Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 393, Marzo 2021

1. 54. The complaint is contained in a communication from the Confederation of Education Workers of the Republic of Argentina (CTERA) dated March 2018.
2. 55. The Government provided its observations in communications dated 12 March and 11 October 2019 and 4 March 2021.
3. 56. 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. 57. In their communication of March 2018, the complainants allege that the Provincial Education Council (CPE) of Santa Cruz province, in retaining trade union dues, restricting the right to strike, drawing up blacklists, delaying granting trade union leave and unilaterally modifying collective agreements, systematically violated the trade union and collective bargaining rights of the Teachers’ Association of Santa Cruz (ADOSAC).
2. 58. First, the complainants allege that, despite the fact that the CPE has continued to deduct agreed trade union dues, since 2011, it has not been depositing the corresponding amounts into the ADOSAC bank account, or it has done so only in part or in a belated manner. They state that in March 2018 teaching staff were owed, in the form of trade union dues, a total of 36,480,713 Argentine pesos (ARS). They state that on an individual level, the undue retention of trade union dues undermines the salary of workers and violates the wishes of workers by denying their ability to join or be a member of the trade union of their choice. At the collective level, the failure to transfer the funds infringes the financial autonomy of the trade union organization, blocking its access to funds to carry out its trade union activities. According to the complainants, this behaviour constitutes interference by the State authorities who have a dual role as both employer and withholding agent. They also allege the CPE’s refusal to transmit the relevant documents under their mandate relating to the collection of trade union dues, which would prevent the trade union organization from taking the appropriate legal action.
3. 59. Second, the complainants denounce the limitation of the right to strike through the imposition of a compulsory conciliation and, subsequently, the imposition of a large fine by the labour administration of Santa Cruz province. They indicate that, in March 2017, when faced with the constant retention of trade union dues or the partial payment of those dues, the ADOSAC notified the Ministry of Labour and Social Security (hereafter, Ministry of Labour) of the aforementioned province of the direct action to be taken. They explain that that notification led to resolution No. 294 of 3 April 2017, through which the Ministry of Labour ordered compulsory conciliation between the parties in order to prevent the ADOSAC from exercising the right to strike. The complainants state that the ADOSAC lodged an appeal with the Ministry of Labour to annul resolution No. 294 on the grounds of the violation of due process and conflict of interest, and that the appeal was rejected on 25 April 2017. The complainants state that, faced with ongoing direct action, the Ministry of Labour, on 28 December 2017, issued resolution No. 1271, which ordered the trade union to pay a fine of approximately 8,300,000 pesos, and threatened that the amount would be recovered through legal proceedings if the amount was not paid within three working days. They state that the ADOSAC submitted an administrative appeal claiming that the fine was unconstitutional, and that on 28 February 2018, the Ministry rejected the appeal.
4. 60. The complainants consider that the Ministry of Labour, as a public administrative body of the province, does not have the impartiality required to take on the role of mediator in the dispute. According to the complainants, the compulsory conciliation order was not an independent and impartial procedure, nor did it inspire confidence in the parties. They consider that the labour administration, on the one hand, ignored the persistent claims of the trade union body regarding the retention of trade union dues by the CPE, and, on the other hand, it supported the attitude of the provincial government, fully invalidating the mechanism that orders compulsory conciliation. Similarly, they consider that, while the ILO allows limitations to be placed on the right to strike in public administrations, this right may not be restricted by the actions of an administrative body that is only implementing the wishes of one of the parties. The trade union organizations also highlight the persecutory nature of the behaviour of the administrative authority, which, in their opinion, with the imposition of a fine of more than 8 million pesos, sought to financially choke the ADOSAC, hindering the performance of this trade union organization and preventing it from carrying out its trade union activities. Furthermore, they state that the labour authority is not empowered to issue fines against trade union organizations and that, in addition, the legislative measures used to sanction the complainant organization are intended to be used against employers and not workers.
