Informe provisional - Informe núm. 98, 1967

1. 231. The complaints are contained in a number of communications to the I.L.O from the organisations and on the dates mentioned below: International Federation of Christian Trade Unions (27 December 1966), Argentine Trade Union Movement (A.S.A.) (15 February 1967), Latin American Federation of Christian Trade Unions (27 March 1967), World Federation of Trade Unions (31 March 1967), International Transport Workers' Federation (17 April 1967), and International Confederation of Free Trade Unions (5 May 1967), with reference to and in support of two communications sent to the I.L.O on 6 March and 12 April 1967 by the International Metalworkers' Federation, which is associated with the I.C.F.T.U. Additional information and further allegations have been submitted by the International Federation of Christian Trade Unions (in a communication dated 28 April 1967), the Latin American Federation of Christian Trade Unions (three communications dated 13 April, 20 April and 2 May 1967) and the International Metalworkers' Federation (8 May 1967). All these communications were transmitted to the Argentine Government as they were received.
2. 232. The allegations relate mainly to the arrest of a trade union leader, to legislative provisions changing the standards governing work in the docks and the resulting labour dispute and to various measures of interference, suspension of trade union status and freezing of bank accounts stated to have been adopted by the Government in the case of several trade union organisations mentioned in the complaints, etc.
3. 233. The Government submitted its observations on certain aspects of the case by a communication dated 9 May 1967.
4. 234. 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. A. The complainants' allegations

1. 235. In its communication dated 27 December 1966 the International Federation of Christian Trade Unions (I.F.C.T.U.) alleges that on 18 December 1966 armed police burst into a trade union meeting and that as a result more than 40 persons were placed under arrest and many were wounded. The Argentine Trade Union Movement, in its communication of 15 February 1967, alleges that the Government unilaterally enforced new labour standards for dockers by a decree, No. 2729, which violated previous agreements, without having consulted the trade unions concerned (United Argentine Dockers' Union (S.U.P.A.), Dock Coalworkers' Union, Shipping Agents and Inspectors' Union, Stevedore Foremen's Association) and that the leaders of the S.U.P.A were removed from office by a decree of 19 October 1966 and replaced by a civil servant. The A.S.A. adds that the police broke up a general meeting of the S.U.P.A on 18 December 1966 and arrested its General Secretary, Mr. Eustaquio Tolosa.
2. 236. The Latin American Federation of Christian Trade Unions, in its communication of 13 April 1967, alleges that Decree No. 2729 increased permitted hours of work in unhealthy occupations, reduced the number of workers on each shift, altered the method of calculating wages for work on public holidays, Saturday afternoons, etc. On 14 October 1966, according to the complainants, the Economic Affairs and Labour Secretary informed the representatives of the union that conditions of work in ports were to be modified by legislation and that the new port authority would issue new labour regulations; the union, having requested that the enforcement of the new measures be postponed and that it be allowed to take part in framing the new regulations, was informed on the following day that on 19 October the new regulations would come into force. The L.A.C.F.T.U goes on to state that the trade union lodged an appeal with the President of the Republic and on 18 October asked for 30 days to discuss the new labour regulations and other points, only to be told that " the law has already been enacted and laws do not call for discussion ". On 19 October S.U.P.A declared a general strike and on the same day the Government declared it to be " outside the scope of lawful trade union activities " and appointed a naval officer as the responsible head of the union, whose premises were occupied by the armed forces.
3. 237. The International Transport Workers' Federation (I.T.F.), in its complaint of 17 April 1967, made detailed allegations concerning developments in this dispute. It begins by stating that when the dockers' unions learned of the Government's intention of issuing new labour laws and regulations they submitted a memorandum on dockers' problems in which they emphasised the need to create a national port policy and expressed their willingness to co-operate for that purpose. As the Government refused to consider this offer of conciliation and co-operation, the dockers' unions declared a strike. Mr. Tolosa left the country for Montevideo to secure his personal safety and direct the strike from there.
