Rapport intérimaire - Rapport No. 360, Juin 2011

1. 154. The complaint is contained in a communication of the Confederation of Argentine Workers (CTA) dated November 2009.
2. 155. The Government sent its observations in a communication of 28 February 2011.
3. 156. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 157. In its communication of November 2009, the CTA states that it is presenting this complaint against the Argentine State for multiple violations of freedom of association and the rights of workers’ organizations and representatives guaranteed under Conventions Nos 87, 98 and 135 and Recommendation No. 143, in the form of acts of discrimination, dismissals of trade union leaders, delegates and activists.
2. 158. The CTA indicates that the National Institute of Statistics and Censuses (INDEC) is a public body, under the Ministry of Economy. According to the information set out on the official website of the institution, it is a technical body responsible for standardizing the direction and exercising overall management of all official statistical activities carried out in the territory of the Argentine Republic. Its creation and functioning are regulated by Act No. 17622, Decree No. 3110/70 and Decree No. 1831/93. The Act confers direct responsibility for the design of the methodology, organization and management of national operations for collecting data through censuses and surveys, the elaboration of basic social and economic indicators and the production of other basic statistics. INDEC is responsible for the development of the methodology and standardization of production of official statistics, thereby ensuring the comparability of information originating from different sources. Because it processes and produces statistics which reflect socio-economic situations of major importance, their periodic reports began to be “sensitive” for the government authorities which, concerned at the impact that such reports could have on public opinion, initiated an aggressive policy of intervention in the Institute. Thus it ordered the replacement of professional technical staff by persons in sympathy with the political authorities who, controversially, made certain changes to the methodology and substituted survey data which resulted in data more in line with the public pronouncements of members of the Government. This was denounced by the workers and public opinion in general quickly noted the clumsy attempts at deception.
3. 159. The CTA adds that although it was in January 2007 that the national Government ordered intervention in the INDEC, prior to that the situation was already not normal due to the fact that the then Director was pressured to disclose the names of the businesses surveyed (that being information protected by statistical confidentiality). The CTA alleges that from January 2007, the “disembarkation” began with the permanent and direct presence of the interveners and the persons reporting to them. From that time onwards, the result was manipulation of public statistics, harassment of workers and systematic destruction of the institution which has continued until this day. The intervention consisted basically of abolishing the Institute’s chief function, which is to produce reliable and accessible statistics produced in a transparent manner in the framework of legal and methodological rules. The first operation subject to intervention was the Consumer Price Index (CPI). On 29 January 2007, a new Director of the Institute was appointed by presidential decree.
4. 160. According to the CTA, the Secretary of Trade and the Director of INDEC said that the body needed to adapt to the policy set by the Government in accordance with its own needs. Thus, from that moment, data would not be published in order to align public policies with reality and the needs demonstrated by the information, but, on the contrary, the Institute would be turned into a political tool of the Government. This situation produced an immediate reaction from everyone, public opinion and the Institute’s workers. That is how the collective dispute to save INDEC began. The CTA adds that, in consequence, and because the active opposition of the Institute’s workers to the manipulation and deception promoted through the Institute constituted a serious obstacle, the Government launched an offensive against the workers and their representatives which took numerous forms. They began to harry and punish the Institute’s workers through dismissals, reassignments, wage reductions, summary proceedings, discriminatory acts, actions in the courts and other forms of harassment, even to the extent of allowing or encouraging physical violence by third parties in INDEC’s sphere of operations.
5. 161. The CTA alleges the following violations of the right to organize.
   • Physical violence against workers
6. 162. The CTA indicates that on 22 August 2007, during the 42 day strike by INDEC workers in protest against the situation generated by the intervention and rejecting the reassignment of the Director of the Permanent Household Survey, the workers’ assembly decided to erect a stand at the entrance to the INDEC building, as a trade union action to make society aware of the need to defend public statistics and the workers who opposed the manipulation. The violent intervention by the Federal Police of Argentina (PFA) prevented the stand being erected, and it was confiscated to prevent any possibility of erecting it. The workers were subjected to rough handling.
7. 163. The CTA adds that on 15 May 2008, when a meeting of all the workers employed in the Ministry of Economy was called in the central hall of the Ministry, to present to the Minister 2,500 signatures in support of a claim for a wage increase of 500 pesos (ARS) through the reception desk, those present were brutally beaten by persons recognized to be members of a shock force which usually operated in INDEC. As a result of the attack, the assistant secretary of ATE-Capital, Luis Opromolla, was beaten and suffered various injuries, and two other workers from other parts of the Ministry were left bleeding and the worker, Cynthia Pok, was pushed violently to the ground. These attacks took place in the deliberate absence of the security personnel who normally work in the area and just after all the lights that usually illuminate the area went out. The complaints of threats and injuries are the subject of proceedings in Case No. 22585/08, instructing prosecutor’s office 32, office 114; I-45-14498, instructing prosecutor’s office 45 and 53941, correctional prosecutor’s office 6.
