Informe definitivo - Informe núm. 332, Noviembre 2003

1. 228. The complaints in this case are contained in communications from the Trade Union Association of Judicial Employees of the Province of Córdoba (AGEPJ) and the Argentine Judicial Federation (FJA) dated 30 July and September 2002. The Government sent its observations in communications dated 9 April and 11 July 2003.
2. 229. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Allegations by the complainant organizations

1. 230. In their communications dated 30 July and September 2002, the Trade Union Association of Judicial Employees of the Province of Córdoba (AGEPJ) and the Argentine Judicial Federation (FJA) explain that, in the framework of a collective dispute in 2002 caused by wage problems that gave rise to amparo proceedings and to protective measures in favour of the members of the AGEPJ, they held assemblies and engaged in industrial action during working hours, as had traditionally occurred in conjunction with the trade union. The complainants point out that while the assemblies were arranged during working hours, they were always held outside the limits or premises of the judicial authority, by virtue of the fact that, in December 1996, the High Court of Justice of the Province of Córdoba, in the framework of another wage dispute, ruled in Order No. 300, series A, point III “to provide for the prohibition, as from the current date, of the holding at premises of the judicial authority of assemblies or meetings of any type. It will be considered a serious offence, punishable by suspension, to participate in, attend or convene meetings, assemblies or mass meetings of this kind”. In addition, the highest court in the Province of Córdoba provided in point IV of the Order that “shall be prohibited, with the same scope and consequences, any instance of noise that disturbs the normal running of activities in the various courts or establishments of this judicial administration. For transmittal”.
2. 231. This being the case, and despite the fact that the trade union organization, to protect its members, convened them to meet outside the premises of the judicial authority so as not to violate the abovementioned Order No. 300, the High Court of Justice, in a further manifestly anti-union stand, notified all participants in the meetings held on 13 and 14 March 2002 to answer the charge of having been absent from their workplaces in open contradiction with the internal rules regulating staff attendance and dismissals. Once these charges were answered and involvement confirmed in the assemblies convened by the trade union organization in the framework of the collective dispute in question, the High Court of Justice issued Order No. 119, series A, dated 26 March 2002, stating that, “… decides: (1) to recommend to the officials of the judicial administration that henceforth they abstain from leaving their workplaces to attend trade union assemblies, when they are convened during working hours, under caution of the application of the corresponding penalties …”. In other words, not only was it prohibited to hold assemblies on the premises of a judicial authority (Order No. 300, series A, mentioned above), but it was also prohibited to do so off the premises, during working time, all of which demonstrates the employer’s systematic conduct to crush any possibility of trade union claims, even trying to destroy the viability of protest against, or the defence of, violated rights; with this logic meaning that sooner or later it will be prohibited to carry out industrial action or strikes during working hours or on working days, leaving the right to defence, assembly, freedom of association and protest limited to Saturdays and Sundays.
3. 232. Order No. 300 of 6 December 1996, and also Order No. 119, series A, of 26 March 2002, weaken and alter the rights and obligations established in the law on trade union associations and its accompanying regulatory decree. They add that the decisions of the judicial authority are unlawful because they regulate unilaterally and arbitrarily the exercise of trade union rights in the matter, which no legislator has done. The changes highlighted affect judicial workers in particular, but also have negative ramifications for all workers and their trade unions who, from now on, face precedents that encourage the restriction of their trade union activities in their respective organizations or state bodies through the procedure referred to.
4. 233. The complainant organizations indicate that the law of trade union associations does not confer upon the employer the decision of when and how workers belonging to trade union organizations may exercise their rights. The broad formula used by the law (the right to meet or gather without need for prior authorization) is in keeping with the nature of the labour dispute and safeguards, for each case, the effective exercise of freedom of trade union action. And, while it is true that it does not specify the environment where this right may be exercised, it is also true – as the decree itself states – that the fact of not requiring the “prior authorization of the employer” refers to the workplace environment, as referring to the environment outside the workplace would mean that the safeguard arose out of the National Constitution itself.
5. 234. The complainant organizations indicate that as a consequence of the abovementioned situation, on 30 April 2002 they requested the intervention of the Ministry of Labour and Social Security to resolve the obvious arbitrariness and the serious violation of trade union freedom by the High Court of Justice. File No. 1.056.692 was opened, wherein the dispute was registered in detail and in which the Ministry decided to summon the parties to a hearing in order to resolve the dispute in some way.
6. 235. Faced with these summonses, the High Court of Justice decided, in a decree on 28 May 2002, to reject categorically the competence of the Ministry of Labour, without there being administrative or legal appeals that can bring this long process of confrontation to a fair conclusion. The decree agreement referred to is Order No. 247, series A.

