Observación (CEACR) - Adopción: 1991, Publicación: 78ª reunión CIT (1991)

The Committee notes the Government's report.

In its previous comments, the Committee pointed out that various provisions of Act No. 23551 of 14 April 1988 on trade union associations and its implementing Decree No. 467/88 did not appear to be in conformity with the Convention:

- Section 25 of the Act provides that the trade union association which, in terms of the geographical area and the persons falling within its scope has, as dues-paying members, more than 20 per cent of the workers which it claims to represent during the six-month period preceding its request, shall be considered the most representative and therefore granted trade union status. Section 28 provides that where there already exists an organisation enjoying this trade union status, another trade union association may be granted such recognition for the purposes of undertaking action in the same area and activity or category only if the petitioning association has a "considerably higher" number of dues-paying members for a minimum continuous period of at least six months. Implementing Decree No. 467 of 1988, in section 21, qualifies the term "considerably higher" by laying down that the association claiming this trade union status should have at least 10 per cent more dues-paying members than the association which has already been granted this status. The Committee considered that this additional percentage seemed excessive.

- Section 29 of the Act provides that "a trade union at the enterprise level may be granted trade union status only when another first-level trade union and/or a union does not already operate within the geographical area or the area of activity or category covered", and section 30 establishes that "when a trade union association which has been granted recognition has decided upon the form of the union, association or trade union covering a particular activity, and the petitioning association has adopted the form of a trade union covering a particular occupation, profession or category, such status may be granted if there are different trade union interests which justify special representation ... provided that the pre-existing trade union or union does not already include such workers within its scope of representation". The Committee considers that this type of provision could have the effect of restricting the right of workers to establish and join organisations of their own choosing (Article 2 of the Convention).

- By virtue of sections 38 and 39 of the Act, workers' trade union associations which have been granted trade union status enjoy a number of privileges such as the deduction of trade union dues and fiscal exemptions. In addition, the right to represent workers in the enterprise can only be exercised by members of those associations enjoying trade union status (section 41 of the Act) and only the representatives of these associations enjoy special protection (sections 48 and 52 of the Act). The Committee pointed out that where the legislation confers on the most representative unions certain privileges in connection with the defence of the occupational interests of their members, the granting of such privileges should not be made subject to such conditions as to influence unduly the choice of workers regarding the organisation to which they intend to belong.

With regard to sections 29 and 30 of the Act, the Government states that the scope of trade union activity set out in the legislation ("the defence of the interests of the workers"), whether or not trade union organisations enjoy trade union status, is sufficiently broad to cover their work within the terms of the Convention. The Government emphasises that, in accordance with section 23 of the Act, the mere fact of registration confers upon all trade union associations the acquisition of legal personality and the exercise of rights such as the right to petition and to represent the collective interests of an activity or category of workers, the right to set contributions or dues from their members, and to hold meetings or assemblies without needing to obtain prior authorisation. This list is only indicative and trade union organisations, being legal entities, by virtue of their legal personality can exercise rights and contract obligations with the result that they have a full field of activities irrespective of the supposed privileges that the granting of trade union status might endow upon certain associations. Sections 29 and 30 of the Act do not therefore diminish the right of workers to establish in full freedom, to join or leave organisations as set out in the provisions of Article 2 of the Convention. The aim is to avoid the fragmentation of the trade union movement, which could in itself be violation of the Convention.

The Committee considers that sections 29 and 30 of the Act have the effect, through granting trade union status by virtue of which exclusive rights are obtained as regards collective agreements and other important matters, of favouring trade union organisations that represent an area of activity in contrast with those representing enterprises and professions, even in the event of the workers preferring to organise at the level of the enterprise or profession. The Committee considers that this situation is not in full conformity with Article 2 of the Convention.

As regards the privileges granted to organisations enjoying trade union status under sections 38 and 39, the Government states that they do not constitute a limitation on the principles of the Convention since the nature of the "holding agent" through which trade union contributions are deducted (section 38) simply serves as an administrative procedure to avoid the non-payment of such dues. This has no effect on the worker's willingness or not to join a trade union. With reference to the fiscal exemptions set out in section 39, the Government indicates that these measures have their parallel elsewhere in the law for trade unions that are merely registered: namely, in the exemption from taxation of the earnings of non-profit-making associations whose income is used for the purposes laid down in their constitutions.

The Committee considers that sections 38 and 39 grant important privileges to organisations which enjoy trade union status as compared with those that are only registered. These privileges may influence the workers' choice of organisation to which they wish to belong.

With regard to section 41, the Government points out that, in requiring that an organisation be affiliated to a body that enjoys trade union status so as to have the right to represent workers in an undertaking mentioned in section 40, section 41 sets out the functions and the precise powers accorded by law to these representatives. This provision is not therefore aimed at listing exclusions; indeed, a staff representative could belong to a body that was simply registered provided that no other body with trade union status existed for the activity or field in question. The Committee requests the Government to supply information on the effect given in practice to section 41 in the event that a trade union association representing the majority of workers, but which does not have trade union status, exists alongside an organisation that enjoys trade union status.

The Committee trusts once again that the Government will take the appropriate measures to ensure that the legislation is in complete conformity with the Convention.

The Committee is addressing a direct request to the Government concerning the criteria for eligibility for trade union office.