   • Anti-trade union discrimination – Persecution through judicial means
8. 164. The CTA indicates that there have now been numerous court cases in the dispute that has arisen in INDEC. Two of them are against delegates and workers who were prosecuted by the Institute for taking part in the dispute. These cases are: (a) “Luciano Osvaldo Belforte, defrauding the public administration”, Case No. 128/08, Federal 4, office 7. This case concerns trade union delegates, Mr Belforte and Ms Graciela Bevacqua. The persecution by INDEC intervention was pursued in the criminal courts. In this case, INDEC intervention involved filing a complaint against these workers, alleging that they had committed fraud against the Institute. The charge was that the workers had fraudulently claimed holiday and overtime pay. The judge in the criminal court of first instance tried Mr Luciano Belforte, ATE–INDEC delegate, on the basis of a construction totally alien to the principles of criminal procedural law. On appeal by the accused, the National Criminal Appeal Court quashed the proceedings and upheld the workers, and also reprimanded the judge in the lower court which had accepted the allegations by the INDEC intervention. The Appeal Court quashed the proceeding. The Court emphasized that trial without evidence is a clear example of persecution; (b) Liliana Haydee Gasco v. State, Ministry of Economy and Production, summary proceeding, Case No. 13585/2008. In September 2007, INDEC intervention ordered that trade union delegate Liliana Gasco should not be given a desk, computer and telephone at the CPI office. This situation lasted for several months until, as a consequence of legal actions, Ms Gasco was assigned other tasks which were not appropriate to her function as special operations supervisor. The changes in the conditions of work imposed by the employer are expressly prohibited in the case of a trade union delegate or representative (article 52 of the Trade Unions Act, No. 23551). The safeguards for trade union activities set out in the Act were the legal arguments recognized in the judgments in favour of the trade union delegate, both in the lower court, Court No. 1, and the appeal court, Chamber III of the National Labour Court. The Court found that the reinstatement decided in the lower court should be implemented on the same conditions, in the same category and functions as those normally exercised by Ms Liliana Haydee Gasco prior to the change decided by her employer; (c) Vanina Micello v. State, Ministry of Economy and Production, National Institute of Statistics and Censuses (INDEC), Action for Amparo (protection), Case No. 13581/08. Here the presiding judge, Dr Gabriela Vázquez, supported by Judge Dr Luis Catardo in a majority judgment, stated that: “On the basis of the material and evidence produced in the documents, I consider that it is proved that INDEC, through its officials, order the reassignment and change of work of staff member Vanina Micello as a reprisal for her exercise of trade union activities. I reach this conclusion, starting from a series of precise and consistent indications that show negative discrimination and, in addition, that the defendant did not show, regarding the burden of proof, that the reassignment was objectively and reasonably justified. In this context, the decision taken by the defendant to reassign Vanina Micello should be declared null and void and it is ordered that she be reinstated in the function that she performed prior to her reassignment.”
9. 165. The CTA also refers to the court case of “Luciano Osvaldo Belforte, violation of domicile”, Case No. 69187, Criminal and Correctional Court No. 4, office 67. The employer issued an internal memorandum prohibiting the entry of delegate Belforte to the workplace. Apart from the fact that this legal measure was appealed in the labour courts, the delegate could enter the building as that was the location of the trade union office and he is a member of the internal council. On these grounds, the employer initiated criminal proceedings for “violation of domicile”. The case is still in process.
   • Attacks on trade union premises
10. 166. The CTA alleges that on 21 May 2008, the ATE trade union office on the tenth floor of the INDEC main building was attacked. The intruders overturned and scattered fittings, computers, furniture and documents. On 15 July 2008, another even more violent attack occurred, as the intruders attacked and damaged the trade union office (the case is being heard as Case No. 22915/08, contraventional prosecutor’s office 7).
    • Intimidation through police and para-police presence
11. 167. The CTA indicates that in February 2007, under the pretext peddled by the Institute intervention that it was a matter of security personnel acting as bodyguards to the new Director of the CPI section, the permanent presence of surveillance personnel was observed on the third floor of the building at 609 Roca Street, for the unmistakeable purpose of intimidating and controlling workers in the section. A logbook to record the names of workers entering and leaving the section was introduced for the same purpose.
12. 168. On 7 January 2008, the internal walls (and sometimes the external walls also) of the Institute have been continuously covered with defamatory posters against the workers involved in the dispute, whether or not they are members of the Association of State Workers (ATE) internal council.
13. 169. On 10 January 2008, representatives of human rights organizations sent a note to the National Human Rights Secretary expressing their concern at the challenge to trade union rights and workers’ right to organize, the use of reprisals in relation to wages, intimidation of various kinds including a campaign of defamation launched from a website called INDEC que trabaja (INDEC at work).
14. 170. On 26 February 2008, at the end of a meeting which had been called to inform about the situation in INDEC held at the entrance to the Institute, the entrance doors were closed to prevent those attending the meeting returning to their workplace. (A complaint of prohibition of entry to work was filed, Case No. 72198, correctional prosecutor’s office 9, office 114.)
    • Reprisals for trade union activity – Changes to conditions of work
15. 171. On 16 April 2007, Mr Emilio Platzer, an ATE member and one of the first to take legal action in the courts on grounds of manipulation and violation of state secrets, was removed from his workplace. In May 2007, the CPI workers made a complaint about the situation in the sector. It was also raised in a general meeting of INDEC workers and received unanimous support. The complaint was published through the ATE–INDEC email, as a result of which, the then Director of INDEC sought ratification or rectification of their statements under notice that appropriate administrative or judicial proceedings would be initiated. On 13 June 2007, Gabriela Soroka, an ATE member and participant in the meetings, whose job was to monitor price information on food and drinks in the CPI, was dismissed.
16. 172. On 4 July 2007, the Director of the Permanent Household Survey(EPH), Ms Cynthia Pok, together with 16 general coordinators, heads of department and senior technical staff, responsible for the same programme, each sent memos to INDEC management informing it in writing that they did not have the necessary technical conditions to carry out the poverty and extreme poverty calculation based on published facts relating to the CPI. On 6 July 2007, the management intervention ordered the reassignment of Ms Cynthia Pok from the management of the EPH. On 19 July 2007, the workers declared an active strike in the whole of INDEC challenging the management decision to remove Ms Pok (ATE official). On the same day, the head of personnel administration summoned Ms Camila Morano and Ms Marta R. de Messere, of the EPH management team, to his office. They attended accompanied by ATE–INDEC delegates. At that meeting, the head of personnel informed them that, at the suggestion of the INDEC management, they were “invited” to take all their outstanding holidays (41 and 58 days, respectively).
17. 173. On 11 July 2007, the Ministry of Labour, Employment and Social Security ordered compulsory conciliation, with the unusual feature that it only required the workers to lift the strike, but did not require the employer, as required by law, to suspend the removal of Ms Cynthia Pok. In consequence, the INDEC workers’ meeting, with ATE representation, decided to continue the strike action. On the same day, with the clear intention of intimidating the workers to make them stop the direct action, the recently appointed National Director of Living Standards went to the EPH offices to speak with the staff involved in the strike action, and announced that he would be taking over Cynthia Pok’s office on the seventh floor, despite the fact that his department had a designated office on the second floor. He announced that his action was legal because he had an “order from the President”.
