Informe definitivo - Informe núm. 36, 1960

1. 170. By a communication dated 13 November 1958 addressed directly to the I.L.O, the International Federation of Christian Trade Unions presented a complaint of alleged infringements of freedom of association by the Government of the Argentine Republic. This complaint was communicated to the Argentine Government for its observations on 26 November 1958. The Government replied by a letter dated 23 February 1959.

A. A. The complainants' allegations

1. 171. The complaint of the I.F.C.T.U related to the new Industrial Associations Act of 8 August 1958, numerous provisions of which, in the view of the complaining organisation, infringe the fundamental principles relating to freedom of association and, in particular, the guarantees laid down in 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), the latter of which Conventions has been ratified by the Argentine Republic.
2. 172. According to the complainant, while section 2 of the Act of 8 August 1958 claims to guarantee freedom of association, this freedom has been completely destroyed by a whole series of other provisions in the Act which set up a trade union monopoly for industrial organisations which fulfil certain conditions of representation laid down by the Act. While numerical minorities and other groups which are not considered representative have the right to form industrial organisations, these are prohibited from styling themselves " trade unions " ; they are also forbidden to defend or represent industrial interests against the State and employers if in the same sector there already exists an association which is recognised as a trade union by the Government authorities.
3. 173. Thus, declare the complainants, organisations established by workers who do not wish to belong to trade unions enjoying a state-protected monopoly cannot act as trade unions at all. It ensues from section 16 of the Act that they cannot take part in any of the following activities : (a) defend or represent industrial interests against the State and employers ; (b) defend or represent the individual interests of their single members against financial institutions, in the courts or against any other state organisation ; (c) take part in government bodies for the organisation of labour and social security; (d) intervene in collective negotiations, sign or amend acts and collective agreements, assist in the supervision of social legislation or encourage its extension and improvement ; (e) collaborate with the State as a technical and advisory agent in the examination and solution of problems concerning the occupation ; (f) organise meetings and assemblies without prior authorisation ; (g) establish an endowment fund for mutual benefit societies.
4. 174. In consequence, according to the complainants, many workers will have to join a trade union recognised by the State in order to gain satisfaction in disputes or quarrels with employers, State and social security organisations, etc., because the activities of the non-recognised unions are paralysed.
5. 175. The complainants then quote sections 18, 19 and 20 of the Act which lay down the criteria for according to, or withholding from, an industrial organisation the legal status of a trade union. These sections, as cited by the complainants, read as follows:
   • Article 18. The industrial workers' association that most nearly represents the activity concerned shall have the right to enjoy the legal status of a trade union on the condition that:
6. 1. Its rules are adapted to the provisions contained in the previous Act.
7. 2. It possesses the largest number of members, thus giving it sufficient powers to represent the activity or category of occupation in the area which it covers.
8. 3. It has been exercising trade union rights for at least six months previously.
   • Article 19. Where there exists an organisation with the legal status of a trade union this status can only be given to another trade union for the same activity when there are more paying members in the latter than in the association with the status of a trade union over a minimum and continuous period of six months prior to the request.
   • Article 20. When, under the terms of the previous Article, the legal status of a trade union is given to an organisation, the trade union which obtained this status previously loses it if it ceases to be sufficiently representative in character. In deciding whether the trade union whose membership has been surpassed should keep its legal status, its trade union activity and also its contribution to the defence and protection of industrial interests shall be taken into account.
9. 176. In the view of the complaining organisation, the criteria laid down in these sections of the Act for endowing an association with the legal status of a trade union or for withdrawing this status are not only very arbitrary but also extremely vague. Further, the complainants declare, " the Government will be able to make use of these criteria when assessing the importance, value and trends of any trade union activity on the part of an industrial organisation "; thus, in effect, the Act gives the Government every opportunity of dominating the monopolised trade union movement which, as a result, is in danger of becoming a political instrument of this Government.
