Report in which the committee requests to be kept informed of development - Report No 404, October 2023

1. 121. The complaint is contained in a communication from the Confederation of Education Workers of Argentina (CTERA) dated 30 November 2015, and in a joint communication from the CTERA, the Union of Education Workers (UTE) and Education International (EI) dated 27 May 2021.
2. 122. The Government of Argentina sent its observations in communications dated October 2016, September 2017, 11 and 12 September 2023.
3. 123. 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 complainant’s allegations

1. 124. In a communication dated 30 December 2015, the CTERA alleges that resolution No. 352/13 issued in March 2013 by the Provincial Government of Corrientes, Republic of Argentina, violates the freedom of association and the right to strike of the province’s education workers, who are members of the CTERA. The complainant states that, by means of this resolution, the Provincial Government of Corrientes informed the Single Union of Education Workers of Corrientes (SUTECO), which is the CTERA’s primary union in the Province of Corrientes, that “it cannot take direct action, as the subject of the dispute has become abstract in the light of the conclusion of the wage agreement” and that “it is not entitled to represent the collective interests of educational staff”, under penalty of investigatory proceedings and sanctions.
2. 125. The complainant refers below to the context in which the resolution was adopted and states that: (i) the Corrientes Association of the Provincial Teachers (ACDP), SUTECO and the Argentine Union of Private Teachers (SADOP) informed the Labour Directorate, the Undersecretariat of Labour for the province, of its decision to hold a 24-hour strike as of midnight on 25 February 2013; (ii) the collective dispute and strike are the result of the refusal by the provincial Ministry of Education to recognize the legitimacy of the teachers’ wage claim; (iii) on 22 February 2013, SUTECO notified that the strike would be extended by an additional 24 hours, thus lasting 48 hours; (iv) faced with this situation, the Labour Directorate issued resolution No. 187/13 on 25 February 2013, submitting the collective dispute to mandatory conciliation, regulated by National Law No. 14.786/59; (v) the Labour Directorate also stipulated through resolution No. 187/13 that the three unions, ACDP, SUTECO and SADOP, should refrain from holding a strike for the duration of the mandatory conciliation, scheduling the first hearing for 28 February 2013, but which never took place; (vi) however, the three unions held the strike on 25 February 2013; (vii) with no legal basis, and based on the fact that the three unions had failed to comply with the decision to refrain from holding the strike, the Labour Directorate decided to terminate the mandatory conciliation and ordered the initiation of the investigatory proceedings required to issue fines for alleged “obstruction”; (viii) in this context, the provincial Ministry of Education of Corrientes summoned the five teachers’ unions, including SUTECO, to the its headquarters where on 8 March 2013, it eventually made a modest wage proposal, which was accepted by the unions with the exception of SUTECO; (ix) the wage agreement was concluded outside any legal regulation; (x) on 13 March 2013, SUTECO called for another 24 hour strike on 15 March 2013; and (xi) the Labour Directorate incorporated into file No. 524 21 02 486/13 in an irregular manner the wage agreement concluded with the other unions and on the basis of that agreement, issued the denounced resolution No. 352/13, notifying SUTECO that it should refrain from holding the strike – threatening it with sanctions – for “lacking legitimacy” to represent the collective interests of teachers, overlooking the fact that both the Labour Directorate and the provincial legislature had recognized its legitimacy.
