Informe definitivo - Informe núm. 58, 1962

1. 8. In a letter dated 29 January 1960, supplemented by another dated 9 February 1960, the P.T.T.I placed before the I.L.O a complaint to the effect that the exercise of trade union rights had been infringed in the Argentine Republic. This complaint was communicated to the Government by letter dated 30 March 1960.
2. 9. At the 25th Session (May 1960) of the Committee, as the Government had not yet sent any observations, it was decided to defer examination of the case until the next session. The Government was informed of this decision by letter dated 31 May 1960.
3. 10. At the 26th Session (November 1960) the Government's reply, dated 31 October 1960, was placed before the Committee. However, the reply having arrived too late for the Committee to be able to study it in a satisfactory manner, it was decided that the case as a whole should be deferred until the following session.
4. 11. At the 27th Session (February 1961) the Committee took note of a letter from the Government, dated 9 February 1961, announcing that supplementary observations on this case were being sent. It therefore decided to defer examination until these observations should be in its hands.
5. 12. The Government transmitted the said observations in a letter dated 22 June 1961.
6. 13. 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. A. The complainants' allegations

1. 14. The complainants allege that, in connection with a dispute between the postal workers and the Argentine authorities, the latter took certain action incompatible with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The particular allegations made by the complainants are discussed below. It may first be advisable to review the various stages of the dispute as described by the complainants, their version being in general in conformity with that given in the Government's reply (the additional information contained therein is inserted at the appropriate points).
2. 15. There was inflation in Argentina in 1959, which hit the working class very hard. In June 1959 the Federation of Postal and Telecommunications Workers (FOECYT), which has 32,000 members, started negotiations with the Government for a pay increase on the ground that the cost-of-living index had risen during the past year by approximately 100 per cent without any increase in the wages and salaries of communications workers.
3. 16. The offer made by the Government (an increase of 30 per cent.) was considered insufficient by the FOECYT, all the more so as it was coupled with a four-hour extension of the working week. As a protest, and in order to exercise pressure on the authorities, the Federation arranged a " slow down ", then instructed its members to " work to rule " and, finally, called a strike on 29 December 1959.
4. 17. The Government states in its observations that the members of the FOECYT are public service personnel whose right to strike is subject to certain restrictions; that by its attitude, and particularly by calling for a stoppage, the FOECYT acted contrary to the Conciliation and Arbitration Act, No. 14786; and that the strike was therefore considered unlawful.
5. 18. On 13 January 1960 the Minister issued a warning that disciplinary action would be taken if work did not return to normal within 48 hours. " As the postal and telegraph workers " (to quote the complainants' own words) " took no notice of the Government's intervention ", repressive action was taken against a number of strikers.
6. 19. After an appeal (19 January 1960) by members of the Senate, who offered their mediation on condition that the strike should end, work was resumed (21 January 1960), and - still according to the complainants - the repressive action ceased (22-25 January 1960).
7. 20. In its reply of 31 October 1961 the Government states that the dispute was settled, an agreement satisfactory to the parties having, apparently, been reached with the only two associations of personnel which had official recognition as trade unions (personeria gremial), namely the Association of Telegraphists, Radio-Telegraphists and Similar Personnel and the National Civil Servants' Union, Branch 95 (the FOECYT did not have this recognition). The Government adds at the close of its memorandum that, although it was not a " recognised " union, the public authorities had sought as far as possible to meet the FOECYT's demands. This seems to be confirmed by the lengthy negotiations which took place.
8. 21. The course of events having been thus summarised it will now be appropriate to examine the particular allegations made by the P.T.T.I to the effect that the Argentine authorities committed grave infringements of freedom of association. These allegations are dealt with separately below.
   • Allegations concerning the Arrest of Workers
9. 22. The P.T.T.I alleges, using rather vague terms, that an " unknown number " of postal and telegraph workers were imprisoned " as trade unionists ". In its reply the Government states that no postal or telegraph workers were arrested " by reason of their quality as trade unionists ". The Government does not deny that there were arrests; however, it declares that these were due exclusively to acts of violence or infringements of freedom to work and that in any case they were carried out " in accordance with the applicable laws and regulations ".
10. 23. In previous cases in which the Committee has had to examine allegations concerning the arrest of trade union officers or members it has considered that the only question arising is the real ground for the arrests. Only if these were ordered because of trade union affiliation or activity properly so called could an infringement of freedom of association be held to have occurred."