10. 177. In conclusion, the I.F.C.T.U requests the I.L.O:
    • (a) to request the Government of the Argentine Republic to desist from enforcing the Act complained against;
    • (b) to request the Government of the Argentine Republic to start the necessary proceedings for replacing this Act by another which shall fully comply with freedom of association and trade union rights ;
    • (c) to request the Government of the Argentine Republic to enforce the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by the Argentine Republic ;
    • (d) to invite the Government to proceed as rapidly as possible to ratify and enforce the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
11. 178. In its reply the Government declares that the Act of 8 August 1958 does not lay down what the structure of the Argentine trade union movement should be; it merely establishes a legal framework which ensures that occupational organisations are able to operate, certifies that the representative functions vested in them are legitimately theirs and safeguards the rights of the workers belonging to them.
12. 179. To assess the merits of this Act and to grasp the purposes of its provisions, declares the Government, it is necessary to take account of the conditions against the background of which it is to be applied. In the Argentine Republic, declares the Government, the workers are out to build up powerful industrial organisations, and to do so they realise that they must take care not to dissipate their strength and so they aim at achieving the greatest possible degree of unity. In support of this statement the Government points out that during the period when Legislative Decree No. 9270/56 was on the Statute Book-a decree which provided for outright plurality in trade unionism-only very few workers' organisations were set up alongside the existing ones.
13. 180. The Government goes on to state that the binding force attaching to collective agreements in the Argentine Republic, even upon third parties who are not signatories thereto, makes it necessary for the authorities to ensure with meticulous care that the associations concluding such agreements are of a truly representative character. For these reasons, the Government considers, the Act in question, conferring as it does preferential rights on the most representative industrial associations, does not appear to be inappropriate to conditions in the Argentine Republic and is not an encroachment on freedom of association.
14. 181. In the Government's view, in order to appreciate the extent to which freedom of association is a reality, the position has to be reviewed from three different aspects - the point of view of the relationship of the association to the State, that of the relationship of individuals to their unions and that of the relationship of one association to another.
15. 182. With respect to the first of these aspects, the Government declares that the independence of the workers' industrial associations from the State is accorded full recognition in the Act of 8 August 1958. Section 38 of this Act provides : " In no event may the authority administering the Act interfere in the management or administration of any industrial association, whether or not the latter possesses guild status ". Moreover, section 25 provides expressly that " suspension or withdrawal of guild status shall not deprive the organisation of the right to continue operating as an ordinary association at common law".
16. 183. From the point of view of the relationship between individuals and their trade unions, the Government declares that freedom of association must be regarded as existing to the extent that individuals are at liberty to join or not to join a union, to discontinue their membership should they so desire, and to belong to unions of their own choosing. All these rights, the Government claims, are fully recognised by the Act of 8 August 1958.
17. 184. With respect to the relationship between one association and another, the Government states that the Act complained against guarantees that workers' organisations are independent of any employers' association or political party, whether national or international, and prohibits workers' organisations from receiving funds from such sources (section 7 of the Act).
18. 185. The new legislation, declares the Government, gives the sanction of law to a system of plurality in trade union organisation and of unity in industrial bargaining. In so doing, it clad in legal form a preponderance that the majority union could in any event have attained by its own weight, and in this weight lies the justification for the special legal capacity with which the Act endows it. Thus, the sole purpose of the new enactment is to give effect to the democratic principle of majority rule.
19. 186. The Government adds:
    • There can be no doubt that, if it were not desired to distinguish between various classes of associations in the Act, the legislator might have opted for putting them all on the same footing, irrespective of how representative they were and how many members they possessed ; but in such a case the only rights they could be accorded would be those derived from the Constitutional guarantees of freedom of the individual, freedom of association and freedom to petition the authorities. One should not, however, confuse the rights proceeding from these guarantees with the special trade union rights instituted for the purposes of the necessary representation of a trade or occupational category. This essential distinction is not made in those enactments that lump all occupational organisations into the same class and eschew the system of guild status. Such enactments require organisations to furnish proof of their representative character, or lay down procedures whereby this may be determined, before the organisations are allowed to enter into commitments (e.g. collective agreements) on behalf of the trade or occupation as a whole.