4. 238. According to the I.T.F, the Government continued to maintain an intransigent attitude even though the dockers' unions had offered a solution including, among other points, the lifting of government control of the union, postponement of the enforcement of the new laws for 30 days, the creation of a tripartite committee of employers', workers' and government representatives to study the application of the new laws and the submission of any unresolved matters to arbitration.
5. 239. The I.T.F states that on 31 October it sent its member unions a circular requesting " the fullest possible manifestation of international solidarity in an effort to assist the Argentine dockers ". At the same time a cable was sent to President Ongania " notifying him of the possibility of international action and offering him the assistance of the I.T.F in mediation and negotiation ". In order to ensure that the Government had a true picture of the interest of the I.T.F in the dispute, Mr. Medrano, I.T.F. Director in Latin America, met various Argentine authorities including the Labour Secretary, who told him that if the dockers accepted the new regulations on working conditions temporarily a tripartite committee would be set up to consider the matter. After consulting with the unions, Mr. Medrano drafted the terms of a solution and submitted it to the Labour Secretary, who informed him that the Transport Secretary would have to be consulted before the Government could give a reply. Finally, after further meetings were held, the Labour Secretary, the I.T.F states, accepted a text, a copy of which is attached to its communication.
6. 240. The checkers' and foremen's unions agreed unanimously to accept the solution and return to work on 19 December. A delegates' conference of S.U.P.A was convened for Sunday, 18 December, which it was confidently expected would end the strike. When the delegates had assembled, the police arrested Mr. Tolosa on the grounds that he had left the country without permission; he was subsequently released on bail but re-arrested on a charge of acts harmful to the Argentine economy and finally released on 22 December.
7. 241. Still according to the I.T.F, the unions decided, once Mr. Tolosa was free, to return to work on 26 December on the basis of the agreement reached with the Secretaries of Labour and Transport, but when the men reported for work they were prevented from entering the dock area by the police and the military. The strike thus became a lockout, which the complainant organisation affirms is proof of the Government's intention to impose unilaterally its own conditions of work on the trade unions. It also affirms that the Government tried to force the acceptance of strike breakers in the docks and allow only sufficient regular dockers to be registered to make up the number required for the working of the port. The figures proposed by the captain in charge of the port were as follows:
   • Strike breakers Regular dockers Total
   • Foremen 61 231 292
   • Checkers 559 252 811
   • Dockers 3,717 737 4,454
8. 242. These figures, the complainants say, show strike breakers were greatly in the majority, leaving most of the port workers of Buenos Aires without employment because they had acted in defence of their legitimate trade union rights.
9. 243. In the meantime, a further warrant having been issued for Mr. Tolosa, he decided to give himself up on 5 January 1967 and has been in prison ever since.
10. 244. Lastly, the complainants state that despite several further approaches made by the Regional Director to the authorities and those made by a joint I.C.F.T.U.-I.T.F mission, the Government maintained its attitude. The complainants state that the facts set forth constitute infringements of I.L.O. Conventions Nos. 87 and 98, since the Government has: taken steps to modify conditions of work in ports without prior consultation with the unions concerned; refused to consider any proposals submitted by the dockers' unions and in particular the memorandum on dockers' problems; appointed an official to take charge of the dockers' union (S.U.P.A.); recruited strike breakers; arrested the General Secretary of S.U.P.A, Mr. Eustaquio Tolosa, on 18 December 1966 just as he was about to chair a meeting of his union, and again on 5 January 1967; locked out dockworkers, thereby victimising them for having taken part in a campaign ordered by their union; failed to honour the agreement reached by the representative of the complainant organisation and the Labour and Transport Secretaries.
11. 245. In its reply dated 9 May 1967 to the allegations put forward by the International Federation of Christian Trade Unions and the Argentine Trade Union Movement, the Government states that in connection with the dockers' strike, Mr. Tolosa, who was on trial for his activities in the so-called Plan of Action of the C.G.T of 1964, left the country without the necessary court authorisation to settle in Montevideo, where he began promoting the notion of an international boycott of Argentine ships and planes.