18. 174. On 24 July 2007, the abovementioned Director telephoned Ms Marta Messere, Mr Rodolfo Galván and Mr Leonardo Parodi (EPH technical staff) to come to his office individually, but they decided to refuse, as they were on strike. On the same day, the INDEC management began to send telegrams to the persons involved in the strike action indicating that they should return to work failing which their remuneration would be docked. On 30 July 2007, the workers warned to return to work while they were on strike were summoned to make a statement in a hearing set for 1 August. They appeared at the hearing with the ATE lawyer. At the meeting, pressure was exerted on the technical staff to provide information so that other people could carry out the tasks of the strikers. A shot was fired at the INDEC reception desk on 2 August.
19. 175. On 22 August 2007, the ATE–INDEC delegates issued a communiqué warning public opinion of the irregular way in which public unemployment figures were prepared at that time by the intervention, a study which was not approved by the EPH technical team, on incomplete bases and without strict procedures. That same evening, the INDEC management published on the Internet a communiqué in which it falsely accused the EPH team of erasing data while at the same time admitting that it had intimidated striking workers to obtain information on the processing of data. Also on that day, the INDEC management published a notice indicating that it would make deductions from the strikers’ remuneration. On 24 August 2007, after a committee was set up to initiate dialogue and the strike had been lifted, the EPH section researchers who resumed their duties reported for work in the new Carlos Calvo building. However, they were refused entry and at the same time were told that they should report to the Roca building and sign in. At the Roca building, the personnel director received them and told them that an additional 20 people were being recruited to carry out their tasks, that they would be trained and should take note that there would then be a surplus of survey personnel.
20. 176. On 4 September 2007, part of the staff who did not take part in the strike at all or only partially, and the new workers were rewarded with additional remuneration or bonus. Those persons had been rewarded because they were contracted and collaborated with the INDEC management to carry out the work of colleagues who were on strike. On 6 September 2007, ten working days after the lifting of the strikes, the strikers had still not received the computer codes, which meant that they could not enter the database and, consequently, could not actually resume their work.
21. 177. On 13 September 2007, it became known that a new contingent of possible EPH researchers was being trained in the Carlos Calvo building in Greater Buenos Aires. The intervention, with the support of another trade union, was beginning to incorporate new personnel, in order to intimidate those who had taken part in the strike, with training courses given by people without any experience.
22. 178. The CTA indicates that on 1 November 2007, 13 workers in the CPI and EPH Department were dismissed. All those dismissed had participated in meetings and direct action promoted by the trade union, as well as giving testimony in the case before Federal Judge Canicobra Corral. On 8 November 2007, a document was signed in the INDEC dispute monitoring committee between the Office of the Cabinet of Ministers, the Ministry of Economy and Production and the ATE, in which it was provided that: “the 13 dismissed persons shall be immediately recruited in the Secretariat of Political Economy of the Ministry of Economy”. However, despite that formal obligation, it has not so far been fulfilled.
23. 179. In October 2008, the deputy coordinator of the Economic Groups Survey, Ms Adela Zaltzman, a member of the ATE internal council, was removed from her duties.
    • Impediments and obstacles to the exercise and development of trade union activity
24. 180. The ATE indicates that, in addition to the brief summary set out above, other matters have habitually occurred and continued over time, either as reprisals for or to inhibit trade union activity. Among these, particular mention should be made of the permanent and active presence of the shock group installed under the intervention (the current management) before and during meetings and in any other trade union activity carried out by workers, both within the organization or outside.
25. 181. Likewise, and with a clear intention to intimidate, trade union activities or any similar activity are monitored through filming and sound recordings which record their conduct, and the police and shock groups mentioned above even have surveillance systems to monitor these activities.
26. 182. Similarly, any materials relating to trade union action disseminated within the buildings are systematically removed immediately by the cleaning staff, in accordance with the management’s instructions. On the other hand, notices of other unions, political groups, official intervention notices and even anonymous posters (mostly containing defamatory messages against this trade union and its members) are not removed from the walls. For its part, for several months, mass distribution of trade union emails to all INDEC personnel were barred by the intervention of management or, failing that, the trade union was required to inform the authorities of the content in advance, a clear situation of censorship and restriction of freedom of expression. It should be emphasized that the intervention did not treat other trade unions in the same way.
27. 183. Lastly, the CTA states that the facts reported here are in addition to the constant violations of freedom of association which are recurrent in Argentina, many of which have been duly reported to the Committee on Freedom of Association and the subject of reproach by that Committee. These systematic violations are possible thanks to the reluctance of the Argentine State to align domestic law with the minimum standards of freedom of association set out in ILO Conventions Nos 87 and 98 and the prolific doctrine enshrined in the opinions of its supervisory bodies. Finally, it should be borne in mind that, with regard to public employees, Article 4 of ILO Convention No. 151, adopted in Geneva in 1978, extends the right to organize and protection against any acts of anti-union discrimination in their employment to all public employees.

B. The Government’s reply

1. 184. In its communication of 28 February 2011, the Government sent the report prepared by the INDEC). It is stated in the report that it was prepared following the layout proposed by the complainants, both with regard to the facts, acts, circumstances or rules relating to INDEC’s actions. INDEC indicates that the CTA’s representatives open their complaint by stating that there is “intervention” at two levels: a general level concerning the Institute as a whole and a particular level in the CPI Department within INDEC. It is suggested that these allegations, reproduced by the press on various occasions, are not supported in law or in fact, as described in detail below: (i) lack of legal justification: the supposed intervention is not possible under the Argentine legal system. The National Constitution which governs the powers of the executive authority with regard to interventions relates to other matters than those referred to above. Neither does the complaint refer to any administrative act issued by the executive authority or any other body with delegated powers, which constitutes administrative intervention. It is categorically asserted that there is no administrative act, decree or similar act which ordered any type of intervention, appointed persons to intervene or which justified any irregularities of any kind in the appointment of any official. In addition, it should be noted that it was under a legitimate administrative act (Decree PEN 1076/2007) issued in accordance with recognized constitutional and legal powers, that Ms Ana María Edwin took up the post of Director of INDEC, harmoniously, in succession, without interregnums, as soon as the previous incumbent resigned her functions (resolution No. 18/2007 of the Ministry of Economy). All the preceding directors of the organization were appointed in the same way; (ii) absence of facts: leaving aside the legal aspect, with regard to the facts that, according to the CTA representatives, constitute supposed “intervention”, at a general level, INDEC states emphatically that it has no knowledge of and does not possess any records or documentation in support of the versions that “the government authorities initiated an aggressive policy of intervention by the Institute”; (iii) it is important to emphasize that, as will emerge from this report of the facts, many staff of the organization had to deal with various problems in implementing the constitutional and legal mandate entrusted to them, due to incorrect interpretations of the reality, which is fully consistent with the law. It is reiterated, therefore, that it is wholly malicious for the complainant organization to label the current management of the Institute as “intervention”. The officials who exercise senior management roles, like the rest of the staff, were appointed in strict compliance with the rules governing this type of subject throughout Argentina. The assertion that INDEC became subordinate to the Secretary of Internal Trade in January 2007 is categorically refuted. The authorities were subordinate and are currently subordinate to the Secretariat of Political Economy and the Ministry of Economy and Public Finance, respectively.
