Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 384, Marzo 2018

1. 99. The complaint is set out in communications dated 22 June and 1 December 2016 from the Unified Trade Union of Fuegian Education Workers (SUTEF) and the Independent Confederation of Workers of Argentina (Independent CTA).
2. 100. The Government provided its observations in a communication in May 2017.
3. 101. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 102. In their communications of 22 June and 1 December 2016, SUTEF and Independent CTA allege a refusal to hold discussions, replacement of workers, salary deductions, declaring a strike illegal, and anti-union measures in the context of industrial action in the public education sector of Tierra del Fuego province.
2. 103. The complainants state that, on 8 and 9 January 2016, the Legislature of Tierra del Fuego province approved legislation comprising a series of bills tabled by the executive on 17 December 2015. The legislation included the declaration of a social security emergency and other measures relating to social security and its institutions in the province, such as modifications to the system of workers’ benefits. According to the complainants, the measures implied a decrease of up to approximately 9.14 per cent in the nominal net salaries of teachers, with the introduction of extraordinary contributions (from about 1 to about 4.5 per cent) during the emergency period (two years extendable for a further two years), a 3-point increase in regular contributions (from 13 to 16 per cent) and changes in the objective criteria for obtaining retirement benefits at the expense of workers.
3. 104. Following the entry into force of the legislation, all public workers’ organizations in the province demonstrated on 1 March 2016 to obtain a hearing with the executive and legislative authorities. The Governor refused to receive the trade union representatives; a pro government legislator convened the workers the following day, but the meeting was unfruitful. It was at that point that all the trade unions called for direct action, which lasted for about 100 days without obtaining any form of response from the executive or legislative authorities. The executive refused to hold a round-table dialogue with a view to drawing up draft legislation derogating from or replacing the laws in question. The legislative authorities did not even agree to discuss the partial reform or modification of the legislation in committee. The dispute was prolonged because there were absolutely no channels of communication.
4. 105. The complainants allege that the Government decided to end the dispute by taking measures infringing freedom of association. They state that, on 20 April 2016, the Ministry of Education issued Resolution No. 823/16, which established, on the basis of an emergency administrative decree (No. 462/16 of 22 March 2016) and in contravention of national and international law, that striking workers could be replaced by hiring temporary workers (for a period of time subject to the eventual return to work of the striking workers). The complainants point out that teaching is not an essential service for which measures of this kind might be justified and allege that the mechanisms set out in domestic legislation for declaring a public service an essential service in a particular situation were not respected. They recall that a strike may be called for reasons that have nothing to do with the collective bargaining process, such as to claim rights infringed by legislative measures. Likewise, the complainants report that their salaries were docked for the days of work stoppage even though the strike was not declared illegitimate, with deductions in some cases amounting to 80 per cent of salaries. They state that these matters were raised in a judicial appeal (Case No. 8999), a ruling on which is pending.
5. 106. The complainants likewise report that Resolution No. 16/16 of the Under-Secretariat of Labour, which declared that the strike was unlawful on the grounds that its purpose fell outside the reach of collective labour law, was intended to limit the scope of a strike to issues in respect of which the employer is competent to meet demands. They consider that absurd as it would render unlawful many of the legitimate strikes called by trade unions. They recall that the purpose of the action called by SUTEF was to oppose modifications affecting workers’ living, working and social security conditions.
6. 107. According to the complainants, the competent authorities have a generally negative attitude towards social dialogue, not only on the legislative matters referred to above but also on labour issues. In that regard, they allege that throughout 2016 the authorities refused to agree to joint meetings to discuss salaries, working conditions and other matters (the organizations allude to Resolution No. 109/2016 of the Under-Secretariat for Labour, decreeing the closure and archiving of action relating to joint meetings, and to Resolution No. 3379/16 of the Ministry of Education, decreeing the suspension of union leave for teachers taking part in joint activities).
