Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 376, Octobre 2015

1. 176. The complaint is contained in a communication dated 20 May 2014 from the Single Trade Union of Port Administration Workers (SUTAP).
2. 177. The Government sent its observations in communications dated November 2014 and 3 March 2015.
3. 178. 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. 179. In its communication of 20 May 2014, the complainant organization alleges that administrative action in 1989 resulted in it being unlawfully deprived of the representative trade union status that had been conferred on it in 1987 by Ministry of Labour Decision No. 390/87. That decision had been appealed against by another union, the Railways Union (UF), and in 1989 the Ministry of Labour issued new Decision No. 165/89 revoking Decision No. 390/87 and granting representative trade union status to the UF. SUTAP appealed against Decision No. 165/89 but the Ministry of Labour took 15 years to refer it to the judicial body, the National Labour Appeals Chamber (CNAT), without it being possible to ascribe that delay to the complainant. SUTAP also objects to the fact that there has still been no final judicial ruling on its claim for restitution of its representative trade union status.
2. 180. SUTAP alleges that under national law (section 56 of the Trade Unions Act) and also Article 4 of Convention No. 87 and the principles of freedom of association (specifically, the prohibition on suspending or dissolving organizations by administrative authority), the administrative authority had no power to revoke, cancel or suspend its representative trade union status and that such power belonged to the judicial body. Furthermore, the complainant alleges the lack of representativeness of the UF with regard to the workers employed by the port administration and indicates that in 1989, citing the data contained in Decision No. 165/89 itself, SUTAP had a greater number of contributing members (more than 10 per cent more, a total of 1,986 compared with the UF total of 1,795).
3. 181. The complainant also objects that during the processing of its appeal the administrative file was mislaid, which damaged SUTAP’s capacity to bring its claims before the judicial body. As a result, the judicial body was obliged in 2004 to refer the proceedings back to the Ministry of Labour for verification of the size of the membership of both trade unions in a new period, with a view to then referring the proceedings to the judicial body for a ruling. After various attempts in which the UF was unable to submit the relevant documentary proof, the administrative authority referred the proceedings to the judicial body, which considered that the administrative authority had not satisfied the judicial request for verification, and hence it returned the file to the Ministry so that it could establish the number of contributing members of each trade union. The complainant states that it complied with the judicial request on 27 September 2007 and that, as shown by the subsequent ministerial decision, SUTAP had a significantly greater number of contributing members (a total of 298, compared with 121 contributing members for the UF). However, on 17 June 2008 the judicial body again considered that the administrative authority had not completed the assigned task of verification. The administrative authority then issued a decision on 23 October 2008, stating that SUTAP had not supplied documentary proof of the number of its contributing members, despite having done so at two verification hearings. This administrative decision was contested in 2008 by the complainant but no ruling had been issued on this challenge by the time the complaint was presented to the Committee.
4. 182. SUTAP denounces the fact that the proceedings for the restitution of its representative union status were obstructed by the irresponsible and negligent actions of the Ministry, which allegedly told the complainant informally that the file in question had been mislaid once again. The complainant considers that the Ministry’s conduct violates the principles of freedom of association and infringes its right to due process, and requests the Ministry to submit the necessary information to the national labour justice system so that a ruling can be issued on the restitution of representative trade union status to SUTAP.

B. The Government’s reply

1. 183. In its communication of November 2014, the Government states that the file in question was duly processed in a timely fashion and when the initial contents were mislaid in 1991 the lost file was reconstituted by order. The Government indicates that the delays and the mislaying of the file were due to the fact that the administrative proceedings were referred to the judicial body several times, as a result of another claim being filed in connection with the recognition of the representative status of the trade union and the competent court having requested the documentation to be forwarded.
2. 184. In its communication of 3 March 2015, the Government sent a copy of new administrative Decision No. 1242 of 13 November 2014, rejecting the complainant’s challenge to Decision No. 165/89, which had revoked its representative union status in 1989. The Government also indicates that it referred the proceedings to the judicial body, as demanded by SUTAP. Decision No. 1242 of 2014 summarizes the administrative and judicial proceedings that have taken place since representative union status was granted to SUTAP, including several hearings for the purpose of verifying its representativeness. Accordingly, the 2014 decision refers to the administrative decision of 23 October 2008, according to which SUTAP had been unable to duly certify the size of its contributing membership and the UF had a greater number of contributing members. The 2014 decision, emphasizing that the substance of the issue was pending before the competent judicial body, specified that the proceedings were being referred back to the latter body.

C. The Committee’s conclusions

1. 185. The Committee observes that SUTAP alleges that in 1989 it was unlawfully deprived of its status as most representative trade union organization. As a result, SUTAP has filed a number of administrative and judicial appeals but its claims are still awaiting a judicial ruling. SUTAP states that on various occasions it gave proof of its numerical superiority with regard to the other trade union organization (UF) and that this has been reflected in ministerial decisions. Moreover, the Committee observes that the administrative decision of 23 October 2008 considered that the complainant organization had been unable to duly certify the size of its contributing membership. The Committee notes that, notwithstanding the specific details of numerical superiority supplied by SUTAP in its allegations, the Government in its reply has not provided specific figures or details relating to representativeness for SUTAP and the UF, nor has it explained the precise reasons why the administrative authority considered that SUTAP was unable to certify its number of contributing members. The circumstances described and the excessive delay in the proceedings are, in the Committee’s view, unsatisfactory and incompatible with the normal exercise of trade union rights. The Committee also emphasizes that excessively long proceedings necessarily have to take account of changes in the membership levels of the organizations, thereby complicating the issue that needs to be resolved (namely, which of the two organizations is more representative).
2. 186. The Committee considers that where administrative decisions on the granting or revocation of most representative trade union status are challenged, the administrative and judicial proceedings need to take place without delay. The Committee notes with concern the delay of 26 years in the processing of the judicial appeal filed by the complainant against the revocation of its representative union status. The Committee is bound to reiterate the principle that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 105]. In this respect, the Committee notes with regret: (1) the mislaying of the file, with the resulting delays and harm caused; (2) the 15 years’ delay on the part of the administrative authority in bringing the appeal before the judicial body, quite apart from the delay in fully complying with the judicial instructions received; and (3) the fact that the challenge to the administrative decision of 23 October 2008, stating that SUTAP had been unable to duly certify its number of contributing members, was not settled by the competent administrative authority until 13 November 2014, after the presentation of the complaint to the Committee. This being the case, the Committee firmly expects that the judicial proceedings concerning the claim for restitution of most representative trade union status to SUTAP will be concluded in the very near future and requests the Government to inform it of their outcome.
3. 187. The Committee also observes that there are other cases where it has already examined problems and delays similar to those described in the present complaint [see, for example, 375th Report, paras 15–21, or 360th Report, paras 246–262]. In view of this, the Committee invites the Government to ensure that proceedings for recognizing or challenging most representative trade union status are the subject of tripartite discussions with a view to improving their functioning and requests it to keep it informed of any measures taken in this regard.
4. 188. As regards the complainant’s argument that the situation described (revocation of most representative trade union status) amounts to suspension or dissolution by the administrative authority, the Committee is bound to clarify that such an equivalence cannot be made. Indeed, the principle that measures of suspension or dissolution by the administrative authority constitute serious infringements of freedom of association does not appear to be applicable in this case since the revocation of most representative union status does not entail the suspension or dissolution of a trade union but a change in legal status, from “most representative organization” to “merely registered organization” (a status that applies to less representative organizations), which does not imply either loss of legal personality by the organization or loss of the right to defend the interests of its members, though it does mean loss of exclusive powers in the sphere of collective bargaining.