20. 187. The Government affirms, further, that the choice of the system to be adopted rules out any risk of arbitrary action on the part of the administrative authorities because section 37 of the Act of 8 August 1958 gives a right of appeal to the courts in any matter relating to guild status.
21. 188. The Government declares in its reply that the complaint of the I.F.C.T.U lists all the exclusive powers which section 16 of the Act grants to the most representative industrial associations, but omits all reference to the powers which section 15 of the same Act accords to the remaining organisations which are merely registered. Contrary to what the complainants appear to allege, the latter organisations are not completely forbidden to defend and represent industrial interests vis-à-vis the State and the employers. Only in the event of there being in the relevant trade or occupation one or more associations with recognised guild status must they refrain from exercising the rights which appertain exclusively to such associations. This system does not imply that associations which are merely registered cannot take action to protect and represent their membership or that they cannot obtain corporate status as ordinary associations and petition in furtherance of occupational interests. The difference between the industrial associations with guild status and those which are merely registered lies in the fact that the former act as the statutory bargaining agents for the trade or occupation as a whole, whereas the latter may only undertake acts of stewardship to uphold the interests of the said trade or occupation.
22. 189. In conclusion, the Government affirms that the Act of 8 August 1958 in no way infringes the provisions of International Labour Conventions Nos. 87 and 98, that it does not set up a trade union monopoly for workers' industrial organisations that possess guild status, that it does not forbid organisations which are merely registered to exercise trade union functions and that it does not give the Government opportunities of dominating the trade union movement, thus permitting it to transform it into a political tool.
23. 190. It would appear, both from the allegations made by the complainants and from the observations presented by the Government, that the essential question in the case as a whole consists in the distinction made by the Act of 8 August 1958 between " ordinary " occupational associations and those which enjoy " guild status ". The complainants and the Government ascribe a very different meaning and scope to this distinction. Accordingly, before any conclusion can be formulated, it is necessary to examine the actual text of the Act.
24. 191. Section 2 of the Act provides that workers shall be entitled to establish and join organisations of their own choosing without previous authorisation. Section 6 prohibits any trade union discrimination. However, a concept is introduced in Chapters IV and V of the Act which had previously been abandoned, namely the distinction between ordinary organisations and organisations having trade union status.
25. 192. The essential criterion governing the granting or refusal of trade union status is the degree of representativeness of the organisation concerned, this being determined in its turn principally on the basis of the size of its membership compared with the memberships of the other organisations, but also on the contribution made by the organisation concerned towards the defence and protection of occupational interests.
26. 193. On several occasions, and especially when the draft text of the Right to Organise and Collective Bargaining Convention was being discussed, the Conference has had to consider the question of the representative character of workers' and employers' organisations ; it accepted to some extent the distinction which certain countries draw between various organisations according to the extent to which they are representative. Article 3, paragraph 5, of the Constitution of the I.L.O recognises the concept of " most representative " organisations. The distinction made by the new Argentine Act between two categories of trade union organisations could not therefore give rise to criticism in itself.
27. 194. It is nevertheless necessary to consider, in the light of the texts, what are the criteria for, and the consequences of, such a distinction.
28. 195. Although a distinction made between organisations according to whether they are more or less representative may be admissible in itself, it is necessary that the criteria for determining such distinction shall be objective and be based on prescriptions which give rise to no possibility of abuse.
29. 196. According to section 19 of the Argentine Act, an organisation cannot obtain trade union status if there already exists an organisation enjoying such status unless the number of its members exceeds the number of members belonging to the union already having this status. Section 20 provides that a union enjoying trade union status will lose that status if it ceases to be sufficiently representative in character. It is also stated in that section : " In determining whether the association with the smaller membership should retain its trade union status, account shall be taken of the number of its members, its trade union activity and its contribution to the defence and protection of occupational interests."
30. 197. The Committee considers that the imprecise nature of the terms of the part of the section which is cited above might permit of abuse when the decision is taken by the Government whether or not to permit a particular trade union to retain its trade union status.
