Informe provisional - Informe núm. 362, Noviembre 2011

1. 277. The complaint is contained in a communication from the Association of Management Staff of Argentine Railways and General Ports Administration (APDFA) dated 8 October 2010.
2. 278. The Government sent its observations in a communication of May 2011.
3. 279. 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 Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 280. In its communication of 8 October 2010, the APDFA states that, in accordance with the national legislation in force, the APDFA is a primary-level trade union with trade union status, pursuant to Decision No. 364 of the Ministry of Labour, Employment and Social Security. Accordingly, the APDFA enjoys legitimacy and has the capacity to present the complaint. The APDFA states that it is presenting this complaint against the Argentine State for multiple violations of freedom of association and the rights of workers’ organizations and representatives guaranteed under Conventions Nos 87, 98 and 135, and Workers’ Representatives Recommendation, 1971 (No. 143), in the form of acts of antiunion discrimination, harassment of trade union delegates and activists, and refusal to engage in collective bargaining, among other serious violations, committed by the Ferrosur SA, Roca SA, All Central and All Mesopotámica SA, Nuevo Central Argentino SA, Ferroexpreso Pampeano SA, Belgrano Cargas SA, Ferrovías SA and Ugofe SA enterprises. It states further that the complaint describes some of the serious acts contrary to freedom of association committed by three of these enterprises (Ferrosur SA, All Central and All Mesopotámica SA, and Ferrovías SA), with the complicity of the Ministry of Labour.
2. 281. The APDFA points out that it groups together and represents all dependent employees of the railway sector working as managerial, administrative, technical and/or professional staff, university graduates holding qualifying degrees and currently performing those duties: coordinators, supervisors and all staff performing management, supervisory and control tasks, with or without subordinate staff, irrespective of their employment situation, without distinction based on occupational category, who are working in a dependent relationship in any enterprise in the sector, including state enterprises or companies at national or provincial level; public, private or mixed enterprises operating railway services; centralized or decentralized public service bodies engaged in activities related to railways; enterprises and/or bodies carrying out repairs and/or maintenance of railway equipment, control and/or operation of movable or fixed assets formerly owned by Ferrocarriles Argentinos and remaining within the remit of the State, control and/or supervision of the management and operation of railway service enterprises; employer enterprises that conclude agreements or contractual or subcontracting arrangements for the operation, sale or performance of tasks inherent in or ancillary to railway activity, industries engaged mainly in the production and/or repair of railway equipment and enterprises providing services to the railway sector. The union’s coverage also includes managerial and executive staff working in Argentine ports. Its legally recognized geographical coverage is nationwide.
3. 282. The APDFA’s employer was originally the State, as the owner of Ferrocarriles Argentinos, the enterprise responsible for providing railway services on the different branch lines. In the 1990s, however, the privatization policies implemented by the then Government led to the fragmentation of the railways, with concessions being granted for operation of the railway services to several private companies, which thus became the employers of the workers represented by the trade union. The APDFA emphasizes that, under the policies carried out in the 1990s in Argentina, nearly all of the public service enterprises formerly owned by the State were privatized. The APDFA’s position was to resist and oppose the Government’s decisions to privatize, and to that end it launched a propaganda and public awareness plan to inform society of the serious consequences the process would entail. In response to the APDFA’s militant activities, the employers, with the acquiescence of the State, retaliated by withdrawing recognition of the union’s representative status; in fact, the workers represented by the union were required to leave the trade union as a condition for being transferred to the concessionaires – in other words, for keeping their jobs. These reprisals, which constitute a violation of freedom of association, were decided and implemented by all of the enterprises referred to in the complaint: Ferrosur SA, Roca SA, All Central and All Mesopotámica SA, Nuevo Central Argentino SA, Ferroexpreso Pampeano SA, Belgrano Cargas SA, Ferrovías SA and Ugofe SA.
