Report in which the committee requests to be kept informed of development - Report No 351, November 2008

1. 204. The complaint is contained in a communication of the Association of Workers of the Provincial and Municipal Public Administration of Salta (ATAP) dated 22 March 2007. ATAP sent additional information in a communication dated 19 November 2007 and further allegations in a communication dated 22 April 2008.
2. 205. The Government sent its observations in a communication dated 28 October 2008.
3. 206. 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. 207. In its communications dated 22 March and 19 November 2007, and 22 April 2008, ATAP states that it obtained legal personality and/or trade union registration on 24 July 2006 through resolution No. 727/06 of the Ministry of Labour, Employment and Social Security of the Republic of Argentina. During the electoral process organized on 24 January 2007, in the light of the broad terms of section 50 of Act No. 23551 and section 29 of Regulatory Decree No. 467/88, the electoral board of the association informed the executive of the Province of Salta that a “Celeste-Rojo” list was to be submitted in the electoral and voting process that ATAP would be holding on 26 January 2007 to comply with the rules.
2. 208. With that process completed, on 1 February 2007 the trade union, through the Territorial Agency of Salta, informed the competent body, the Trade Union Directorate of the National Ministry of Labour, Employment and Social Security in due time and in accordance with procedure that it had completed its electoral process as the rules required, and enclosed supporting documentation. On 2 February 2007, it formally notified in detail to the executive (the Governor of the Province of Salta) the composition of its new management committee and audit committee, whose legal mandate was to run from 29 January 2007 to 28 January 2011.
3. 209. On 6 February 2007, ATAP informed, among other bodies of the provincial public administration, the Secretariat for Medical Assistance and Social Welfare which reports directly to the Governor of the Province, that Ms Marina del Valle Guanca had been appointed to the post of second substitute member of ATAP’s audit committee. ATAP recounts that, after about two years working as an intern in which she engaged in moonlighting, on 9 March 2005, through Decree No. 523/05, she was appointed by the executive of the Province of Salta to an “administrative post”. On 20 June 2006, she was made “Head of the Operational Procurement Unit of the Financial Administrative Service” of the abovementioned Secretariat. On 16 January 2007, through Decree No. 315/07, the executive of the Province appointed her as from 1 December 2006, to a “Group T, subgroup 2, level 5, rank IV function, which is specific to posts involving the management, supervision or assessment of staff and/or tasks”.
4. 210. In February 2007, Ms Marina del Valle Guanca was notified, while taking her annual leave entitlement, that she was to be “relocated” from the Secretariat for Medical Assistance and Social Welfare to the Administrative Secretariat Division of the Directorate of Archives of the Province, where she would take up a “technical post”.
5. 211. The complainant states that, on 19 February 2007, Ms Marina del Valle Guanca sought a review of that decision. On 8 March 2007, having received no reply and the time limits prescribed in section 177 of Act No. 5348 on Administrative Procedures having expired, she formally requested the executive to issue a prompt ruling on the matter. To date she has received no reply.
6. 212. ATAP alleges that, regardless of whether the post is a technical or an administrative one, the so-called “relocation” of Ms Marina del Valle Guanca, constitutes a substantial and unlawful change in working conditions and a flagrant violation of freedom of association by the executive of the Province of Salta, which was prompted by her trade union activity and not the needs of the service, the apparent justification in Decree No. 628/07.
7. 213. In fact, the transfer, or “relocation”, is linked to her membership of the audit committee of ATAP’s management committee.
8. 214. The complainant organization considers that, since there was no prior judicial order to remove the trade union immunity of trade union leader Ms Marina del Valle Guanca, Decree No. 628/07 is unlawful, being seriously flawed because it violates the guarantees established in favour of trade union leaders under ILO Conventions Nos 87, 98, 135 and 151, which have all been ratified by Argentina and which are currently in force in the country.
9. 215. In its communication of 19 November 2007, ATAP alleges that on 20 April 2007 the executive of the Province of Salta notified Ms Marina del Valle Guanca of Decree No. 1198 of 17 April 2007 dismissing her. ATAP states that she was denied access to the case file, that she lodged an application for clarification and that on 22 June 2007 she was informed that her application for review had been rejected.
