Supreme Court of Justice, Adriana María Rossi v. National State – Argentine Navy, 9 December 2009, R. 1717. XLI
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. (…)
Protection against discrimination in employment and occupation , Freedom of association
Direct resolution of a dispute on the basis of international law
Freedom of Association/ Protection against anti-union discrimination/ Conditions of exercising trade union activities/ Trade union protection/ Trade union protection only for representatives of trades unions with personería gremial (official status)/ Direct resolution of a dispute on the basis of international law
The plaintiff, a trade union representative, applied for the lifting of the disciplinary measure of suspension and change of workplace that her employer, the Argentine Navy, had imposed without prior legal authorisation. The plaintiff alleged that such authorisation was necessary because as President of the Naval Hospital Association of Health Professionals and titular member of the Federal Council of the Federal Capital’s Federation of Medical Trade Unions she should have been afforded the union protection enshrined in the constitution and upheld by the law that guarantees that:
“workers covered by the guarantees specified [in Article 48, which provides guarantees for workers who perform elective or representative duties in officially-recognised trades unions], may not be dismissed or suspended and neither may their working conditions be changed except by means of a prior judicial decision that excludes them from the guarantee [...]”.
Both the court of first instance and the Appeal Court maintained that it was impossible to implement union protection because the plaintiff belonged to a merely registered trade union that was superseded for the purposes of staff representation by another, officially recognized, union and it was the representatives of the latter organization who enjoyed trade union protection in accordance with Article 52 of the Law on Trade Union Organizations.
The Supreme Court settled the case by referring in the first place to its own case law, because a case of 11 November 2008 “Association of State Workers v. Ministry of Labour” constituted an important precedent in the matter under examination. In this case, the Court established that Article 41.a of Law 23,551 was unconstitutional because it granted the most representative trades unions certain privileges to the detriment of merely registered trade unions which covered all or part of the same activity as the former.
The Court referred to the case law of the Inter-American Court of Human Rights to emphasize that freedom of association imposes an obligation of protection on the State and compared this with the provisions of Article 52 of the Law on Trade Union Organizations to conclude that the said obligation was not complied with:
“The Inter-American Court of Human Rights rightly states with reference to the trade union freedom and freedom of association enshrined in article 16 of the American Convention on Human Rights, that the ‘negative’ State obligation of not interfering is juxtaposed with a ‘positive’ obligation by the same State, in other words that of adopting appropriate measures to protect and preserve the exercise of trade union activity ‘without fear’ on the part of union representatives, because otherwise, “the ability of groups to organize in order to protect their interests could be reduced”.
In limiting the scope of the protection provided for in Article 52 to representatives of officially recognized trades unions, Law 23,551 governing constitutionally-recognized trade union freedom clearly and unjustifiably violates the sphere within which the law-maker may directly grant certain privileges to the most representative organizations.”3
Lastly, in concluding its statement on the unconstitutionality of Article 52 of the Law on Trades Unions and Associations, the Court referred extensively and thoroughly to the provisions of Convention No. 87 and the observations of the ILO Committee of Experts on the Application of Conventions and Recommendations, which had repeatedly warned the Argentine state that the Article in question did not comply with the provisions of Convention 87:
“This is complemented by the contribution of the aforementioned ILO Convention No 87, which is undoubtedly fundamental to the question, (…) this instrument is conclusive because it obliges the State both to undertake “to take all necessary and appropriate measures to ensure that workers […] may exercise freely the right to organize” (Article 11), [...] and also to “refrain from any interference which would restrict […] or impede the lawful exercise” of the right of workers’ organizations “to organize […] their activities and to formulate their programmes” (Article 3.1 and 2). (…)
In this sense, we must pay special attention to the observations of the ILO Committee of Experts on the Application of Conventions and Recommendations due to their specific relevance to the matter under dispute. An extremely recent conclusion drawn by this body (2008) effectively considers that despite the general protection provided for by Article 47 of Law 23,551, “Articles 48 and 52 [of the law] establish a bias in favour of representatives of officially-recognized organizations in acts of anti-union discrimination that goes beyond the privileges that may be afforded to the most representative organizations” (…).
From the very outset, in 1989, the ILO Committee of Experts on the Application of Conventions and Recommendations has looked unfavourably on the compatibility of Law 23,551, of 1988, with Convention No 87 (…).
The doctrine of the ILO Freedom of Association Committee leads to the same results as the view put forward in the previous paragraph, and the Court’s decision over the frequently mentioned case Association of State Workers.”4
Once the unconstitutionality of the law had been stated in the terms set out above, the Supreme Court reversed the appeal decision and referred the case to the Appeal Court so that a new decision could be handed down in accordance with its provisions, in other words acknowledging the right to trade union status a irrespective of whether the representative belongs to an officially recognized trade union or one that is merely registered.
1 ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); American Convention on Human Rights (“Pact of San José, Costa Rica”), 1969; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“San Salvador Protocol”), 1988.