Informe provisional - Informe núm. 360, Junio 2011

1. 134. The Committee last examined this complaint at its November 2010 meeting and on that occasion presented an interim report to the Governing Body [see 358th Report, approved by the Governing Body at its 309th (November 2010) meeting, paras 172–219].
2. 135. The Government sent its observations in a communication dated 21 February 2011.
3. 136. 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. Previous examination of the case

1. 137. At its meeting in November 2010, the Committee made the following recommendations [see the 358th Report, paragraph 219]:
   • (a) The Committee notes with concern the gravity of the allegations made in this case (violent repression of protestors, temporary detention of trade union leaders and protestors, firearms attacks on the home of a trade union leader and UOCRA headquarters building, temporary kidnapping with the aim of intimidating a trade union leader and interference by the provincial authorities in the establishment of a trade union, etc.), deeply regrets the climate of violence that emerges from the allegations, and urges the Government to take immediate action to ensure that investigations are carried out into all the allegations and to send its observations and those of the Chubut provincial authorities thereon.
   • (b) The Committee expects that UOCRA can once again use its headquarters in Comodoro Rivadavia. The Committee asks the Government to keep it informed in this respect. The Committee further urges the Government to take the necessary measures for carrying out a thorough investigation into the alleged destruction and misappropriation of UOCRA property and valuables during the occupation of the headquarters and requests the Government to keep it informed in this respect. The Committee awaits the response of the Chubut provincial authorities on these allegations.
   • (c) The Committee requests the Government to send its comments on a possible direct contacts mission that should focus its cooperation efforts on freedom of association in the Province of Chubut.
   • (d) The Committee draws the Governing Body’s attention to the extreme seriousness and urgent nature of this case.

B. The Government’s reply

1. 138. In a communication dated 21 February 2011, the provincial Government states first that the Republic of Argentina has a federal political system. As a result of this, the country is represented externally in accordance with article 99 of the national Constitution, and the Government states that its reply is therefore limited to what has already been indicated by the Province of Chubut. It adds that the situation described in this case, which the ILO has described as serious, is not found in any other jurisdiction in the country.
2. 139. The Government states that according to the provincial authorities, the issues raised in the complaint by the Argentinean Building Workers’ Union (UOCRA) refer not only to alleged anti-union practices but also places special emphasis on the possible existence of a campaign of persecution against one of its officials, Mr Mateos Suárez, General Secretary of the Puerto Madryn branch of UOCRA. The provincial Government states that UOCRA, in order to substantiate its statements, described what happened on 11 November 2009 when the union decided to block the sole access road into the tourist resort of Puerto Pirámide during a sympathy strike in response to the dispute that had arisen as a result of the dismissal of 34 workers of the company Dragados y Obras Portuarias SA (DYCASA). According to press reports at that time, the union, faced with the dismissal of 34 workers employed by DYCASA, decided to strike in solidarity with the dismissed workers and a call was made to carry on strike action at the entrance to the villa in question.
3. 140. The provincial government goes on to state that some days before, the resort’s tourist office made its concerns known to the Governor, given the community’s total reliance on tourism and the fact that the action blocked the sole access road, thus posing a potential threat to traders and other inhabitants. The Governor sought to prevent the direct action from proceeding, failing which action would be taken to clear the road. He has reminded the union’s leaders that blocking the road is a federal offence. The provincial authorities have stated that in response to what happened, police were sent in to avert possible violence, their orders being solely to maintain peace and public order and to ensure unrestricted access for anyone wishing to enter Puerto Pirámide.