4. 283. Since then, despite all the action taken by the APDFA, the union has been prevented from exercising the right to collective bargaining, notwithstanding the fact that, in accordance with the legal provisions, it initiated an administrative procedure with the Ministry of Labour requesting the establishment of a bargaining unit with all the concessionaires. By preventing collective bargaining, the employers achieved their goal: the workers covered by the relevant collective agreements while the railways were being operated by the State were removed from the scope of the agreements by the private companies operating each of the branch lines for which concessions were granted. An unlawful situation, in which workers covered by the APDFA’s trade union status are “not covered by the agreement”, thus arose in all of the enterprises. Starting in 2001, in the midst of the massive socioeconomic and political crisis, the railway managerial staff of all the concessionaires began to organize and join the APDFA, bringing pressure to bear in order to recover their former conditions of employment and push for recognition of the union’s representative status in accordance with its legal and constitutional remit.
5. 284. The complainant organization states that the provisions setting out the terms of the grant of the concession and operation of each of the branch railway lines expressly provided for the obligation of the concessionaires to respect the trade unions’ representative status and coverage and the conditions of employment enjoyed by the workers at the time of the transfer. Section 42 of Act No. 23696, the State Reform Act, provides that: “During the privatization process implemented in accordance with the provisions of this Act, through any of the modalities and procedures provided for in sections 17 and 18, the worker shall continue to be protected by all of the legal, collective agreement and administrative institutions of labour law.” Section 43 of the same Act provides as follows: “Trade union coverage: The privatization process shall not in itself alter or change the trade union situation, coverage or membership of the workers employed by a body that is undergoing privatization, unless otherwise provided in a decision of the competent authority in the matter.”
6. 285. Notwithstanding the legal provisions, the reality shows that the managerial and executive staff represented by the APDFA were illegally excluded from the coverage of the collective agreement which they previously enjoyed, while at the same time any bargaining proposals were systematically denied. The complainant organization recalls that Act No. 14250 governing collective labour agreements provides, in section 8, that: “The terms of collective agreements that have been certified shall be binding and may not be modified by individual employment contracts to the detriment of the workers ...”. Section 17 of the same Act provides that: “In the bargaining process for an enterprise collective agreement, the workers shall be represented by the trade union with trade union status covering them ...”. The Collective Bargaining Procedure Act, in section 2, provides that: “The representative body of employers or workers which seeks to engage in bargaining shall inform the other party to that effect in writing, with a copy to the labour administrative authority, indicating: (a) the body’s representative status; (b) the geographical area and category of persons to be covered by the collective agreement sought; (c) the bargaining subject.” Section 3 of the Act provides that: “The recipients of the communication referred to in the previous section shall reply to it and designate their representatives on the commission set up to that end.” The different national laws referring to collective bargaining, read together, thus reflect clearly and consistently the obligation of the enterprise to bargain with the trade union that has trade union status. The obligation to bargain with the trade union that has trade union status, as is the case of the APDFA, is expressly stated and is not open to interpretation.
7. 286. The APDFA alleges that it is the only trade union in the railway sector that has been prevented in practice from bargaining collectively with the different railway concessionaires. The other trade union organizations are not subjected to this arbitrary treatment, and regularly engage in collective bargaining with the enterprises in the sector – the same enterprises that deny the APDFA the exercise of this right. The abovementioned enterprises are in breach of their duty to bargain collectively with this organization and are discriminating with regard to other trade union organizations. The APDFA refers to acts which have occurred in some of these concessionaires, in many cases with the connivance of the competent authority, and which constitute grave violations of freedom of association giving rise to the presentation of the complaint.
   • Allegations concerning violations of freedom of association in the Ferrosur SA enterprise
8. 287. The APDFA alleges that in 2005, the managerial and executive staff of the enterprise decided to unionize in order to improve their working conditions (hours of work exceeding the legal limits, wage arrears, stress due to constant pressure, workplace harassment, etc.) through participation and collective action. At the same time as the massive influx of members referred to above was occurring, the APDFA, by virtue of the powers recognized by Act No. 14250 on collective bargaining and Act No. 23551 on trade union associations, together with its implementing Decree, No. 467/88, sought to start collective bargaining with a view to improving the situation of the enterprise employees covered by the union’s scope. In response, the Ferrosur SA enterprise, after exerting considerable pressure and threatening mass dismissals, promised to improve conditions, provided the workers withdrew from membership of the union. Unfortunately, the pressure had the desired effect and all of the workers concerned left the union.