11. 24. In the present case, having regard on the one hand to the vagueness of the allegations and on the other hand to the Government's categorical statement that the arrests of certain trade unionists were due to acts of violence and the like, but not to the trade union status or activities of the persons concerned (indeed, the complaints do not even allege that they were due to participation in the strike), and having regard also to the statement of the complainants themselves that all the persons arrested have been released, the Committee, while reaffirming the importance that it attaches to the principle that public authorities should refrain from any interference which would restrict trade union rights or impede the lawful exercise thereof, recommends the Governing Body to decide that no useful purpose would be served by pursuing further the examination of this aspect of the case.
    • Allegations concerning Dismissal of Strikers
12. 25. Without giving details, the complainants allege that an " unknown number of postal and telegraph workers " were dismissed. In its reply the Government states that no personnel was dismissed owing to the dispute; that the whole staff was reintegrated; and that the nine persons discontinued were temporary employees whose contracts had expired. The Government adds that it went so far as to re-engage a temporary worker, despite her misconduct in the service, because of special intervention by the union.
13. 26. Whereas the Government in its reply states categorically that there were no dismissals due to the dispute and that those members of the staff who appear to have been temporarily suspended were all reintegrated, the complainants make their allegation in the vaguest terms and adduce no single name or other specification in its support.
14. 27. In these circumstances the Committee considers that the complainants have not furnished proof that there was an infringement of freedom of association in this instance, and therefore recommends the Governing Body to decide that this aspect of the case does not call for further examination.
    • Allegations concerning Withholding of Wage Payments and Disciplinary Action
15. 28. The complainants allege in very general terms that some arrested or dismissed workers had received no pay since 1 January 1960. They also state that disciplinary measures were taken against FOECYT trade unionists, but that they do not know to what extent.
16. 29. In its observations on this aspect of the case the Government declares that no employee failed to receive the normal pay of his grade and that no disciplinary action was taken. " The fact " it adds " that the strikers were not paid for the days on which they did not work was strictly in conformity with Decree No. 10494 of 27 November 1958, a statutory measure which must be respected ".
17. 30. The Government goes on to state that the suspensions " which certain employees attributed to their part in the strike " were imposed in due application of section 37 of the Staff Regulations for the National Civil Service (Legislative Decree No. 6666/57) because of excessive unjustified absence. The Government adds that, in the calculation of absences in this connection, days on which employees were on strike were not included.
18. 31. In reply to the complainants' allegations, which - as shown above - are put in rather vague terms and give no exact data (names of persons against whom disciplinary action was taken, character of the action, etc.), the Government gives a specific explanation of the character of the action taken and the reasons for it: this does not seem to indicate that there was an infringement of freedom of association here.
19. 32. In the circumstances the Committee considers that the complainants have not furnished proof that there was in this instance an infringement of freedom of association, and therefore recommends the Governing Body to decide that this aspect of the case does not call for further examination.
    • Allegations relating to Measures Taken against Mr. Bucci, General Secretary of the FOECYT and Other Officers of the Federation
20. 33. The complainants state that the " trade union leave " (licencia gremial) granted to Mr. Bucci, General Secretary, and other officers of the FOECYT had been withdrawn by the authorities, who are alleged to have replied that such leave had never been granted to Mr. Bucci. The complainants describe this last assertion as false and adduce in support of their view the text of a passage from the Bulletin of the Department of Communications (No. 1743 of 10 November 1959) which does indeed indicate that trade union leave was granted in Mr. Bucci's case,
21. 34. In its reply the Government confirms that trade union leave was given to officers of the FOECYT, but only " as a contribution to constructive trade union activity ". It adds that this action was taken outside the relevant statutory rules, since the FOECYT " had not and has not " official recognition as a trade union; that grant of the said leave was thus a favour which the authorities were not obliged to concede; that the FOECYT had outlawed itself by calling the strike without fulfilling the statutory conditions and in disregard of the particular character of the work of postal and telephone personnel who perform a public service; and that it would not have been logical, in the open conflict which had arisen, for the Department to continue to grant it the privilege in question.
22. 35. At this point the term " trade union leave " (licencia gremial) should be explained. In Argentina it evidently means the authorisation given to an employee to engage in full-time trade union work while continuing to receive his wage or salary. In its supplementary observations of 22 June 1961 the Government quotes the text of a decree on the subject. This states that, if an employee of the Government is appointed to a trade union office " for which no payment is made by the trade union organisation, he shall be entitled to leave with pay to the extent necessary for the duration of his term...". Moreover, it appears from the Government's explanations that in the case of officially recognised trade unions this leave is given more or less automatically, but that the same does not apply to unions which have not been so recognised.
