Informe provisional - Informe núm. 357, Junio 2010

1. 143. The complaint is contained in a communication from the Congress of Argentine Workers (CTA) of February 2009.
2. 144. The Government sent its observations in a communication dated 10 March 2010.
3. 145. 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 complainant’s allegations

1. 146. In its communication of February 2009, the CTA alleges that Supermercados Toledo SA violates freedom of association and the rights of workers’ organizations and representatives guaranteed in Conventions Nos 87, 98 and 135 and Recommendation No. 143, having committed acts of discrimination and dismissed union officers, representatives and activists. The CTA states that the case referred to in the present complaint is only one of many in which the rights of workers and organizations have been flouted. The CTA is concerned at the systematic repetition of acts infringing freedom of association; this complaint is accordingly presented against the Government of the Argentine State for failing to guarantee the exercise of trade union rights of members, officers and representatives of trade unions that are merely registered and those which have applied for registration – in both cases, for not belonging to trade union organizations that do not have trade union status (“personería gremial”).
2. 147. The complainant alleges that the company has committed acts of discrimination and engaged in anti-union conduct to the detriment of the union representative and the Congress of Argentine Workers. Supermercados Toledo SA is a supermarket enterprise engaged in retail sale of food, toiletries and cleaning items, etc. in the Mar del Plata area, which is part of Buenos Aires province. The complainant alleges the dismissal of Mr Rubén Óscar Godoy, a worker who has been with the company for many years and who, in addition to his natural leadership and continuous trade union activity, is a member of the Executive Committee of the Trade Union of Poultry Slaughtering and Processing Plant and Allied Workers. The latter union’s application for trade union registration is currently being processed in the Ministry of Labour, Employment and Social Security under file No. 1262756. The CTA states further that the poultry slaughtering plant owned by the company is located in Batán Industrial Park. Its workers slaughter and process 45,000 chickens a day, most of which are exported to the European Union, South Africa, China, Côte d’Ivoire and the Russian Federation, generating considerable profits for the enterprise.
3. 148. The CTA states that despite the above, not only do the workers not share in the substantial economic benefits derived from their labour by the enterprise, but they are subjected to precarious working conditions and receive a meagre income in return for their efforts. To that end, the enterprise has used a ploy that is common in Argentina: it has chosen, at its own discretion, the collective agreement that is applicable based on the amount of the wages, not on the occupation of the workers to whom it is to be applied. In this case, the enterprise decided to pay the wages determined in the collective agreement for the commercial sector, which the workers firmly contested on the grounds that a collective agreement that did not correspond to their occupation was being applied to them, with the clear aim of denying them an even greater portion of their wages.
4. 149. According to the CTA, the precarious economic situation of the workers is further exacerbated by the fact that part of their paltry earnings for such highly lucrative work is paid in the form of vouchers with which they can purchase goods only in the supermarkets belonging to the enterprise. In addition, and in violation of the principle of trade union autonomy and its obligation not to interfere, the enterprise has managed to impose a union representation other than that elected by the workers, thus violating the collective rights granted to workers in international human rights treaties with constitutional rank, including ILO Convention No. 87.
5. 150. The CTA points out that it was in this context of extremely poor working conditions and constant violation of rights by the company, which are condoned by omission by the public authorities responsible for supervising and enforcing compliance with labour standards, that the workforce decided to apply to the competent authority for registration of their trade union organization that was operating de facto in the enterprise. Having met the legal requirements, the trade union began the formalities of application to the Ministry of Labour, Employment and Social Security for recognition of trade union registration.
6. 151. As soon as it found out that the administrative procedure had been launched, the company began persecuting and harassing the unionized workers, singling out those it considered union leaders for especially harsh treatment. When its efforts to discourage the workers from organizing and implementing their action programmes did not succeed, the enterprise violently stepped up its illegal pressure, to the point where it selectively dismissed the leaders and activists of the new trade union.
7. 152. The CTA alleges that such is the power arbitrarily exerted by the enterprise over its dependent employees, as well as its influence over the local community, that it overtly carries out its discriminatory manoeuvres and violations of freedom of association. This explains why the company formally acknowledged its conduct in its telegrams to the dismissed workers even as they were in the process of claiming reinstatement on grounds of nullity of their dismissal as an act of anti-union discrimination prohibited by the highest ranking legal provisions: those of the National Constitution.
8. 153. The complainant indicates that the enterprise thus couched the dismissal in the following terms: “... in view of the fact that you not only refused to perform your duties and failed to return to work despite clear orders to that effect, but also incited your fellow workers to take the same illegal stance, causing considerable damage and failing to meet your most basic obligations, your services are no longer required”. According to the CTA, the illegal anti-union actions of the enterprise are clear from the wording itself of the dismissal. The CTA alleges that, in its telegram, the company admits that the reason for the dismissal was “refusal to perform duties” and “inciting fellow workers to take the same illegal stance, causing considerable damage ...”. According to the CTA, it is clear that the strike was being held by the dismissed worker and his fellow employees, evidently under his leadership.
9. 154. The complainant points out that the dismissal took place after the executive committee of the Trade Union of Poultry Slaughtering and Processing Plant and Allied Workers had called a strike after repeated labour demands had gone unheeded by the enterprise. The employer’s clear and obvious intention to penalize Mr Godoy’s trade union activities is further evidenced by the fact that the enterprise only dismissed him, together with the most representative workers, and not the other strikers, who, incidentally, made up the entire workforce. The complainant organization considers that it is obvious that the reason for the dismissal was not only the trade union activity itself, and especially the strike action – already serious in itself – but was also an attempt at an abusive display of power by the employer with the clear aim of punishing and preventing the exercise of collective rights, targeted at all the workers.
10. 155. The CTA alleges further that the company exerted pressure – which was illegal, being anti-union and discriminatory in nature – through dismissal and suspension of workers’ representatives, including both members and non-members of the Trade Union of Poultry Slaughtering and Processing Plant and Allied Workers. On 18 April 2008, the day of the strike, when the workers were mobilizing and picketing, the enterprise used all the resources and considerable influence at its command and managed to enlist the complicity of the State, which brought its repressive force to bear against the workers, so that the strike was violently repressed. As reported in the newspaper, “yesterday in Mar del Plata, infantry troops repressed members of the new Trade Union of Poultry Slaughtering and Processing Plant and Allied Workers, who after demanding a wage increase from the company began to receive telegrams announcing their dismissal. The CTA alleges that police action left seven injured, one of whom, José Lagos, was still in hospital with a guarded prognosis. The union’s lawyers filed complaints with the Public Prosecutor’s Office of Mar del Plata, Buenos Aires Province, for ‘illegal deprivation of liberty, serious injury and dereliction of duty by a public official’. When the complaint was filed, staff of the Public Prosecutor’s Office stated that the repressive action had not been ordered by their office. Some days earlier, the trade union had launched industrial action including partial strikes and protests against delays in paying wages and unsafe workplaces. The enterprise retaliated by dismissing 15 workers ‘for disobeying orders’. Faced with this situation, the workers decided to hold a strike with pickets at the entrance of the Industrial Park, which were dispersed yesterday by infantry troops.”
11. 156. The CTA adds that the company, in its exaggerated display of force against the trade union, went to unusual lengths in arrogating the right to declare the strike illegal, contrary to the provisions of Convention No. 87 and the reiterated case law of the Committee on Freedom of Association.