5. 61. Third, the complainants allege a delay in trade union leave being granted to the elected executive committee of the ADOSAC. They explain that on 2 January 2018, the executive committee took office (they were elected on 19 October 2017), and although one month had elapsed since the notification had been given, the relevant trade union leave had not been granted, and it was only on 7 March 2018 that the elected representatives could begin to work freely. In light of the foregoing, they consider that the delay in granting leave to the legitimate representatives of the workers so that they could carry out their trade union roles constitutes a violation of the protection of trade union representatives and a restriction of the exercise of freedom of association.
6. 62. Fourth, the complainants allege that, as a result of the direct action, on 22 March 2016 the CPE ordered educational establishments to communicate the list of staff involved in the direct action called for by the ADOSAC and the Association of Technical Educators (AMET) on 21 and 22 March 2016. Subsequently, in July 2017, in light of the ongoing measures to exert pressure by the teaching staff, educational establishments were requested to provide monthly lists of staff members’ absences. The complainants allege that, on both occasions, the educational establishments were informed that the failure to comply would lead to administrative and criminal sanctions, and they consider that any such absence records were to be used to create blacklists. They state that the CPE specifically intimidated the directors of the educational establishments warning them that, as a result of their leadership position, they were not able to join the direct action. The complainants point out that the Committee on Freedom of Association has indicated on various occasions that nobody should be penalized or discriminated against for carrying out or attempting to carry out a legitimate strike, and that furthermore, the imposition of criminal penalties as a result of strike action is incompatible with the right to freedom of association.
7. 63. Lastly, the complainants allege the violation of the right to collective bargaining by the employer. They explain that, when faced with the provincial government’s refusal to initiate collective bargaining procedures to negotiate wages and working conditions, the ADOSAC called on the national Government to intervene. The national Government, through an agreement dated 22 August 2017, made funds available to the CPE authorities for a proposed wage increase of 5 per cent in August 2017, which would gradually increase, reaching a wage increase of 8 per cent in December 2017. They allege that the national Government, together with the CPE, would have ceased to comply with the wage increase agreed in the collective agreement mentioned above as of December 2017. In addition, they allege that on 28 December 2017, the CPE issued resolution No. 2575/17 which ordered the revocation of resolution No. 038/13. The complainants allege that resolution No. 2575/17 is not only an illegal regression, but also supersedes collective bargaining, as resolution No. 038/13 was the result of the collective bargaining as noted in the reports dated 1 November, 28 November, 7 December and 18 December 2012, and 7 March 2013. Therefore, the complainants consider that the CPE may not unilaterally modify a condition agreed through collective bargaining, and that, by doing so, it violates the principles of collective bargaining.

B. The Government’s reply

1. 64. In its communications dated 12 March, 11 October 2019 and 4 March 2021, the Government states, with regard to the alleged retention of trade union dues owed to the ADOSAC, that the payment of amounts of money to the trade union body is usually made in due time and form. However, it admits that a delay may have occurred in some months, particularly during the period in which teaching and administrative staff were carrying out direct actions, and it is investigating the possible debt owed to the trade union body through an assessment carried out by a technical team, and that, once that work is completed, the alleged debt would be credited, if required. It emphasizes that approximately 37 million pesos are transferred on an annual basis in the form of trade union dues, and therefore the possible reclaimed debt is insignificant for the purposes of determining a violation of freedom of association.
2. 65. Concerning the alleged restriction on the right to strike by means of compulsory conciliation, as well as by the imposition of the fine by the provincial Ministry of Labour, the Government points out that the dispute with the ADOSAC is long-standing and that, since 2008, that trade union organization has carried out strikes that have led to the loss of some school periods of more than 100 days for the children. The Government states that there are records of the overreach of the exercise of the right to strike by that trade union organization, such as the seizure of public buildings and oil fields, as well as of the fact that compulsory conciliation measures were not complied with by the trade union (court case No. 23189/2011). In the Government’s opinion, the principles of freedom of association do not protect against overreaches in the exercise of the right to strike that result in criminal actions. Additionally, it states that school establishments operate as canteens, such that their closure for a long period of time causes harm both in terms of education as well as in terms of the psychophysical impact on its users, since the direct-action measures prevent the province’s most vulnerable children and adolescents from accessing food that cannot be provided by their families. Furthermore, those actions also have repercussions on the working life of the children’s parents and guardians, given that, when they are not able to send the children to school, they are forced to find alternatives in order to reconcile their work and family obligations. The Government states that, in case No. 3257, the Committee on Freedom of Association recognized the importance of school canteens in the order for compulsory conciliation and emphasizes that the situation was even considered by the family courts, which have intervened to order the cessation of direct actions for the benefit of students. In light of the above, the Government considers that the above-mentioned reasons constitute a reasonable restriction on the right to strike and emphasizes that, to date, no trade union organization has questioned the constitutional nature of the administrative laws that regulate labour procedures and of those that establish that the Ministry of Labour is the highest labour authority in Santa Cruz province.