3. 126. Moreover, the CTERA denounces the Provincial Government’s malicious failure to regulate Provincial Law No. 6030 of 2011 regarding the collective agreement for teachers, thus rendering it inapplicable. The complainant specifically alleges that: (i) this situation becomes fundamentally important when measuring the limited legal effect of the agreement concluded between the representatives of the Provincial Government and the representatives of the four teachers’ unions; (ii) the Labour Directorate of the Province of Corrientes did not take into account that the only agreements on working conditions that have erga omnes effect are those that are concluded under Law No. 6030 of 2011 regarding the collective agreement, once it is regulated; (iii) it is a serious error for the Labour Directorate to stipulate in article 1 of resolution No. 352 that SUTECO cannot take direct action (strike), as the subject of the dispute has become abstract in the light of the agreement concluded with the ACDP, the Argentine Teachers' Union (UDA), the Association of Technical Teachers (AMET) and the Teacher Unification Movement (MUD), since SUTECO has not signed the wage agreement and therefore its effects do not apply to its members or to teachers who are not members any union; (iv) resolution No. 352/13 is absolutely and irrevocably null and void, insofar as the Provincial Government disregards SUTECO’s right to represent the collective interests of teachers at all levels of education by arguing that this right belongs to the ACDP because it is the only association with trade union status, on the basis of paragraphs 4, 5, 6 and 7 of the recitals of resolution No. 352/13; (v) this is a restrictive and arbitrary interpretation of articles 23 and 31 of Law No. 23.551 on trade union associations, which runs counter to article 14 bis of the National Constitution, and in particular to article 3 of Provincial Law No. 6030 of 2011, which recognizes the legitimacy of SUTECO to form part of future collective bargaining committees, on the basis of the future collective bargaining agreement for teachers at all levels; and (vi) the body that issued the contested Provision No. 352/13 is the employing party in the collective dispute with the teachers' unions, as the Labour Directorate depends on the provincial executive branch; thus, as a party to the collective dispute, it cannot intervene as a conciliatory party (objective and impartial), in accordance with the procedure regulated by the aforementioned Law No. 14.786.
4. 127. The complainant then denounces resolution No. 1769/15 issued by the Labour Directorate of the Province of Corrientes, which declared the strike action ordered by SUTECO for 9 October 2015 illegal, which also shows how this body follows the political directives of the Provincial Government of Corrientes, which is party to the collective dispute. By establishing that SUTECO lacks the status to call a strike, the Labour Directorate disregards the fact that the provincial executive branch fined SUTECO for allegedly refusing to comply with a resolution of the Labour Directorate requiring it to undergo mandatory conciliation, in accordance with Law No. 14.786, a procedure which only trade union associations with the right to declare strikes are obliged to undergo. The complainant requests that the Argentine Government be informed that the Province of Corrientes must annul resolutions Nos 352/13 and 1769/15 and cancel the fine of 700,000 Argentine pesos for the February 2015 strike.
5. 128. In a communication dated 10 May 2021, the complainant (together with the UTE) alleges that: (i) the Government of the Autonomous City of Buenos Aires violated the principles guaranteeing freedom of association and the right to strike by issuing Decree No. 125/21 dated 14 April 2021, in which it declared, inter alia, that the Ministry of Education of the Autonomous City of Buenos Aires, the bodies within its ambit and the educational establishments under its authority or supervised by it constituted essential services during the COVID-19 pandemic, in order to disregard the right to strike of education workers in public schools, whether publicly and privately managed, that answer to the Ministry of Education of the Autonomous City of Buenos Aires, while also deducting wages from teachers for the days they did not work and went on strike; (ii) the Government of the Autonomous City of Buenos Aires threatened to apply sanctions to those who intended to take collective direct action (strike); (iii) designating educational establishments to be of an “essential nature”, by means of the aforementioned decree, was part of a policy of persecution that, in recent years, the Government of the Autonomous City of Buenos Aires has implemented against the workers of educational establishments; (iv) the decree issued by a local authority, like the Government of the Autonomous City of Buenos Aires, declaring the "essential nature" of educational establishments, is clearly unconstitutional, not only because that jurisdiction lacked the competence to establish the essential nature of education, but mainly because it directly affected the exercise of basic constitutional rights, to the detriment of education workers, such as the right to strike established in article 14 bis of the National Constitution; (v) education does not constitute an essential service if we take into account the provisions of article 24 of Law No. 25.887 on disputes in essential services, the relevant part of which provides