10. 216. According to ATAP, her denunciation of acts of corruption, which are notorious, was another reason for Ms Marina del Valle Guanca’s termination, this being the more serious as at the time she was receiving medical treatment, and indeed still is. For her transfer and subsequent termination, the Province of Salta failed to seek a prior judicial order to lift Ms Marina del Valle Guanca’s trade union protection, as required by the case law of the National Labour Court of Appeal, Court II: in a ruling of 25 May 2007, in Alvarez, Maximiliano and Others v. Cencosud SA, the latter granted the right to trade union stability including to leaders of unions which were in the process of being set up and had not yet obtained trade union registration. The Office of the State Public Prosecutor also found that the trade union leader in question did not enjoy the right to prior judicial dispensation before her dismissal.
11. 217. As to the Province’s response in “Guanca, Marina del Valle v. Province of Salta; Secretariat of Medical Assistance and Social Welfare in re: Trade Union Protection”, File No. 18892/07, heard by the Administrative Court of First Instance, the Province of Salta explicitly acknowledges, in yet another display of bad faith, that the administrative file pertaining to the case has been removed.
12. 218. The complainant organization further alleges that, on 23 August 2006, it applied to the Ministry of Finance and Public Works for a check-off code (código de descuento) enabling it to deduct trade union dues, commercial and mutual loans, supplementary health insurance and financial or bank credits from its members’ wages. ATAP based that application in particular on the principles of the ILO’s Committee on Freedom of Association and Committee of Experts on the Application of Conventions and Recommendations.
13. 219. ATAP adds that, on 13 November 2006, having received no answer whatsoever, it sought a prompt response to its application in the abovementioned case. On 15 January 2007, having still received no answer from the Ministry of Finance and Public Works, ATAP reiterated its original application. On 13 February 2007, the legal adviser of the Ministry of Finance and Public Works of the Province formally requested a photocopy of the trade union status of ATAP, stating that the aim was to allow the application in the abovementioned case to be followed up, “conscious of the fact that, at provincial level, Decree No. 2412/00 is still in force, section 1 of which allows the check-off or deduction of legally authorized trade union dues in the case of bodies with trade union status”.
14. 220. ATAP stated on 27 February, again in connection with the same case, that it renewed its application for a check-off code. It also reaffirmed the basis in law for its application, citing the recommendations of the ILO’s supervisory bodies, and a series of international standards which are contained in Argentine law and have constitutional rank as well as being included in the case law of the Supreme Court of the Nation.
15. 221. ATAP believes that the decision by the Ministry of Finance and Public Works of the Province to delay and/or refuse the grant of a check-off code violates the freedom of association provided for in ILO Conventions Nos 87, 98, 135 and 151.
16. 222. Through resolution No. 42/08 of 31 March 2008, the Minister of Labour and Social Welfare of the Province decided to: “Article 1. Reject the application made by the Association of Workers of the Provincial and Municipal Public Administration in the light of the content of the preamble.” The preamble states, among other things, that: “Pursuant to section 38 of Act No. 23551, only associations with trade union status, not those which are merely registered, may deduct trade union dues.” “As noted in the proceedings, the Association of Workers of the Provincial and Municipal Public Administration has only legal personality (resolution No. 727/06 of the National Ministry of Labour and Social Security).”
17. 223. The complainant organization further submits that on 7 March 2008 it sought review of a decision by the provincial executive, citing infringement of civil rights and violation of and/or discrimination against the freedom of association of three of its members.
18. 224. In fact, following a long period of psychological and work-related harassment by the management, the three ATAP representatives, permanent members of staff at the General Tax Directorate of the Province, Sergio Martín Zamboni, finance secretary, Fátima Elizabeth Gramajo, third substitute member and Walter Rodolfo Alderete, second regular member of the electoral board, were formally removed from their original places of work without any legal grounds whatsoever, in violation of freedom of association, through Decree No. 660 of 14 February 2008 signed by the Ministry of Finance and Public Works, the Secretary-General of the Interior and the Governor, and published in Official Journal No. 17812 of 21 February 2008.
19. 225. On 8 February 2007, ATAP formally notified the then Provincial Labour Directorate, through Note No. 080/07, of the composition of the new management committee and audit committee.