3. 66. With specific reference to the compulsory conciliation order referred to by the complainants (resolution No. 294/2017), the Government states that: (i) the right to strike is not absolute, in particular, when the direct action is of extended duration and infringes other rights, such as the right to education; (ii) provincial Act No. 2987 establishes that the Ministry of Labour is the administrative authority responsible for collective bargaining and has the authority to use compulsory conciliation; and (iii) provincial Act No. 2450 establishes that the parties should report to the administrative authority any dispute that arises between the parties before resorting to direct action, and that in cases where there is an order for compulsory conciliation, the parties are not allowed to take direct action. However, the Government considers that it is unreasonable to suggest, as the complainants do, that the compulsory conciliation ordered under current national legislation may undermine the freedom of association or the exercise of the right to strike, given that that compulsory conciliation process lasts a maximum of 20 days, and once that period has expired, the trade union authorities are legitimately empowered to carry out the actions that they consider to be appropriate. With regard to the fine, which is under the enforcement procedure, the Government considers that the ADOSAC’s failure to respect the ordered compulsory conciliation brought consequences in the form of an investigation being opened into the violation of articles 47 and 48 of Act No. 2450 on the grounds of obstruction of the labour authority, and denies that the workers’ right to association was impaired at any time. In this regard, it reports that the ADOSAC lodged an appeal under article 66 of the National Code of Civil and Commercial Procedure, which was not successful because the previous provision that establishes the relevant regulation had not been complied with. Subsequently, it submitted an appeal that expired on 21 February 2019 as a result of the inaction of the appellant.
4. 67. With regard to the alleged keeping of blacklists in retaliation for exercising the right to strike, the Government states that the keeping of absence records for teaching and other staff is the responsibility of the CPE and that this is carried out by the directors of each institution and is one of the inherent duties of their position. The Government states that, in the contentious climate between the employer and the trade union, the CPE identified several acts, such as the falsification of attendance records, the submission of incorrect information to the data loading system and other behaviours, which led to disciplinary actions being issued by that body. Furthermore, the Government considers that the complainants are attempting to make the directors’ duty to fulfil a requirement into alleged persecution, which does not have any factual or legal basis, and it categorically denies the existence of blacklists.
5. 68. With regard to the delay in granting leave to members of the executive committee of the ADOSAC, the Government states that this was due to the fact that one of its elected members, Mr Raúl Amancio Viltes, held a position of first majority elected member in the Primary Education Classification Board, and it was necessary for him to resign that position in order to take up the position of administrative secretary of the ADOSAC. In light of that, the Government considers that the delay in granting leave was not the result of a violation of trade union rights but rather an administrative matter that was caused by the irregular situation of one of its members.
6. 69. With regard to the alleged infringement on collective bargaining, the Government explains that, given the extensive dispute between the province and the teaching sector, which resulted from the demands for wage increases that Santa Cruz province was not in a financial position to accept, the national Government agreed to provide funds. It explains that the 8 per cent that had been agreed initially was paid using national funds in the period from December 2017 to March 2018. Subsequently, and with the interruption in the remittance of funds by the national Government, the province had no choice but to interrupt its compliance with the previously agreed obligation. In this context, and in order to resolve the non-compliance, Act No. 15/18 of 17 December 2018 established that the debt, which resulted from the national Government’s failure to provide funds, would begin to be paid alongside the salary corresponding to the month of December 2018, such that the 8 per cent corresponding to the month of April 2018 would be paid together with the 8 per cent corresponding to the month of December 2018, and so forth, until the entire debt was paid. The Government explains that the failure to send funds was a result of the economic crisis being faced by the country, and even though this claim is no longer relevant since an agreement has been reached between the bodies involved, it considers that the trade union representatives had an abusive attitude.
