Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 368, Juin 2013

1. 177. The complaint is contained in a communication dated April 2012 from the Confederation of Argentine Educators (CEA) and the Santiago Circle for Secondary and Higher Education (CISADEMS). The CEA and CISADEMS sent new allegations in relation to the complaint in a communication dated June 2012.
2. 178. The Government sent its observations in a communication dated February 2013.
3. 179. 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. 180. In their communication of April 2012, the CEA and CISADEMS state that CISADEMS is in the process of filing claims for a wage review and for the elimination of irregular payments with the Subsecretariat of Labour of the Province of Santiago del Estero. They allege that when several hearings prior to the dispute yielded no results and the decision to strike was subsequently taken, the Subsecretariat of Labour issued repeated resolutions calling for compulsory conciliation. According to the complainant organizations, in every dispute, conciliation is ordered at the request of the Ministry of Education. Hearings for compulsory conciliation are always scheduled between ten and 15 days after the strike called by the trade union organization and where the measure of force used is declared illegal. A solution was never found owing to a lack of proposals from the employers. Furthermore, the compulsory conciliation process is never exhausted (the complainants refer to different administrative proceedings since 2009). The complainants state that they are the victims of an unfair practice whereby the abusive exercise of the powers derived from Act No. 14786 concerning compulsory conciliation impedes the exercise of trade union rights, while the Subsecretariat of Labour becomes both the judge and interested party by ruling on a dispute involving a body that is part of the provincial executive, which violates the principles of due process and, in so doing, the international instruments that refer to the right to defence and to a natural judge.
2. 181. The complainant organizations add that, in accordance with Act No. 26075 (Educational Funding Act, which lays down, together with Decree No. 457/07, the framework agreement for collective bargaining in the education sector), in February 2011, federal government representatives, which included the provincial education authorities in their entirety (including the Province of Santiago del Estero), the national authorities and trade union representatives from teachers’ associations with trade union status and a field of activity that extended to the whole Argentine Republic (CISADEMS was represented by the CEA), met to bargain collectively. The complainants state that, on this occasion, the parties agreed to set a minimum wage for teachers, whose basic wage could not fall below 50 per cent of the minimum wage set in that sector throughout the country.
3. 182. In their communication of June 2012, the complainant organizations refer to cases of compulsory conciliation that took place in the sector in 2011 and 2012.

B. The Government’s reply

1. 183. In its communication of February 2013, the Government states that the provincial authorities have not intervened or violated any trade union rights. The Government states that the information from the Secretariat of Labour of the province regarding the establishment of a round table, and the provincial authority’s constant efforts to reach out to trade union organizations, support the above statement. The Government adds that, according to the provincial authority, a working group was created to deal exclusively with the provincial education system. In accordance with the law, the working group was subsequently divided up into specific institutional spaces, which led to the creation of the round table on education, among others. According to the information provided by the provincial authority, CISADEMS did not participate in that round table of its own accord.
2. 184. The Government also sends a communication from the Secretariat of Labour of the government of the Province of Santiago del Estero relating to the complaint. The provincial authority indicates that the Secretariat of Labour has been granted ministerial status as a result of the amendment to the Ministries Act. It states that there are no collective disputes with any trade union organization in the province, be it regarding wages or any other problems that could affect social dialogue or industrial peace. It also states that the province has undergone changes in all areas, including industry and production, as well as social inclusion policies, for which reason it worked to consolidate institutional spaces for dialogue and consensus. In this context, the relevant legal instruments were drawn up and the round tables with the organizations that are members of the General Labour Confederation (CGT) and with other unions that are unrelated to that trade union centre (the education sector, farmers’ associations and security councils) were established. Consequently, with a view to tackling the problems in the education sector, a working group was set up in 2005 to deal exclusively with the current situation of the provincial education system. The working group was created to deal specifically with issues relating to the educational sphere and was composed of all legally established trade union entities. The only organization that did not participate in the round table for debating and discussing the trade union, social and legislative aspects of the problems relating to the area in question was CISADEMS. The provincial authority states that it has worked with the remaining entities for the benefit of all workers and students of the province and that the complainant organization also benefited despite not having participated or contributed useful ideas. The provincial authority indicates that the dialogue highlighted the need to expand the scope of the discussion and, consequently, the provincial executive, through Decree No. 770, extended the round table to other state and private trade union sectors, which led to the decision to divide up the areas for discussion and debate. At the express request of the CGT (delegation of Santiago del Estero), Act No. 7054 was promulgated which institutionalized the round table on dialogue and labour. In order to place a greater focus on the problems of each trade union institution, the following spaces for institutional dialogue were created: (a) the round table on dialogue and labour; (b) the round table on education; (c) the round table on land and production; and (d) the Economic and Social Council. The provincial authority adds that the provincial executive appointed the trade unions affiliated with the CGT, together with the Chief of the Cabinet, as the coordinators responsible for regulating the functioning of the Act and, to date, they have laid down regulations for the round table on education and the round table involving the state. The provincial authority states that the adoption of these norms has facilitated the participation of structures that are neither political nor related to trade unions but which deal with social problems such as those related to land, farmers and religious associations. The provincial authority states that, in the province, trade unions are part of a single confederation, the CGT, Santiago del Estero branch, which is composed of a total of 85 trade unions. Moreover, the provincial authority states that the complainant organization, CISADEMS, does not participate in the spaces for dialogue of its own accord.
3. 185. The provincial authority states that the authority competent to deal with collective disputes in Santiago del Estero is the Subsecretariat of Labour. The Subsecretariat prepared a report relating to the complaint (this report gives details of the action taken by the complainant organization CISADEMS before the administrative authority of the province, including its request for hearings with the provincial government to deal with claims for wage increases and other issues relating to the interests of its members; the dates on which CISADEMS strikes were scheduled; and the resolutions that led to compulsory conciliation). The provincial authority adds that, as regards the alleged incompetence of the Subsecretariat of Labour of the province in dealing with the cases referred to in the complaint, it should be noted that the Province of Santiago del Estero signed an agreement with the Government aimed at jointly determining how the provision of administrative services would be shared between the national and provincial authorities in the employment sector in an integrated and harmonious manner. This is aimed at strengthening and promoting the autonomous functioning of the provincial governments in the full exercise of labour enforcement powers, which include monitoring full compliance with labour legislation, particularly that referring to working conditions and working environment, and to the resolution of individual or collective disputes. Furthermore, the provincial authority states that the provinces of Argentina are members of the Federal Labour Council, which sets all labour related standards in the country.