B. The Government’s reply

1. 226. By its communication dated 28 October 2008, the Government transmits the report of the Ministry of Labour and Social Welfare of the Province of Salta, in which it is indicated, in respect of Ms Marina del Valle Guanca’s case, that a decree on her reinstatement in her previous job is under preparation and will be communicated. Furthermore, with regard to the check-off code requested by ATAP, enabling it to deduct trade union dues, commercial and mutual loans, supplementary health insurance and financial or bank credits from its members’ wages, the Government indicates that if registered trade unions have the right to deduct trade union dues from their members (section 23(d) of Law No. 23.551), the administrative authority (as an employer) is not required to authorize this check-off code for such associations, unless a voluntary agreement to this effect concluded by the various parties has been duly communicated.

C. The Committee’s conclusions

1. 227. The Committee notes that in the present case the Association of Workers of the Provincial and Municipal Public Administration of Salta (ATAP) alleges that the executive of the Province of Salta: (1) in the first instance changed the working conditions of the trade union leader, Ms Marina del Valle Guanca, who was subsequently terminated through Decree No. 1198/07, by reason of her membership of the audit committee of the ATAP management committee, and despite the fact that there was no prior judicial order to lift her trade union protection; (2) transferred from their workplaces three ATAP trade union leaders who were permanent members of staff at the General Tax Directorate of the Province, Sergio Martín Zamboni, finance secretary, Fátima Elizabeth Gramajo, third substitute member and Walter Rodolfo Alderete, second regular member of the electoral board. Furthermore, the Committee observes that, two years after ATAP had applied for a check-off code to enable it to deduct the trade union dues of its members, the Ministry of Labour and Social Welfare of the Province rejected that request, in violation of the principles of freedom of association.
2. 228. With regard to the allegation that the executive of the Province of Salta changed, in the first instance, the working conditions of the trade union leaders, Ms Marina del Valle Guanca, and finally dismissed her though Decree No. 1198/07, because of her membership of the audit committee of the ATAP management committee, despite the fact that no prior judicial order had been issued to lift her trade union protection, the Committee notes with interest the Government’s indication that a decree on her reinstatement in her previous job is under preparation and will be communicated. In these circumstances, the Committee expects that the decree on reinstatement without loss of pay of the trade union leader Ms Marina del Valle Guanca will be adopted without delay. The Committee requests the Government to keep it informed in this regard.
3. 229. As to the alleged transfer from their workplace of three ATAP leaders who were permanent members of staff at the General Tax Directorate of the Province, Sergio Martín Zamboni, finance secretary, Fátima Elizabeth Gramajo, third substitute member and Walter Rodolfo Alderete, second regular member of the electoral board, the Committee notes that the Government did not provide its observations and requests it to ensure that an investigation is carried out into the matter without delay and, should it be found that the three were transferred on anti-union grounds, to take steps to ensure their immediate reinstatement in their former posts. The Committee requests the Government to keep it informed in this regard.
4. 230. As to the allegation that, in violation of the principles of freedom of association, the Ministry of Labour and Social Welfare of the Province rejected the application made by ATAP two years ago for a check-off code to enable it to deduct the trade union dues of its members, the Committee notes that, according to the Government, if registered trade unions have the right to deduct trade union dues from their members (section 23(d) of Law No. 23.551), the administrative authority (as an employer) is not required to authorize this check-off code for such associations, unless a voluntary agreement to this effect concluded by the various parties has been duly communicated. In this respect, the Committee requests the Government to take steps in order to facilitate an agreement between ATAP and the relevant authorities of the Province of Salta on the deduction of trade union dues from members’ wages. The Committee requests the Government to keep it informed in this regard.