7. 108. The complainants also report that the authorities refuse to hold discussions about the situation of workers in cultural workshops. They report that, after the change in administration, the authorities closed all the cultural workshops as of January 2016 and the workshop facilitators lost their jobs. The complainants likewise refer to the precarious employment situation facing those workers. They state that, as the trade union representing the interests of cultural workers (on the basis of the recognition of the sector as non-formal education in article 97 of Provincial Education Law No. 1018), SUTEF called for the establishment of a negotiating committee in order to engage in collective bargaining on the regulations governing the specific work of workshop facilitators with a view to eliminating that precarious employment situation. In that regard, the complainants report that the authorities negotiated in bad faith: even though Resolution No. 1/16 of the Under-Secretariat of Labour (the authority engaging in collective bargaining involving the province’s teachers) ordered the start of negotiations between SUTEF and the Culture Secretariat, the Secretariat refused to take part; and even though the Ministry of Labour convened another meeting, that meeting was again postponed at the request of the Culture Secretariat. The complainants further indicate that, during the resulting dispute – involving not just those workers but a large majority of state workers – the Culture Secretariat started to reinstate the workshop facilitators in a process plagued by discriminatory irregularities, the workers to be reinstated being selected on the basis of no objective criteria.
8. 109. In addition, the complainants allege that they were subject to anti-union harassment by the provincial authorities, who took three types of measures. First, the complainants report that administrative steps were taken to lift the trade union immunity of 17 teacher workers’ delegates (with a view to their dismissal) for having participated in trade union activities. According to the complainants, in ten of the 17 cases the administration has already requested that trade union immunity be lifted (however, in two of those ten cases the first notification and the subsequent proceedings have been declared null and void, with the process having to start again). In the remaining seven cases, the proceedings are at the appeal stage (without trade union immunity having been lifted since the appeals were deemed to have a suspensive effect).
9. 110. Second, the complainants report that criminal proceedings have been instigated against teacher workers’ delegates in the following cases: (i) Case No. 1642 (Appeal No. 213/2016), in which nine teacher delegates were convicted in connection with the events that took place on 23 May 2013 in the context of industrial action and were given suspended sentences of between eight months and two years in prison; an extraordinary appeal is currently pending before the province’s Supreme Court of Justice; and (ii) Case No. 33186/2016, in which three SUTEF delegates were tried in connection with the violent dispersal by the police of a peaceful 90-day demonstration in front of the government building. The complainants allege that the examining magistrate harassed the trade union delegates and that, in his decision of 26 August 2016, he found them guilty of the crimes of resisting authority and causing bodily and material harm, among others. The decision (which the complainants consider invalid because two of the three members of the bench did not explain their vote) has been appealed and the appeal remains pending.
10. 111. Third, the complainants allege anti-union practices consisting of the following: (a) modification of their leaders’ working conditions in the form of salary reductions (a complaint for unfair practices filed in that regard by SUTEF on 11 November 2016 is currently pending); (b) interference in and restriction of their trade union activities through the refusal to grant the corresponding time credits; and (c) the elimination of union leave and the prohibition of meetings and assemblies in the workplace.
11. 112. Lastly, the complainants request the establishment of a forum for dialogue so as to channel the present dispute.

B. The Government’s reply

1. 113. In its communication of May 2017, the Government provides the observations of the provincial authorities concerned on the allegations of the complainants.
2. 114. The provincial authorities take the preliminary view that some of the issues raised by the complainants are inadmissible as they have nothing to do with freedom of association or collective bargaining.
3. 115. First, the provincial authorities consider the complaint about the supposed violation of the right to engage in collective bargaining inadmissible. According to the provincial authorities, SUTEF started the dispute in order to collectively negotiate the total or partial derogation from, or replacement of, the legislation concerned. They therefore consider that the dispute lay outside the reach of collective bargaining with the employer, the subject being beyond the authority of the executive and collective bargaining possibilities. They further state that the legislation that gave rise to the dispute was not subject to collective bargaining as it does not involve matters relating to employment conditions but is instead strictly circumscribed within social security legislation.
4. 116. Second, the provincial authorities assert that the allegations relating to the supposed violation of the employment rights (alleged precarious employment situation) of the so called “facilitators” of cultural workshops should also be deemed inadmissible. They state that, although the allegations may be of concern to the trade unions, they do not come under the Committee’s remit. Without prejudice thereto, the provincial authorities provide additional information on the situation. First, they point out that the trade union status of SUTEF encompasses “teaching staff providing services in state-run schools” and that the workshop facilitators are not covered by that definition since they do not provide services within the scope of State schools or the Ministry of Education (but rather the Culture Secretariat); SUTEF therefore cannot claim to represent those workers. Second, the provincial authorities indicate that the decisions taken by the authorities were intended to improve the management of the cultural workshops, which involved the adoption of a new regulatory framework following an exhaustive analysis (irregularities having been identified in its past application), and to strengthen the administrative and technical structure and ensure greater transparency, efficiency and effectiveness and better access for the general population. The provincial authorities provide detailed information on the procedure followed and consider the assertion that workers were reinstated on a discriminatory or criteria-free basis to be completely false (they also point out that many of the facilitators who complained were reinstated).