B. The Government’s reply

1. 157. In its communication of 10 March 2010, the Government states that it is providing a partial reply and that the Ministry of Labour of Buenos Aires Province points out that, firstly, the complaint does not specify which acts committed by the provincial Government constitute violations of freedom of association. It affirms categorically that the provincial administrative authority intervened within the limits of its own powers of conciliation and restoration of social peace. It states further that, starting with its intervention in the dispute after a complaint was filed by the workers and the CTA, it offered the parties a conciliation procedure, summoning them to a hearing and even calling in the law enforcement bodies when the employer failed to appear when summoned, and constantly sought a peaceful settlement to the dispute. An administrative procedure was thus provided as an opportunity for dialogue within the framework established by law, and the provincial Ministry’s intervention was lawful and appropriate. It should be pointed out that it was the complainant that requested its intervention.
2. 158. The provincial Government adds that, once the conciliation was over, the provincial Ministry of Labour decided to cease its intervention, considering that the dispute lay outside its competence, as the complaint referred to unfair practices, questions of applicability and violations of trade union rights – issues which should be resolved by the national Ministry of Labour, Employment and Social Security, which is the authority responsible for applying Act No. 23551 on trade unions and/or the judiciary. Another reason for ceasing its intervention was the employer’s refusal to accept the administrative procedure invoking the fact that the dispute involved issues outside the provincial authority’s remit, such as those mentioned above. The provincial Ministry of Labour confined itself to holding the hearings and attempting to bring the parties to a peaceful settlement. The provincial administrative authority thus considers that there are no grounds for alleging violation of freedom of association, which is lawfully protected and guaranteed by the legislative framework in force, articles 14bis, 16 and 75(22) of the National Constitution; and Act No. 23551 on trade unions, which expressly stipulates in section 1 that “freedom of association shall be guaranteed by all regulations relating to the organization and activity of trade unions” and that workers have the right, inter alia, to establish trade unions freely and without prior authorization (section 4).
3. 159. The complainant had an opportunity to apply for judicial review of the dismissals ordered by the employer and for enforcement of the applicable statutory penalties, and therefore the complaint presented to the ILO is rejected as unfounded and inappropriate, leading to an unnecessary waste of international jurisdictional resources. Lastly, the Government states that it will send an additional reply by the enterprise, as well as information on any judicial and administrative proceedings under way concerning the dismissals.