7. 70. With regard to resolution No. 2575/17, the Government states that the issuance of the aforementioned resolution meant for the CPE the reestablishment of the legal order that had been broken with the issue of resolution No. 038/13. According to the Government, the resolution in question only benefited seven teachers, who, when they were informed of the issue of resolution No. 2575, filed amparo actions. The Government indicates that, despite the fact that the courts of first and second instance declared that resolution to be invalid, they ruled in favour of maintaining the fictitious employment situation on the grounds that the CPE does not have the authority to revoke its own actions; thus, the salaries earned by these workers under resolution No. 038/13 were protected and the CPE would only be able to re-establish the previous legal order through a revocation order. Therefore, the Government considers that since this matter has been resolved by the courts, it is considered to be res judicata, and it states that, in December 2018, the CPE filed a revocation order with the High Court of Justice. Lastly, the Government considers that this complaint is a victimization attempt by the ADOSAC and an attempt to avoid paying the fine for not complying with the administrative resolutions that were issued, which, as of October 2019, remains pending.

C. The Committee’s conclusions

1. 71. The Committee notes that, in the present case, the complainants allege a series of violations of freedom of association and the right to collective bargaining in the public education sector of Santa Cruz province (retention of trade union dues, restrictions on the right to strike through the imposition of compulsory conciliation and a fine, alleged keeping of blacklists, delay in granting trade union leave and restrictions on the right to collective bargaining).
2. 72. Regarding the alleged retention of trade union dues, the Committee takes note of the fact that the complainants contend that, despite the fact that the provincial Government has continued to deduct trade union dues, since 2011, it has not deposited the corresponding amounts in the ADOSAC bank account, or it has done so only in part or in a belated manner, and that until March 2018 teaching staff were owed more than 36 million Argentine pesos (ARS) in the form of trade union dues. Alongside this, the complainants allege that the CPE refuses to transmit certain documents under their mandate relating to the retention of trade union dues, which would prevent the trade union organizations from taking the appropriate legal action. The Committee observes that the Government, for its part, recognizes that there may have been a delay in the payment of some amounts, particularly during the months in which the teachers carried out direct action. It indicates that it is investigating the possible debt with the body, and that that the amount will be credited if required, and it emphasizes that approximately 37 million pesos are transferred on an annual basis in the form of trade union dues, and therefore the possible reclaimed debt is insignificant compared to determining whether there has been a violation of freedom of association. The Committee recalls that in a case in which the authorities had not transferred to the trade union concerned the dues that had been deducted from the wages of public officials, the Committee considered that trade union dues did not belong to the authorities, nor were they public funds, but rather they were an amount on deposit that the authorities may not use for any reason other than to remit them to the organization concerned without delay [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 699]. Taking note of the Government’s indications that it is investigating the possible debt to the ADOSAC, the Committee requests the Government to take the necessary measures to clarify, as soon as possible, whether there is a debt, and that, if so, to remit the amounts owed immediately.