5. 117. In a further preliminary statement, the provincial authorities indicate that the complainants omitted to provide information on the acts of violence that took place in the context of the industrial action. Those acts resulted in various judicial – in some cases, criminal – proceedings that are currently pending. The provincial Ministry of Labour, Employment and Social Security indicates that the dispute, which lasted for almost 100 days, prevented and obstructed not only educational but also government activities, owing to the fact that the protest surrounded the provincial seat of government, preventing public officials from entering the building. The Ministry indicates that the industrial action involved disproportionate violence, undemocratic slogans and criminal acts. It gives the following examples: (i) national road No. 3, the only overland route to the town of Ushuaia, was cut off despite repeated court injunctions to the contrary (leading to several criminal charges); (ii) in order to cut off the supply of fuel to the province, on 12 April 2016, a fuel depot was blockaded and the premises surrounded by wood-burning pickets in a serious hazard to public safety; (iii) these acts were accompanied by highly threatening and intimidating demonstrations, as described in various criminal cases, different kinds of sabotage and damage to public property, and acts of aggression such as those publically inflicted on the Vice-Governor; and (iv) in the schools, workers trying to perform their duties were not only threated but also hurt. The provincial authorities consider that such displays of violence are incompatible with the principles of freedom of association.
6. 118. Referring to the alleged refusal to hold discussions and reinstate workers, the provincial authorities state that, despite the violence deployed in the industrial action, the Provincial Government reacted to the dispute by convening the trade unions in joint commissions in order to discuss the dispute among the items subject to the collective negotiation of working conditions. This proved impossible, however, because SUTEF refused, demanding to discuss only questions that were not subject to collective bargaining and refusing to stop the direct action it had started. The Provincial Government was therefore obliged to take appropriate measures to protect the rights of children attending public schools, and after 50 days it decided to implement an exceptional and temporary class make-up programme. The provincial authorities specify that the programme was in no way an attempt to replace the striking workers; instead, in the face of the social harm caused by the prolongation of the dispute it sought to minimize the harmful consequences for children by establishing minimum services. The provincial authorities assert that, owing to the prolongation of the dispute, the province’s judicial authorities required the executive to consider the adoption of minimum services that would limit the damage being done. The Provincial Government, in adopting the class make-up programme called into question by the complainants, considered that the criteria established by the Committee were applicable to the strike in the education sector, noting that even though education could not, strictly speaking, be termed an essential service, in cases in which a dispute was extended the possibility of establishing minimum services was not an infringement of freedom of association, in particular taking into account the principle of the higher interest of the child. The provincial authorities further indicate that the exceptional conditions that gave rise to the programme were the result not only of the strike but also of the critical situation of the province’s education system. They deny that the programme was an attempt to replace the strikers since the make-up teachers had a different purpose (to make up for lost classes as additional human resources guaranteeing the right to learn); indeed, when a striking worker was reinstated, the two teaching functions were maintained alongside each other in the classroom. In addition, the make-up teachers were retained even after the dispute had ended and the decision was made to prolong the programme in question in the expectation that the exceptional situation would last longer since a great many classroom days had been lost.
7. 119. Regarding the deductions made for days of strike, the provincial authorities recall that according to the Committee such deductions give rise to no objection from the point of view of freedom of association principles, that the Committee of Experts on the Application of Conventions and Recommendations has not criticized the legislation of member States stipulating salary deductions for days of strike, and that the domestic regulations and case law take account of those principles and establish that, in the event that a service is not provided because of direct action, the employer has the right to make the relevant deductions. The provincial authorities indicate that the court of first instance dismissed the suit for amparo (protection of constitutional rights) filed by SUTEF in that regard.
