The Supreme Court of Justice has started to eliminate the sole union with legal representation system

On November 11, 1008, the Supreme Court of Justice, in re: “State Association Workers vs. Ministry of Labor s/ Union Associations’ Law” revoked a decision of the Labor Court of Appeals (Tribunal VI), which had confirmed Resolution No 197 of the Ministry of Labor. On such resolution the Ministry of Labor had accepted a claim of the Army Forces Civil Personnel Union (Unión de Personal Civil de las Fuerzas Armadas – PECIFA), an entity enjoying union representation, that challenged a personnel representatives’ election made by the State Association Union (Asociación de Trabajadores del Estado – ATE).

The State Association Union (ATE), a registered entity, called for elections of personnel representatives. The National Direction of Union Associations accepted a challenge introduced by PECIFA. Against such decision ATE submitted an extraordinary appeal before the Ministry of Labor. Such appeal was rejected on April 2003.

The maximum administrative authority had sustained its decisions on the following grounds: (a) the requirement of Section 41, “a” of Union Association Law No 23,551 that requires all candidates for representatives to be affiliated to the union enjoying union representation and to be elected at elections called for such entity; (b) the union enjoying union representation that covers the corresponding personnel would be the only one called to organize and control the elections; and (c) that PECIFA was such association.

Tribunal VI of the Labor Court of Appeals confirmed the decision of the administrative authority. The maximum court admitted a claim after an extraordinary appeal was denied.

The Attorney General, in his statement, emphasized that the Labor Court had not included the argument of ATE regarding that within the National Public Administration there is a possibility of different union enjoying union representation to exist; which makes relative the principle of exclusive representation or “union closed shop”.

In order to admit the claim introduced by ATE, the Supreme Court of Justice sustained:

i)     The essence of the principles that regulation of union association may reflect are in Section 14 bis of the Argentine Constitution, which state free and democratic union organization.

ii)    Freedom, within the individual sphere, is stated with for the worker to decide freely to be affiliated, to disaffiliate or not to affiliate, and in the first case, in the organization selected by him/her.

iii)   The Expert Commission of the International Labor Organization (ILO) reminded the Argentine State that the “higher representation does not mean that the union obtains it, privileges exceeding a priority on representation for collective negotiations, consultation of authorities and designation of delegates before the international organization.

iv)    On making observations regarding Law No 23,551, the Expert Commission warned that it did not appear to be in accordance with Convention No 87 the regulation stating that “the functions of the company workers representative may only be exercised by the members of the organizations enjoying union representation.

v)    There is a substantial difference between the union monopoly directly or indirectly stated or maintained by law, and which is freely and voluntarily stated by the workers.

vi)    Section 41 “a” of Law No 23,551 violates the right of freedom for the union association granted whether by Section 14 of the National Constitution as well as by the international rules. Section 41 demands that union representatives and member of internal commissions and similar agencies as stated in Section 40 must be affiliated to the respective union association with union representation and must be elected in elections called from such union.

In conclusion, according to the decision of the Supreme Court of Justice, the exclusivity granted by the law to the union enjoying union representation affects the right of workers demanding them their affiliation, and also limits to the simply registered union the exercise of its representation. Therefore, in this case the Court decided that the workers who are affiliated to simply registered unions will anyway be elected as personnel representatives, which was not allowed up to present.

The new case law stated by the Court implies that union freedom would allow to those simply registered unions to exercise rights privileged up to the present for those union enjoying union representation. The maximum court decided, in practice, that the workers who wish to be candidates shall not be forced to be affiliated to a union enjoying union representation, as stated by Law No 23,551, if there is other union organization that is simply registered.

The decision under analysis is certain to open a debate in Argentina in relation to the system of representation of workers, due to the opinion of important authors in the sense of considering that the current monopoly for union representation is not in accordance with the democratic system and freedom of expression. To avoid longer and more expensive legal battles, it would be recommendable that the Legislative Authorities define rules to regulate the decision dictated by the Supreme Court of Justice.