Definitive Report - Report No 79, 1965

1. 12. The complaint of the Union of Postal and Telecommunications Workers of Mar del Plata is contained in a communication dated 15 April 1963 to the Secretary-General of the United Nations. In accordance with current procedure the Secretary-General transmitted this complaint to the I.L.O in a letter dated 6 June 1963. The complaint was communicated to the Government, which forwarded its observations in a letter dated 3 December 1963.
2. 13. The Committee examined the complaint and the Government's observations at its meeting in February 1964 and decided to ask the Government for certain additional information and, in the meantime, to postpone its examination of the case as a whole.
3. 14. In a letter dated 27 May 1964 the Government supplied the information that had been requested.
4. 15. 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. A. The complainants' allegations

1. 16. The complainants allege in their communication that, as a result of a dispute -ending in a strike-which took place between the Union of Postal and Telecommunications Workers of Mar del Plata and the State Communications Department because of delays in the payment of the monthly salaries of the staff of the Postal and Telecommunications Administration, the said Administration, as a reprisal, terminated the contracts of 25 employees, members of trade unions, at the central Mar del Plata office, who had taken part in the strike. In the view of the complainants this step was an arbitrary one. It was alleged to be based on the provisions of section 37 (a) of Decree No. 6666/57 (Rules of Civilian State Personnel) respecting unjustified absences by public servants. The complainants state that in accordance with article 14bis of the National Constitution cases of absence due to strike reasons cannot be considered to be unjustified. The complainants attach to their communication a list of the names of the 25 persons alleged to have been dismissed at the Mar del Plata. They add that in the whole country 1,845 workers were dismissed in this way.
2. 17. In its reply dated 3 December 1963 the Government admits that delays due to the economic difficulties affecting the country did, in fact, take place in the payment of the salaries of state employees. It points out, nevertheless, that the telecommunications staff were among those who were least adversely affected in this respect, since the Finance Secretariat had authorised, for the payment of salaries for this category of officials, the utilisation of revenue which would normally have been paid direct to the Treasury.
3. 18. The Government also mentions that at the beginning of August 1962 an inter-union commission, including representatives of the Argentine Association of Telegraphists and Radio Telegraphists (A.A.T.R.A.) and the Federation of Workers and Employees in Postal and Telecommunications Services (F.O.E.C.Y.T.) held negotiations with officials of the State Communications Secretariat for the purpose of obtaining a solution of the question of the payment of salaries for the month of July. Following these negotiations, so the Government declares, these two central trade union bodies informed the various affiliated unions through the medium of the press that they were to refrain from striking as from 13 August 1962, since an arrangement had been made so that salaries in arrears would be paid as from 22 August. At that moment an isolated group of telegraph officials ceased work without having given notice of the strike. As the movement spread the Government issued an order to the trade union organisations forbidding them to have recourse to strike action. The strike continued, however, and the Government then withdrew the legal status of the two central trade union bodies mentioned above.
4. 19. The Government states that from the beginning the strike was only a partial one involving no more than 50 per cent of the workers, which percentage was soon reduced to 20. Seeing that the strike had not been valid, F.O.E.C.Y.T decided to put an end to the movement, and A.A.T.R.A followed suit. In these circumstances the two organisations had their legal status restored. As regards the dismissals, the Government declares that they were carried out under section 37 (a) of Decree No. 6666/57, which provides that unjustified absence of more than ten days, whether consecutive or not, constitutes a ground for dismissal. The Government adds that the majority of the persons in question, even before the strike began, had been guilty of unjustified absence exceeding the number of days prescribed by the section mentioned above.
5. 20. The Committee has always applied the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights.
6. 21. The Committee observed, at its meeting in February 1964 on the subject of the dispute itself, that after some vicissitudes-negotiations, agreement, strikes, withdrawal of trade union status, ending of the strike and restoration of trade union status-the situation had returned to normal. In the circumstances, the Committee did not consider that there was any ground for pursuing its consideration of this aspect of the case.
7. 22. As regards the complaint proper the Committee observed that, while the complainants invoked article 14bis of the Constitution to show that the dismissals were illegal in character, the Government relied on the provisions of Decree No. 6666/57 to justify the dismissals. Under article 14bis of the Constitution " Labour shall be protected by laws guaranteeing... protection against arbitrary dismissals." and " trade unions shall be guaranteed the right to strike.". On the other hand, the grounds for dismissal stipulated in section 37 (a) of Decree No. 6666/57 include a period of more than ten days, whether consecutive or not, of unjustified absence in the course of a year.
8. 23. The Committee took the view that days of absence resulting from a lawful strike could not, in view of the provisions of article 14bis of the Constitution, be regarded as unjustified absence within the meaning of section 37 (a) of Decree No. 6666/57. It considered, furthermore, that if it were intended to invoke the last-named provision, it should be clearly established that the action taken was quite independent of any consideration other than the fact that a fault had been committed by those who were affected by this action.
9. 24. The Committee felt that the Government's statements did not make it clear that the measures taken against the workers mentioned by the complainants were not related to the strike. The fact that the Government invoked as an additional argument the point that the majority of the workers affected had already been absent for more than ten days by the time the strike began would even tend to prove the contrary. In any event, it did not provide a valid explanation for the action taken in regard to the minority of the workers at issue. Moreover, as was seen previously, it is only in the case of a legal strike that article 14bis of the Constitution can be validly invoked. It was not clear from the Government's reply whether the strike action was illegal because it was started in defiance of a directive from the central trade union bodies or because due notice had not been given.
10. 25. Accordingly, the Committee decided, at its meeting in February 1964, to ask the Government to supply certain additional information. It was asked to indicate, in respect of each of the dismissed workers-whose names have been supplied by the complainants what were the precise reasons for the action taken against them and whether the strike in question was regarded by the Government as illegal and, if so, by virtue of what statutory or other provisions.
11. 26. In its reply dated 27 May 1964 the Government states (as it had in earlier cases) that these workers were employed by state-operated public services and their right to strike was subject to restrictions which were universally admitted by international law and practice and by the Committee on Freedom of Association itself. The Government points out that the Committee has repeatedly admitted that the general principle that workers and their organisations are entitled to strike as a legitimate means of defending their occupational interests may be subject to restrictions both in essential services and in the civil service. In these cases the Committee has stressed the importance of providing some procedure to ensure peaceful settlement of such disputes, so that the workers who are deprived of an essential means of occupational defence-such as a legal strike-may have appropriate guarantees.
12. 27. The Government states that postal and telecommunications employees, in their capacity as public servants, are not allowed to engage in strike action of the type attempted by a minority of these workers. In the event of a dispute there is a procedure laid down by Decree No. 8946 dated 3 September 1962, which takes into account the Committee's comments on Case No. 172, which also concerned Argentina. Section 14 of this decree states that disputes which may directly or indirectly cause the suspension, interruption, paralysis or denial of essential public services must be submitted to arbitration. If, in a case of this type, the arbitrators appointed by the parties to the dispute are unable to agree, a third arbitrator is appointed by lot from the list of co-judges of the Argentine Supreme Court. Section 15 declares any strikes to be illegal which affect the essential public services referred to in the previous section. It also defines communications as an essential public service.
13. 28. With respect to the dismissals mentioned by the complainants the Government declares that " there were no dismissals because of the dispute itself ". In other words no worker was laid off because of his trade union activities, and the only ground for dismissal was serious breach of the Rules of Civilian State Personnel. Civil servants and public employees enjoy every legal protection, such as habeas corpus and the right to appeal in defending their rights.
14. 29. Finally, the Government informs the Committee that in May 1964 the Secretary for Communications announced the reinstatement of all the workers who had been dismissed under the Rules of Civilian State Personnel.

