Labour Court of First Instance of the Southern Judicial District, Susana Elena Ordóñez v. Government of the Province of Tierra del Fuego, concerning an administrative dispute, 29 August 2000, Interim judgment No. 787
Constitution of the Nation of Argentina
Article 31
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. (…)
Argentina
General principle of equality
Use of international law as a guide for interpreting domestic law
Ratified treaty1
Access to justice/ Principle of equality/ Law that establishes payment of legal fees for workers in the public sector/ Constitutional principle of free access and guarantee of equality/ Use of international law as a guide for intepreting domestic law
The plaintiff raised the question of the unconstitutionality of a law2 that required workers in the public sector to pay legal fees for litigation brought against an employer, pointing out that that provision violated the provincial Constitution3, which established, as a guarantee to workers, the principle of free administrative or judicial litigation concerning labour, professional or trade union questions.
In order to determine whether the law violated the provincial Constitution, the Labour Court of First Instance studied the constitutional provision that recognizes the principle of free access to the courts in order to determine whether it also applied to workers in the public sector. In doing so, the Court referred to ILO Convention No. 151 in order to interpret the meaning of the term “worker” included in the constitutional provision.
The Court considered that the interpretation confirmed that when the principle of free access refers to a worker, it makes no distinction between a worker in the public sector and a worker in the private sector. Therefore, the benefit of free access to litigation corresponds to both categories of workers, and public employees should not be excluded from this benefit.
The Court pointed out that “(…) paragraph 9 of Article 16 of the provincial Constitution is applicable to workers in both sectors and that in this case the word “labour” should be understood as referring to questions related to the occupation of persons in a relationship of dependence through a work contract or contract of public employment and not to cases governed exclusively by the Labour Law. This interpretation coincides also with the use of the word “worker” made by the International Labour Organization, which distinguishes only between workers in the public sector from those in the private sector in specific cases that require different or specific treatment because of peculiarities derived from the legal nature of the employer (see ILO Convention No. 151).”
Interpreting the provincial Constitution in light of ILO Convention No. 151, the Labour Court of the Southern Judicial District pointed out that the benefit of free access to justice applied to employees in both the public and private sectors and, therefore, declared unconstitutional the law requiring payment of fees by workers in the public sector.
1 ILO Convention on Labour Relations (Public Service), 1978 (No. 151).
2 Article 41 of the Law on legal fees No. 460, adopted on 27 December 1999.
3 Article 16(9) of the provincial Constitution: “Work is a right and a social obligation; it is the legitimate and indispensable means to meet the spiritual and material needs of persons and the community. Tierra del Fuego, Antarctica and the Islands in the South Atlantic are a province based on work that recognizes the following rights of all inhabitants: free access for the pursuit of administrative or legal litigation concerning labour, professional or trade union matters.”
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