2008 Annual Survey of violations of trade union rights - Argentina
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Argentina, 20 November 2008, available at: http://www.refworld.org/docid/4c52caa828.html [accessed 27 May 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Capital: Buenos Aires
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Teachers in 17 of Argentina's 23 provinces were involved in pay disputes in the first few months of the year. In Neuquen the dispute resulted in the killing of chemistry teacher Carlos Fuentealba. The unions denounced the Governor of Neuquen's repressive attitude, holding him responsible for the death. Wal-Mart had to appear before parliament to explain its anti-union practices.
Trade union rights in law
Freedom of association: Under the Constitution, workers have the right to join and form free democratic trade unions, which are recognised once they have been entered in a special register. Trade unions are regulated by Law 23551 on Trade Union Associations, which was adopted in 1988 and imposes severe restrictions on the exercising of freedom of association and other trade union rights. All workers – with the exception of military personnel – are free to join and form trade unions, without prior authorisation, at industry, company or branch level, as well as craft unions. Two or more unions may establish a federation, and two or more federations may establish a confederation. Collection of union dues by "check-off" is mandatory under the trade union law.
Restrictions: There are certain legal restrictions affecting freedom of association, however, notably the fact that only one trade union – the most representative one – in a given industrial sector and within a specific geographical region, may be certified as having "union personality" ("personería gremial"), which enables it to negotiate wages or collect dues. For a union to be certified as having "union personality" – which confers, inter alia, exclusive collective bargaining rights – it must: (a) be officially registered and have been operating for at least six months; (b) have a membership covering not less than 20 per cent of the workers it intends to represent, and (c) be the most representative trade union in the relevant industry or branch, within a given geographical area (generally a city or province, though in some cases, the whole country).
Collective bargaining: The law allows collective bargaining at national, regional, provincial or company level, however at the same time it prevents unions that have been registered but do not have the abovementioned "union personality" from taking part in those negotiations, since the law does not take into account the number of members of those unions who are covered by the geographical and sectoral scope of the collective agreement that is negotiated. In addition, Law 14.250 stipulates that if a collective agreement is to be binding it must be approved by the Ministry of Labour, which aims to protect workers' interests by ensuring that the clauses of collective agreements do not affect their rights under national law and preventing the implementation of collective agreements that could weaken those rights.
Strikes: Article 14b of the Constitution guarantees unions the right to strike. However, the notion of "representation of collective interests", which the law attributes only to unions with "trade union personality", comprises the right to strike, thereby denying that right in practice to registered unions without that status. Decree 272/06 of Employment Law 25.877 established regulations on the right to strike as it applies to essential services that are in compliance with ILO Convention 87. Article 2b of the decree states that a Guarantees Commission will be created that would stipulate the minimum services to be provided in the event of a strike, although the Ministry of Labour would take the final decision on which minimum services were necessary when "the parties cannot reach agreement" or "when the agreements were insufficient". The Guarantees Commission on essential services has still not been created.
Protection for trade unionists: The legal system prohibits any action that impedes or obstructs the regular exercise of the rights related to freedom of association. The Trade Union Law prohibits certain unfair labour practices, including employers' interference in trade union activities, anti-union discrimination, dismissal of workers who engage in trade union activities, refusal to engage in collective bargaining and obstruction of the collective bargaining process.
Trade union rights in practice and Violations in 2007
Background: Cristina Fernández de Kirchner was elected President on 28 October, and succeeded her husband in December. During his administration, Néstor Kirchner actively promoted human rights. His government included recognised members of human rights organisations and was the driving force behind the trials of those responsible for crimes against humanity in the seventies. The National Congress approved the repeal of the "Due Obedience" and "Full Stop" laws that had prevented the trials from going ahead since Raúl Alfonsín's government. The decision was later ratified by the judicial authorities.
Union recognition refused: The national trade union centre, Central de Trabajadores de la Argentina (CTA), has consistently been denied official recognition. In 2007 the ILO Committee on Freedom of Association strongly urged the government immediately to reply to the application for "trade union personality" that the CTA had made almost three years earlier.
APSA tries to control workers' representation: In February 2007, the Cellulose, Paper and Cardboard Workers' Union of the Misiones Province (SOEP) decided to begin an indefinite strike and to block access to the premises of the country's leading cellulose producer after it failed to obtain a satisfactory response to its demands from Alto Paraná S.A. (APSA).
The dispute began in August 2006 when the employees of Alto Paraná subcontractors began to join the Paper Workers' Union (SOEP), while the employer claimed they belonged to the rural sector. Many of the main activists were dismissed or suspended. In the following months, 300 lumberjacks blocked access to the plant and took various other forceful measures. In March, the Ministry of Labour imposed compulsory conciliation and ordered the reinstatement of 83 workers dismissed for demanding their rights.
In mid-May 2007, the Ricardo Yelén company, an Alto Paraná contractor, dismissed Julio César Villalba, a lumberjack. Villalba was also involved in trade union work, and was a prominent activist in the dispute over their choice of union.
