Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 350, Juin 2008

1. 232. The complaint is contained in communications from the General Confederation of Labour of the Republic of Argentina (CETRA) and the Federation of Teachers of the Province of Buenos Aires (UDOCBA) dated 15 May and 24 July 2007.
2. 233. The Government sent its observations in a communication of 4 January 2008.
3. 234. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 235. In their communications of 15 May and 24 July 2007, the CETRA and the UDOCBA allege a violation of freedom of association in relation to the Ministry of Labour of the Province of Buenos Aires. More specifically, the complainant organizations allege that the UDOCBA is being systematically marginalized and discriminated against. In this respect, they indicate that:
2. – the legislature of the Province of Buenos Aires approved the Act respecting joint negotiations for teachers in the Province, adopted as Act No. 13552, which provides in section 5 that in order to participate in negotiations of a general nature, trade unions shall collectively represent all the teachers covered by Act No. 10579 (the Teachers’ Statute) throughout the Province;
3. – on 6 November 2006, all the trade union organizations provided credentials for their joint delegates, their legal personality and their statutes. Analysis of the documentation provided by the unions shows that no union fulfils the legal requirement of representing all the teachers throughout the Province;
4. – section 12 of Act No. 13552 provides that the Ministry of Labour of the Province shall be the authority responsible for the implementation of the Act. However, inexplicably, the minister has relinquished the function of issuing regulations under the Act to certain trade unions and the General Directorate of Culture and Education, which is in violation of the Constitution of the Province, under the terms of which “The Province recognizes the right to organize and freedom of association, collective agreements, the right to strike and the guarantees for the protection of trade union representatives”;
5. – the relinquishment of this function had its origins in the signature by four unions and the employer of an agreement in which they established themselves as bargaining agents representing workers, on the one hand, and the State as the employer, on the other. The agreement was concluded and signed without the presence of all the unions that represent teachers and have the legal status for the collective representation of education workers, thereby rendering it totally illegal and discriminatory;
6. – furthermore, as is and was clear throughout the joint negotiations, the position of the General Directorate of Culture and Education is in favour of the Single Trade Union of Education Workers of the Province of Buenos Aires (SUTEBA) and the other participating unions, and neutral, if not negative, in relation to the UDOCBA;
7. – on 21 December 2006, the National Directorate of Trade Union Associations (DNAS) of the national Ministry of Labour, Employment and Social Security issued an opinion clearly indicating that no organization complies with the requirements set out in the Act;
8. – in short, trade union organizations that are not in compliance with the law are currently participating in negotiations. In this situation, joint negotiations should not be held until a new law is adopted or all the organizations should participate under the same conditions, or in other words each union should represent its membership of teachers in the Province of Buenos Aires; some will represent a greater or lesser proportion, but none of them represent all of the workers concerned, as required by the Act.
9. B. The Government’s reply
10. 236. In its communication of 4 January 2008, the Government confirms that the legislature of the Province of Buenos Aires approved Act No. 13552 respecting joint negotiations for teachers in the Province. Section 5 of the Act provides that “for the purpose of the development of collective bargaining of a general nature, as set out in the present Act, the representation of workers shall be exercised by trade unions of teachers which have legal personality and include within their individual and territorial scope all workers covered by Act No. 10579 (the Teachers’ Statute), as amended, throughout the territory of the Province of Buenos Aires”. The Government adds that it is necessary, for a full understanding of the factual and legal context of the case, to recall that under the constitutional provisions (article 39, paragraph 4, of the Constitution of the Province) workers have to be guaranteed the right to negotiate their labour conditions. For this purpose, Act No. 13453 was drawn up as the first law governing collective bargaining in the public service at the provincial level, based on the consensus achieved between the representatives of the State and all the unions of workers in the public administration, totalling 26 unions. The sole condition required was that they should have legal personality. The above Act was the forerunner of Act No. 13552 on joint negotiations for teachers in the Province, referred to above.
11. 237. In relation to the specific circumstances of the case, the Government recalls that the General Directorate of Culture and Education is not part of the public administration of the Province but is a constitutional body for which reason a special legislative act had to be adopted covering the education sector. It is for this reason that Act No. 13552 sets out a criterion that differs from the analogous legislation covering the central administration, as it only accepts for the purposes of general bargaining teachers’ unions of which the territorial and individual scope includes all the workers covered by Act No. 10579 (teachers) throughout the territory of the Province of Buenos Aires, in accordance with the original wording of section 5, as cited above.