4. 141. The provincial authorities maintain that, when faced with the presence of the police, the strikers reacted in a negative way and this resulted in disturbances which necessitated police intervention to contain the strikers, and that subsequently Mr Mateos Suárez claimed that the provincial authorities had ordered the police to disperse the strikers, disregarding the workers’ rights. They stress that police action was confined to reducing violence and did not involve, in the words of Mr Mateos Suárez in repeated statements to the press, “the most blatant and excessive police repression”. The events led to the arrest of the union official in question, who was accused of civil disobedience (article 239 of the Penal Code), blocking a highway (article 194 of the Penal Code) and incitement to commit offences (article 209 of the Penal Code).
5. 142. As regards the direct action measures, the provincial authorities claim that UOCRA’s action was part of a “solidarity” strike which is not in itself illicit, but requires a degree of caution and discretion in expressing solidarity, which must be linked to the issue over which strike action is being taken. According to the provincial authorities, the direct action took place at the same time as a number of complaints were being made against Mr Suarez, which concerned a number of offices (serious assault, irregular payments and diversion of workers’ money or requests for financial contributions in exchange for agreeing to more flexible working conditions inferior to the normal minimum conditions), and that from then onwards the situation became even more violent. According to the provincial government, this was aggravated by the complaints made by the employers concerned, who eventually resolved to bring the case before the courts with groups of dissidents, and demanded the removal of the official in question on the grounds that they felt he did not represent them.
6. 143. The provincial authorities link these events to a confrontation that took place in November 2009 at the headquarters of the Puerto Madryn branch between a group of unemployed workers and UOCRA officials. On that occasion the police had to intervene in order to secure the premises and prevent them from being occupied by the opposing group. They also claim that the workers stated that they were discriminated against for not thinking like the officials, who prevented them from being hired, and for that reason demanded the removal of these officials. According to the provincial government, the situation provoked a response from the general public, from traders and neighbours in the area, who repudiated what had happened, and this prompted the judicial authority to seek the removal of Mr Suárez, who stands accused of seriously injuring two individuals. In this context, the provincial government’s concern is growing, given that the excesses that have occurred threaten members of the general public, who are obliged to seek refuge whenever these groups confront one another (the authorities note that one such incident involved a kindergarten in Puerto Madryn). It adds that given these circumstances and the level of violence that has occurred, police intervention was imperative, not in order to restrict constitutional rights of free expression but to contain the incidents and restore order in the community.
7. 144. The provincial government has repeatedly denied the allegations, and stated that its sole priority is to safeguard public safety and social peace, and for that reason it has urged that trade union issues be resolved peacefully through the appropriate channels; situations of this type nevertheless persist. For example, on 3 December 2009, 17 workers from the company JS Construcciones reported that they were going to be dismissed at as a result of pressure from Mr Suárez because they belonged to “Obreros Unidos del Chubut” (United Workers of Chubut), a group within the union that opposed the current UOCRA leadership, as a reprisal for the demonstration in which there had been confrontations and shots fired. It adds that on 5 October 2010, a number of construction workers turned up in order to express their opposition to the provincial representative. The anger of the demonstrators boiled over when the Governor left the municipal building to go to the official car which was surrounded by the group of individuals in question, who blocked his way. As he was unable to go forward, the representative got out of the car and started walking, to the accompaniment of insults from the group. Stones and bottles were thrown, some of which struck and damaged the car’s rear window, and the crowd also molested a provincial deputy. The Governor lodged a complaint against UOCRA with the State Prosecution Service.
8. 145. Lastly, the provincial government states that it is clear from the above that there has been no persecution of Mr Mateos Suárez, who has in fact been charged with a number of offences that are being investigated, and for which reason removal of his union immunity is being sought.