B. The Government’s reply

1. 236. In communications dated 9 April and 11 July 2003, the Government states that the dispute relating to wages, mentioned by the complainant organizations, was resolved in accordance with Order No. 163, series C, of 20 December 2002 (resolution No. 171), to take effect from 1 January 2003; it was decided to increase the working day with the subsequent increase in remuneration.
2. 237. With regard to the allegation relating to the prohibition to hold meetings during working hours at premises of the judicial authority of the Province of Córdoba, the Government states that this prohibition was regulated by Order No. 300, series A, of 6 December 1996. This Order arose as a result of the report submitted by the president of the judicial authority, with respect to the facts that took place on 5 December 1996 during the morning, at which time, it seems, following a meeting or assembly held by the staff belonging to the Trade Union Association of Judicial Employees of the Province of Córdoba, a group of those present held a noisy march through various departments, arriving at those occupied by the High Court of Justice, initiating there a noisy protest that included personal and verbal attacks against members of the court and other employees or civil servants and thumping on the doors of various offices.
3. 238. The Government states that the judicial authority is adamant that all judicial staff must be present in their various workplaces during working hours in which they are open to the public. It should not be forgotten that the judicial authority has its own responsibilities that are essential and cannot be delegated, the performance and efficient achievement of which are principally the responsibility of the High Court of Justice and, because of this, it must apply internal measures that prevent situations that might lead to possible change or deterioration. The principles of efficiency, effectiveness and uninterrupted performance are a unique dimension in the organization of the judicial authority because of the exclusiveness of the public functions that it monopolizes, for which reason the urgent need to guarantee them is increased. For this reason, assemblies of an informative nature or of any other nature convened by the trade union organization, which bring together staff of the judicial authority, can only take place outside working hours.
4. 239. Leaving the workplace to attend an assembly means not complying with the duty to be in the workplace and to provide services that are personal and cannot be delegated, which reflect the description of judicial employment. Because of this, the right to meet for trade union reasons can take place without the need for authorization or consent from the employer or work provider only in those cases where these (assemblies) take place outside working hours and, in the specific case of the judicial authority, outside the premises where the departments related to it are located.
5. 240. The Government states that the High Court of Justice recognizes the right of judicial workers to meet in assemblies, but this does not mean that it accepts that the labour regulations in force with regard to workers in general (and to judicial workers in particular) provide the right to be absent from the workplace during working hours to attend meetings convened by the trade union organization to which they belong. The recognized right of workers to meet and to carry out trade union activities must be interpreted within a reasonable context in accordance with the nature of judicial activity, because, if not, there would be the potential risk that all staff could be absent en masse from their workplace at any time for the reasons mentioned above (to attend assemblies). None of this reasoning has been challenged by the appellants.
6. 241. The Government states that, in interpreting Law No. 23551 on trade union associations, the criterion of reasonable conduct that was used does not allow any escaping the fact that the judicial authorities work continuously (in hours laid down by law), as the nature of this administration guarantees all citizens their constitutional right of access to justice.
7. 242. The Government adds that judicial employees do have, and are not denied, the right to meet or to attend assemblies convened by the trade union association to which they belong, but that this must take place outside the workplace and outside working hours. The Government also ratifies the constitutional powers of the High Court of Justice to regulate how its services are performed by its employees, based on the judicial doctrine of the High Court of Justice when it upheld that “the relations between provincial public employees and the Government upon which they depend are governed by the various provisions of local character that make up the appropriate administrative law”.
8. 243. Finally, the Government states that the decision taken by the High Court does not violate the provisions of ILO Convention No. 87. The restriction on holding assemblies in workplaces and during working hours in which they are open to the public has not been imposed to prevent measures of direct action, but only to guarantee continuity and normal performance of judicial services, to create the appropriate conditions for performing essential and necessary services and to allow litigants and members of the public to circulate freely.

C. The Committee’s conclusions

1. 244. The Committee notes that the complainant organizations object to two decisions (“orders”) by the High Court of Justice of the Province of Córdoba in which it was decided to prohibit the holding at the premises of the judicial authority of assemblies or meetings of any type and that recommended that officials of the Judicial Administration abstain from leaving their workplaces to attend trade union assemblies, when they are convened during working hours.
2. 245. In this respect, the Committee notes that the Government states that: (i) this prohibition was imposed and regulated in 1996 following a trade union assembly during which a group of participants acted abusively and, specifically, held a noisy march through various departments, including participating in verbal and personal attacks against employees of the High Court of Justice and thumping on the doors of offices; (ii) the judicial authority requires that judicial staff are present in their respective workplaces during working hours in which they are open to the public; (iii) while judicial employees have the right to hold assemblies, this does not mean that they have the right to be absent from their workplaces during working hours when they perform services for the public; and (iv) the restriction on holding assemblies in workplaces and during working hours in which they are open to the public was not imposed to prevent measures of direct action but to guarantee continuity and normal performance of judicial services.
3. 246. The Committee recalls that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and that it is for employers and workers’ organizations to agree on the modalities for exercising this right. The Committee further recalls that the Labour Relations (Public Service) Convention, 1978 (No. 151) – ratified by Argentina – lays down in Article 6 that “such facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work” and that “the granting of such facilities shall not impair the efficient operation of the administration or service concerned”. In these circumstances, the Committee requests the Government to invite the parties to negotiate with a view to achieving agreement on the modalities for the exercise of the right to hold meetings, including the place for such meetings, as well as on the granting of facilities provided for under Article 6 of Convention No. 151.