Labour Court of First Instance of the Southern Judicial District, Vargas, Bernardo Silenio v. Provincial Executive Branch, Provincial Ministry of Health and Social Welfare, concerning an administrative dispute, 30 September 1998, Case No. 556, Final decision No. 565
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
Dismissal
Reference to international law to strengthen a decision based on domestic law
work of international supervisory bodies[1]
Dismissal/ Freedom of expression within the framework of freedom of association/ Reference to international law in order to strengthen a decision based on domestic law
A worker was responsible for the management of human remains at a hospital. Because of deficient machinery, the work of the employee could not be properly carried out, and the worker provided the trade union with photographs showing the inadequate functioning of the machinery, which was contrary to existing health regulations. The trade union subsequently distributed those photographs to the media.
These events led to the worker’s dismissal, the reason that he filed the request asking that the dismissal be annulled because he felt that the actions ascribed to him did not merit such a severe sanction, claiming that that would violate freedom of expression and freedom of association.
In order to determine whether the dismissal was contrary to freedom of expression within the framework of freedom of association, the Labour Court of First Instance used the work of the ILO Committee on Freedom of Association to reinforce principles already incorporated into the law governing trade unions[2] based on the principle that workers and their respective organizations should enjoy freedom of opinion and expression in their meetings, publications and other activities.
The Court decided as follows:
“In that sense, it is my finding that that act lacked the defamatory nature, disloyalty or political intentions attributed to it by the defendant, and that, at best, as a result of the publication of the photographs in question, modifications made at the hospital were accelerated (provision of a new incinerator and changes in the system of transfer of remains to the municipal dump).
That activity, then, is legitimate under the doctrine that establishes that “the full exercise of trade union rights calls for a free flow of information, opinions and ideas (ILO 1985 Digest, Paragraph 175)”[3] and that “freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing, but also the right for organizations themselves to pursue lawful activities for the defense of their occupational interests (ILO 1985 Digest, Paragraph 345).”[4]
As a result, based on the law governing trade unions and with reference to the principles referred to by the ILO Committee on Freedom of Association concerning freedom of expression within the framework of freedom of association, the Labour Court of the Southern Judicial District declared the nullity of the administrative decisions leading to that dismissal.
[1]ILO Committee on Freedom of Association.
[2] Law governing trade unions No. 23.551, adopted on 14 April 1988. Article 1: “Freedom of association shall be guaranteed by all regulations governing the organization and activities of trade unions.” Article 3: “In workers’ interest” means everything related to their living and working conditions. Trade union activities shall promote the removal of all obstacles that hinder realization of a worker’s full potential.” Article 5(d): “Trade unions have the following rights: to establish their programme of activities and carry out any legal activities in defence of workers’ interests and specifically to exercise the right to collective bargaining, to participate, strike and adopt any other legitimate measures of trade union activity.”
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