C. The Committee’s conclusions

1. 146. The Committee recalls that when it last examined this case at its November 2010 meeting, it noted with concern the gravity of the allegations made in this case, deeply regretted the climate of violence that emerged from the allegations, and: (1) urged the Government to take immediate action to ensure that investigations were carried out into all the allegations (violent repression of protestors, temporary detention of trade union leaders and protestors, firearms attacks on the home of a trade union leader and UOCRA headquarters building, temporary kidnapping with the aim of intimidating a trade union leader and interference by the provincial authorities in the establishment of a trade union, etc.), and to send its observations and those of the Chubut provincial authorities; (2) expected that UOCRA could once again use its headquarters in Comodoro Rivadavia; (3) urged the Government to take the necessary measures for carrying out a thorough investigation into the alleged destruction and misappropriation of UOCRA property and valuables during the occupation of the headquarters and requested the Government to keep it informed in that respect; and (4) requested the Government to send its comments on a possible direct contacts mission that should focus its cooperation efforts on freedom of association in the Province of Chubut.
2. 147. The Committee notes the Government’s statements to the effect that the situation referred to in the complaint, which has been described by the ILO as serious, is not found in any other jurisdiction in the country, and states that according to the Government of the province of Chubut: (1) the complaint refers not only to alleged anti-union practices but also to the existence of a campaign of persecution against the General Secretary of the Puerto Madryn branch of the UOCRA, Mr Mateos Suárez; (2) on 11 November 2009, UOCRA decided to block the only access to the tourist resort of Puerto Pirámide during a sympathy strike in response to a dispute following the dismissal of 34 workers of the company Dragados y Obras Portuarias SA (DYCASA); (3) the Governor sought to prevent the direct action from going ahead on the grounds that there was no obvious need to block the road, an act which, as he recalled, constitutes a criminal offence; (4) in response to the actions, police officers were sent to avert possible violence with the sole instruction to maintain peace and public order, and to ensure free passage for anyone wishing to enter the resort Puerto Pirámide; (5) faced with the police presence, the strikers reacted in a negative way; there were disturbances and police intervention became necessary, and this was limited to reducing violence; (6) the events culminated in the arrest of union official Mr Mateos Suárez, who has been accused of civil disobedience, blocking a road, and incitement to commit offences; (7) the direct action took place at the same time as a number of complaints were being made against Mr Suárez (relating to serious assault, irregular payments and diversion of workers’ money), and the provincial government links these facts with the confrontation in November 2009 at the headquarters of the Puerto Madryn branch, when the police was obliged to intervene to secure the premises; (8) the judicial authority of the province requested the removal of the trade union immunity of Mr Suárez, who is accused of seriously injuring two individuals; (9) on 5 October 2010 construction workers expressed their opposition to the Governor of the Province, insulted him and threw objects at his official car; and (10) the provincial government has not persecuted Mr Suárez, who has in fact been accused by the courts of a number of offences that are now being investigated.
3. 148. The Committee notes the information communicated by the Government of Chubut Province concerning the events that occurred during the demonstration organized by UOCRA acting in solidarity with the dismissed construction workers and concerning the union official Mr Mateos Suárez. The Committee requests the Government to inform it of the outcome of the judicial proceeding under way against the official in question. The Committee regrets that the Government has failed to provide its observations concerning the other 11 union officials and activists who were arrested during the demonstration, namely: (1) Jonathan Suárez, union activist; (2) Benjamín Bustos, trade union activist; (3) Alejandro Jiménez, trade union activist; (4) Richard Villegas, Records Secretary of the Puerto Madryn branch of UOCRA; (5) Eliseo Amaya, DYCASA workers’ representative; (6) Diego Paz, trade union activist; (7) Mario Bisoso, dismissed worker of the abovementioned company; (8) Carlos Muñoz, company worker; (9) Darío Valenzuela, dismissed company worker; (10) Jorge Franco, dismissed company worker; and (11) Félix Díaz, representative of the company; and urges the Government to send these observations without delay and in particular to indicate the specific allegations against them, whether or not they have been accused of any offence, and the status of any judicial proceedings against them.
4. 149. The Committee deeply regrets that the Government has not provided its observations on the other allegations that had remained pending. Under these circumstances the Committee urges the Government: (1) to take the necessary steps to carry out investigations immediately into the allegations according to which: (i) on 10 June 2009, the home of Mr Ricardo Luis Cheuquepal, a member of the Comodoro Rivadavia branch of UOCRA, was shot at; (ii) at the request of the provincial authorities, a closed criminal case was reopened against members of the Puerto Madryn branch of UOCRA; (iii) at the same time that UOCRA was being discredited and criminalized in order to promote a new trade union, with the assent of the provincial authorities, several businesses began to be attacked by this group and the Comodoro Rivadavia council was also subject to violent actions by armed persons; (iv) a Chubut provincial government official used electronic means to express insulting opinions and assessments about UOCRA members and union officials; (v) the General Secretary of the Trelew branch of UOCRA was kidnapped and, following death threats against his family, was forced to make radical statements against Mr Suárez; and (vi) on 18 November 2009, armed groups known as “Los Dragones” (The Dragons) attacked UOCRA headquarters in Puerto Madryn and Comodoro Rivadavia. The Committee requests the Government: (1) to keep it informed of the outcome of the investigations conducted into all these allegations; (2) to ensure that UOCRA has the use of its union premises in Comodoro Rivadavia and to keep it informed in this regard; and (3) to take the necessary steps to carry out a thorough investigation into the alleged destruction and appropriation of UOCRA property during the occupation of the headquarters, and to inform it accordingly.
5. 150. Lastly, the Committee notes with concern that according to the reply from the Government of Chubut Province, there is a climate of tension between the authorities and the construction workers affiliated to UOCRA (according to the provincial government, the Governor was insulted and his car damaged by construction workers), and that according to UOCRA’s statement in the complaint, “actions aiming to discredit it and hamper the free exercise of its trade union functions originated at the highest levels of the provincial government. The malicious intention of such actions was to encourage the creation of a new local body to be organized and to act in conformity with the authorities” [see 358th Report, para. 179].
6. 151. Taking the foregoing conclusions into account, the Committee once again requests the Government to agree to a direct contacts mission to help appease the situation and explain to the competent authorities the principles of freedom of association which should guide efforts to resolve the problems that have arisen.
7. 152. Noting that the Government limits itself in its reply to the observations made by the provincial Government, the Committee wishes to emphasize that it is the responsibility of the national Government to ensure that the principles of freedom of association are respected in the relevant province.