12. 246. The Government goes on to say that after an agreement had been reached which was to be examined by a union meeting on 18 December 1966, Mr. Tolosa returned to Argentina. When this came to the knowledge of the judge who was conducting the proceedings, he ordered Tolosa to be arrested by virtue of section 387 of the Code of Criminal Procedure of the Federal Capital which stipulates that, in order to be released on bail, a person standing trial shall undertake to obey any summons emanating from the judge and to have a fixed place of residence from which he may not absent himself without the knowledge and authorisation of the judge; a breach of this provision is sufficient to cause the accused to be imprisoned again.
13. 247. The Government supplies the text of a report by the federal police showing that the arrest was made in execution of an order from a national federal judge of the Criminal and Correctional Court of First instance in connection with Case No. 46/64 against various persons on charges of sedition and other offences. The report states that the arrest was made before the meeting convened by the leaders of the S.U.P.A began and that Mr. Tolosa complied with the order given by the police officer; although a few hot-heads tried to oppose his arrest, no one else was arrested and nobody was wounded or hurt.
14. 248. From various press cuttings supplied by the Government it would appear that legal proceedings were subsequently taken against Mr. Tolosa before another court for a breach of section 1 of Act No. 14034, which makes an Argentine citizen liable to imprisonment if he promotes economic or political measures against the interests of the State by any means whatsoever.
15. 249. With regard to the dockers' dispute, the Government supplies the following information. With a view to achieving full operation of the country's ports, rational regulation of dock work and the elimination of a wastage of human and material resources that was detrimental to the community, the President of Argentina exercised the powers conferred on him by the Statute of the Argentine Revolution to approve Acts Nos. 16971 and 16972 and Decree No. 2729. The Government supplies the text of all these provisions.
16. 250. The Government states that in this way dock work is brought within the scope of the general legislation regarding hours of work, days of rest and holidays which is applicable to all workers in the country. These measures modified the previous system which had also been set up unilaterally by the State (Legislative Decree No. 6676/63 and Decree No. 6284/60) and distorted the principle of equality. In spite of these exceptional measures to regulate it, work in ports was constantly being perturbed by disputes arising out of futile motives and which led to an exorbitant rise in the cost of labour, so much so that the ports of Argentina became the most expensive in the world, particularly Buenos Aires which earned the name of " dirty port ", with a resultant increase in freight rates. Act No. 16972 and regulations thereunder lay down essential standards to enable port work to be brought back into the scope of the general labour law as already established.
17. 251. The Government takes the view that there has been no breach of any international agreement, any canon, standard or principle of social justice, or any prior collective agreement with the trade union organisations.
18. 252. It goes on to state that the Acts and decree in question were no sooner promulgated than the S.U.P.A declared a strike for the express purpose of paralysing port activities and solicited, through its representatives, the support of foreign trade unions in boycotting Argentine ships and planes and all the goods carried by them. According to the Government, this behaviour was a veritable rebellion against the law itself, since it aimed at damaging the vital interests of the nation in open opposition and rebellion against the authority which the State exercises solely with a view to protecting those interests.
19. 253. Lastly, the Government states that Act No. 14455 recognises, among the rights appertaining to trade union organisations, that of non-intervention in their management and administration on the part of the authority responsible for enforcing the law. However, the rights so recognised refer only to lawful activities. The Government takes the view that the principles stated must also apply to international agreements, the ratification of which should not oblige a State to emasculate its own action in re-establishing law and order. The taking over of the trade union decreed by the Government was duly analysed by the national labour courts, in both the first and second instance, as a result of the appeal lodged by the persons concerned; the National Chamber of Labour unanimously voted " that the provisions of Decree No. 2868/66 be promulgated in full ". The Government quotes part of the ruling of the Chamber of Labour, which states that the new system of regulation of dock work is a vital part of the economic policy of the Government and has direct repercussions at both national and international level on the development of activities of prime importance to the State such as import and export trade. In the opinion of the Chamber of Labour, the measures decreed by the Government were necessary to safeguard the activities threatened by the strike and the international boycott promoted by the trade union; they were taken in order to overcome the serious emergency in which the country had been placed by the trade unions.
20. 254. The Government also attached to its reply various comments published by Argentine newspapers, some of which stress the national economic difficulties caused by the poor operation of the ports and the advantage to the country of accelerating the loading and unloading of ships, etc.