that: “... Health and hospital services, the production and distribution of drinking water, electricity and gas and air traffic control shall be considered essential services. An activity not included in the preceding paragraph may exceptionally be designated an essential service, by an independent committee established in accordance with regulation...” “[...] The national executive branch, with the intervention of the Ministry of Labour, Employment and Social Security and following consultation with the employers’ and workers’ organizations, shall issue the regulation referred to in this article within ninety (90) days, in accordance with the principles of the International Labour Organization”; (vi) moreover, education could not be considered an essential service under the principles established by the International Labour Organization, as set forth in the Compilation of decisions of the Committee on Freedom of Association; (vii) pursuant to Decree No. 362/10 dated 18 March 2010, regulating the Guarantees Committee provided for in article 24 of the aforementioned Law No. 25.877, an activity not included in the above-mentioned list may exceptionally be designated an essential service if a conciliation procedure has already initiated; (viii) any resolution or decree that designates a service to be “essential” without complying with the legislation in force and international labour principles is null and void; (ix) resolution No. 408/2001 issued by the Ministry of Labour in 2001, declaring education to be an “essential service”, had already been declared null and void by the Supreme Court of Justice (and led to the decision of the Committee on Freedom of Association in Case No. 2157); (x) at the date of drafting the present communication (May 2021), the Decree of Necessity and Urgency No. 287/21 dated 1 May 2021, issued by the national executive branch, was in force, requiring the continuation of online classes and the prohibition of in-person classes in the Autonomous City of Buenos Aires as a result of the high number of COVID-19 cases, as was resolution No. 394/2021 dated 4 May 2021, issued by the Federal Education Council, ordering the suspension of in-person classes in the Autonomous City of Buenos Aires until 21 May 2021; (xi) the real reason the Government of the Autonomous City of Buenos Aires declared educational establishments to be of an “essential nature” was that it did not wish to implement the aforementioned emergency decree of the national executive branch (making mandatory online classes) so that it could impose its decision to resume in-person classes, which it had used as an electoral and political pledge; (xii) as a result, following the UTE’s strike to uphold Decree No. 287/21 (making online classes mandatory) so as to prevent COVID-19 from further spreading in schools, the Government of the Autonomous City of Buenos Aires deducted wages from education workers, in an act of retaliation against those who merely sought compliance with a higher-ranking norm during a serious health crisis; and (xiii) the surreptitious designation of education as an essential service by means of Decree No. 125/21 of the Autonomous City of Buenos Aires, the deduction of wages and the threats of disciplinary sanctions for the strikes called by the UTE directly prevented the right to strike from being exercised, and such acts clearly violate the decisions of the ILO Committee on Freedom of Association.

B. The Government’s reply

1. 129. In a communication dated October 2016, the Government provides its observations on the complainant’s allegations concerning the public education sector in the Province of Corrientes. The Government states, first, that SUTECO is and continues to be recognized by the various government bodies and actively participates with the other unions operating in the Province of Corrientes. There is thus no discrimination against this union, as demonstrated by its participation in the resolution dated March 2014 (which later became a joint agreement in which the other trade union organizations accepted the wage increase). Likewise, SUTECO was involved in the regulation of the law on collective bargaining, as evidenced by the copy of the resolution dated 16 June 2015, which confirms that the discrimination alleged by the complainant does not exist. The Government adds that: (i) in the midst of the bargaining process, SUTECO did not comply with the mandatory conciliation process and resorted to a strike, which is why it was expelled from the collective bargaining table; (ii) according to information provided by the Undersecretariat of Labour for the Province of Corrientes, the collective dispute was, at the date of this communication (October 2016), in a judicial process and, therefore, it is proposed that the Committee wait for the resolution of that process before taking a decision; and (iii) the complainant did not provide any evidence to support its statements, making it impossible to corroborate the veracity of its arguments.
2. 130. In a communication dated September 2017, the Government states that the Undersecretary of Labour for the Province of Corrientes indicated that the collective dispute was still being processed at the judicial level, without any definitive developments in the case at the date of the communication (September 2017). Furthermore, the Government indicates once again that the complainant did not provide any evidence to support its allegations, making it impossible to corroborate whether they are duly founded.