C. The Committee’s conclusions

1. 186. The Committee notes that, in the present case, the complainant organizations allege that as part of various disputes over wage-related claims made by CISADEMS between 2009 and 2011, the authorities of the Province of Santiago del Estero – which are involved in the dispute – issued resolutions calling for compulsory conciliation for the sole purpose of impeding the exercise of the right to strike, while failing to formulate proposals for examining agreements.
2. 187. The Committee takes note of the Government’s statement to the effect that the provincial authorities have not intervened or violated any trade union rights. Furthermore, the Committee notes that the Government sends a communication from the Secretariat of Labour of the provincial government of Santiago del Estero indicating that: (1) there are no collective disputes with any trade union organization in the province, be it regarding wages or any other problems that could affect social dialogue or industrial peace; (2) the province has undergone changes in the areas of industry and production, as well as social inclusion policies, for which reason it worked to consolidate institutional spaces for dialogue and consensus; (3) in this context, round tables with the organizations that are members of the CGT and with other unions that are unrelated to this trade union centre (the education sector, farmers’ associations and security councils) were established and, in 2005, with a view to tackling the problems in the education sector, a working group was set up to deal exclusively with the current situation of the provincial education system; (4) the working group was created to deal specifically with issues relating to the educational sphere and was composed of all legally established trade union entities. The only organization that did not participate in the round table for debating and discussing the trade union, social and legislative aspects of the problems relating to the area in question was CISADEMS; (5) the provincial authority has worked with the remaining entities for the benefit of all workers and students of the province and the complainant organization also benefited, despite not having participated or contributed useful ideas; (6) at the express request of the CGT (delegation of Santiago del Estero), to which, according to the provincial government, 85 trade unions are affiliated in the province, Act No. 7054 was promulgated which institutionalized the round table on dialogue and labour and the round table on education, among others; (7) the complainant organization CISADEMS does not participate in the spaces for dialogue of its own accord; (8) the authority competent to deal with collective disputes in Santiago del Estero is the Subsecretariat of Labour, which prepared a report relating to the complaint (this report gives details of the action taken by the complainant organization CISADEMS before the administrative authority of the province, including its request for hearings with the provincial government to deal with claims for wage increases and other issues relating to the interests of its members; the dates on which CISADEMS strikes were scheduled; and the resolutions that led to compulsory conciliation); and (9) as regards the alleged incompetence of the Subsecretariat of Labour of the province in dealing with the cases referred to in the complaint, it should be noted that the Province of Santiago del Estero signed an agreement with the Government aimed at jointly determining how the provision of administrative services would be shared between the national and provincial authorities in the employment sector in an integrated and harmonious manner, which includes monitoring full compliance with labour legislation, particularly that referring to working conditions and working environment and to the resolution of individual or collective disputes. However, the Committee takes note of the complainant organization’s statement to the effect that it participated, represented by the CEA, in the collective bargaining that took place between federal government representatives and trade union representatives, during which the parties agreed to set a minimum wage for teachers. Nevertheless, bearing in mind the Government’s statement to the effect that the complainant organization CISADEMS does not participate in the round tables set up in the province of its own accord, the Committee invites the complainant organization to consider joining the spaces established for dialogue and, in particular, the round table on education.
3. 188. Furthermore, as regards compulsory conciliation, the Committee recalls that it has had to examine several cases from Argentina involving objections to orders for compulsory conciliation between the parties to a dispute in the public education sector by the administrative authority, when the latter was a party in the dispute. In this regard, the Committee recalls that the intervention of a neutral, independent third party, in which the parties have confidence, may be enough to break a stalemate resulting from a collective dispute, which the parties cannot resolve by themselves, and reiterates that it is necessary to entrust the decision of initiating the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute [see 349th Report, Case No. 2535, para. 351; 342nd Report, Case No. 2420, para. 221; and 338th Report, Case No. 2377, para. 403]. The Committee once again requests the Government to take the necessary measures, including legislative measures if required, to that end and thus bring the legislation and practice into conformity with Conventions Nos 87 and 98. The Committee requests the Government to keep it informed in this respect.