31. 198. It would seem that the independence of occupational organisations in relation to the public authorities might be compromised if the legislator or the executive power can effect a discrimination between the various organisations concerned which is not based on objective criteria, and even more so where-as will be seen to be the case subsequently when the Argentine Act is analysed-the consequences of the distinction between the different organisations are to reserve to certain organisations a monopoly both in respect of the determination of conditions of employment (collective bargaining, etc.) and in respect of the representation and defence of the interests of the workers in relation to the public authorities.
32. 199. In this latter connection the consequences of the distinction between organisations which do not and those which do possess trade union status are defined in sections 15 and 16 of the Act, which specify the functions and rights of these two types of organisation. Section 16 provides that the rights and functions listed therein are reserved exclusively to organisations which have trade union status. The rights thus accorded by section 16 exclusively to organisations enjoying trade union status include-participation in the work of the public bodies concerned with the regulation of labour and social security, the negotiation and conclusion of collective agreements, collaboration with the State in a technical and advisory capacity in the study and solution of problems of concern to the occupation represented by the organisation, the holding of meetings without obtaining prior authorisation, the defence and representation of the individual interests of the members of the organisation vis-à-vis the social security institutions, courts of law and other public bodies and, finally, the defence and representation of occupational interests vis-à-vis the State and the employers. It is true that the last, mentioned right is also accorded to ordinary organisations, but section 15 of the Act nevertheless provides that they may enjoy this right only where no association with trade union status exists in the branch of activity concerned.
33. 200. Among the activities in which ordinary organisations may engage, section 15 of the Act mentions the establishment of provident and welfare institutions, holiday camps, canteens, hospitals, etc., the formation of producers' and consumers' co operatives, the promotion of general and vocational education by setting up libraries, laboratories, etc. From the strictly trade union point of view therefore, the role assigned to these organisations is extremely limited. According to the definition contained in Article 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) the term " organisation " means "any organisation of workers or of employers for furthering and defending the interests of workers or of employers ". It is clear from a perusal of the Act that even if that may be the object which is pursued by ordinary organisations, they lack the means of attaining it and the means of action open to such organisations are particularly limited.
34. 201. In its reply, the Government states that the difference between the functions of organisations having legal status and those of ordinary organisations resides solely in the fact that the former act as the statutory bargaining agents for the trade or occupation, whereas the latter may only undertake acts of stewardship to uphold the interests of the trade or occupation. In the final analysis, the whole system of industrial relations rests on the associations which enjoy trade union status and these organisations appear to be the only ones to possess the means to defend and promote the interests of the workers ; the other organisations of workers are deprived by the Act of such essential trade union functions as the conclusion of collective agreements in addition to that of defending and promoting occupational interests.
35. 202. In these circumstances, having regard to the fact that the distinction made by the Act between organisations enjoying trade union status and ordinary organisations results, in particular, in the latter organisations being unable to defend occupational interests against the employers, to hold meetings without previous authorisation and to conclude collective agreements-this point being of particular importance in the Argentine Republic, where the collective agreements may be extended to third parties who have not taken part in their negotiation and conclusion-it would seem that organisations which do not have trade union status do not have the right to organise in freedom their administration and activities and to formulate their programmes. Further, in view of the limited functions which are assigned to these organisations, it may be wondered whether the distinction does not infringe the generally recognised principle that workers shall have the right to establish and join organisations of their own choosing-a principle which is embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

B. B. The Committee's conclusions

1. 203. By including the words " organisations of their own choosing " in the said Convention, the Conference made allowance for the fact that in certain countries there are a number of different workers' and employers' organisations which an individual may choose to join for occupational, denominational or political reasons ; but it did not pronounce upon the question whether it is in the interest of workers and employers to have unified organisations rather than a number of separate ones. But it also recognised thereby the right of any group of workers (or employers) to form breakaway organisations if they think this desirable to safeguard their material or moral interests.
