Definitive Report - Report No 304, June 1996

1. 23. In this case, the Association of State Workers (ATE) first requested the intervention of the Director-General of the ILO in a communication dated 5 August 1994 which reported that trade union rights had been violated. Subsequently, on the basis of the contents of the ATE communication, the World Confederation of Labour (WCL) presented a formal complaint dated 25 April 1995. The WCL also submitted additional information in a communication dated 12 June 1995.
2. 24. The Government sent its observations in communications dated 6 February and 6 March 1996.
3. 25. 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 Complainant's allegations

1. 26. In its communications dated 25 April and 12 June 1995, the World Confederation of Labour (WCL) states that, as a result of Decree No. 2361 of July 1994 passed by the Government of the Province of Corrientes, members of the ATE have to "reaffiliate" for their union dues to continue to be deducted under the check-off system. The complainant organization explains that the ATE is a first-level trade union body with legal personality whose members include staff of the Administration of the Province of Corrientes, that under trade union legislation it is entitled to have its members' union dues deducted from their wages, and that ATE, having complied with legislative provisions, has in the past been receiving these union dues on a regular basis.
2. 27. The complainant organization objects to the fact that the Government of the Province of Corrientes is using the decree in question to demand that persons working for the central provincial administration and decentralized bodies stipulate that they wish to join a trade union organization and authorize the deduction of their trade union dues.
3. 28. The complainant organization reports that it has initiated legal proceedings citing unfair practice with the Supreme Court of Justice, requesting that Decree No. 2361/94 be declared unconstitutional and that, pending a ruling on the substance of the matter, the impugned decree not be applied. The complainant organization adds that the Supreme Court has agreed to this and ordered that trade union dues continue to be deducted, but that the Government of the province is refusing to comply with this ruling and that action has accordingly been initiated to enforce it.
4. 29. The complainant organization also states that the Executive of the Province of Jujuy enacted Decree No. 2930/95 which violates trade union legislation and imposes additional requirements on the ATE to have its union dues collected. The Government of the province is demanding that workers provide written authorization stating their desire to join one of the legally established trade unions and have their dues deducted from their wages under the check-off system. In addition, the provincial administration will only deduct union dues for one trade union organization with legal personality chosen by the worker. Finally, the complainant organization states that, since the decree is unlawful, it intends to lodge an appeal with labour authorities and that if the provincial state administration maintains its position, it will appeal to the law courts.

B. The Government's reply

1. 30. In its communication dated 6 February 1996, the Government states that, as Argentina has a federal system of government, the federal states (provinces) are empowered to take decisions in all administrative matters without any interference from the national Government, and that it was under this authority that the Government of the Province of Corrientes issued Decree No. 2361/94.
2. 31. The Government states with regard to Decree No. 2361/94 that, following audits of the system of remuneration of provincial employees, the Government of the Province of Corrientes came across many people who were listed as being members of a trade union organization whereas in fact they had resigned their membership in accordance with the law. It was for this reason that it introduced a new wage payment and issued the decree requiring a photocopy of the workers' "updated" declaration of membership of a trade union for the province to continue to deduct their union dues. The authorities' requirement that workers express their "current" desire to have their union dues deducted from their pay was intended only to avoid deductions being made in the case of workers who for one reason or another had asked for their trade union membership to be cancelled.
3. 32. The Government further states that these provisions do not affect the right of workers to establish trade union organizations or to join or resign from them; nor do they imply any interference by the public authorities in trade union activities. On the contrary, they are part of an administrative reorganization of the wage payment system that is merely designed to comply with national legislation. The Government adds that, although the complainants claim that ATE members have to "reaffiliate", the decree does not call on anybody to join, rejoin or resign from ATE or any other trade union organization. On the contrary, it is a general provision applying to all organizations listed in the Trade Union Associations Act No. 23551 and is designed to ensure strict compliance with that Act, specifically as regards the employer's obligation to deduct trade union dues under a reorganized and modernized system of paying wages.
4. 33. In its communication dated 6 March 1996 the Government states that Decree No. 2920/95 of the Province of Jujuy is part of the provincial administration's reorganization of the check-off system through which amounts due under various headings are deducted from workers' pay (trade union dues, commercial loans, purchase orders, purchase of goods and services, bank loans, etc.). The Government adds that trade union associations, specifically, must submit a document from the Ministry of Labour and Social Security certifying the legal personality, classification and sphere of activity of the trade union and its list of members, and must obtain the workers' written authorization before their union dues can be deducted from their wages by the public administration of the Province of Jujuy. Finally, the Government observes out that these formalities are merely to ensure compliance with the legal requirement under the Trade Union Associations Act No. 23551 for employers to deduct union dues; the Province of Jujuy is careful to comply with this requirement even though it does not appear in any international labour Convention.

C. The Committee's conclusions

1. 34. The Committee notes that the allegations in this case relate to the modification by decree of the way the check-off system operates for public administration workers in the Provinces of Corrientes and Jujuy. The Committee also notes that the complainant organization's allegation that in the Province of Jujuy the impugned decree also stipulates that the public administration may only deduct union dues for one trade union chosen by the worker (although he or she may also be a member of another union), and that the latter must have legal personality.
2. 35. With regard to the impugned decrees, the Committee notes that the Government has stated that: (1) contrary to the complainant organization's claim, workers are not called upon to join, rejoin or resign from the ATE or any other trade union; (2) the decrees are part of the administrative reorganization of the wage payment system; (3) the audits that have been carried out revealed many instances of workers being listed as union members whereas in fact they had terminated their membership; and (4) the authorities have therefore made it a requirement that public administration workers indicate their "current" desire to continue using the check-off system for paying their union dues.
3. 36. Although the Committee regrets that the trade union organizations were not consulted prior to the enactment of the decrees in question, the Committee notes that the Government has given objective reasons for requiring workers to declare their trade union membership in writing in order to have their union dues deducted from their wages, and that this does not violate the principles of freedom of association.
4. 37. Furthermore, with regard to the allegation that Decree No. 2930/95 issued by the Government of the Province of Jujuy provides that the provincial administration may only deduct union dues for one trade union organization (with legal personality) chosen by the worker, the Committee notes that the impugned decree does not prohibit workers from joining two or more trade unions or from paying dues to more than one organization - with the workers paying their contributions directly or in any other way envisaged by the organizations - but confines itself to stipulating that the check-off system may be used only for one of the trade union organizations.
5. 38. The Committee nevertheless notes that, like the national trade union legislation, Decree No. 2930/95 of the Province of Jujuy requires that only trade union organizations with legal personality may benefit from the check-off system. The Committee wishes to remind the Government that for many years, when considering whether the Trade Union Associations Act No. 23551 complies with Convention No. 87, the Committee of Experts on the Application of Conventions and Recommendations (see the Committee's Report III, Part 4A, 1996) has called for the amendment or repeal of section 38 of the Act according to which only associations with legal personality (more representative), as opposed to those that are merely registered (less representative), may benefit from the check-off system. In this respect, the Committee notes that both Decree No. 2930 and Act No. 23551 pose the same problem with respect to the check-off system. In these circumstances, the Committee requests the Government to take the necessary steps to have the Trade Union Associations Act No. 23551 and Decree No. 2930/95 of the Province of Jujuy amended so that workers can opt for deductions from their wages under the check-off system to be paid to trade union organizations of their choice, even if they are not the most representative.