Threats, intimidation, and theft from CTA leaders: On Sunday 18 February unidentified persons broke into the offices of Dr. Horacio D. Meguira, director of the National Legal Advice Bureau of the national trade union centre Central de Trabajadores de la Argentina (CTA), forcing the front door open. They went straight to Horacio Meguira's offices and only took his computer's CPU and the fax machine whose memory contains a record of all communications sent and received. The CTA took the matter to court, to secure an investigation into the crime and identify the culprits.
A burglary took place at the headquarters of the CTA's Federal Capital branch during the weekend of 10 and 11 March. The computers of the Independent Union of Messengers and Delivery Workers (SIMeCa-CTA), the Association of Women Prostitutes of Argentina (AMMAR-CTA) and the Movement for the Recovery of National Energy (Movimiento por la Recuperación de la Energía Nacional Orientadora) were stolen. No other valuable items were taken, or any money. The Federal Capital CTA reported that the "modus operandi" was very similar to that "used by those who broke into the office and home of the head of the CTA's legal advice bureau in February", a worrying sign given its intimidatory nature.
On 23 March, in the middle of an industrial dispute, the home of the General Secretary of the Santa Cruz branch of the State Employees Association (ATE), Alejandro Garzón, was pelted with stones and he and his family received telephone threats.
Murder of teacher Carlos Fuentealba: Brutal repression by the Neuquén police resulted in the death of chemistry teacher Carlos Fuentealba, during his peaceful participation in a demonstration. Mr. Fuentealba was hit in the back of the head by a tear gas canister fired just two metres away by police officer Darío Poblete, a member of the Zapala Police's special forces, who already had a record of illegal coercion and harassment. Poblete was arrested that day and charged with voluntary manslaughter. The teachers were calling for the national pay rise approved in February of that year to be put into effect.
Telephone workers dismissed: On 24 April the Actionline company dismissed two telephone operators, Germán Luperne and Amancay D'Oliveira. They were both involved in trade union work, dealing with claims for better working conditions and promoting organising in the sector.
Trade union leader dismissed from SKANSKA: On 6 June the Argentinian subsidiary of the Swedish company Skanska dismissed Marcelo Turchetti, the leader of the ICEM's affiliate, the Argentinian Private Oil and Gas Federation (FASPyGP) while he was engaged in legitimate union activities in Santa Cruz Province. The company operates as a contractor for ExxonMobil, Petrobras, Repsol, Royal Dutch Shell, and Chevron operations in Argentina.
Aggressive anti-union practices by Wal-Mart Argentina: On 11 July, Wal-Mart Argentina had to report on its anti union practices to the Chamber of Deputies. Management representatives from the supermarket chain appeared before the Labour Legislation Committee to explain the corporation's anti-union policy, following complaints by employees. Although staff are able to join a union, those who do no longer get any promotions, bonuses or pay rises. The company applies a selective policy of sanctions and rewards, according to whether a staff member is "affiliated" or "not affiliated". Wal-Mart also employs from army officers who served during the last military dictatorship in managerial positions within the company.
The parliamentarians asked the company to reinstate Gustavo Córdoba and Sergio Schmidt, two staff members dismissed "without cause" from the Avellaneda branch, coincidentally after they had been involved in trade union activities.
Workers in the fishing industry subjected to harassment, abductions, repression, injuries, arrest and torture: In Mar del Plata, a lengthy dispute between workers in the fishing industry affiliated to the CTA and firms in the sector that had been given an incorrect legal status of "cooperatives", led to the militarisation of the port area and an intimidation campaign against the trade unionists. Within that context there were serious assaults on Mabel Toscano, who received a death threat at her workplace on 18 August, and Ernesto Leocadio Fernández, who was arrested and beaten up by police on 11 September. On 27 September, Diego Argañaraz was shot in the chest by the owner of one of these so-called cooperatives, whilst on 11 October Camilo José Castillo, Roberto Felipe Villaola, Juan Fierro and Carlos Sánchez were arrested and beaten up by police. On 13 October, Rubén Almaraz and Daniel Cisneros were "picked up" by plain clothes police and brutally beaten; they were kept under arrest for 12 hours. On 16 October, police and infantry personnel turned up at the port and forced workers to give up their demands and return to work.
Pressure from cereal companies: The grain workers' union URGARA reported various forms of anti-union pressure exerted on union members and representatives by the companies in their sector belonging to the Cereal and Oilseed receivers and suppliers group "Recibidores y Entregadores de Cereales, Oleaginosas y Afines". The pressure took the form of threats about job security, cuts in bonuses, the selective application of working conditions and even dismissals.
Miguel Hugo Rojo case no. 1867 before ILO still not settled: (See the 2004 Survey) The government has still not complied with the recommendation by the ILO's Committee on Freedom of Association (CFA) made back in 1998, stating that Miguel H. Rojo, then General Secretary of the Salta province State Employees Union (ATE), was unfairly dismissed. The CFA recommended that he should be reinstated or compensated, but successive Argentinian governments have so far ignored this.