2. 185. With regard to the general assertions by the CTA concerning the specific intervention in the CPI Department, INDEC refers, in the first instance, to Decree PEN 100/2007 which appointed Ms Beatriz Paglieri, and the rules and resolutions cited therein, as complete evidence that the complainant’s allegations are wrong. Furthermore, it should be pointed out that the appointment was made in accordance with due administrative procedure, like all appointments in the national public service, and is validated constitutionally and legally in the NEP. Like all posts which are not subject to competition, the appointment was on a provisional basis as an exception to the provisions of article 7 of Act No. 26198 and Title III, chapter III and Title IV, article 71, paragraph 1, part 1, of Annex I to Decree No. 993/91, amended 1995. The public offices held by the official in question are detailed below. As a result of her extensive professional experience and qualification, the former Minister of Economy and Production appointed her in January 2007 to INDEC to analyse, on her behalf, the working processes by which the Institute calculated price indexes. It was indicated that, in principle, she would start by analysing the consistency of what is commonly known as the “Consumer Price Index (CPI)”. On this basis, she was appointed in February 2007, by Order No. 100, to the post of Director of the CPI Department in INDEC. INDEC considers that it is extremely damaging that she has been presented to the ILO as an unqualified professional lacking the minimum knowledge necessary to occupy the post to which she was appointed.
3. 186. According to INDEC, the state of the CPI Department when Ms Beatriz Paglieri took up her post was not remotely like that described by the CTA. It presented a highly distorted view of the “state of the art” of the CPI Department prior to the start of her management. With undoubted malicious intent, since the distortions of the reality are too great to assume that they are simply the fruit of an error of judgment, it was sought to mislead the Committee, indicating that the CPI management was a paradise of work, dedication, quality and scientific rigour.
4. 187. According to INDEC, the situation in the area which calculates the CPI in INDEC is very different from the one portrayed, both in these proceedings and through the various media to which the complainants resorted, by those who took advantage of the laxity in the procedures and controls that existed and who were then negatively affected by the greater demands on them in the new ways of working. It is also necessary to emphasize that given the implications which occasioned the development model, especially with regard to the public accounts, the situation described would have lasted for a long time. Taking full responsibility for the harm generated to the population by the application of incorrect methods, steps were taken with skill, speed and efficiency to evaluate the situation and determine the veracity of the information that was being produced. Against this background, the first fundamental element which strikes any observer is that the CPI management did not coordinate actions with the ministries, secretariats of State, or the bodies which make up the National Statistical System (SEN) as determined by Act No. 17622 and its regulatory decree. INDEC, as clearly laid down by law, is the “coordinator” of the SEN and it is obvious that it cannot coordinate what it does not interact with. Furthermore, the CPI management was not fulfilling the functions set out in resolution No. 779/2004 (pursuant to the Ministries Act) with regard to actions to update the weightings for the CPI. In the same vein, it was observed that the management did not apply strictly the methodology using the CPI base 1999=100 to determine the CPI and that it used the Argentine Central Bank to calculate the “Reference Stabilization Coefficient (CER)” which is used, ultimately, as an adjusting factor for Argentine external debt bonds. This means that an error, deliberate or otherwise, which adds a unit to the total of the CPI calculation would modify the assets of bondholders. In addition, the so-called “methodology 13” consisting of the instructions set out in resolution No. 779/2004, determines the need to update the weightings of the products which make up the CPI. In this regard, it is important to recall that the “Quality Management Manual for the elaboration of the National Consumer Price Index and the National Producer Price Index” of the Bank of Mexico indicates the frequency with which the index is updated and the principles guiding its action.
5. 188. In turn, it was found that there was no manual of procedures or good practices for the calculation of the CPI. Nor were the various manuals for researchers, supervisors or data collectors which should guide the field operations updated. The staff assigned to each task did not comply with the provisions of the relevant Manual. The calculation base was the year 1999, with weightings that dated from the 1996 Household Expenditure Survey (ENGH), and informant sources were based on sales volumes defined in the 1994 National Economic Census. INDEC sends examples of problems of measurement that occurred previously.
6. 189. INDEC indicates that having found irregularities, and following instructions from the highest national authority, the matter was reported by Beatriz Paglieri to the Notary General of the Government, through his representative at INDEC headquarters, who drew up the report on the basis of which the notary advised that “there was evidence” of errors in the report submitted by Marcela Almeida and Emilio Platzer. This unprecedented matter generated a marked animosity towards the official in certain management circles, as it was the first time that a flagrant misrepresentation had been documented. It is worth emphasizing that out of some 100 employees who make up the staff of the CPI management, only 12 were determined to harass and/or boycott the new management. It is very important to emphasize the excellent predisposition presented by the great majority who made up and continue to make up the CPI team which allowed the CPI to be produced on time and in due form. It is no surprise that some of the complaints come from persons who made the “mistakes” reported to the Notary General.
7. 190. INDEC states, in the course of extensive technical explanations, that many of those responsible for the institutional errors in the production of data up to 2006 went on to form the internal council of ATE–INDEC, which provided them with protection in situations when they should have been subject to summary administrative proceedings under the legislation applicable to the national public administration. This defensive conduct was concomitant with all kinds of statements in the media designed to seriously undermine the prestige of the institution, and to generate confusion among the public.