9. 288. At the same time, the enterprise began to take legal steps with regard to the Ministry of Labour, which were completely unfounded, for the sole purpose of delaying or preventing bargaining with the APDFA. It should be pointed out that the legal framework for collective bargaining in Argentina grants the capacity to engage in collective bargaining to trade unions that have been granted trade union status by the Ministry of Labour, as is the case of the APDFA, irrespective of whether the workers covered by the scope of the union as recognized by the state authority are members of that union. One of the means used by the enterprise to prevent collective bargaining was to engage in procedural manoeuvres and tactics in the administrative procedure that had been initiated in the Ministry with a view to bargaining. Faced with this situation, the APDFA had no choice but to pursue the administrative procedure to obtain a decision from the competent authority ordering the enterprise, by virtue of the powers vested in it, to bargain collectively with the trade union. As a result, the enterprise filed an appeal for reconsideration, with a subsidiary appeal to a higher administrative authority, against the ministerial decision ordering it to engage in bargaining. At the same time, the APDFA confirmed its position to the same administrative authority with which the enterprise had filed its administrative appeal.
10. 289. The administrative procedure (file No. 1148853/05) was thus referred to the Executive Office of the Ministry of Labour, Employment and Social Security on 21 August 2007. On 29 July 2008, after a year had elapsed without the Ministry having handed down a decision, the trade union formally requested a prompt decision, in accordance with section 25 of the Administrative Procedures Act, asking that authority to cease delaying the procedure and to expedite the collective bargaining process it had been seeking since 2005. At the end of 2010, the APDFA was still unable to exercise effectively the right to collective bargaining and, as a result, was denied the other rights affected by this vital aspect of freedom of association. Time has continued to pass without any change in this serious situation, and the workers in the enterprise, who have been prevented from exercising their rights to organize and bargain collectively, have reported that their working conditions not only have not improved, but have even deteriorated.
11. 290. On 3 November 2009 the APDFA sent another communication notifying the Executive Office of the Ministry of Labour that its representatives in the enterprise had elected a delegate and that it had thus met the employer’s requirement (which, as pointed out above, was without legal basis) to the effect that it was essential to have staff delegates on the bargaining committee. At the time this complaint was presented, no decision had been received from the administrative authority either accepting or rejecting the proposal. The Ministry of Labour’s silence on the matter is thus again instrumental to the obstructive conduct of Ferrosur SA, in violation of national legislation and Conventions Nos 87 and 98. In January 2010, as a way out of the impasse caused by the paralysis of the administrative procedure that should have led to collective bargaining, the APDFA initiated a new administrative procedure, which unfortunately met the same fate, as the enterprise again failed in its duty to bargain with the union and resorted to various manoeuvres to prevent the bargaining unit from even being set up.
12. 291. The APDFA adds that after the election of delegates in 2004, the enterprise exerted all kinds of pressure to get the delegates and even the members to give up their status. As the years passed, wages and other conditions of employment deteriorated, prompting a new wave of mass unionization by the workers of the enterprise and the election of staff delegates; the enterprise responded by refusing to recognize the legality of the election of the delegates, while denying their capacity to represent the workers and hence rejecting any form of dialogue with them.
13. 292. On 8 July 2010, the enterprise made a statement to the Ministry of Labour challenging the APDFA’s call for elections on 22 July. It also stated that: “In the event that elections are held, we declare at the outset that we challenge the appointments that might be made as a result, as the delegates elected would not be covered by any immunity or guarantee.” In what nearly amounts to an admission of its discriminatory anti-union conduct, it adds that: “as regards the workforce, 912 workers are currently working in FSR [referring to the Ferrosur SA enterprise]. Of these, 460 are covered by the “E” collective agreement signed with the Railway Union (Unión Ferroviaria) (UF); 279 are covered by the “E” collective agreement signed with La Fraternidad (LF) and the remaining 173 – including the general manager – are staff not covered by or excluded from the collective agreement”. It acknowledges that it has arbitrarily and unlawfully relegated a significant percentage of the workforce – the large majority of whom are managerial or executive staff represented by the APDFA – to the category of “not covered by the collective agreement”.
