Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 295, Noviembre 1994

1. 302. The complaint is contained in a communication from the Banking Association (Association of Bank Employees) of 19 May 1993. The Government responded with a communication of 31 May 1994.
2. 303. Argentina has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 304. In its communication of 19 May 1993 the Banking Association (Association of Bank Employees) alleges that the provisions of Act No. 23523 of 28 September 1988 - which grants a preferential right of access to their previously held jobs to bank workers who were suspended from their posts and/or made redundant for political reasons or for participation in trade unions between 1 January 1959 and 12 December 1983 - have not been observed by the private banking industry (mainly foreign banks) and have been only partially observed by the state banking industry, both of which have deliberately recruited new staff.
2. 305. The complainant points out that this refusal to reinstate employees is not based on economic reasons, as their number is not significant for each financial institution. The reasons must be political or based on their trade union participation, since dismissal has always been used widely to pressure trade unionists and political activists in general.
3. 306. Finally, the complainant sends a list of 34 trade unionists who are former employees of 16 banking institutions and who made use of this preferential right under the aforementioned law, and includes numerous annexes. Of the 34 dismissed workers, 19 lost their jobs during the major banking strike of 1959 which lasted 69 days; the rest were dismissed between 24 March 1976 and 10 December 1983 and were victims of the arbitrary repression of the military dictatorship. This list covers banks which are in operation.

B. The Government's reply

1. 307. In its communication of 31 May 1994, the Government, referring to the alleged lack of observance of the provisions of Act No. 23523, states that the alleged violation of freedom of association in no way refers to an act of the national Government, but rather is the result of activities by banking institutions which are able to acquire rights and undertake obligations, and that the Ministry of Labour cannot compel them to observe such obligations by any means other than those which fall within its own legal competence and which are referred to below. The Act in question stipulated that certain former banking employees were to benefit from a preferential right to reinstatement in their jobs. It covered employees who were suspended from their posts, made redundant, dismissed or transferred to administrative bodies where the conditions of work were different from that in banks in the period from 1 January 1959 to 10 December 1983 inclusive. These former employees were to benefit from the law if they lost their jobs at state banks, whether they are national, provincial or municipal; at private or mixed banks; at banks of the former General Directorate of Personnel and State Guaranteed Loans or at banks of the Institute of Social Banking Services for political reasons or owing to their participation in trade unions or in strikes or other industrial action. Section 2 of this Act established a period of 60 working days from the date of publication of the Act in the Official Bulletin, in which workers could exercise this preferential right by sending a telegram or an official letter expressing their desire to be reinstated. The provisions of section 3 obliged the various employers to draw up a list of personal data of workers who complied with this law, and to submit a copy thereof to the Ministry of Labour and Social Security and to the Banking Association. The employers were obliged, when a vacancy occurred in one of the institutions mentioned in the Act to, fill it with preference with one of these workers by inviting him in good faith to take the post, and to communicate this reinstatement to the administrative labour authority and to the trade union association.
2. 308. The Government adds that one may conclude from the above that, in any case, Act No. 23523, apart from not establishing the Ministry of Labour's responsibility for the application of its standards, merely assigned to the Ministry the obligation to provide means for the application, and not responsibility for the final results. Indeed, the function of the administration in this case is to supervise compliance with the legal standard in question, as is the case with any labour standard. This is a function fulfilled by the National Directorate of Labour Inspection; in the event of concrete complaints of cases where the standards are not observed, the task of mediating between the parties to find a conciliatory solution is fulfilled by the National Directorate of Labour Relations.
3. 309. In this regard, the Government emphasizes that in the present case, and as noted in the complainant's own statements, the first of these functions was completely and satisfactorily fulfilled by the Ministry through numerous inspections conducted by the National Directorate of Labour Inspection, which not only instructed the offending banks to observe the legal provisions in force, but also applied the appropriate sanctions to them for obstruction of administrative procedures (section 5 of Act No. 18694). As regards the second of the functions described above, it should be emphasized that the National Directorate of Labour Relations was consulted regarding the procedures initiated based on complaints of specific violations of the provisions of Act No. 23523, and that it reported that only three cases had been registered, for the Boston, Sudameris and Avellaneda banks. Of these cases, reinstatement was only obtained for one former employee of the Avellaneda Bank, but not for the rest of the workers.
4. 310. Unfortunately, under the mandate given to it by the legislation in force, once the Ministry of Labour has instructed the offending institution to comply and has exhausted its mediation and conciliation efforts without reaching an agreement between the parties, its administrative role is completed. The administrative authority is not competent to deal with individual disputes. The way is then clear for the worker to bring any complaints he deems appropriate before the courts, as for example a complaint relating to the payment by his employer of compensation provided under section 245 of the Contracts of Employment Act. Indeed, under section 8 of the legal standard in question, the only sanction provided in the event its provisions are not observed is the payment to the affected worker of compensation equivalent to that which would be due to the worker for dismissal without just cause under the current legislation.
5. 311. The Government concludes by stating that the administration has consistently expressed its desire to resolve this problem and to reconcile the parties by acting within the mandate given to it by law; if this procedure has failed then it is up to the parties to make their claims before the judicial authority as explained in the preceding paragraph. There has thus been no violation of the freedom of association, and this case should therefore be dismissed by the Committee.

C. The Committee's conclusions

1. 312. The Committee observes that in this case the complainant organization alleges that, in violation of Act No. 23523 of 28 September 1988, 34 former employees of 16 banking institutions who were dismissed for political reasons or for participation in trade unions between 1 January 1959 and 12 December 1983 were denied reinstatement in their posts. The Committee notes that the Government states that the Ministry of Labour fulfilled the task assigned to it under this law, mediating between the parties to find a conciliatory solution, instructing the offending banks to comply with the law and applying the appropriate sanctions for obstruction of administrative procedures. The Committee also notes that, according to the Government, when the parties do not reach an agreement, the affected workers may bring the case before the courts and may thus be awarded compensation equivalent to that which under the legislation in force would be due to the worker for dismissal without just cause.
2. 313. The Committee should like to emphasize that Act No. 23523 defends bank employees who were dismissed for political reasons and/or for participation in trade unions. Because of the Committee's mandate, the following conclusions apply only to those workers dismissed because of their participation in trade unions in the period covered by Act No. 23523. The Committee notes that the allegations and the Government's statements differ as regards the number of dismissed workers who were not reinstated with a preferential right to reinstatement: according to the complainant organization, there were 34 former employees of 16 banking institutions, while according to the Government, complaints of violations of Act No. 23523 refer only to the Boston, Sudameris and Avellaneda banks (in the last bank, one of the former employees was, however, reinstated).
3. 314. In these circumstances, the Committee emphasizes the importance it attaches to the effective and quick observance of Act No. 23523 of 1988. Therefore, in light of the differing information given by the complainant and the Government as regards the number of former bank employees dismissed for trade union activities (and the number of banks concerned), the Committee requests the Government to hold discussions with the Banking Association, and with the relevant employers' and employees' organizations, with the aim of determining the exact names and number of former employees who have not been reinstated despite their preferential right to reinstatement. Independently of the available judicial and administrative remedies, the Committee requests the Government to promote new conciliatory measures and arrangements which may be concluded between the parties with the aim of reaching an agreed settlement. Where reinstatement is impossible, because of the age of the former bank employees who were dismissed decades ago, or because of other valid reasons, the Committee considers that the injured parties should receive the compensation provided by law as soon as possible.