8. 191. According to INDEC, this behaviour was aggravated by a different type of disorder generated both within and outside the Institute, including travel within and outside the country, all aimed at achieving a public position contrary to the official statistics. Worth mentioning in this regard is the false information concerning the reassignment of duties which were never held. Such is the case of Ms Cynthia Pok, self-styled Director of the EPH when there was only an internal arrangement, a rule of the Institute of little legal import, which put her in sole charge of the office of that department. To be in charge of an office involves administering permits relating to staff (absences, holidays, etc.) and responsibility only for work related to office procedures. This function excludes the technical management of a department. The Director of this survey was Ms Clyde Trabucchi, who was actually appointed to the post in an open competition in 1994, an appointment which expired in 1999 and was extended without competition. She was never insolvent or appointed by presidential order as national director for living standards. As in the previous case, she was put in charge of the office of that national department. It is evident that the CTA and Ms Cynthia Pok herself are falsely purporting that she holds public office, a criminal offence under national legislation. In the same vein, cases can be mentioned such as that of Mr Luciano Belforte, who was never head of CPI data collection since there is no such post, or Ms Marcela Almeida, who is said to have been removed from the coordination of the National Consumer Price Index section, a post which does not exist. Moreover, Ms Almeida is not even an INDEC staff member. On the contrary, she was and is contracted by the Government of Buenos Aires City, under a cooperation agreement.
9. 192. INDEC indicates that Ms Paglieri was the victim of an assault by Mr Emilio Platzer on 2 October 2007. When she was in the INDEC building and guarded by two federal police officers, Ms Paglieri was violently pushed by Mr Platzer. It led to the sending of a note to the INDEC management by the Ministry of the Interior, requesting consideration be given to the possibility of imposing a sanction. Finally, and following an instruction on the matter by the Legal Affairs Department, the management decided not to renew his contract with the institution, on the grounds of his failure to observe the standards expected of those who work in the national public administration. INDEC considers that it is particularly relevant to mention these facts and dispositions with respect to the characterization of the conduct of certain members of the ATE–INDEC union who, like Mr Platzer, had no hesitation in resorting to aggression as a result of their animosity against INDEC staff, which had nothing to do with trade union actions. It is important to emphasize that Mr Platzer was no longer working in the CPI Department because he made unacceptable mistakes.
10. 193. INDEC indicates in relation to the alleged replacement of professional technical staff by persons related to the political authorities that primarily, as stated above, the INDEC authorities were appointed by the executive authority under the legislation applicable in the Republic of Argentina.
11. 194. INDEC indicates that the theory that the CTA expresses in its statement and on which it bases an account concerning the unlawfulness of the presence and work of “certain” INDEC staff is incorrect and tendentious. It is incorrect in that it would be nonsense to think that the supposed “intervention” occurred through, for example, the appointment of a new director for the CPI. The reason for the erroneous character is simple: as in any organization, private or public enterprise, there are changes of post which do not reflect any type of “intervention”, but a renewal of personnel in the hierarchy involving a systematic reorganization. This is a far cry from the supposed “destruction” conjectured by the complainant. It is tendentious because it affirms what it seeks to prove, namely, that INDEC is in a state of exception and instability, which the Government was exploiting. The action of the Association of State Workers, ATE–INDEC, accompanied by the homogeneous statements of the media companies, was the only indication, a false one, of a supposed state of exception which, bluntly, does not exist. In fact, these assertions show the desire of the trade union or its representatives to project their influence into matters which are beyond their competence. The Argentine legal system does not contain a constitutional or legal right of an individual, trade union or prospective worker which grants them powers of control of any type over the appointment of the officials whose legitimate presence they are challenging.
12. 195. As regards the alleged physical violence against the workers on 22 August 2007, INDEC indicates that in a biased and false description of the facts, the complainant states: “during the 42 day strike by INDEC workers in protest against the situation generated by the management”. In this respect, we must inform you that INDEC has a total of 1,550 workers. Of those, during August 2007, according to the attendance sheets provided by the Human Resources Department, 185 workers took part in the strike, representing 12 per cent of the total workforce. In addition, only one took part in the strike for ten days, one for eight days, one for five days, six for three days, 39 for two days and 137 for only one day. It thus clearly emerges that the complainant is not telling the truth when it states that there was a strike of 42 days. It is also lying when it speaks in general terms of “the INDEC workers”, as 88 per cent of the workers never took part in the strike in the period mentioned in its complaint, and of the 185 workers who joined the strike, 137 did so for only one day, as mentioned, thus it may be wondered whether this group can be adjudged representative of INDEC workers in general. Furthermore, the total number of ATEINDEC members is 207 out of a total of 1,550 workers.
13. 196. The complainant also infers the occurrence of a “violent” intervention by the Argentine Federal Police (PFA) preventing the erection of a stand at the entrance to the INDEC building. On this point, by way of preliminary explanation, it should be noted that certain spaces in the Federal Capital are under the jurisdiction of the PFA and that INDEC has no control over the conduct of the PFA or any hierarchical link with it, for obvious reasons of competence. With respect to the facts, we can report that on that date, various persons were observed provoking the security forces, preventing access to the building and causing damage. Of the “rough handling”, there is no real, judicial or administrative evidence whatsoever.
14. 197. As regards the existence of three court cases, Nos 22585/08, I-45-14498 and 53941, all for various injuries, in which the deputy secretary of ATE-Capital, Luis Opromolla, two workers of other areas of the Ministry of Economy (not identified) and Ms Cynthia Pok, all members of ATE–INDEC, were injured, it should be mentioned in relation to the first two cases that these were a single case, namely, No. 71562. The proceedings in question were initiated on the basis of a complaint stating that in circumstances where Mr Luis Alberto Opromolla, together with other ATE members, were preparing to start a meeting in the main hall of the building, delegates of the UPCN union appeared, among them the accused, Mr Silverio Rafael Figueredo, who suddenly punched Mr Opromolla in the face. In this respect, the court judgment of 8 April put an end to the proceedings. In the hearing, it was stated that as there was no possibility of carrying out any investigation of the evidence to shed light on the charge against Mr Silverio Rafael Figueredo, “to order the case to continue in those circumstances would be an unnecessary and pointless legal expense because of the lack of certainty, from the point of view of legal evidence, represented by the lack of grounds for conviction in the complaint … it is resolved to dismiss the case against the accused of causing bodily harm, and render harmless his good name and honour”. With respect to the third case mentioned, No. 53941, a different analysis applies but of no less importance. Initiated for the offence of menaces, to which Ms Laura María Cortascini Chisari was supposedly subjected, the accused, Mr Daniel Roberto Poma, was acquitted on 21 September 2009, as it was found that the criminal action was time-barred. Specifically, it was a supposed offence in which proceedings were abandoned because they were contrary to the principle of innocence and double jeopardy, a general guarantee of persons in criminal proceedings.
