Informe definitivo - Informe núm. 320, Marzo 2000

1. 133. The complaint is contained in a communication from the Lockheed Aircraft Argentina S.A. Workers' Union (SITLA) dated 9 September 1999. The Government sent its reply in a communication dated 21 January 2000.
2. 134. 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. The complainant's allegations

1. 135. In its communication of 9 September 1999, the Lockheed Aircraft Argentina S.A. Workers' Union (SITLA) explains that it is a "merely registered" trade union association which has 413 members, who on their membership forms authorize the trade union to deduct the corresponding amounts for their trade union dues. The complainant adds that on 14 September 1998, the Ministry of Labour refused to issue the requested ruling to authorize these deductions to be made by the employer; this decision was confirmed in ruling No. 478 of 19 July 1999, where it is argued that the deduction of trade union dues in accordance with section 38 of Act No. 23551 is the exclusive right of trade union associations with trade union status and not of those that are merely registered.

B. The Government's reply

1. 136. In its communication dated 21 January 2000, the Government states that in this case the trade union body considers itself to have been prejudiced by the failure of the Ministry of Labour to direct the employer to deduct the trade union dues of the union's members. The applicable regulation, Act No. 23551, stipulates that only trade union organizations with trade union status enjoy this right. That being so and as the applicant has merely been registered and does not have trade union status, its request was denied (a copy is sent of the action taken on this matter by the National Directorate of Trade Union Associations). The allegations can in no way be considered as undermining freedom of association or the international Conventions cited by the complainant. On this last point it should be recalled that the Republic of Argentina has not yet ratified Convention No. 135. There is no contradiction whatsoever with the views reiterated by the ILO supervisory bodies to the effect that "the simple fact that a country's legislation establishes the distinction between the most representative trade union organizations and the other organizations should not in itself be a cause for criticism" and that "this distinction should not have the effect of depriving trade union organizations that are not recognized as being amongst the most representative organizations of the essential means of defending the occupational interests of their members, of organizing their administration and activities and formulating their programmes of action, provided in Convention No. 87". Thus trade union organizations with trade union status have the right and the authority to collect from their affiliates trade union dues to finance their activities. Furthermore, section 38 of Act No. 23551 establishes an obligation for the employer to act as an agent for the deduction of dues for organizations with trade union status, which does not stop it doing the same if the affiliates of an organization that is merely registered so agree. The abovementioned Act in no way undermines the letter and spirit of Convention No. 87, as national legislation at all times guarantees workers the freedom to affiliate themselves to a given trade union organization or not, the fact that the employer can act as an agent for the deduction of dues being a simple administrative method of preventing evasion.
2. 137. The Government states that in Argentina the republican division of state powers is fully in force, in accordance with which it is the responsibility of the legislative power (National Congress) to issue legislation and of the judicial power (Supreme Court of Justice of the Nation and other lower courts) to monitor its constitutionality, all this without any interference from the executive power. Likewise, constitutional guarantees are protected by the new article 43 of the National Constitution (revised in 1994) which provides that "any person may file a prompt and summary proceeding regarding constitutional guarantees (amparo), provided there is no other appropriate legal remedy, against any act or omission of the public authorities or individuals which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality. In such case, the judge may declare that the act or omission is based on an unconstitutional rule". As a result of this provision, any person or legal entity who considers that the rights inherent in freedom of association have been violated can use this constitutional legal action to remedy the prejudicial situation.

C. The Committee's conclusions

1. 138. The Committee observes that in this case the complainant organization is criticizing the fact that the Ministry of Labour, in two rulings, has refused to recognize its right to request the employer to deduct trade union dues from its members. The Government has stated that the applicable legislation obliges the employer to deduct trade union dues only for organizations with trade union status (most representative) and not for those which - as is the case of the complainant organization - are merely registered.
2. 139. In this respect the Committee observes that administrative ruling No. 478 of 19 July 1999 includes the following points:
   • ... that it also stated that while its 413 affiliates authorize the deduction of the trade union dues, up until now they have found themselves obliged to make these deductions directly and personally for the abovementioned reasons.
   • That, with respect to the briefly described grievances, it should be indicated that section 38 of the National Trade Union Associations Act, No. 23551, expressly stipulates: "employers shall be obliged to act as agents for the deduction of the amounts which, as membership dues or other contributions, the workers must pay trade union associations with trade union status".
   • That, in accordance with the abovementioned text, the power to deduct membership dues is granted exclusively for trade union associations with trade union status, which is why the alleged extensive interpretation with respect to associations that are merely registered lacks any basis in law ...
3. 140. On this matter, the Committee shares the opinion of the Committee of Experts on the Application of Conventions and Recommendations, which is reproduced below:
   • With regard to the provisions of the Act respecting the privileges accorded to trade unions with trade union status (representing various collective interests other than through collective bargaining (section 31), entitlement to have trade union dues deducted from wages (section 38), tax exemption (section 39), and special protection granted to trade union leaders (sections 48 and 52)), the Committee emphasizes that this accumulation of privileges could have a negative impact on workers in their choice of trade union membership. In this respect, the Committee notes the Government's statement to the effect that 91 per cent of workers belong to trade union organizations with trade union status whereas only 9 per cent belong to organizations which have merely been registered. The Committee considers that this disparity could be interpreted as workers wishing to belong to organizations which are able to develop a real trade union activity through the nature and number of privileges granted under sections 31, 38 and 39 of the Act, as is the case of trade union organizations with trade union status, thereby prejudicing unions which are merely registered and only able to represent the individual interests of their members, at their request, as provided for under section 23 of the Act.
   • The Committee again recalls that the distinction of the most representative union should not result in the trade union being granted privileges, as already stated, extending beyond that of priority in representation for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, the Committee shares the view of the Committee on Freedom of Association that this distinction should not have the effect of depriving trade union organizations that are not recognized as being amongst the most representative organizations of the essential means of defending the occupational interests of their members, of organizing their administration and activities and formulating their programmes of action, provided for under Articles 3 and 10 of the Convention.
   • The Committee also recalls that when legislation confers on the most representative trade unions certain privileges in connection with the defence of their occupational interests, by virtue of which they alone are in a position to act effectively, the granting of such privileges should not be made subject to such conditions as to influence unduly the choice of workers regarding the organization to which they intend to belong (see the report of the Committee of Experts, Report III (Part 1A), 1999, page 203).
4. 141. This being the case, the Committee requests the Government to take measures to ensure that with respect to the deduction of trade union dues from wages, legislation does not discriminate against trade union organizations that are merely registered as opposed to those with trade union status.