Informe definitivo - Informe núm. 244, Junio 1986

1. 27. In a communication of 6 July l983, the Union of Argentinian Teachers (UDA) filed a complaint against the Government of Argentina in connection with an executive Act that dissolved the Supplementary Old-age and Pension Fund for Teaching Personnel, which the Union had hitherto administered. It sent additional information in communications of 23 August l983, 27 March l984, 22 January l985 and 10 April l986.
2. 28. For its part, the Government then in power sent its observations on the matter in communications dated 13 October and 10 November l983. The new Government sent its observations in communications of 11 October l984, 4 and l8 February l985, 2l August l985 and 20 May 1986.
3. 29. The parties had notified the ILO on several occasions that the whole issue was being examined by the judicial authorities and had forwarded copies of judgements that had been handed down.
4. 30. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, l948 (No.087), and the Right to Organise and Collective Bargaining Convention, l949 (No.098).

A. The complainant's allegations

1. 31. In its complaint, the UDA, which claims to represent all members of the teaching profession in Argentina, recalls that the Supplementary Old-age and Pension Fund for Teaching Personnel was set up by a corporate co-responsibility agreement of 27 May l975 between the complainant organisation and the Ministry of Culture and Education, in its capacity as employer, in application of Act No. 20155 of 12 February l973. The Fund operated for more than seven years under the administration and management of the UDA. In an accompanying note outlining the ups and downs of the Fund during that period, the complainant refers to instances of harassment and administrative mismanagement since 1976 that eventually ended with its dissolution by Act No. 22804 of 5 May 1983.
2. 32. According to legal documents concerning the Fund's by-laws, forwarded by the complainant organisation, the central office of the Ministry of Culture and Education was authorised to withhold 3 per cent of teachers' salaries as their contributions to the Fund (Resolution No. 900 of 8 July l975) which was empowered to receive contributions from any source provided they were used only for the purposes stipulated in its by-laws, in other words as supplementary old-age and pension benefits. The Fund was managed by a six-member Board appointed by the UDA, while two representatives of the administrations involved acted as public trustees.
3. 33. Section 33 of Executive Act No. 22804 annulled the corporate co-responsibility agreement of 27 May l975 and thereby dissolved the Fund, confiscating its assets and incorporating them into a National Supplementary Fund for Teaching and Non-Teaching Personnel, under the jurisdiction of the Ministry of Education. The Act sets out all the administrative and management details of the new Fund which is run by a nine-member Board, three of whom are appointed by the Ministry of Education and six by the Fund's members.
4. 34. The complainant organisation strongly protested these legislative provisions, especially as they were followed by repressive measures against the trade union that was holding the Fund's assets. On 13 May l983, military forces occupied the Fund's premises and the military authorities appropriated its assets, as evidenced by a notary's official report. Following these events, the Fund's president commenced proceedings to recover the confiscated assets which were successful in the court of first instance, which approved the request, although its decision was later overturned on appeal when a higher court upheld the military take-over of the Fund. The assets therefore remained in the hands of the Minister of Education who entrusted them to a new Board which he appointed.
5. 35. In its communication of 23 August l983, the complainant states that, with the exception of section 33, Act No. 22804 is governed by Decree No. l4l9, that the military authorities continue to occupy the Fund's premises, that the judge examining the challenge to the constitutionality of section 33 had ordered the assets to be frozen but that his decision had not been respected by the administrative authorities.
6. 36. Moreover, the complainant alleges that in order to consolidate the situation the Minister of Education called elections for the new Board which the judge ordered suspended at the request of trade union organisations. Furthermore, the UDA declares that the court ruled in its favour on the question of the constitutionality of section 33 of Act No. 22804, but that it has been unable to obtain the enforcement of this decision and the application of the corporate co-responsibility agreement of 27 May 1975 by the administrative authorities involved. Subsequently, on l3 August l983, the complainants attempted to recover their assets but were prevented from doing so by the police. The UDA alleges that the case involves a violation of Convention No. 87 and requests the Committee to send a representative to Buenos Aires to investigate the facts and intercede with the Government of Argentina.
7. 37. In a communication of 22 January l985, the UDA states that no legal action has been taken regarding the constitutionality of Act No. 22804 and that the recently elected democratic Government has so far failed to keep its promise to redress the damages caused by the Act adopted by the military Government; thus, the situation remains at an impasse. The trade union organisation adds that the take-over of the Fund managed by the UDA has restricted the union's retired teaching personnel programme as a result of the confiscation of assets estimated at $25 million.
8. 38. In a more recent letter dated l0 April l986, the complainant indicates that its claim was dismissed by local judges for defects in form on account of legal flaws but that no opinion was expressed on its substance; the complainant then filed a law suit before a federal administrative disputes court, requesting its intervention at the ILO on grounds of non-compliance with Convention No. 87 (Article 3), but no action had been taken on this request.