C. The Committee’s conclusions

1. 160. The Committee observes that in this case the complainant states that as soon as it found out that the administrative procedure for trade union registration of the Trade Union of Poultry Slaughtering and Processing Plant and Allied Workers had been launched, Supermercados Toledo SA began persecuting and harassing union officers and members, and alleges that after the workers held a strike to uphold its many unheeded demands, the enterprise, in the context of anti-union climate and interference, dismissed union officer Mr Rubén Óscar Godoy and other union members (a total of 15). The Committee also observes that the complainant alleges that on 18 April 2008, the day of the strike, the police repressed the strikers, leaving seven workers injured (one of them, Mr José Lagos, seriously), and that the union’s lawyers filed complaints against these acts with the Public Prosecutor’s Office of Mar del Plata, Buenos Aires Province. The Committee understands that the union ultimately obtained trade union registration, but that the dismissals remain in force.
2. 161. The Committee notes that the Government sent a partial reply indicating that, according to the Ministry of Labour of Buenos Aires Province: (1) the provincial administrative authority intervened in the dispute in response to the CTA’s complaint, within the limits of its powers of conciliation and restoration of social peace; (2) the provincial administrative authority offered the parties a conciliation procedure, summoning them to a conciliation hearing, and even called in the law enforcement bodies to get the employer to appear; (3) once the conciliation was over, the provincial Ministry of Labour decided to cease its intervention, considering that (a) the dispute lay outside its competence, as the complaint referred to unfair practices, questions of applicability and violations of trade union rights – issues which should be resolved by the national Ministry of Labour, Employment and Social Security, which is the authority responsible for applying Act No. 23551 on trade unions and/or the judiciary; and (b) the employer refused to accept the administrative procedure; and (4) the complainant had the opportunity to apply for judicial review of the dismissals ordered by the employer and for enforcement of the applicable statutory penalties. Lastly, the Committee notes that the Government states that it will send additional information from the enterprise, as well as information on any judicial and administrative proceedings under way concerning the dismissals.
3. 162. As regards the allegation concerning dismissal of a trade union officer, Mr Rubén Óscar Godoy, and other members (a total of 15) after holding a strike, the Committee observes that neither the national Government nor the provincial administrative authority deny that the dismissals took place, and that it appears from the statements by the provincial Ministry of Labour that the employer refused to attend a conciliation hearing. The Committee recalls that “the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paragraph 666]. In these circumstances, in view of the seriousness of the allegations concerning discrimination and interference by the enterprise and the failure of the attempted conciliation procedure, the Committee requests the Government to carry out an investigation without delay into all the acts of discrimination and interference mentioned in the complaint, and to determine the reasons for the dismissals, and, should they be found to be based on anti-union motives, to take steps to bring the parties together with a view to reinstating the dismissed workers. In addition, the Committee requests the Government to inform it whether those adversely affected have taken legal action.
4. 163. As regards the allegation to the effect that on 18 April 2008, the day of the strike, the police repressed the strikers, leaving seven injured (one of them, Mr José Lagos, seriously), and that the union’s lawyers filed complaints with the Public Prosecutor’s Office of Mar del Plata, Buenos Aires Province, in connection with these acts, the Committee regrets that the Government has not sent its observations. In these circumstances, the Committee recalls that it has emphasized on numerous occasions that in cases in which the dispersal of public meetings by the police has involved serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities. Under these circumstances, the Committee requests the Government to take the necessary steps to ensure that an investigation is carried out in this respect by an authority independent from those involved, and to inform it of the outcome. The Committee also requests the Government to inform it of the outcome of the complaints filed against those acts by the trade union with the Public Prosecutor’s Office of Mar del Plata, Buenos Aires Province.