12. 238. The Government observes that collective bargaining in the teaching sector had its origins, albeit informal, in the round table that was held at the initiative and in the premises of the Ministry of Labour of the Province, until the approval of Act No. 13552 of 13 October 2006, to which the complainants refer. The Government adds that, according to the attendance records, which it attaches, the UDOCBA was present at all the meetings held and that, based on the documentation attached to the convocation, their purpose was to examine and reach agreement on the Act respecting joint negotiation for teachers. The formal establishment of machinery for collective bargaining in the sector followed the approval of Act No. 13552. The UDOCBA attended the first meeting and then participated actively in the negotiations and meetings on 13 and 21 November 2006.
13. 239. The Government explains that the legislation in question clearly reflects the position adopted by the Ministry of Labour of the Province, in its role of coordinating bargaining, in relation to the composition of the joint representation of workers, which is an important factor and the principal reason for the present complaint. The Ministry of Labour of the Province indicated that it was only after a difficult process, with the firm determination of the leadership of the Province, that it was possible to include in the law this right which has been claimed so often by teachers.
14. 240. The Ministry of Labour of the Province is entrusted with responsibility for the application of the Act under the terms of section 12, which reads as follows: “The Ministry of Labour of the Province of Buenos Aires shall be the authority responsible for the application of the provisions of the present Act and to that effect shall be authorized to carry out studies, provide advice and, in general, request all the documentation and information necessary to obtain the broadest knowledge of the related issues. In this respect, it is authorized to: (a) convene negotiations at the request of one of the parties; (b) convoke meetings that have not been accorded by the parties at the request of one party; (c) coordinate meetings; and (d) adopt any measures intended to promote negotiation. The authority granted under this section to the Ministry of Labour of the Province of Buenos Aires does not include the possibility of issuing regulations under the provisions of the present Act.” A simple reading of these provisions shows the limits placed on the authority attributed to the Ministry. In this regard, it should be emphasized that, essentially, it has not been granted authority to issue regulations, an issue to which the complainant makes no reference in the text of the complaint, where it merely alleges that the Ministry is in manifest breach of a constitutional precept through its “relinquishment” of the function of issuing regulations under the Act to a number of unions and the General Directorate of Culture and Education.
15. 241. The Government raises the issue of how a function that is not legally attributed can be relinquished or delegated. The Ministry of Labour of the Province of Buenos Aires is prohibited, under the terms of section 12, final indent, of Act No. 13552, from issuing regulations under the provisions of the Act. In other words, the complaint is totally devoid of merit in this respect: if the UDOCBA considers that a constitutional principle is undermined by a provision intended to give effect to that principle, the implementing provision should be challenged through the appropriate legal channels, and not the entity that is responsible for its implementation.
16. 242. The Government adds that the discussion concerning the issue of union representation was difficult, with very set and entrenched positions, despite the policy of persuasion adopted by the Ministry of Labour. Accordingly, the Ministry of Labour of the Province constantly endeavoured to argue against the position adopted by union representatives that the UDOCBA was not competent to participate in general bargaining. The Government affirms that the basic dispute is an inter-union matter and is not germane to the joint negotiations themselves. The Ministry of Labour of the Province and the Provincial Directorate of Culture and Education adopted an attitude of mediation with a view to bringing the parties closer.
17. 243. The Government explains that it consulted the National Directorate of Culture and Education, which emphasized that it had requested the Ministry of Labour of the Province to initiate general negotiations, in accordance with Act No. 10579, as amended, and as required by Act No. 13552 (Act respecting joint negotiations for teachers, as recently approved).
18. 244. The Ministry of Labour of the Province convened all the unions with legal personality, including the UDOCBA. The following were therefore convened: the Federation of Education Workers of Buenos Aires (FEB), which has 34,000 declared dues-paying members; SUTEBA, which has 65,000 declared dues-paying members; the Argentinean Teachers’ Federation (UDA); the Association of Technical Teachers (AMET); and the UDOCBA. The four unions that were convened, in addition to the UDOCBA, have legal personality entitling them to cover the whole of the Province of Buenos Aires. In the case of the UDA and AMET, the territorial scope of their legal personality is broader (national), thereby maintaining the emerging trade union rights following the transfer of national education services to the provincial level. When the formalities had been completed for the establishment of the negotiating commission (accreditation and examination of the credentials presented for each union, number of dues-paying members of each union, etc.), and in view of the existence of more than one union with legal personality, as well as the discrepancies in union representation in terms of the territorial and individual scope of each union, the General Directorate of Culture and Education urged the teachers’ unions to propose, in light of trade union independence and the legal scope of each union, the manner in which the representation of workers at the general level would be determined, since the State as the employer “does not choose” the entity with which it negotiates.