14. 293. After receiving the communication stating the APDFA’s position, the Ministry of Labour issued an ambiguous decision stating that “it is neither appropriate nor relevant to issue a decision on the situation of the category of workers who are not covered by the collective agreement”. Moreover, in addition to denying the representative capacity of the elected trade union delegates and failing to recognize the immunity afforded by the law to union representatives in the enterprise, the anti-union conduct of Ferrosur SA included refusal to provide a notice board, prohibition of assemblies at the workplace and denial of trade union leave.
    • Allegations concerning anti-union persecution, refusal to engage in collective bargaining and prevention of unionization in the América Latina Logística Central SA and América Latina Logística Mesopotámica SA (All) enterprises
15. 294. The modus operandi in these enterprises is virtually identical to that used by the company mentioned in the preceding paragraph to prevent the exercise of trade union rights. There is such a close resemblance that it practically confirms the assumption that the enterprises have adopted a common concerted strategy, aided by the inaction of the Ministry of Labour. Specifically, in 2007, when elections of staff delegates were convened by the APDFA in accordance with the power vested in it by Act No. 23551 (sections 40 to 46), the enterprise denied the legality of the electoral process and the legitimacy of the delegates who were elected. The enterprise subsequently stepped up its anti-union acts, and on 9 February 2008 the All enterprise dismissed substitute delegate Mr Ramón Darío Alcaraz, after suspending him without cause in 2007. The procedure for lifting trade union immunity as required by Act No. 23551 on occupational associations was not followed during his suspension and dismissal.
16. 295. The APDFA adds that, in view of the manifest illegality of the discriminatory anti-union dismissal, on 13 May 2009 the Fifth Division of the National Labour Court ordered the reinstatement of the dismissed delegate. In addition, in view of the pressure and harassment to which members were being subjected, in the same year the following telegram was sent denouncing the enterprise:
    • Your anti-union practices, contrary to freedom of association, targeting the Association of Management Staff of Argentine Railways and General Ports Administration (APDFA) and its members working in your enterprise. Such practices include constant pressure on our members to withdraw from membership or to prevent the workers we represent who have not yet joined the union from doing so. In this context, serious acts have been committed in recent years, in which you have made the appropriate and well deserved promotion (the necessary requirements having been met) of several of our members conditional on withdrawing from membership of the APDFA, in a coercive manner that is contrary to the principle of good faith that should govern individual and collective labour relations. Given that such conduct constitutes an unfair labour practice under subsections (b), (c) and (j) of section 53 of Act No. 23551, as well as violating the protection guaranteed in the national Constitution (articles 14bis and 75, paragraph 22) and in Conventions Nos 87, 98 and 111, I warn you to cease these practices immediately, failing which complaints will be filed with the competent national and international bodies and legal proceedings will be brought to seek guarantees for the free and unrestricted exercise of freedom of association. You have been duly warned.
17. 296. The APDFA states that the All enterprise resorted to all kinds of manoeuvres to evade its duty to bargain with the union. After removing all of its managerial and executive staff from the coverage of the collective agreement in the 1990s, when regular bargaining rounds were once more being resumed in the country, the All enterprise refused to recognize the union’s representative capacity, while taking the opposite stance with regard to other trade unions of railway workers, with which it bargained without any problem. This prompted a number of instances of direct action by the APDFA aimed at breaking down employer resistance.