3. 73. With regard to the restriction on the right to strike through compulsory conciliation and the subsequent imposition of a fine by the provincial labour administration, the Committee notes that both the complainants and the Government stated that, after the ADOSAC informed of its intention to carry out direct action, the Ministry of Labour of the province, by means of resolution No. 294 of 3 April 2017, ordered compulsory conciliation and that when the direct action continued, the provincial labour administration ordered the ADOSAC to pay a fine of approximately 8.3 million pesos. The Committee notes the allegations of the complainant organizations that: (i) the Ministry of Labour, as a public administrative body of the province, does not have the impartiality required to take on the role of mediator in the dispute; (ii) while the Committee on Freedom of Association accepts restrictions on the exercise of the right to strike, this right may not be restricted by the actions of an administrative body that only acts on behalf of one of the parties; (iii) the Ministry of Labour is not empowered to issue fines; and (iv) the excessive amount of the fine that was issued seeks to financially choke the ADOSAC and prevent it from carrying out its trade union activities. The Committee notes that the Government states, for its part, that: (i) the dispute with the ADOSAC is long-standing; (ii) there are records of the overreach of the exercise of the right to strike and the failure to comply with compulsory conciliation measures by this union; (iii) the right to strike is not absolute, in particular when the direct action is of extended duration, infringing other rights, and that since 2008, the trade union organization has carried out strikes that have led to the loss of some school periods of more than 100 days; (iv) schools in the province operate as canteens, such that their closure causes harm in terms of education and the psychophysical impact on its users; (v) the Committee on Freedom of Association has recognized the importance of school canteens in the compulsory conciliation order and the family courts even intervened to rule that direct action should be terminated; (vi) no trade union organization has questioned the constitutional nature of the administrative laws that regulate labour procedures and of those that establish that the Ministry of Labour is the highest labour authority in Santa Cruz province; (vii) provincial Act No. 2450 on Administrative Procedure establishes that, during the period of compulsory conciliation, no direct action may be carried out; (viii) it was the failure to comply with this measure that led to the issue of a fine for obstructing the labour authority; (ix) it would not seem reasonable to suggest, as the complainants do, that the compulsory conciliation ordered under current national legislation may undermine freedom of association or the exercise of the right to strike, given that the compulsory conciliation process lasts a maximum of 20 days, and once that period has expired, the trade union authorities are legitimately empowered to carry out the actions that they consider to be appropriate; and (x) the appeal filed by the ADOSAC against the fine was unsuccessful because the previous provision that establishes the relevant regulation had not been complied with and the appeal submitted by the union had expired as a result of the inaction of the appellant.
4. 74. While noting that the provision of food to school-age children can be considered to be an essential service [see Compilation, para. 840], the Committee recalls that the allegations in this case refer to restrictions on the right to strike in the education sector in general, and not only to the provision of food. In this regard, while noting the concerns expressed by the Government regarding the extended duration of the strike in the education sector and the possible impact that those measures may have on the education or the psychophysical health of children and adolescents, given that schools in the province operate as canteens, the Committee also recalls that, on previous occasions, it has previously pointed out that minimum services may be established in the education sector, in full consultation with the social partners, in cases of strikes of long duration [see Compilation, para. 898]. Furthermore, the Committee recalls that in recent years, it has examined several cases from Argentina involving objections to orders for compulsory conciliation between the parties to a dispute in the public education sector by the administrative authority, when the latter was a party in the dispute, and that it has considered that it would be desirable to entrust the decision of initiating the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute [see Compilation, para. 796; 336th Report, Case No. 2369, para. 213]. The Committee further recalls that conciliation and mediation machinery should have the sole purpose of facilitating bargaining and should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness [see Compilation, para. 795]. The Committee, while observing that the stoppages of activities of the complainant organization of Santa Cruz have been long standing and of long duration, which has affected the level of education and the provision of food in schools to minors, considers that in this case the education service is essential. In this regard, the Committee considers that the call made by the administrative authority to put forward a compulsory conciliation procedure between the parties, prior to the strike, is reasonable with the superior protection of minors in their school meals and timely education. It is also proportionate to the claims pursued by the complainant organization of Santa Cruz, inasmuch as it pursues the resolution of the dispute through social dialogue, without undermining the possibility of the exercise of the strike. With regard to the imposition of a fine, while considering that the fines must be proportionate to the events that led to their imposition, the Committee notes that it was due to the failure of the complainant organization to comply with an order of the administrative authority, derived from the application of the legislation in force in the province of Santa Cruz, and that the decision was appealed by the union, which by not complying with the procedural requirements and by failing in its procedural activity, led to the failure of the appeal. In light of the above circumstances, the Committee will not pursue its examination of this matter.