3. 131. In a communication dated 12 September 2023, the Government states that: (i) the judicial process related to the collective dispute disclosed in the case “Single Union of Education Workers Corrientes v. Provincial Government of Corrientes re. Administrative Action”, file No. 123426/15, has already concluded by means of rulings issued by the Administrative Court of First Instance No. 2 (of the Province of Corrientes) and the Administrative and Electoral Court of Appeals, as has the special judicial review before the Supreme Court of Justice; (ii) the case was initiated by SUTECO with the aim of having Decree No. 2327/15 declared null and void, as it rejected the hierarchical appeal filed by SUTECO against resolution No. 646/13 of the Labour Directorate, which had rejected the hierarchical appeal filed by SUTECO against resolution No. 455/13, which had imposed a fine for non-compliance with resolution No. 187/13 (which had, inter alia, prohibited the strike from being held for the duration of the mandatory conciliation). Thus, SUTECO alleged in the judicial proceedings that there was a procedural irregularity and that, from the issuance of resolution No. 187/13 by the Labour Directorate to the conclusion of the procedure, it had to comply with the provisions of Law No. 14.786 concerning collective dispute procedure and not with the provisions of articles 26 to 32 of Law No. 2.477 (procedure for labour law infractions). On 30 July 2018, the Court of First Instance rejected SUTECO's claim by ruling that the complainant had failed to prove the illegitimacy of Decree No. 2327/15 or the acts that had preceded it, since no visible irregularities in its essential elements had emerged or been proven, nor were there any convincing indications of the illegality alleged by the complainant; (iii) however, this decision was reversed by decision of the Court of Appeals, in February 2020, when it declared that the application of article 31 of Law No. 2.477 to the case was unconstitutional and thus decreed that Decree No. 2327/15, challenged by the appellant SUTECO, was null and void and ordered the provincial executive branch to issue a new administrative act analysing the legality of the fine ordered in resolution No. 455/13; (iv) although the Provincial Government of Corrientes filed a special judicial review before the provincial Supreme Court of Justice, it was declared inadmissible in a ruling dated 9 December 2021; (v) this ruling concluded the judicial proceedings initiated by SUTECO against the Provincial Government of Corrientes to challenge the administrative acts issued in the context of the mandatory conciliation process and which, according to the complainant, would have interfered with the exercise of the right to freedom of association and the right to strike; (vi) although the legal action initiated by SUTECO had a favourable ruling, it is also true that the merits of the claim are not based on the arguments put forward by SUTECO (that the alleged irregularities of the contested administrative acts violate freedom of association), as it had alleged irregularities of competence, cause and procedure in the administrative acts issued in the context of the mandatory conciliation, which were also invoked when filing the present complaint before the Committee on Freedom of Association; (vii) however, the Court of Appeals decreed Decree No. 2327/15 null and void as a logical consequence of having decreed that the application of article 31 of Law No. 2.477 was unconstitutional, considering that the requirement of prior payment established in that article solve et repete, as a condition for the admission of the hierarchical appeal filed by SUTECO against the penalizing provision issued by the Labour Directorate, violated the constitutional right of defence; (viii) it should be noted that the fact that Decree No. 2327/15 was declared null and void by the judiciary of Corrientes did not put an end to the administrative process in which the resolutions were issued by the Labour Directorate, which were challenged by SUTECO and which form the basis for the filing of the present complaint before the Committee, as the Court of Appeals ordered “the defendant to issue a new administrative act analysing the legality of the fine ordered in resolution No. 455/13”, and (ix) therefore, the correct interpretation of the ruling of the Court of Appeals is that the administrative actions challenged by SUTECO should date back to the instance prior to the issuance of Decree No. 2327/15 (declared null and void), and the provincial executive branch should reanalyse the hierarchical appeal filed against resolution No. 455/13, in which the Labour Directorate fined the union.