19. 245. The Government adds that a meeting was held in this context on 21 November, during which the FEB and the SUTEBA indicated that the representation of workers at the general level should be entrusted to their organizations, also with the participation of the UDA and AMET. They opposed the participation of the UDOCBA on two grounds: (1) its legal scope; and (2) the court action it has initiated claiming that section 5 of Act No. 13552, respecting joint negotiations for teachers, is unconstitutional. Under these circumstances, the UDOCBA withdrew from the meeting. It may therefore clearly be concluded that the non-participation of the UDOCBA in the general bargaining commission under Act No. 13552, which the complainant has challenged in the courts as being unconstitutional, consists of an inter-union dispute, which is entirely unrelated to the General Directorate of Culture and Education in its capacity as the employer. The agreement presented by the unions determining the form of their representation (in terms of their proportional representation in the joint negotiations) would appear to demonstrate mutual recognition of the scope of representation and action of each union, a matter that is not only unrelated to, but also prohibited for the employer. It should be noted that the complainants do not at any juncture refer in the complaint presented to the ILO to the existence of the application to the courts for amparo (protection of constitutional rights).
20. 246. The Government indicates that the General Directorate of Culture and Education of the Province refers in its report to the amparo proceedings in the courts (Federation of Teachers of the Province of Buenos Aires v. authorities of the Province of Buenos Aires concerning the protection of trade union rights), which call for Act No. 13552 to be declared inapplicable to the union on the grounds that section 5 of the Act was drawn up with the objective of granting exclusive bargaining rights to unions whose legal status is valid throughout the Province of Buenos Aires, namely the SUTEBA and the FEB. In practice, the legal challenge against the first Act respecting joint negotiations for teachers in the Province of Buenos Aires resulted in the rejection of the UDOCBA’s participation by all the other teachers’ unions active in the Province. This means in practice that the scope of the UDOCBA’s legal personality was not challenged by the employer, but by the unions representing teachers.
21. 247. In relation to the reference by UDOCBA to an alleged opinion of 21 December of the DNAS of the national Ministry of Labour and Social Security, from which it concludes that “no union is in compliance with the requirements of the Act”, the Government observes that this is a free interpretation of the document, which merely examines the extent of the legal personality of the unions participating in the joint negotiations. Finally, the Government adds that a draft amendment has been proposed to section 5 of Act No. 13552 respecting joint negotiations for teachers and that it is currently before Parliament.

C. The Committee’s conclusions

1. 248. The Committee notes that, in the present case, the complainant organizations allege that Act No. 13552 respecting joint negotiations for teachers in the Province of Buenos Aires provides in section 5 that in order to participate in negotiations, trade union organizations shall collectively represent all the teachers covered by the Teachers’ Statute throughout the Province. They add that, even though no union was accredited as complying with this legal requirement, four unions and the State, as the employer, concluded an agreement, without the presence of all the unions representing teachers. According to the complainant organizations, unions are currently participating in the joint negotiations which do not comply with the requirements set out in the Act and in any case joint negotiations should not be held until a new law has been approved or all the unions representing greater or smaller proportions of teachers should participate.
2. 249. The Committee notes the Government’s indications that: (1) it is a constitutional principle (article 39, indent 4, of the Constitution of the Province) that workers shall be guaranteed the right to negotiate their labour conditions. To this effect, Act No. 13453 was drawn up as the first law regulating collective bargaining in the public administration at the provincial level, based on the consensus achieved between the representatives of the State and of all the unions representing workers in the public administration. The only requirement was that the unions should have legal personality. The above Act was the forerunner of Act No. 13552 respecting joint negotiations for teachers in the Province, to which the complainant organizations refer; and (2) Act No. 13552 establishes a criterion that differs from that of the Act covering the central administration, as it only accepts for the purposes of general bargaining unions whose individual and territorial action includes all teachers throughout the territory of the Province of Buenos Aires.