5. 75. With regard to the allegation that blacklists were being kept subsequent to the strike action, the Committee notes that the complainants allege that in March 2016 and July 2017 the CPE ordered educational establishments to provide the list of staff members participating in the direct action or staff absence records, indicating that any non-compliance would carry administrative and criminal sanctions. The Committee notes that, according to the complainants, those absence records were used to create blacklists and were therefore inconsistent with freedom of association. They further allege that the CPE specifically intimidated the directors of administrative establishments, warning them that they were not able to participate in the direct action because of their positions. The Committee also takes note of the observations of the Government which state that: (i) recording attendance of teachers and administrative staff is one of the duties of the CPE, which is implemented through the directors of each institution; (ii) while the direct action measures were ongoing, the CPE recorded several acts, including the falsification of absence records and the submission of incorrect information to the attendance system, which triggered a series of disciplinary actions; and (iii) it categorically denies the allegations of persecution and elaboration of blacklists. Observing that an employer’s determination of which workers have exercised their right to strike and which have performed their roles could be legitimate and does not constitute in itself an anti-union act, and noting in addition that the complainants have not provided specific points relating to the use of this information for anti-union purposes, the Committee will not pursue its examination of this allegation any further.
6. 76. With regard to the alleged delay in granting trade union leave to the executive committee of the ADOSAC, which took office on 2 January 2018, the Committee notes that the complainants allege that the delay of two months in granting leave constituted a violation of the protection of trade union immunity. The Committee notes that the Government, for its part, indicates that the delay was due to the fact that one of the elected members held a position of first majority elected member in the Primary Education Classification Board, and it was necessary for him to resign that position in order to join the executive committee of the ADOSAC. Noting that the complainants do not refer in their allegations to specific actions that are anti-union in nature against the members of the executive committee of the ADOSAC, the Committee will not pursue its examination of this allegation.
7. 77. As regards the allegation of infringements on the right to collective bargaining, the Committee notes that the complainants allege, first, that the CPE had failed to comply, from December 2017, with the wage increases agreed in the agreement dated 22 August 2017, which provided for a wage increase of 5 per cent in August 2017, gradually increasing until a wage increase of 8 per cent was reached in December 2017. The Committee notes that the Government states that the interruption in funds was a result of the economic crisis being faced by the country and that it established, by means of Act No. 15/18 of 17 December 2018, that the debt resulting from the failure to remit funds by the national Government would be paid back from December 2018. Taking note of the Government’s observation that Act No. 15/18 provided for the payment of the debt resulting from the failure to remit funds, the Committee will not pursue its examination of this allegation any further.
8. 78. With regard to the allegation of infringements on the right to collective bargaining caused by the issue of resolution No. 2575/17, the Committee notes that the complainants allege that the action of the CPE, by issuing that resolution and revoking resolution No. 038/13, the content of which had been negotiated through collective bargaining, had constituted an unlawful regression and that the CPE had unilaterally modified previously negotiated agreements, threatening the principles of collective bargaining. The Committee understands, according to publicly available information, that as part of the reorganization of the public education system in Santa Cruz province, the provincial Government had issued resolution No. 038/13, which committed to paying the salary of those teachers who, as a result of the reorganization had lost their positions and to placing them in technical pedagogical positions until they could be effectively relocated. It also understands that resolution No. 2575/17 sought to revoke resolution No. 038/13 and discharge the teachers who were benefiting from that resolution. The Committee notes that the Government states that: (i) resolution No. 2575/17 is limited to re-establishing the previous legal order; (ii) resolution No. 038/13 only benefited seven teachers; (iii) the teachers affected by the resolution submitted an amparo action; (iv) the court of second instance, despite the fact that resolution No. 038/13 was declared to be invalid, ruled in favour of maintaining the fictitious employment situation created by that resolution on the grounds that the CPE does not have the authority to revoke its own actions, and that that body could only re-establish the previous legal order through a revocation order; and (v) in December 2018, the CPE submitted an request for a revocation order with the High Court of Justice. The Committee also recalls that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation, para. 1336]. Noting that the CPE filed a revocation order with the High Court of Justice, and that that action is pending, the Committee requests that the Government inform it of the decision that is handed down in this regard.