Supreme Court of Justice, Asociación de Trabajadores del Estado (A.T.E.) and others v. Government of Argentina (Executive Branch), 29 August 2000, Decision No. 19.896
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
Collective bargaining
Direct resolution of a dispute on the basis of international law
Ratified treaties;1 Instrument not subject to ratification2
Collective bargaining in the public sector/ Reduction of wages by executive decree/ Direct application of international law to waive a lower-ranking national provision/ Direct resolution of a dispute on the basis of international law
The Executive Branch issued several decrees that reduced the remuneration of public-sector employees, the amount of which had been agreed upon through collective bargaining. As a result, public-sector employees initiated litigation against the Government for infringement of fundamental rights and freedoms, requesting declaration of the unconstitutionality and annulment of those decrees that violated the collective agreements.
In order to determine whether the decrees that reduced the remuneration of employees in the public sector were valid, the Court referred to ILO Convention No. 95 concerning the protection of wages. The Court decided that that Convention recognized the right of workers to receive the salaries agreed upon.
Concerning the application of ILO Convention No. 95, the Court decided as follows:
“(…) the right of workers to receive their remuneration at the rate reached before the decree in question is expressly protected by ILO Convention No. 95 concerning the protection of wages3 (ratified by executive order 11.594/56), which is applicable to all persons who are paid or should be paid a salary.”
The Court took into account two additional international treaties:
“(…) the reduction provided for in decrees 430/00 and 461/00 clearly violates a specific provision of the International Covenant on Economic, Social and Cultural Rights4 which, as is known, has the weight of the Constitution (Article 75(22) of the Argentine Constitution).
(…) that Article XIV of the American Declaration of the Rights and Duties of Man (concerning the right to work and fair retribution) establishes that every person has the right to receive fair remuneration that ensures a living standard appropriate for him and his family.”
Thus, the Court No. 20 directly applied ILO Convention No. 95 in order to declare the unconstitutionality and nullity of the decrees that reduced the remuneration of public-sector employees agreed upon in a collective agreement. In addition, the Court ordered payment of the amount withheld.
1 ILO Convention on Protection of Wages, 1949 (No. 95); International Covenant on Economic, Social and Cultural Rights, 1966.
2 American Declaration of the Rights and Duties of Man, 1948.
3 Article 8 of that Convention authorizes deductions only under conditions determined by “national laws or fixed by collective agreement or arbitration award”. In light of this provision, the Court determined the impossibility of establishing a reduction in remuneration by means of a decree. That ratified Convention, in accordance with the provisions of Article 75(22) paragraph 1 of the Argentine Constitution has supralegal ranking.
4 Article 7 of the Covenant on Economic, Social and Cultural Rights: “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) remuneration which provides all workers, as a minimum, with: (i) fair wages and equal remuneration for work of equal value without distinction of any kind, in particular, women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (…)”.
[ Download file ]