B. B. The Committee's conclusions

1. 30. The Committee notes with interest the information supplied by the Government with respect to Decree No. 8946 of 1962, whereby disputes in essential public services are submitted to an independent tribunal. The Committee likewise notes that the Government emphasises that the workers were dismissed not because of the dispute but because they had broken the Rules of Civilian State Personnel. Nevertheless, in view of the considerations put forward earlier in paragraph 13, it would appear that the Government took action against the participants in the strike not because of a breach of the regulations governing disputes in essential public services but because of absenteeism for a longer period than permitted by the Rules; in the majority of cases this absenteeism had occurred before the dispute. In other words, although technically the dismissals appear to have been a punishment for breach of the Rules independently of the strike, in actual fact the dismissals were directly connected with the latter.
2. 31. The Committee considers that in questions of this type it has a duty to look beyond the technical aspect of the action taken and to examine the substance of the question and its consequences for the workers and organisations involved. Even though the type of action taken in the case of these dismissals might, in certain circumstances, constitute discrimination against workers because of their trade union activities, the Committee bears in mind the fact that under Decree No. 8946 disputes in essential public services must be submitted to an arbitration tribunal and that workers are not allowed to resort to strike action. It follows that the workers' action would have been illegal and there would be no grounds for considering that the Government took discriminatory measures against workers who were engaged in lawful activities of a trade union character.