18. 297. The APDFA points out that Act No. 14786 regulates the exercise of the right to strike, which is guaranteed in the national Constitution. This Act provides that once the Ministry of Labour has been informed of a conflict of interests, it may order mandatory conciliation and summon the parties to hearings with a view to reaching agreement. During the period of mandatory conciliation, the parties must restore the situation to what it was before the conflict and cease any direct action they have taken. The Act sets time limits within which the administrative authority may order mandatory conciliation (15 days, which may be extended by another five days); during this period, the parties may not continue or adopt direct action measures. However, to prevent this restriction from becoming a prohibition, the Act provides that once the time limits for mandatory conciliation – i.e. the periods during which direct action measures are suspended – have expired, the Ministry of Labour cannot order it again for the same dispute.
19. 298. The complainant organization alleges that, notwithstanding the above, in the dispute that arose between the APDFA and the enterprise as a result of the latter’s refusal to bargain, the administrative authority ordered mandatory conciliation in June 2010, after the time limit for conciliation had expired without the enterprise having rescinded its decision not to bargain, so that the parties were free to exercise the right to strike. Accordingly, the APDFA called for a new direct action measure for 8 October 2010, consisting of a work stoppage and a march to the Ministry of Labour. The APDFA points out that, despite the fact that this was the same dispute, the Ministry of Labour arbitrarily and illegally ordered a new round of mandatory conciliation, the situation being further aggravated by the fact that it notified the union of this measure at the end of the day on 7 October, or during the night of 7–8 October, by posting the notice on the door of the trade union premises: it stood to reason that there would not be anyone in the office to receive the notification. All of this demonstrates the illegality of the action taken by the Ministry of Labour, whose orders amount in practice to a prohibition on the exercise of the right to strike by the workers who are members of the APDFA.
    • Allegations concerning the Ferrovías SA enterprise
20. 299. The APDFA points out that when Ferrovías SA took over the operation of the railway service on the General Belgrano Railway, this enterprise, as in the cases described above, excluded managerial and executive staff from coverage by the collective agreements and harassed its members with the evident aim of preventing the union from having a presence in the enterprise. Despite the many actions taken and the formal requests filed, the company has continued up to now to deny the right to bargain and conclude a collective labour agreement. As in the case of the other enterprises referred to in the complaint, the company threatened APDFA members with dismissal and succeeded in achieving its objective with respect to many of them. The APDFA adds that a complaint for unfair labour practice was filed in response to that measure and to a sanction that was imposed on union delegate Mr Darío Corbalán, as a result of which a complaint for unfair labour practice was lodged with the National Labour Court.

B. The Government’s reply

1. 300. In its communication of May 2011, the Government states that the Executive Office of the Minister was consulted on the case, and the legal office informed it that it is clear from the records attached to its reply that the Ministry of Labour’s attitude has been cooperative, as it has held a number of hearings to address the concern to conclude a collective labour agreement with each of the enterprises involved. In brief, the records of the hearings suggest that the root of the problem lies in an unresolved dispute concerning representative status, with the possibility of a complaint for unfair labour practice being filed with the courts.
2. 301. As regards the complaint of persecution of union officials, as may be seen from the complaint itself, the relevant proceedings have been initiated before the labour court, from which the Government concludes that appropriate legal steps have been taken with regard to the protection of these officials, in accordance with national legislation.

C. The Committee’s conclusions

1. 302. The Committee observes that in this case the complainant organization alleges that, although it has been granted trade union status (a status which confers certain exclusive rights such as the conclusion of collective agreements, protection of union officials, payment of trade union dues through deductions from wages by the employer, the right to undertake and manage social initiatives, etc.), several enterprises in the railway sector (referred to by name in the complaint) refuse to engage in collective bargaining and that the administrative authority has not advanced the bargaining process, notwithstanding the proceedings filed by the complainant organization. The Committee also observes that the complainant organization alleges acts of harassment and persecution of its officials and members (in the Ferrosur SA enterprise, the allegations refer to pressure on members to withdraw from the union, refusal to recognize the election of delegates and to engage in dialogue with elected delegates, refusal to provide a notice board, prohibition on holding union assemblies and denial of trade union leave; in the América Latina Logística Central and América Latina Logística Mesopotámica enterprises, alleged denial of the legality of the trade union election procedure, refusal to recognize elected delegates and dismissal on 9 February 2008 of substitute delegate Mr Ramón Darío Alcaraz whose reinstatement was ordered by the court on 13 May 2009; in the Ferrovías SA enterprise, alleged threats of dismissal against members and sanction imposed on delegate Mr Darío Corbalán).