21. 255. With regard to the allegations concerning police interference in the trade union meeting held on 18 December 1966 and the arrest of other persons besides Mr. Eustaquio Tolosa, the Committee notes from the Government's observations that the action of the police was restricted to arresting Mr. Tolosa. Since the complainants have not supplied particulars regarding the other persons they claim were arrested, the Committee therefore considers that there would be no purpose in proceeding further with the examination of these particular allegations.
22. 256. As regards the arrest of Mr. Tolosa, it appears from the information supplied by the Government that it was made in compliance with court orders issued in connection with two criminal trials, the first initiated in 1964 and the second based on criminal offences with which Mr. Tolosa was charged in connection with the labour dispute to which the complaints refer.

B. B. The Committee's conclusions

1. 257. In the past the Committee has always followed the practice of not proceeding to examine matters which were the subject of pending national judicial proceedings offering all the guarantees of normal judicial procedure, where such proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well-founded. In many cases the Committee has requested governments to communicate the text of the judgments given and their grounds.
2. 258. Consequently the Committee feels it is necessary, before proceeding with its examination of this particular aspect of the matter, to request the Government to be good enough to furnish the text of the judgments given in the case of Mr. Tolosa and the reasons adduced therefor.
3. 259. Moreover, the Committee has always stressed the principle that allegations relating to the right to strike are not outside its competence, in so far as they affect the exercise of trade union rights. It has also pointed out that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. In cases where it is observed that restrictions are placed on strikes in essential services, the Committee has always emphasised the importance it attaches to the establishment of adequate guarantees for workers thus deprived of the possibility of protecting their occupational rights s and observed that such restrictions should be made subject to impartial and rapid conciliation and arbitration procedure in all stages of which the interested parties can take part.
4. 260. In the present case the complainants state that the strike called by the workers and which led the Government to issue a decree taking over the United Argentine Dockers' Union (S.U.P.A.) was motivated by the Government's having legislated to modify the working conditions of dockers. The Government, for its part, states that the aforesaid working conditions had from the beginning been established by law and not by collective agreement and that the changes decreed, which did not exceed the scope authorised by the general labour laws, were indispensable for the vital interests of the country. The taking over of S.U.P.A was designed to protect those same vital interests, which were threatened by the strike and the international boycott promoted by the trade union. Argentine courts of the first and second instance had authenticated the validity and legitimacy of the take-over decree.
5. 261. The Committee notes the explanations supplied by the Government in connection with the dockers' dispute. It would appear, however, that one of the trade unions concerned, the United Argentine Dockers' Union, is still under government control at present and it is not clear whether or not there is any intention of reviewing the matters under dispute through conciliation or arbitration procedure in all stages of which the interested parties can take part, in accordance with the principles set forth in paragraph 259 above. The Committee would be glad to receive additional information from the Government in this connection.
6. 262. Moreover, no observations have as yet been received from the Government concerning other aspects of the case which were raised in the complaint of the International Transport Workers' Federation, namely the allegations to the effect that the Government had refused to examine the proposals originally put forward by the workers; that an agreement reached with the Labour Secretary after the strike had begun had been broken; and that anti-trade union repressive measures, including the recruitment of strike breakers, had been taken against the workers participating in the strike (see paragraph 244 above).
7. 263. Nor have any observations been received from the Government concerning the other complaints and additional information supplied by the Latin American Federation of Christian Trade Unions, the World Federation of Trade Unions, the International Confederation of Free Trade Unions, and the International Metalworkers' Federation, which are mentioned in paragraph 231 above and refer inter alia to government interference with a number of workers' organisations, besides the taking over of the S.U.P.A as already stated.
8. 264. Bearing in mind the principles set forth in paragraph 259 above and the provision contained in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), according to which workers' organisations are entitled to elect their representatives in full freedom, organise their administration and activities, and formulate their programmes, and the public authorities must refrain from any interference which would restrict that right or impede the lawful exercise thereof, the Committee feels it is necessary, before proceeding with its examination of the case and formulating further conclusions, to have the observations of the Government on the points raised in paragraphs 261, 262 and 263 above.