15. 198. With regard to the case of Mr Luciano Osvaldo Belforte, defrauding the public administration, Case No. 128/08, INDEC indicates that proceedings were taken against Mr Luciano Osvaldo Belforte for receiving his salary with additional remuneration in the months of November 2005 and December 2006, when in reality he was away travelling without the authorization of the relevant INDEC authorities and proceedings were also taken against Ms Graciela Cristina Bevacqua for certifying Mr Belforte’s signatures on the attendance sheets. The complainant, using the expression “pronouncements” as if it were a final decision, summarizes by stating that the appeal court quashed the proceedings in favour of the accused. In this regard, and in total contradiction, on 31 August 2010 it was decided to order the trial of Mr Luciano Osvaldo Belforte, who was granted bail, because he was suspected of the criminal offence of defrauding the public administration on two occasions, and an order was made to freeze his assets to cover the amount of ARS15,000. The case against Ms Graciela Cristina Bevacqua was dismissed. That is the actual state of proceedings.
16. 199. With regard to the trial of Mr Luciano Osvaldo Belforte for violation of domicile, INDEC indicates that the case against the accused was dropped. INDEC recalls that the applicable legislation imposes on its employees the duty to report to their superior or the relevant authorities, acts of which they become aware as a result of or in the course of the exercise of their functions and which could cause harm to the State or constitute an offence.
17. 200. With respect to the alleged violence against the trade union offices, INDEC states that with regard to the facts that supposedly occurred on 21 May 2008, it is a matter of an unsubstantiated account since it lacks any elements to confirm the alleged facts or circumstances. As regards the events which occurred on 15 July 2008, the proceedings in question were initiated on the basis of a complaint against Mr Silverio Rafael Figueredo for allegedly committing the offence of criminal damage as a result of his alleged invasion of offices 1006 and 1007 in the building at 609 Roca Street, Case No. 22915/08. On 24 November 2008, the court dismissed the case, on the grounds that there was no evidence that would lead to a conviction in the case.
18. 201. With regard to the alleged intimidation through the presence of police and para-police officers in February 2007, we can report that the introduction of surveillance personnel in certain sections of INDEC is part of a progressive effort to ensure the complete protection of staff. Concerning the registration log, this is a means of helping to ensure security since, if there is an incident involving the personnel working in the area, the log can be used to determine which persons entered or left and at what time they did so. Indeed, currently and for some time, for entry to various INDEC buildings, there is a magnetic card which distinguishes between an INDEC staff member and a visitor, as has always been used in the Ministry of Economy and Public Finance. It should be noted that the CTA refers to the presence of security personnel in INDEC both as a form of intimidation and, on the other hand, complains that their absence is an element of insecurity for staff. Finally, INDEC denies that it uses para-police personnel of any kind in INDEC. Such allusions are made with the obvious intention of demeaning the activity of the Institute and its management.
19. 202. In relation to the alleged intimidation, concerning the supposed papering of internal and external walls with defamatory and unsigned posters against workers belonging to ATE–INDEC, it should be noted that as soon as one enters the Institute, the political and trade union diversity of the building can be observed. Posters and notices, some even handwritten, with a variety of content can be seen on noticeboards and walls. There is no prior censorship of freedom of expression as there is full compliance with the constitutional rule on that point. Furthermore, the Institute’s devotion to respect for rights has often led to excessive tolerance of libellous expressions by the ATE–INDEC union.
20. 203. As regards the facts denounced on 26 February 2008, Case No. 72198, involving a complaint of alleged prohibition of entry to work, this is tendentiously invoked with respect to a stage in the proceedings which has already concluded. This case, subsequently referred to Court No. 12, office 23, Case No. 5028/08, was decided. The judgment quashed the actions since they did not constitute the acts in article 158 of the Criminal Code, i.e., there was no coercion or violence of any kind, whether to take part in a strike or a lockout, since INDEC’s doors were simply closed.
21. 204. As regards the alleged reprisals for trade union activity and refusal of workers to consent to the manipulation of official data, and the modification of conditions of work, INDEC states, firstly, that this involves a wide diversity of facts which have certain general characteristics which deserve detailed investigation which is beyond the possibility and competence of the management. It could be mentioned, among other things, that it is not a case of specific claims or allegations which might substantiate any particular violation of rights; they are poorly documented and have few or no references to documents or records. Their diversity and quantity are such that it is extremely difficult, in some cases impossible, to collect relevant information concerning them. Such characteristics, of course, do not mean that they are of no concern to the management. However, addressing them in detail, given that they chiefly concern allegations of unproven facts, is not part of the main function of the organization. INDEC will continue as far as possible to deal with the individual claims of workers, always within the framework of what is established by law and guided by respect for human rights, individual rights and rights at work which under the Constitution and the law affect those who work for the organization or occasionally pass through it. Always within the limits of the possible, it is reported that the alleged failure to assign tasks to Ms Adela Zaltzman is a falsehood, since the post that she is supposed to occupy does not exist in the organization.
22. 205. As regards the alleged active and permanent presence of a shock group established by the management before and during meetings, INDEC states that the so-called “shock groups” referred to by the complainant do not exist in INDEC. The reference to the existence of such groups can only be interpreted as the product of a cynical attitude or ignorance of Argentine history. These defamatory references have a very serious connotation and content linked to de facto regimes which governed the country. Workers’ political and trade union rights and freedoms are assured within INDEC. The CTA also states: “… trade union activities or any similar activity are monitored through filming and sound recordings …”. INDEC states that no such control exists.
23. 206. As regards the CTA’s assertion that all materials relating to trade union activity posted inside the organization’s buildings are systematically removed, but communications of other trade unions containing defamatory messages against that trade union and its members are left, INDEC sends photographs of the interior of the INDEC main building, where the posters and flyers which the complainant freely distributes can be seen, together with the aggressive terms the CTA allows itself to use in relation to other trade union demonstrations.