8. 120. Regarding the declaration that the strike was illegal, the Provincial Government states that, while it is not unaware of the Committee’s position that declarations of this type should not be made by an administrative body, it considers that the declaration did not imply any anti union practices. In that regard, the provincial authorities assert the following: (i) the strike, in addition to stopping education for more than three months, paralysed the Government’s administrative and labour-related activities almost entirely, obliging the executive to issue Decree No. 462/16 of 22 March 2016 declaring a state of administrative emergency; (ii) in Resolution No. 16/6, the provincial Ministry of Labour, Employment and Social Security declared the industrial action carried out by SUTEF on 18 May 2016 to be unlawful on the grounds that the grievance had nothing to do with the employment relationship and exceeded the purpose of a labour dispute – in other words, on the grounds that the matter in dispute had nothing to do with the industrial relationship, there being no grievances involving labour or working conditions that could have been resolved by the provincial executive in its role as the employer; (iii) according to the case law and legal doctrine, industrial action must be decreed in the context of exclusively contractual disputes arising from the employment relationship, and the application for amparo filed by SUTEF was therefore dismissed at first instance, the judge considering that the strike was based on criticism of the law but that there was no evidence of a dispute with the state employer; (iv) of the more than 100 days of strike called in an attempt at widespread violence on the part of demonstrators and trade unionists, only one day was the subject of the declaration of unlawfulness; and (v) no measures or reprisals were adopted as a consequence of the declaration (it stipulated no effective legal consequences).

C. The Committee’s conclusions

1. 121. The Committee observes that this case concerns allegations of anti-union harassment and discrimination on the grounds of participation in industrial action, refusal to hold discussions, replacement of workers, salary deductions and declaring a strike illegal, in the context of an industrial dispute in the public education sector of Tierra del Fuego Province.
2. 122. The Committee notes, on the one hand, the complainants’ allegation that, as a result of industrial action taken in a dispute relating to the adoption of legislation on the social security system, the authorities engaged in anti-union harassment in the form of judicial action, including various criminal trials and proceedings to waive the judicial protection of trade union leaders with a view to their dismissal. On the other hand, the Committee notes that the provincial authorities provide detailed information on the conduct of many violent, undemocratic and even criminal activities in the context of the trade unions’ industrial action and indicate that those activities resulted in various judicial proceedings, including criminal trials, which remain ongoing. The Committee recalls that the mere fact of taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 651]. Stressing that the right to strike is not an absolute right and that the acts alleged by the Government such as the use of violence, sabotage, damage to public property and the creation of serious hazards to public safety would, if proven, go beyond the limits of its protection, the Committee requests the Government to keep it informed about the outcomes of the judicial proceedings currently pending against the trade unionists.
3. 123. The Committee observes that a key aspect of the complaint is the allegation that, throughout the dispute on social security legislation, the authorities refused to engage in discussions with the trade union organizations concerned, in particular SUTEF, and subsequently blocked the holding of joint meetings in 2016 to negotiate matters pertaining to working conditions. The Committee notes that the provincial authorities deny that they objected to discussions, stating that, on the contrary, once the dispute had emerged and despite the many acts of violence carried out, they invited the organizations concerned to joint meetings to discuss labour issues. The provincial authorities nonetheless state that their efforts to channel the dispute through collective bargaining were unfruitful owing to the lack of cooperation by SUTEF, which insisted on discussing solely the matter of social security legislation. In that regard, the Committee observes, on the one hand, that the provincial authorities consider that the subjects of the dispute raised by the complainants on social security legislation fall outside the Committee’s competence and exceed the scope of collective bargaining with the employer. The provincial authorities state that the trade union’s demand (to derogate from or amend the legislation) has nothing to do with the executive and cannot be collectively negotiated. On the other hand, the Committee observes that the complainants do not request the executive to examine the legislation in question or to determine whether there existed a right to collective bargaining in respect of the legislation, but rather request the establishment of a forum for dialogue in order to resolve the dispute, recalling in that respect that the legislation concerned was presented and approved by the executive itself. While recalling that questions concerning social security legislation fall outside its competence and recognizing the right of states to legislate in that area, the Committee recalls that while the refusal to permit or encourage the participation of trade union organizations in the preparation of new legislation or regulations affecting their interests does not necessarily constitute an infringement of trade union rights, the principle of consultation and cooperation between public authorities and employers’ and workers’ organizations at the industrial and national levels is one to which importance should be attached. In this connection, the Committee has drawn attention to the provisions of the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). The Committee has further emphasized the value of consultations with organizations of employers and workers during the preparation and application of legislation which affects their interests [see Digest, op. cit., paras 1077 and 1072]. The Committee regrets that, according to the information provided, the authorities preparing and applying the draft legislation did not conduct prior consultations with their social partners on a matter – social security reform and special measures (including an increase in contributions and modifications of the conditions for obtaining retirement benefits) – that directly affects the workers’ interests. Having taken due note that the provincial authorities stress their prioritization of social dialogue, the Committee invites the Government to request the said authorities to establish a commission or other forum of social dialogue with the workers’ organizations concerned, with a view to establishing mechanisms for consultations with the social partners on the preparation and application of legislation affecting their interests, and to deal with any issue that may remain pending, in particular with regard to promoting collective bargaining on working conditions and employment. The Committee requests the Government to keep it informed in that regard.