2. 204. The Convention also lays down that workers' and employers' organisations shall have the right to organise their administration and activities and to formulate their programmes (Article 3) and that the acquisition of legal personality by workers' and employers' organisations shall not be made subject to conditions of such a character as to restrict the application of the guarantees laid down in the Convention (Article 7), which guarantees include the freedom of choice of organisation by the workers and the right of organisations to organise their administration and activities and to formulate their programmes.
3. 205. Finally, it may be appropriate to refer here to the observations made by the Committee of Experts on the Application of Conventions and Recommendations at its last session (April 1959) according to which in certain cases a prohibition of the establishment of an occupational organisation capable of " furthering and defending the interests " of its members may result from the " recognition " by the Government of another organisation. The Committee went on: "This is clearly the case, for example, when the law itself specifies the privileged organisation by name. It may also be the case where the regulations relating to recognition impose on the organisations of workers concerned a form which may restrict their freedom of action and do not lay down objective criteria for the recognition for a fixed period of an organisation for the purposes of representation or negotiation ".
4. 206. In the present case it would appear that only organisations which enjoy trade union status are able to " further and defend the interests " of their members, and that organisations to which this status is not assigned are unable to perform such functions.
5. 207. There would seem to be no doubt that the privileged position thus accorded to organisations having trade union status may indirectly operate against the freedom of the workers to join organisations of their own choosing. This opinion, moreover, was expressed by the Committee when it had before it another case in which the trade union system in force in the Argentine Republic at the time was the subject of a complaint.
6. 208. In that case, noting that the regulations then in force did not place on the same footing ordinary organisations and recognised trade unions, the Committee, " having regard to the fact that the privileged status accorded to recognised trade unions may indirectly operate against the freedom of workers, to belong to organisations of their own choosing " took the view that it would be desirable for the Government to reconsider the distinction made between recognised trade unions and other trade union organisations.
7. 209. In another case, relating to Brazil, in which it had to examine a system which had many features in common with that in force in the Argentine Republic, the Committee expressed the following opinion:
   • It may, however, be asked whether, simply because the approved unions enjoy, to the exclusion of other organisations, privileges of paramount importance in the defence of occupational interests, wage earners are not indirectly obliged to belong to the approved unions. It does happen that the legislation in other countries without any intention of discrimination confers on recognised unions, which are in fact the most representative, certain privileges in connection with the defence of occupational interests which only they are in a position to perform effectively. But the granting of such privileges may not be made subject to conditions of such a nature as to bring into question through their operation the fundamental guarantees of freedom of association.
8. 210. Following this precedent and having regard to the fact that the conditions present in the case now before it are similar in many respects to those which it had to consider when it examined Case No. 12 relating to the Argentine Republic, the Committee, while noting that the laws now in force are not the same laws as were in force when it examined the earlier case, considers that the privileged status accorded to organisations which enjoy trade union status considerably limits the means of action open to organisations which do not have such status and may indirectly operate against the freedom of workers to belong to organisations of their own choosing, and recommends the Governing Body to draw the attention of the Argentine Government to the desirability of considering whether it would not be possible to abolish the distinction made by the Act of 8 August 1958 between organisations which enjoy trade union status and other trade union organisations.
9. 211. Finally, with respect to a more specific point, the Committee has noted that, according to sections 15 and 16 of the Act read together, organisations which do not enjoy trade union status are prohibited from holding meetings without previous authorisation. The right to hold meetings in freedom is an integral part of the right of trade unions to function freely. This is the point of view that the Committee has expressed whenever it has been called upon to examine a complaint containing allegations of infringements of the free exercise of the right of trade union meeting. In this connection, the Committee of Experts on the Application of Conventions and Recommendations emphasised in 1957 that " the degree of freedom enjoyed by occupational organisations in determining and organising their activities depends very largely upon certain legislative provisions of general application relating to the right of free meeting, the right of free expression and, in general, to civil and political liberties enjoyed by the inhabitants of a country ". From this point of view also, the considerable limitation placed on the means of action open to organisations which do not enjoy trade union status by the fact that they cannot hold meetings without previous authorisation would disappear if the distinction between these two types of organisation was abolished.