4. 132. In a communication dated 11 September 2023, the Government forwarded the observations of the Autonomous Government of the City of Buenos Aires on the allegations sent in May 2021 by CETERA, UTE and EI. The Government of the Autonomous City of Buenos Aires underlines that the allegations of the complainant organisations that Decree No. 125/2021 violates the right to strike lack any factual and normative precision. The Government of the Autonomous City of Buenos Aires first refers to the context in which the Decree was adopted and states in this respect that: (i) the declaration of the essential nature of the activities carried out by the agents of the Ministry of Education of the City was adopted at a time when the health situation (reduction in the number of cases, vaccination schedule) caused by the COVID-19 pandemic made it possible to relax the isolation measures and return to the development of activities as normal; (ii) the aforementioned declaration of essentiality stems from the existence, recognized by the Supreme Court of Justice of the Nation, of a human right to education that must be satisfied to the greatest extent possible; and (iii) although the remote education modalities produced a significant participation of students, they did not replace the benefits of face-to-face education in the learning process and in the socialisation of the children.
5. 133. The Government of the Autonomous City of Buenos Aires then refers to the alleged impact of Decree No. 125/2021 on the right to strike. It states in this regard that: (i) the essential nature of educational activity established by the above-mentioned decree was different from the mechanism established by article 24 of Law 25.877, which allows for the exceptional classification of certain activities as essential services with a view to establishing minimum services in the event of a strike; (ii) on the contrary, trade union organizations in general and the complainants in particular were at all times granted the right to take industrial action; (iii) in fact, industrial actions were carried out during the periods when Decree No. 125/2021 was in force; (iv) the exercise of the right to strike entails the suspension of workers' activities on the one hand and the non-payment of the corresponding wages on the other hand; and v) the fact that striking workers in the education sector did not receive wages for the days not worked constitutes evidence of the operability of the right to strike during the term of Decree No. 125/2021.
6. 134. The Government of the Autonomous City of Buenos Aires finally submits that the factual and legal situation has changed radically since the adoption of the above-mentioned decree, which is why it considers that the complainants' allegations have become abstract.

C. The Committee’s conclusions

1. 135. The Committee notes that the present case concerns the alleged violation of freedom of association in the public education sector in the Province of Corrientes and in the Autonomous City of Buenos Aires.
2. 136. In relation to the aspects of the complaint regarding the Province of Corrientes, the Committee notes that the CTERA alleges that, since February 2013, the provincial authorities have disregarded the right of SUTECO (the CTERA's primary union in the education sector in the Province of Corrientes) to bargain collectively and to strike, in contradiction with the provisions of both national and international regulations and Provincial Law No. 6030 of 2011 on collective bargaining in the public education sector. The Committee notes that the CTERA specifically states that: (i) during difficult wage negotiations between the provincial authorities and five unions in the public education sector in early 2013, SUTECO and two other unions communicated their intention to hold a strike on 25 February 2013; (ii) in accordance with National Law No. 14.786/59, the provincial Labour Directorate decided to submit the collective dispute to mandatory conciliation, ordering the three unions to refrain from holding the strike until the conciliation process had ended (resolution No. 187/13); arguing that the unions had not refrained from holding the aforementioned strike, the Labour Directorate unjustifiably terminated the conciliation and initiated proceedings to fine the three organizations; (iv) outside any legal regulation, the provincial Ministry of Education met with the five unions and proposed a modest wage increase that was accepted by four unions, but rejected by SUTECO; (v) in view of SUTECO’s call for a one-day strike on 15 March 2013, the provincial Labour Directorate issued resolution No. 352/13, which established that SUTECO could not take direct action (strike), as the subject of the collective dispute had become abstract as a result of the conclusion of a wage agreement with other trade union organizations, and that SUTECO was not entitled to represent the collective interests of educational staff; and (vi) disregard for SUTECO's prerogatives was confirmed by resolution No. 1769/15, issued by the Labour Directorate of the Province of Corrientes, which declared the strike ordered by SUTECO for 9 October 2015 illegal. The Committee notes that the complainant considers that: (i) the prohibition on strike action contained in resolution No. 352/13, based on the fact that a collective bargaining agreement had just been concluded, is unfounded, as SUTECO had not signed the agreement in question; (ii) the denial in the same resolution of SUTECO's capacity to collectively represent the teachers of the province runs counter to the provisions of Provincial Law No. 6030; and (iii) the various decisions of the provincial authorities described above are also irregular insofar as the provincial administration assumes the role of judge in collective disputes to which it is a direct party. The Committee notes that the complainant concludes that the aforementioned decisions should be annulled, including the fine of 700,000 pesos for the February 2013 strike.
