Labour Court of Appeal of the City of Santa Fe, Second Chamber, Asoc. Pers. Munic. Las Colonias v. Fed. Sind. Trab. Munic. Festram and other re. Appeal, 6 September 2012, Case No. 59
Constitution of the Nation of Argentina
This Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation; and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions, except for the province of Buenos Aires, the treaties ratified after the Pact of November 11, 1859.
Article 75, paragraph 22
(…) Treaties and concordats have a higher hierarchy than laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy, do no repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein. (…)
Freedom of association
Reference to international law to strengthen a decision based on domestic law
Solidarity clause/ Funding of trade union activity/ Reference to international law to strengthen a decision based on domestic law
A municipal worker member of a first-level union, the Asociación del Personal Municipal del Departamento Las Colonias (Association of Municipal Workers of the Department of Las Colonias) requested exemption from payment of the solidarity contribution that they were required to pay to a second-level union organization, the Federación de Sindicatos de Trabajadores Municipales de la Provincia de Santa Fe (Federation of Municipal Workers’ Unions, FESTRAM) of which the worker is not a member and which the first-level union wishes to leave.
The judge-rapporteur, Dr. Machado, commented that “the legal standard (Law 23551) requires that the clauses of the agreements which establish contributions to be made to participating workers’ associations are valid not only for members, but also for non-members affiliated to the associations included in the scope of the agreement”, adding that “the reverse situation constitutes conspiring in the disappearance of the union organizations enshrined by the National Constitution and denying principles of equality, equity and social justice”.
Dr. Coppoletta, who voted against this view – and eventually was among the majority – was of the opinion that in this case
“not only is there no direct, meaningful benefit provided by the union action of FESTRAM to the actor … the imposition of the solidarity contribution constitutes a violation of the individual freedom of association of an actor as set out in ILO Conventions Nos. 87 and 151. Moreover, I consider that the Asociación del Personal Municipal del Departamento Las Colonias has demonstrated the express intention to cease their membership of the second-level union organization, and while this opens up a range of doubts with respect to the consequences that this discontinuation of membership may or may not have for FESTRAM’s capacity for representation, it is true to say that in this case the imposition of a solidarity contribution on the member of the Asociación del Personal Municipal del Departamento Las Colonias constitutes a violation of the negative freedom of association of the Asociación del Personal Municipal del Departamento Las Colonias. The first-level union organization has the right to free union organization (article 14a of the National Constitution), meaning that they can organize their union administration and activities, and their programme of action, which can include becoming a member or discontinuing membership of second-level entities (article 20 inc. c) of Law 23551 and articles 3.1 and 5 of ILO Convention No. 87). The solidarity contribution imposed on workers who are members of the Asociación del Personal Municipal del Departamento Las Colonias … constitutes a violation of the negative freedom of association of the first-level entity since it has the indirect effect of not recognizing its decision to leave FESTRAM: if workers who are also members of the Asociación del Personal Municipal del Departamento Las Colonias must deduct from their wages not only the contribution to the union of which they are members but also the solidarity contribution to a union federation to which their union is not affiliated (fs. 4), then this represents a significant obstacle not only to the development of the programme of action of the union, but also to the justification of its very existence”.2
On the basis of domestic law and in reference to ILO Convention No. 87, the Court considered that there existed a violation of freedom of association both in its positive and negative aspects (the right to belong or not to belong to a union organization) and decided in favour of the worker’s wish to choose the union organization to which they wish to contribute.