4. 124. Regarding the complainants’ allegations about the workshop facilitators (reports about their precarious employment situation, dismissals, reinstatements and failed collective bargaining attempts), the Committee observes that the provincial authorities consider that the allegations are inadmissible on the grounds that they relate to labour issues that are outside the Committee’s competence. In that respect, the Committee recalls that, while it is not competent in relation to the facilitators’ working conditions, it is competent to examine their enjoyment and exercise of the rights to freedom of association and to engage in collective bargaining. In that regard, the Committee observes that the complainants allege that the authorities raised obstacles to prevent the facilitators from engaging in collective bargaining through SUTEF by failing to show up at joint committee meetings convened for that purpose. In that regard, the Committee notes the following: (i) on the one hand, the provincial authorities state that SUTEF has recognized trade union status to represent and negotiate on behalf of “teaching staff providing services in State-run schools” and the workshop facilitators do not fall within that group; and (ii) on the other hand, the complainants assert the following: (a) SUTEF is the trade union representing the interests of those workers given that the law recognizes that cultural workers are part of the non-formal education system; (b) based on that legislation, SUTEF requested the authority with competence for collective bargaining to establish a joint committee; and (c) a resolution of the Labour Under-Secretariat ruled in favour of the opening of negotiations between SUTEF and the Culture Secretariat but the Secretariat refused to participate. While it does not have the information it needs to adopt a position on this divergence between the parties, the Committee nonetheless observes that the right of this group of workers to engage in collective bargaining is in no way called into question and asks the Government to request the competent authorities to engage in collective bargaining in relation to the cultural workshop facilitators.
5. 125. Regarding the allegation that workers were replaced in response to the strike, the Committee notes that, according to the indications of the provincial authorities: (i) additional teachers were hired not to replace workers but rather as a minimum service mechanism (the provincial authorities state that they based the decision on the Committee’s principles relating to the possibility of establishing minimum services in the education sector owing to the long duration of the strike – 50 days at the time of the decision, extending to about 100 days); and (ii) owing to the exceptional circumstances facing the education system, the additional teachers hired continued to perform their duties after the striking workers had been reinstated and even for an additional period following the end of the dispute. The Committee recalls that in cases of a strike of long duration in the education sector minimum services may be established in full consultation with the social partners [see Digest, op. cit., para. 625].
6. 126. Regarding the allegations of salary deductions, the Committee recalls that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Digest, op. cit., para. 654].
7. 127. Regarding the allegations that the strike was declared unlawful in an administrative resolution, the Committee notes that the provincial authorities state the following: (i) the resolution was adopted in respect of a single day (of the almost 100 days that the strike lasted and in a context of direct action in which almost all the Government’s work had been paralysed) and the declaration stipulated no measure, reprisal or other legal consequence; and (ii) the direct action of 18 May 2016 was declared unlawful on the grounds that the subject of the dispute had nothing to do with the employment relationship, there being no employment-related or working condition-related demands that it would have been within the authority of the provincial executive to resolve in its role as employer. In that regard, the Committee wishes to recall that the responsibility for declaring a strike illegal should not lie with the government but with an independent body which has the confidence of the parties involved, and that the right to strike should not be limited to industrial disputes that are likely to be resolved through the signing of a collective agreement, but that workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests [see Digest, op. cit., para. 531].