2. 303. As regards the alleged refusal by several enterprises in the railway sector to engage in collective bargaining with the APDFA, despite the fact that it has trade union status, the Committee notes that the Government states that the attitude of the labour ministry has been cooperative and that a number of hearings have been held in order to address the concern to conclude a collective labour agreement with each of the enterprises involved, and that the records of the hearings suggest that the root of the problem lies in a dispute with regard to representative status, with the possibility of a complaint for unfair labour practice being filed with the courts. In this regard, the Committee notes that the Government attaches with its reply a copy of the record of a meeting with the APDFA and several of the enterprises in the sector, in which the parties accept the proposal of the administrative authority to hold hearings in order to address the concern to conclude a collective labour agreement, as well as records of subsequent hearings in April 2011 indicating that an enterprise (Ferrovías SA) cites a dispute regarding representative status for bargaining purposes and another enterprise (Ferrosur SA) has set out an agenda to initiate bargaining.
3. 304. The Committee regrets that the APDFA, which has trade union status, has still not been able to conclude a collective agreement with the enterprises in the sector, despite the time that has elapsed since it expressed its desire to initiate bargaining. In these circumstances, the Committee requests the Government to promptly take all the measures possible to encourage and promote the full development and utilization of machinery for voluntary negotiation between the APDFA and the enterprises concerned with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee requests the Government to keep it informed in this regard.
4. 305. As regards the allegations of acts of harassment and persecution of officials and members of the APDFA (in the Ferrosur SA enterprise, alleged pressure on members to leave the union, refusal to recognize the election of delegates and to engage in dialogue with elected delegates, refusal to provide a notice board, prohibition of union assemblies and denial of trade union leave; in the América Latina Logística Central and América Latina Logística Mesopotámica enterprises, alleged denial of the legality of the trade union election procedure, refusal to recognize elected delegates and dismissal on 9 February 2008 of substitute delegate Mr Ramón Darío Alcaraz whose reinstatement was ordered by the court on 13 May 2009; in the Ferrovías SA enterprise, alleged threats of dismissal against members and sanction imposed on delegate Mr Darío Corbalán), the Committee notes that the Government states that, as mentioned by the complainant organization, the relevant proceedings have been initiated before the labour court, from which it concludes that appropriate legal steps have been taken with regard to the protection of these officials, in accordance with national legislation.
5. 306. The Committee notes that according to the complainant organization, complaints for unfair labour practices were filed with the judicial authority concerning the alleged threats of dismissal of members and the sanction imposed on delegate Mr Darío Corbalán in the Ferrovías SA enterprise. In this regard, the Committee requests the Government to keep it informed of the final outcome of these judicial proceedings. In addition, the Committee notes that the APDFA alleges that the Fifth Division of the National Labour Court ordered the reinstatement of union delegate Mr Ramón Darío Alcaraz, who had been dismissed from the All enterprise in violation of trade union immunity. The Committee requests the Government to confirm that the trade union delegate has been reinstated without loss of pay.
6. 307. As regards the remaining allegations of anti-union discrimination (pressure on members to leave the union, refusal to recognize the election of delegates and to engage in dialogue with elected delegates, refusal to provide a notice board, prohibition of trade union assemblies and denial of trade union leave in the Ferrosur SA enterprise; denial of the legality of the trade union election procedure and refusal to recognize elected delegates in the América Latina Logística Central and América Latina Logística Mesopotámica enterprises; and threats of dismissal of members in the Ferrovías SA enterprise), the Committee regrets the considerable delay of the Government in responding and urges it to carry out an investigation and to inform it of the results.