3. 137. The Committee notes that, for its part, the Government states that: (i) there is no discrimination on the part of the provincial authorities of Corrientes against SUTECO, as evidenced by its inclusion in the negotiations leading to the conclusion of the collective bargaining agreement of March 2014, as well as in discussions in June 2015 regarding the regulation of Provincial Law No. 6030; (ii) in the midst of the bargaining process, SUTECO did not comply with the mandatory conciliation process and resorted to a strike, even though Provision No. 187/13 had ordered it to refrain from doing so, which is why it was expelled from the collective bargaining table; (iii) this collective dispute gave rise to legal action regarding the legality of the fine imposed against SUTECO for holding the February 2013 strike in violation of resolution No. 187/13; and (iv) in decisions dated February 2020 and December 2021, the Court of Appeals and the Supreme Court of Justice of the province declared, on formal grounds, the provincial authorities' actions to be null and void and ordered the provincial executive branch to issue a new administrative act analysing the legality of the fine ordered. The Committee notes that the Government states in this respect that SUTECO's legal action and the corresponding court decisions were not based on the violations of freedom of association alleged in the present case, but on the consideration that the requirement of prior payment of the fine, as a condition for the admission of the hierarchical appeal filed by SUTECO against the penalizing provision issued by the Directorate of Labour, violated the constitutional right of defence.
4. 138. The Committee takes due note of the information provided by the parties concerning the dispute between SUTECO and the authorities of the Province of Corrientes in the context of the negotiation of public teachers' wages. The Committee notes that the complainant denounces both specific decisions of the provincial administration in this regard (in particular resolutions Nos 187/13 and 455/13, resolution No. 352/13 and resolution No. 1769/15), which, according to the complainant, reflect more generally the intention to exclude SUTECO from collective labour relations, as well as the irregular nature of the intervention of the provincial executive branch, which would assume the role of judge and party in collective disputes in the public sector. The Committee notes that the dispute is taking place in a context of trade union pluralism in the education sector of the province where, according to the information provided by the parties, SUTECO has a simple registration, while the ACDP has trade union status (a type of registration reserved by Argentine law for the most representative organizations, which under national law have a monopoly on collective bargaining), while article 3 of Provincial Law No. 6030 provides for collective bargaining status that is not limited to organizations with trade union status.
5. 139. With regard to the fine imposed against SUTECO by the provincial Labour Directorate (resolution No. 455/13) for holding a one-day strike in February 2013 despite a decision from the Labour Directorate ordering it to refrain from striking (Decision No. 187/13), the Committee notes that the complainant and the Government agree that the strike held by SUTECO took place in the midst of a mandatory conciliation process ordered by the provincial Labour Directorate in accordance with National Law No. 14.786/59, and that the prohibition on strikes was aimed at ensuring the completion of the conciliation process. The Committee recalls in this regard that legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration is not mandatory and does not, in practice, prevent the calling of the strike [Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 793]. The Committee also emphasizes that in cases of mandatory conciliation, it is desirable to entrust the decision of opening the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute [Compilation, para. 796]. Lastly, the Committee recalls that in previous cases, it expected that any fines that could be imposed against trade unions for unlawful strikes would not be of an amount that was likely to lead to the dissolution of the union or to have an intimidating effect on trade unions and inhibit their legitimate trade union activities, and trusted that the Government would endeavour to resolve such situations by means of frank and genuine social dialogue [Compilation, para. 969]. Noting that the decisions relating to the imposition of the aforementioned fine were annulled by the courts for violation of the right of defence and that the file is once again before the provincial authorities, the Committee expects that they will take due account of the criteria set out above.