B. The Government's reply

1. 39. In its several communications, the Government in power at the time the challenged Act was adopted did not explain why it had taken drastic action in respect of the Supplementary Fund for Teaching Personnel. The information furnished in its letter of l3 October l983 concerned the legal proceedings initiated by the complainant organisation. Upon appeal, the administrative disputes court revoked the decision of the court of first instance and ordered the Executive to suspend section 33 of Act No. 22804. In other proceedings challenging the constitutionality of certain provisions of the Act, the court prudently ordered the "suspension of the distribution of funds and assets belonging to the dissolved fund". The Government also noted that at the UDA's request the judge had annulled the elections to the Board of the Supplementary Fund, on the grounds that they would have entailed the implementation of section 33. The Government noted that the courts had examined the substance of the case and rendered judgement on the intrinsic merits of the administrative decision, but that the Ministry of Culture and Education had appealed the decisions handed down by the courts. Moreover, in the same communication the Government stressed that the UDA had not been prevented from advancing its claims and protecting its interests before the judicial authorities and that the Act had even been suspended until all legal appeals had been exhausted and a final ruling not subject to appeal had been handed down.
2. 40. On 11 October l984, the new Government submitted its observations on the case, suggesting that no action be taken until the courts handling the matter had rendered their decisions. The Government reiterated this request in communications dated 4 and l8 February l985 and 2l August l985.
3. 41. The Government sent to the Committee a further communication, dated 20 May 1986, concerning the judicial proceedings under way. It states that in the case brought by the dissolved Supplementary Fund against the State before the National Judge of First Instance (Federal Administrative Case No. 5), the Union of Argentinian Teachers (UDA) has been accepted, at the request of the Fund, as a third party having an interest in the case.

C. The Committee's conclusions

1. 42. This complaint involves the dissolution by Act No. 22804 of 5 May l983, adopted by the former military Government, of the Supplementary Old-age and Pension Fund for Teaching Personnel, hitherto administered by the complainant organisation, the UDA, under a draft agreement with the Ministry of Culture and Education dated 27 May l975.
2. 43. The Committee notes that the complainant employed all available legal means to defend and enforce its rights and interests, obtaining a stay in the enforcement of the Act and blocking the fund's financial assets.
3. 44. The Committee recalls that in a previous case (23rd Report, Case No. lll, para. 227(3)) it had considered that it should not express opinions as to the desirability of entrusting the administration of social insurance and the supervision of social legislation to occupational associations rather than to administrative state organs, except in so far as such a measure might restrict the free exercise of trade union rights. In the present case, in the light of the elements taken into consideration, the Committee has not found conclusive evidence of any restriction on the exercise of the rights of the UDA or of any interference whatsoever by the administrative authorities in its management and trade union activities.
4. 45. The Committee notes that neither the legal situation that gave rise to the complaint, namely the enactment of legislation that replaced the UDA trade union as administrator and manager of the Supplementary Old-age and Pension Fund for Teaching Personnel, nor the events that took place under the former military regime, namely the occupation of the Fund's premises by military forces and the confiscation of its assets, relate to trade union activities that come within the terms of the reference of the Committee, given the fact that no trade union premises or trade union assets are involved. The Committee considers that while the administration and management of a provident fund may fall within the competence of a trade union by virtue of an agreement with the Government, they are not part of its trade union activities as such but fall within the province of the social security or welfare schemes. Furthermore, the Committee notes that the new Act does not exclude teaching personnel from the management and administration of the new Fund, since six of the nine members of the Board are elected by the Fund's members, who are thus still represented. In the Committee's opinion, the assets which a pension fund may derive from social welfare contributions deducted from salaries cannot be looked upon as trade union funds.