Supreme Court of Justice, Asociación de Trabajadores del Estado (A.T.E.) re. Action of unconstitutionality, 18 June 2013, Case No. A.598.XLIII

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. (…)

Freedom of association
Role of International Law:
Direct resolution of a dispute on the basis of international law
Type of instruments used:

Ratified treaties;1 Instruments not subject to ratification;2 Work of international supervisory bodies3 

Freedom of association/ Trade union representation/ Remuneration/ Direct resolution of a dispute on the basis of international law

The Association of State Workers (Asociación de Trabajadores del Estado, A.T.E.) and Mr. Alberto Molina in his role as employee working in the municipality of the city of Salta brought an action of unconstitutionality against Decree 5/2003 which provided for cuts to the wages of municipal employees due to a situation of general emergency. In the first instance the Court of Justice of Salta dismissed the claim, indicating that A.T.E. did not have the legal capacity to represent the interests of the municipal workers, since A.T.E. solely acted as a registered trade union organization, and that it was the Union of Municipal Workers of Salta (Unión de TrabajadoresMunicipales de Salta) that had the exclusive right and legal capacity to represent the collective interests of municipal workers.

To resolve the appeal, the Supreme Court indicated that freedom of association is a fundamental principle of the Constitution of Argentina and part of the corpus juris of international law, of which ILO Convention No. 87 is part. In respect to this convention, the Court stated that:

“This body of law is conclusive in that it obliges the State to ‘refrain from any interference which would restrict [this right] or impede the lawful exercise’ of the right of ‘[w]orkers' and employers' organisations [...] to organise their [...] activities and to formulate their programmes’ (Articles 3.1 and 3.2).  It added, ’national legislation shall neither breach not be applied in such a manner as to breach the guarantees set out by that Convention’ (Article 8.2). Moreover, Article 10 of the Convention defines the term ‘organization’ as meaning ‘any organisation of workers or of employers for furthering and defending the interests of workers or of employers’.”4 

The Court also referred to the observations concerning Argentina made by the ILO Committee of Experts on the Application of Conventions and Recommendations, stating that:

“This international body has repeatedly stated that article 31 a) of Law 23.551, which privileges ‘associations which have been granted trade union status over the other associations as regards representing various collective interests other than collective bargaining’, is not in line with ILO Convention No. 87”.5

Thus, relying on ILO Convention No. 87, the Supreme Court declared article 31.a of Law 23.551 to be unconstitutional, since they prevented the A.T.E. from representing the collective interests of workers. It also declared unconstitutional the Decree 5/2003 regarding the wage reductions imposed.

1 ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); American Convention on Human Rights, 1969; International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966.

2 ILO Declaration of Philadelphia, 1944; Universal Declaration of Human Rights, 1948.

3 ILO Committee of Experts on the Application of Conventions and Recommendations; Committee on Economic, Social and Cultural Rights.

4 Page 6 of the decision.

5 Pages 6-7 of the decision.

El decreto 1184/02 fue dictado omitiendo dar participación previa a las entidades que representan a los pueblos indígenas de Neuquén, desconociendo así la obligación establecida por el Convenio 169 de la OIT sobre Pueblos Indígenas y Tribales, el cual en su artículo 6 expresa que

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