6. 140. With regard to the two additional prohibitions on SUTECO's recourse to strike action by means of resolutions Nos 352/13 and 1769/15 adopted by the provincial Labour Directorate, the Committee notes that: (i) the CTERA alleges that the prohibition contained in resolution No. 352/13 of March 2013 is illegal because it was based on the wage agreement signed by the other trade union organizations, but rejected by SUTECO, in order to claim that the collective dispute that led to the strike had been settled; and (ii) the CTERA alleges that in both cases, the provincial labour administration is judge and party, as it prohibited strikes in a collective dispute involving the provincial administration itself. At the same time, the Committee notes that: (i) it has not been provided with the text of the incriminated provisions, which are also not publicly available; (ii) it does not have the specific observations of the Government on this matter; (iii) it does not have any factual information on the strike planned by SUTECO in 2015, which gave rise to resolution No. 1769/15. In the light of the above, the Committee does not have at its disposal the information that would allow it to comprehensively assess the validity of the grounds for prohibiting the strike movements put forward by SUTECO. The Committee does find, however, that in both cases the decisions to prohibit the strike, like the decision previously examined to impose mandatory conciliation, were taken by the provincial public administration and not by a body independent of the parties. In this regard, the Committee recalls once again that in cases of mandatory conciliation, it is desirable to entrust the decision of opening the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute and, moreover, that the responsibility for declaring a strike illegal should not lie with the Government, but with an independent and impartial body [Compilation, paras 796 and 909]. In the light of the above, the Committee requests the Government to take the necessary measures to ensure that decisions concerning recourse to mandatory conciliation and the prohibition of strike movements are taken by bodies independent of the parties. The Committee requests the Government to keep it informed in this respect. The Committee recalls additionally that the Government may avail itself of the technical assistance of the Office with respect to the requested measures.
7. 141. With respect to the CTERA's allegation that the provincial administration had not only prohibited SUTECO from striking in the context of the collective dispute in February-March 2013, but also sought to deny it the right to collectively represent public teachers, the Committee notes that, on the one hand, the complainant states that: (i) resolution No. 352/13 implies that only ACDP, which enjoys trade union status, would be entitled to represent the province's teachers in collective bargaining processes, and (ii) the lack of regulation of Provincial Law No. 6030, article 3 of which provides for the participation of all trade union organizations in the education sector at the bargaining table, illustrates the administration's desire to exclude SUTECO. The Committee notes that, for its part, the Government claims that there is no intention to exclude SUTECO, as evidenced by its participation in the wage agreement negotiations in 2013 and in discussions in 2015 on the regulation of Provincial Law No. 6030. While recalling 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 [Compilation, para. 1360], the Committee observes that the Government has not reported that the regulation of Provincial Law No. 6030 has concluded. Emphasizing that, under Article 5(d) of Convention No. 154 ratified by Argentina, measures should be taken to ensure that collective bargaining is not hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules, the Committee trusts that the necessary steps will be taken to ensure the full applicability of the laws governing collective bargaining in the Province of Corrientes, which provide for the participation of the various trade union organizations in the education sector in collective bargaining.
