainants add that this deduction is a form of retaliation and an indication of what must be regarded as a discriminatory penalty, being imposed on persons exercising what is constitutionally defined as a fundamental right. This is incompatible with Convention No. 87, as are the threat of pay deductions from workers for taking part in a strike and the intimidatory request, the day before the strike, for a list of members of the union calling the strike.
15. 97. In their communication of 29 June 2011, FESPROSA and the CTA state that FESPROSA is a second-level organization registered as a union since 2007 with a membership of 25,000 public health professionals in 22 provinces. The complainants indicate that the application procedure for legal recognition of FESPROSA began on 28 July 2008, file No. 1-2015-1284154, the constitution being signed by three legally recognized associations: the Association of Health Professionals of Buenos Aires Province, the Association of Health Professionals of Mendoza and the Association of Health Professionals of Salta Province.
16. 98. The complainants add that the National Directorate of Trade Union Associations referred the application to the Federation of Health Workers’ Associations (FATSA), which asked for clarification of the scope of activity of FESPROSA. The latter duly replied, clarifying the scope of the legal recognition requested. FATSA sent a further request, asking for details of the scope of territory and membership, and opposed the recognition requested by FESPROSA, asking for a list of members, in order to determine which was the most representative body. FESPROSA explained that it was not seeking to incorporate all health workers but just those workers with university qualifications who were employed in public establishments, and hence was not seeking to displace FATSA, and so the latter’s request for the list was not appropriate.
17. 99. According to the complainants, it should be noted that in the application for legal recognition from FESPROSA there is no need to determine which is the “most representative” body since there is a “radial ascending” system which reflects the recognized status of first-level organizations (primary trade unions) in that of second and third-level organizations (federations, confederations or congresses), and so the latter comprise the combined representative natures of their member unions. Hence there is no reason why the Government should refuse the requested trade union recognition, especially when that criterion was already applied on many occasions by the Ministry of Labour, Employment and Social Security.
18. 100. The complainants state that after analysing the granting of legal recognition to each of the member organizations of FESPROSA, the National Directorate of Trade Union Associations issued a decision on 6 May 2010 advising that the application for legal recognition from FESPROSA should be accepted. On 17 May 2010, the Secretariat of Labour endorsed this opinion and referred it to the Minister of Labour with the draft decision granting legal recognition as a second-level trade union to FESPROSA. The same day, 17 May 2010, the file was referred to the office of the Chief of Cabinet of the Ministry of Labour, where it has remained pending until now, despite a request being made on 9 December 2010 for the matter to be dealt with promptly, no reply having been received to date.
19. 101. In conclusion, the complainants state that without any doubt the Government is committing recurrent violations of Article 3 of ILO Convention No. 87, inasmuch as it is systematically restricting the workers’ right to organize, in this case by failing to grant the legal recognition requested by FESPROSA.

B. The Government’s reply

1. 102. In its communication received on 23 May 2012, the Government forwards the response of the Ministry of Health of the Province of Buenos Aires and indicates that it does not arise from the course of events and the initiated negotiations that salary deductions for non-worked days due to the exercise of the right to strike amount to a negation or restriction of the right to strike.

C. The Committee’s conclusions

1. 103. The Committee observes that in the present case the complainant organizations challenge decision No. 4574/09 adopted by the authorities of Buenos Aires Province stating that the absences of provincial government employees resulting from the exercise of the right to strike and not justified on any of the grounds provided for by the regulations in force will be subject to salary deductions for the month in question. The complainants allege that as part of a labour dispute it was decided to take industrial action on 16 and 17 March, with further action to follow until such time as an agreement was reached in all the provincial hospitals, and that the Provincial Directorate of Hospitals, one day before the start of the action, sent a memorandum to all hospital directors stating that pursuant to the aforementioned decision it would make salary deductions with respect to employees who took part in the union action (according to the complainants, the day after the start of the union action, the authorities requested the hospital directors in a new memorandum to provide a list of the staff exercising the right to strike). The Committee observes that the complainants claim that the dispatch of the abovementioned memoranda amounted to a threat to full enjoyment of the right to strike and was discriminatory in nature inasmuch as the full list of union members was also attached so that each hospital director could remove from the list those who were working as normal.
2. 104. While observing that, according to the allegations, the complainants carried out the strike and noting that they were aware of the text of decision No. 4574/09 and the decision of the Provincial Directorate of Hospitals to the effect that deductions would be made for strike days, and also that the strike was not deemed illegal by the judicial authority, and that the Government indicates that it does not arise from the course of events and the initiated negotiations that salary deductions for non-worked days due to the exercise of the right to strike amount to a negation or restriction of the right to strike, the Committee recalls that it has pointed out on several occasions that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 654]. In these circumstances, the Committee will not pursue the examination of these allegations. The Committee nevertheless recalls that, according to the allegations, the wage deductions were carried out or threatened to be carried out only in respect of the trade union members and not the other strikers. The Committee emphasizes that this would be contrary to freedom of association principles and therefore requests the Government to examine these questions with the social partners so as to ensure respect for the principke of non-discrimination among workers.
3. 105. As regards the allegations that the labour administrative authority has not responded to the application for legal recognition submitted by FESPROSA in July 2008, despite the fact that the National Directorate of Trade Union Associations and the Secretariat of Labour gave their approval in May 2010, the Committee regrets the delay of nearly four years and urges the Government to make a decision without further delay in this regard.