23. 36. In the supplementary observations made in its letter of 22 June 1961 the Government provides further information in this regard. It refers to a system introduced under Argentine legislation " for granting to a trade union organisation the right to be judged most representative of the relevant trade or occupation ". This, it says, permits performance of some of the most important functions of a trade union, particularly the conclusion of collective agreements, which may then be rendered applicable erga omnes. The system, the Government continues, being " that of numerical determination, is so objective as to dissipate any possible suspicion of partiality in the grant of recognition for the abovementioned purposes. Indubitably, the most representative organisation is that which does the biggest and most important job in defence of the workers' interests. Moreover, it is logical that in a system of trade union pluralism such as ours, where as many unions can be set up in a given trade or occupation as the workers desire, the right to trade union leave should be limited to the most representative."
24. 37. On several occasions, and particularly during discussion on the draft of the Right to Organise and Collective Bargaining Convention, the Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the I.L.O states the concept of " most representative " organisations.
25. 38. Thus, the mere fact that the law of a country draws a distinction between the most representative trade union organisations and other trade union organisations is not in itself a matter for criticism, provided that such distinction does not accord to the most representative organisation privileges extending beyond the privilege, on the ground of its having the largest membership, of priority in representation for such purposes as collective bargaining or consultation by governments or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organisations not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes, as provided for in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Argentina.
26. 39. It will be seen from the comments of the Government that the privilege of receiving licences is not exclusively reserved to the most representative trade unions, that is to say the ones which enjoy official recognition. It appears-since this privilege had also been extended to the FOECYT, the union involved in this case-that trade union licences can be, and occasionally are, granted to organisations other than those recognised as representative.
27. 40. It is therefore desirable that trade union licences should be granted in accordance with objective criteria and not simply at the discretion of the authorities. The Committee considers that, generally speaking, a system under which a government can grant a privilege to a particular organisation, or withdraw that privilege from an organisation to confer it on another one-to mention only two examples-might result in one union receiving particularly favourable or unfavourable treatment by comparison with the others and might thereby give rise to discrimination. More specifically, a government, by treating a particular organisation more favourably or more unfavourably than others, might influence the workers in their choice of the organisation to which they wish to belong. Now, in this field freedom of choice for the persons concerned is a right specifically laid down in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). If, therefore, a government wishes to grant certain privileges to trade unions, it is essential that in granting them it should treat all the unions concerned on an equal footing. The Committee had occasion to lay down this principle in an earlier case relating to privileges granted to certain organisations in the form of the provision of premises.
28. 41. In the present case, however, the withdrawal of the trade union licences of Mr. Bucci and other members of the FOECYT does not seem to have been a discriminatory measure. The licences in question were granted as a favour, the authorities not being required to grant them. By calling a strike without taking into account the restrictions of the right of employees of state public services to strike, and, in particular, by ignoring the provisions of Act No. 14786 concerning conciliation and arbitration, the organisation in question placed itself in the wrong; this would appear to justify the withdrawal by the authorities of a privilege which they had voluntarily granted to the union and to which the latter had no specific right.
29. 42. In the circumstances, subject to the general remarks in paragraph 40 above, the Committee recommends to the Governing Body to decide that this aspect of the complaint does not call for further consideration.
30. 43. The complainants further allege that, in a letter from the " Chief of Administration", dated 23 January 1960, Mr. Bucci, General Secretary of the FOECYT, was informed that, his " licence " (trade union leave) having been withdrawn, he had been transferred to Branch Office La Plata 1152 and was invited to explain his reasons for absence from service.
31. 44. The complainants state in this regard that, two years before, Mr. Bucci had been, elected by the postal and telecommunication workers of Argentina, in a secret ballot, as a member of the Disciplinary Committee of the Department. This body, they continue, meets once a week and " staff members are released from work in the service and are fulltime members of the Committee ". They conclude that the Department " was therefore in the wrong to recall Mr. Bucci into the service and to apply disciplinary measures when he refused to obey ".
32. 45. In its reply the Government states that membership of the Disciplinary Committee does not carry with it release from the obligation to attend for duty on the days when the Committee has no sitting; that after the strike, and apparently also after transmission of the complaint, some of the staff members were excused other duty by decision of the Department of Communications; that, by virtue of this decision, Mr. Bucci is able to perform his trade union functions while receiving his salary as a civil servant; that the only requirement made of Mr. Bucci is to serve as a member of the said Committee, and that, despite his absence from sittings, no disciplinary action has been taken against him.
33. 46. It proceeds from the Government's explanation that Mr. Bucci has had the benefit of a general measure which enables him to spend his whole time on trade union business while continuing to receive his salary. Mr. Bucci's position seems thus to have reverted to what it was before his trade union leave was withdrawn. Furthermore, he appears to have retained his membership of the Disciplinary Committee.
34. 47. In these circumstances the Committee considers that this aspect of the complaint has become purposeless and therefore recommends the Governing Body to decide that it does not call for further examination.