Supreme Court of Justice, Asociación de Trabajadores del Estado (A.T.E.) v. the Ministry of Labour, 11 November 2008, A. 201. XL
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
Use of international law as a guide for interpreting domestic law
Workers’ organizations/ Decision of constitutionality/ Freedom of association/ Workers’ rights/ Trade union freedom/ Trade union legal status/ Use of international law as a guide for interpreting domestic law
In domestic Argentinian law, Article 41, Section A, of Law 23 551 (Trade Union Act) states that staff representatives and members of internal commissions and similar trade union bodies provided for in law must be affiliated to their respective legally recognized trade union association and be selected in elections called by it.
The Argentinian trade union model permits the coexistence of several trade unions within the same activity, provided only that they are on the register held by the Ministry of Labour, but only one of these trade unions (that which has the greatest representation) has the legal standing as a trade union that entitles it to exercise full trade union representation.
In this case, a trade union without legal standing – the Association of State Workers (ATE) – called elections for representatives. This calling was opposed by the trade union with legal standing – the Union of Civil Personnel of the Armed Forces (PECIFA) – and was declared unlawful by the National Office of Trade Unions, a decision confirmed by the Ministry of Labour. In the appeal proceedings, the National Labour Appeals Court confirmed what had been decided by the Ministry of Labour and the case ended before the National Supreme Court of Justice as an extraordinary appeal.
The Court analyzed the content of the right to freedom of association embodied in article 14 of the Constitution, and its individual and collective dimensions. In doing so, it drew on the case law of the Inter-American Court of Human Rights:
“As judged by the Inter-American Court of Human Rights, the terms of art. 16.1 of the American Convention establish "literally" that "those who are under the protection of the Convention have not only the right to associate freely with others, without intervention by the public authorities to limit or impede the exercise of the rights concerned. This is, therefore, a right of every individual", but "they also have the right and freedom to seek the common achievement of a lawful purpose, without pressure or interference that may alter or distort its purpose" (Huilca Tecse v. Peru case, cit., para. 69 and its quotation). Freedom of association in "labour terms", therefore, and in its individual dimension, "is not limited to the theoretical recognition of the right to form unions, but also includes, inseparably, the right to use any appropriate means to exercise that freedom;"in its social dimension it proves to be “a means that enables a group or collectivity of workers to achieve certain goals together and to enjoy the benefits thereof (…)”
The Court concluded that the Argentinian domestic law complained of (Article 41, Section A, of Law 23 551) violated the right to trade union freedom both individually and collectively. Thus, the Court observed that this provision unfairly limits:
“firstly, the freedom of workers considered individually who wish to put themselves forward as candidates, as this forces them, albeit indirectly, to join the trade union association with legal standing, notwithstanding the existence of another in the same field that is simply registered. Secondly, the freedom of the latter [the registered trade union bodies without legal standing], preventing them from the execution of their activity in one of the most basic aspects and objectives for which they were created.”
Regarding the collective aspect of the right to freedom of association, the Court interpreted this constitutional right referring to international labour standards and the work of the ILO’s supervisory bodies, especially in regards to the issue of the prerogatives that can be granted to the most representative trade unions without infringing the right of workers to join the unions of their choice and the right of trade unions to organize their activities and elect their representatives freely:
“[This] conceptual order corresponds to the interpretation of Convention No. 87 and the work of two international supervisory bodies of the ILO. [...] Indeed, the Committee of Experts has recently “reminded” the Argentinian State that “for unions that obtain it, “most representative” status should not imply privileges other than priority of representation in collective bargaining, in consultations with the authorities and in the appointment of delegates to international bodies” (individual observation concerning the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), Argentina (ratification: 1960), 2008). [...] (And), in 1989, commenting on law 23 551, the Committee of Experts noted that it did not seem to be in accordance with Convention No. 87 in its provision according to which “the right to represent workers in the undertaking can only be exercised by members of those associations enjoying trade union status”. […]
These criteria of the said Committee are undoubtedly entirely concordant with those of the Committee on Freedom of Association: while in the light of the discussion of the draft Convention 87 and the ILO Constitution (Article 5.3), “the mere fact that the law of a country draws a distinction between the most representative trade union organizations and other trade union organizations is not in itself a matter for criticism”, the distinction should not result “in the most representative organizations being granted privileges extending beyond that of priority in representation […] for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. […] (Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Geneva, ILO, 4th edition revised, 1996, para. 309).”
Interpreting the Constitution in the light of ILO Convention No. 87 and the jurisprudence of the ILO Committee of Experts and the ILO Committee on Freedom of Association, the Court declared the article unconstitutional and revoked the sentence under appeal.
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; International Covenant on Economic, Social and Cultural Rights, 1966; International Covenant on Civil and Political Rights, 1966; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“San Salvador Protocol”), 1988.
2 ILO Constitution, 1919; ILO Declaration of Philadelphia, 1944; Universal Declaration of Human Rights, 1948; American Declaration of the Rights and Duties of Man, 1948; ILO Declaration on Fundamental Principles and Rights at Work, 1998.