24. 207. With regard to the allegation that for several months the ATE was prevented from sending trade union emails and email circulars to all INDEC personnel in a clear case of prior censorship and restriction of freedom of expression, INDEC states that all the organization’s personnel have an email address, and the various trade unions send email circulars to all the staff on a daily basis. This system is part of the democratic policy which is promoted by the way the Institute is managed. Both the publicity material posted inside the building and the email circulars which ATE–INDEC sends to all the staff, are typically offensive and insulting to the organization.
25. 208. INDEC states that the supposed violations of the rights and liberties mentioned in the complaint did not occur. Rather, the actions of a group of staff, who do not even represent all ATE–INDEC members, interrupted certain aspects of the daily work, systematically putting at risk the fulfilment of the responsibilities deriving from the Ministries Act, No. 17622, and the applicable legislation which determines the actions and functions to be carried out by the organization and threatening the full exercise of individual and labour rights of the other workers and persons working in INDEC. The Legal Affairs Department is currently working and will work in the future to guarantee those rights, report and constantly take proceedings against those who violate the legal order and justice within INDEC. The presence of police and security staff in INDEC is purely and simply to ensure the security of people working in the organization, as is the practice in all public bodies. The right to liberty, security, protection against arbitrary arrest and imprisonment, as well as freedom of opinion and expression, the right to meet, to obtain due process in independent and impartial courts and protection of the property of trade unions are exercised respectively by the workers and officials of the institution.
26. 209. INDEC concludes that there were no violations of individual, trade union or labour rights and freedoms of persons who were normally or occasionally related to INDEC on the dates and at the places mentioned in the complaint. The mis-cited court decisions and the feeble complaints divorced from reality are compounded by the absence of facts, resulting in the painting of a picture which totally fails to substantiate the assertions made by the complainant concerning the supposed violations of rights in the institution. A final conclusion can be inferred from the complainant’s allegations, namely that it has repeatedly and to excess persisted with its attack on the institution and the management, mentioning terms such as “intervention” on some 25 occasions and peddling falsehoods unsupported by any documentary evidence or arguments.

C. The Committee’s conclusions

1. 210. The Committee observes that in this case, the complainant organization alleges acts of violence (intervention and violent repression by the PFA to prevent the erection of a protest stand at the entrance to INDEC on 22 August 2007; attacks on workers at the meeting of 15 May 2008, causing various injuries to the deputy secretary of ATE-Capital, Mr Luis Opromolla and two other workers, and striking Ms Cynthia Pok), intimidation by means of police presence and prevention of the exercise of trade union activity, attack against a trade union office and anti-union discrimination (initiation of legal proceedings for participating in the dispute between the ATE and the INDEC authorities, reprisals and modification of conditions of employment, etc.) against workers belonging to the ATE.
2. 211. In the first place, the Committee observes that the complainant organization and the Government refer to questions of appointment of INDEC personnel and the functioning of the Institute on which, under its mandate, the Committee is not competent to pronounce. The Committee also observes that the Government sends a report by INDEC as its reply.
   • Acts of violence and intimidation through police presence and obstacles to the exercise of trade union activity
3. 212. With regard to the allegations relating to the intervention and violent repression by the PFA to prevent the erection of a protest stand at the entrance to INDEC on 22 August 2007, the Committee notes that the INDEC report sent by the Government states: (1) certain spaces in the Federal Capital are under the jurisdiction of the PFA; (2) INDEC has no control over or hierarchical link with the PFA; (3) with respect to the alleged facts, various persons provoked the security forces, preventing access to the building and causing damage; and (4) of the “rough handling”, there is no real, judicial or administrative evidence. In this respect, the Committee regrets that the Government did not send detailed observations and confined itself to providing the point of view and information from INDEC. In these circumstances, the Committee urges the Government to take the necessary steps to ensure that an investigation is carried out without delay into the alleged acts of violence and that if it is found that the police overstepped the mark in the exercise of their functions, measures should be taken to remedy the situation. The Committee requests the Government to keep it informed of developments.
4. 213. With regard to the allegations of attacks on workers at a meeting of all the workers employed in the Ministry of Economy, which was held in the central hall of the Ministry to present to the Minister a claim for a wage increase on 15 May 2008, causing various injuries to the deputy secretary of ATE-Capital Luis Opromolla and two other workers and blows suffered by Cynthia Pok, the Committee notes that the INDEC report sent by the Government states: (1) a judicial investigation was initiated on the basis of a complaint stating that in circumstances where Luis Alberto Opromolla, together with other ATE members, were preparing to start a meeting in the main hall of the building, delegates of the UPCN union appeared, and then Mr Silverio Rafael Figueredo punched Mr Opromolla in the face; (2) the court proceedings were ended by a judgment of 8 April 2010 and the accused was acquitted; and (3) another judicial investigation initiated into the offence of threats was concluded on 21 September 2009, when it was found that the criminal action was time-barred.
5. 214. Observing that the acquittals mentioned by INDEC of the accused persons do not indicate that the alleged events did not occur, the Committee notes that the investigations failed to identify the perpetrators of the attacks against the trade union leader mentioned and the workers in question. The Committee recalls that the officials and workers belonging to the ATE in the Ministry of Economy or INDEC must be able to hold meetings without fear of attacks.
6. 215. As regards the allegations concerning intimidation through the police presence in INDEC in February 2007 recording in a log workers entering and leaving, and the presence of groups of persons (shock groups, according to the CTA) which reported to the INDEC management before and during meetings or during any other trade union activity filming them and making sound recordings, the Committee notes that the INDEC report states that: (1) the introduction of surveillance personnel in certain sections of INDEC is part of a progressive effort to ensure the complete protection of staff; (2) the registration log is a means of helping to ensure security, since if there is an incident involving the personnel working in the area, the log can be used to determine which persons entered or left and at what time they did so; (3) currently for entry to various INDEC buildings, there is a magnetic card which distinguishes between an INDEC staff member and a visitor; (4) no para-police personnel or shock groups operate in INDEC and workers’ political and trade union rights are assured. While noting the security reasons invoked, the Committee considers that workers’ organizations should be able to hold meetings without intimidation and in conformity with the principles of freedom of association and requests the Government to ensure respect for these principles.