8. 142. The Committee further notes that, by means of a communication dated May 2021, the CTERA, the UTE and EI allege undue restrictions on the right to strike by the Government of the Autonomous City of Buenos Aires. The Committee notes that the complainants state that Decree No. 125/21 dated 14 April 2021 declared that the Ministry of Education of the Autonomous City of Buenos Aires, the bodies within its ambit and the educational establishments under its authority or supervised by it “constituted essential services during the COVID-19 pandemic”, thus disregarding the right to strike of education workers in educational establishments. The Committee notes that the complainants allege in particular that: (i) Decree No. 125/21 clearly runs counter to the national and international regulations in force; (ii) the Supreme Court of Justice had already declared resolution No. 408/2001 null and void, which had been issued by the Ministry of Labour in 2001, declaring education to be an essential service; (iii) the real reason the Government of the Autonomous City of Buenos Aires declared educational establishments to be of an essential nature was that it did not wish to comply with Decree No. 287/21 of the national executive branch, making online classes mandatory; and (iv) following the UTE’s strike to uphold the aforementioned Decree No. 287/21 (making mandatory online classes) and thus prevent COVID-19 from further spreading in schools, the Government of the Autonomous City of Buenos Aires deducted wages from education workers, in an act of retaliation against those who sought compliance with a higher-ranking norm during a serious health crisis.
9. 143. The Committee also notes that the Government forwards the observations of the Government of the Autonomous City of Buenos Aires, which considers that the allegations of the complainant organizations that Decree No. 125/2021 violates the right to strike lack any factual and normative precision. The Committee notes in particular that the Government of the Autonomous City of Buenos Aires first states that: (i) the declaration of the essential nature of the activities carried out by the employees of the Ministry of Education of the City was adopted at a time when the health situation caused by the COVID-19 pandemic made it possible to return to normal activities; ii) the aforementioned declaration of essentiality stems from the existence, recognised by the Supreme Court of Justice of the Nation, of a human right to education that must be satisfied to the greatest extent possible, and it should also be considered that the remote education modalities did not replace the benefits of face-to-face education in the learning process and in the socialisation of children. The Committee notes that the Government of the City of Buenos Aires states secondly that: (i) the essential nature of the educational activity established by the aforementioned decree was different from the mechanism established by article 24 of Law 25. 877, which allows the exceptional classification of certain activities as essential services with a view to establishing minimum services in the event of a strike; ii) on the contrary, the trade unions in general and the plaintiffs in particular were at all times recognised as having the right to take industrial action; iii) in fact, industrial action measures were taken during the periods when Decree No. 125/2021 was in force; (iv) the exercise of the right to strike entails the suspension of workers' activities on the one hand and the non-payment of the corresponding wages on the other hand; and (v) the fact that striking workers in the education sector have not received wages for the days they did not work during the period of validity of Decree No. 125/2021 is evidence of the operability of the right to strike in this context. The Committee notes that the Government of the Autonomous City of Buenos Aires finally affirms that the factual and legal situation has changed radically since the adoption of the above-mentioned decree, which is why it considers that the complainants' allegations have become abstract.
10. 144. The Committee takes due note that the reply provided by the Government of the Autonomous City of Buenos Aires indicates that: (i) the declaration of the essential nature of the education sector by Decree No. 125/2021 was not intended to disregard the teachers' right to strike but to exempt that sector from the restrictions on activity imposed in the context of the pandemic; and (ii) strike action was in fact carried out in that sector in the City of Buenos Aires while the decree was in force without the legality of such action being questioned. In this respect, the Committee has taken note of judgement No. 42853 of 30 August 2022 handed down by Labour Court No. 4 (Asociación Docente de Enseñanza Media y Superior (ADEMYS)/ v. Gobierno de la Ciudad Autónoma de Buenos Aires). The Committee notes that this judgement was the result of legal action brought by a trade union organization to obtain payment for the strike days taken between April and June 2021 in order to maintain the distance education system. While recalling that it has considered that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [Compilation, para. 942] and that the judgement in question has been the subject of an appeal that is still pending , the Committee notes that in the referred judgement: (i) the Court ruled in favour of ADEMYS, finding that the strike by the teachers of the City of Buenos Aires constituted a response to the employer's failure to comply with the national provisions which continued to impose distance education; and (ii) the City of Buenos Aires did not challenge the legality of the strike. Noting that it is clear from the above elements that Decree No. 125/21 did not have the effect of restricting the exercise of the right to strike, the Committee will not pursue the examination of this allegation.