3. 250. The Committee further notes the Government’s indications that: (i) collective bargaining in the teaching sector had its origin, albeit informal, in the round table that was held in the premises and at the initiative of the Ministry of Labour of the Province, until the approval of Act No. 13552 of 13 October 2006, and that the UDOCBA was present at all the meetings held, the purpose of which was to examine and reach agreement on the Act respecting joint negotiations for teachers, and that the approval of Act No. 13552 formally established the machinery for collective bargaining in the sector. The UDOCBA participated actively in the first meeting and then in those held on 13 and 21 November 2006; (ii) the discussion concerning the issue of union representation was difficult, with very set and entrenched positions, despite the policy of persuasion followed by the Ministry of Labour, which constantly endeavoured to argue against the positions adopted by union representatives that the UDOCBA was not competent to participate in general bargaining. The Government affirms that the basic dispute is an inter-union matter and not germane to the joint negotiations themselves; (iii) the National Directorate of Culture and Education requested the Ministry of Labour of the Province to initiate general negotiations, in accordance with Act No. 10579, as amended, and as required by Act No. 13552 (Act respecting joint negotiations for teachers, as recently approved), and the Ministry of Labour of the Province convened all the unions with legal personality, including the UDOCBA; accordingly, the following unions were convened: the FEB, SUTEBA, UDA, AMET and the UDOCBA; (iv) the four unions that were convened, as well as the UDOCBA, have legal personality covering the whole of the Province of Buenos Aires; and (v) when the formalities had been completed for the establishment of the negotiating commission (accreditation and examination of the credentials presented for each union, number of dues-paying members of each union, etc.), and in view of the existence of more than one union with legal personality, and the discrepancies in union representation in terms of the territorial and individual scope of each union, the General Directorate of Culture and Education urged the teachers’ unions to propose, in light of trade union independence and the legal scope of each union, the manner in which the representation of workers at the general level would be determined, since the State as the employer “does not choose” the entity with which it negotiates.
4. 251. The Committee further notes the Government’s indication that a meeting was held on 21 November 2006 during which the FEB and SUTEBA indicated that the representation of workers at the general level should be entrusted to their organizations, with in addition the participation of the UDA and AMET. They opposed the participation of the UDOCBA on two grounds: (a) its legal scope; and (b) the court action that it has initiated claiming that section 5 of Act No. 13552, respecting joint negotiations for teachers, is unconstitutional. The Government adds that, in these circumstances, the UDOCBA withdrew from the meeting. The Government states that the non-participation of the UDOCBA in the general bargaining commission under Act No. 13552 is an inter-union dispute, which is entirely unrelated to the General Directorate of Culture and Education in its capacity as the employer. The Committee finally notes the Government’s indication that a draft amendment has been proposed to section 5 of Act No. 13552 respecting joint negotiations for teachers and that it is currently before Parliament (the draft text communicated by the Government provides that the representation of teachers shall be carried out by all unions of teachers with legal personality entitling them to be active throughout the territory of the Province of Buenos Aires).
5. 252. In this respect, the Committee observes that the documentation provided by the complainant organizations consists of an agreement signed by the SUTEBA, FEB, UDA and AMET and the representatives of the State in its capacity as the employer requesting the Ministry of Labour to declare the formal establishment of joint negotiations at the general level with that representation of workers. The Committee also observes that the Government has not provided full information on the representativity in the sector of all the unions mentioned and particularly the UDOCBA. In any case, according to the information provided, all the unions concerned, including the complainant organization (UDOCBA), are trade unions with legal personality (in accordance with the Act respecting trade union associations, legal personality is granted to trade unions which, among other requirements, demonstrate membership of over 20 per cent of the workers whom they aim to represent and their exclusive rights include participation in collective bargaining). Under these conditions, the Committee recalls that systems based on a sole bargaining agent (the most representative) and those which include all organizations or the most representative organizations in accordance with clear pre-established criteria for the determination of the organizations entitled to bargain are both compatible with Convention No. 98. Nevertheless, in view of the exclusion of the UDOCBA from joint negotiations in the sector, the Committee considers that the wording of section 5 of Act No. 13552 is not sufficiently clear and may lead to the potentially unjustified exclusion of trade unions from bargaining, particularly taking into account the fact that the UDOCBA had hitherto been invited to participate in bargaining.
6. 253. The Committee notes with interest the information provided by the Government that draft legislation has been submitted to the legislature to amend section 5 of Act No. 13552 respecting joint negotiations for teachers. It notes the indication in the introductory paragraphs that the draft is “guided by an essential precept of any democratic republic: the broadest possible participation of the actors in the area in which labour guidelines are to be agreed upon” and the provision that “for the purposes of collective bargaining, representation shall be exercised by all teachers’ unions whose legal personality entitles them to be active in the territory of the Province of Buenos Aires”. The Committee expects that the draft legislation will be adopted in the very near future and that in the meantime the Government will take further measures to reconcile the interests of the unions concerned by the joint negotiations in the sector. The Committee requests the Government to keep it informed in this respect.
7. 254. Lastly, the Committee requests the Government to keep it informed of the final outcome of the legal action taken by the UDOCBA claiming that section 5 of Act No. 13552 is unconstitutional.