7. 216. As regards the alleged obstacles to the ATE’s trade union activity in INDEC (impossibility of putting up posters in INDEC because they are removed by cleaning staff, and obstacles to the use of email) the Committee duly notes that INDEC reports that: (1) as soon as one enters the Institute, the political and trade union diversity of the building can be observed, and posters and notices, some even handwritten, with a variety of content can be seen on noticeboards and walls; (2) there is no prior censorship of freedom of expression and the complainant organization freely distributes posters, flyers and leaflets; (3) all the organization’s personnel have an email address, and the various trade unions send email circulars to all the staff on a daily basis; and (4) both the publicity material posted inside the building and the email circulars which ATE–INDEC sends to all the staff are typically offensive and insulting to the organization.
8. 217. As regards the alleged refusal by INDEC to allow entry to workers participating in a meeting which had been called to inform them of the situation in the Institute on 28 February 2008, the Committee notes that INDEC indicates that the criminal complaint initiated in this respect was dismissed.
   • Violence against an ATE–INDEC trade union office
9. 218. With regard to the allegations of attacks against the ATE trade union office in the INDEC main building on 21 May and 15 July 2008 (according to the CTA, during the last attack damage was caused to the office) the Committee notes that INDEC indicates that in relation to the alleged attack on 21 May, this is an unsubstantiated account since it lacks any elements to confirm the alleged facts or circumstances and, in relation to the alleged attack on 15 July 2008, judicial proceedings were initiated on the basis of a complaint against Mr Silverio Rafael Figueredo for allegedly committing the offence of criminal damage and, on 24 November 2008, the court dismissed the case, on the grounds that there was no evidence that would lead to a conviction in the case. The Committee observes that the lack of conviction of a person accused as the perpetrator of the alleged acts of violence does not indicate that the alleged events did not occur. In these circumstances, noting that the Government has only provided the observations of INDEC in this regard, the Committee requests the Government to take the necessary measures to ensure that an investigation is carried out into these allegations and to keep it informed of the outcome of this investigation.
   • Acts of anti-union discrimination (initiation of legal proceedings for participating in the dispute, reprisals and modification of conditions of employment, dismissal and threats of dismissal, etc.) and reprisals against workers affiliated to the ATE in INDEC for participating in a strike
10. 219. With regard to the initiation of two criminal proceedings against the ATE trade union delegate, Mr Luciano Osvaldo Belforte (one for defrauding the public administration in where, according to the complainant, the trial was quashed on appeal and it was indicated to the judge of first instance that the proceedings without evidence constituted a clear example of persecution; and the other for violation of domicile which is still in progress, which was initiated because the delegate entered the trade union office as he was a member of the internal council and his entry had been prohibited), the Committee notes that INDEC states that: (1) in relation to the proceedings for defrauding the public administration, proceedings were taken against Mr Belforte for receiving his salary with additional remuneration in November 2005 and December 2006, while being on trips not authorized by the INDEC authorities and, in total contradiction to the complainant’s assertion, on 31 August 2010 it was decided to order his trial without remand because he was suspected of having committed the alleged offence, and an order was made to freeze his assets; and (2) with regard to the trial for violation of domicile, Mr Belforte was acquitted and the applicable legislation imposes on the INDEC management the duty to report acts of which they become aware which could cause harm to the State or constitute an offence. The Committee requests the Government to keep it informed of the final result of the court proceedings against the ATE delegate, Mr Luciano Osvaldo Belforte, for defrauding the public administration. The Committee also requests the Government to inform it whether the delegate in question can freely enter the ATE trade union office in INDEC.
11. 220. As regards the legal proceedings for modification of conditions of work by INDEC initiated by the trade union official, Ms Liliana Haydee Gasco, (the complainant states that both at first and second instance, the judicial authority decided that Ms Gasco should be reinstated in the conditions, category and identical functions as she normally and habitually held prior to the modification decided by the employer) and by the worker Ms Vanina Micello (the complainant organization indicates that the judicial authority considered that it was proved her transfer and the change of work was a reprisal for the exercise of trade union activities and ordered that she should be reinstated in her functions), the Committee observes that the Government has not communicated its observations in this respect. In these circumstances, given that, according to the information supplied by the complainant organization, the judicial decisions ordered the reinstatement in their functions of the trade union official, Ms Liliana Haydee Gasco, and the worker, Ms Vanina Micello, the Committee requests the Government, should this be the case, to ensure compliance with the relevant judicial decisions and to keep it informed in this regard.
12. 221. As regards the numerous alleged acts of anti-union discrimination (transfer of workplace of the ATE member Mr Emilio Platzer; the dismissal of ATE member, Ms Gabriela Soroka; and the removal from her post of ATE delegate, Ms Cynthia Pok) and intimidation and reprisals against ATE members for participating in a strike in protest against the removal of Ms Cynthia Pok from her post and for participating in ATE meetings (in particular it is alleged that 13 workers were dismissed from the CPI and EPH Department on 1 November 2007, that, although there was an order for her immediate recruitment, to date it had not been fulfilled, and that ATE delegates are currently not recognized) the Committee notes that INDEC states that: (1) this involves a wide diversity of facts which have certain general characteristics which deserve detailed investigation which is beyond the possibility and competence of the INDEC management; (2) it is not a case of specific claims or allegations which might substantiate any particular violation of rights and their diversity and quantity are such that it is extremely difficult to collect relevant information; (3) efforts will continue to deal with the individual claims of workers; and (4) it denies the alleged failure to assign tasks to Ms Adela Zaltzman and indicates that the post that she is supposed to occupy does not exist in the organization. In this respect, the Committee urges the Government to send without delay its detailed observations relating to the following allegations: (1) the transfer of workplace of ATE member, Mr Emilio Platzer; (2) the dismissal of ATE member, Ms Gabriela Soroka; (3) the removal from her post of ATE delegate, Ms Cynthia Pok; and (4) the dismissal of 13 workers from the CPI and EPH Department on 1 November 2007.
13. 222. Lastly, the Committee observes with concern the content of the allegations presented in this complaint which refer to acts of violence and discrimination against trade unionists and attacks on a trade union office which suggest a climate of confrontation between the ATE union (affiliated to the CTA) and the INDEC authorities. In these circumstances, the Committee invites the Government, with a view to achieving harmonious labour relations in the organization, to set up a forum for dialogue in which, among other things, the questions raised in this complaint can be dealt with.