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11 mayo 2021

Merely Registered Unions May Demand Workers’ Union Dues. Published in La Nación

The Supreme Court has issued a transcendent ruling about mandatory dues check-off for merely registered unions amid claims challenging the constitutionality of different provisions of Act on Unions No. 23551.

This time the Highest Court found that a merely registered union, which under the Argentine legal system does not have the representation of the alleged collective it intends to represent, has the right to dues check-off from consenting member workers. So far this mechanism to collect contributions has been the exclusive right of unions with legal status, granted by the Department of Labor to the most representative union.

Article by Julián A. de Diego published in La Nación on May 10, 2021

Remember that union dues and agency fees agreed under collective bargaining agreements have created a virtually mandatory contribution to be made by all workers –members or nonmembers of any union-, thus violating in essence the freedom of association that each worker should enjoy with the liberty to join, not to join or resign from the union.

In this case in particular, the Defendant is now required to deduct union dues from member workers’ paychecks, and deposit the respective amounts into the union’s special account at an official bank within a given time-frame.

Even though this Court decision applies to a specific case only, it may have a big impact due to the contradictions between the system of union monopoly under the Act on Unions and the multiple unions approach encouraged by left-wing groups in Argentina.

As a matter of fact, in re Asociación del Personal Superior de Autopistas e Infraestructura APSAI v. Autopistas del Sol S.A. on amparo action (Supreme Court of Justice of Argentina, March 4, 2021, LA LEY Online Quote: AR/JUR/1204/2021) the Supreme Court found that Section 38 of Act No. 23551 was unconstitutional because it arbitrarily prevented merely registered unions from collecting union dues through deductions, and went against the freedom of association, both individually and collectively.

Then the Court went on to explain that dues check-off for merely registered unions does not affect employers or impose any heavy workload because the deduction procedure for workers belonging to merely registered unions is the same as for those who are members of unions with legal status.

Dues check-off under Section 38 of Act No. 23551 is a privilege for unions with legal status to the detriment of merely registered unions, which leads to an unreasonable discrepancy between the two types of organizations.

The Supreme Court aligned with the claims filed by ATE [Association of State Workers] with ILO in Geneva, which have led to the legal opinions by the Committee of Freedom of Association challenging the Act on Unions. In the matter of Asociación Trabajadores del Estado v Ministerio de Trabajo on Ley de Asociaciones Sindicales (Judgments: 331:2499, February 14, 2008) the Court found that it was unconstitutional to demand that shop stewards should be members of the respective union with legal status, and therefore granted this right to merely registered unions.

Then in re Rossi, Adriana María v Estado Nacional• Armada Argentina (Judgements: 332:2715, December 9, 2009), the Court declared the unconstitutionality of Section 52 of Act No. 23551 because the Claimant was not allowed to enjoy the protection granted to representatives of unions with legal status because she was the representative a merely registered union. 

The Supreme Court, in its current makeup, went a step forward in re Orellano F.D. v Correo Oficial RA and established that only one representative union, whether with legal status or mere registration, can call a strike within the scope of Article 14 bis of the National Constitution (Supreme Court of Justice of Argentina, June 7, 2016).

Contrary to the abovementioned trend, in re ADEMUS v Municipalidad de Salta the Supreme Court did not allow a merely registered union to take part in the collective bargaining agreement made by a union with legal status (Supreme Court of Justice of Argentina, September 3, 2020) Finally, all this triggered a new case Asociación del Personal Superior de Autopistas e Infraestructura APSAI v Autopistas del Sol S.A., whereby for the first time ever the Supreme Court handled a matter of property involving unions by enforcing payment and effective collection of union dues through deductions by employers; so far it has just been discussed other issues such as scope of representation, union protection and the right to strike.

Por Julián A. de Diego
Por Julián A. de Diego

Fundador y Titular del estudio “de Diego & Asociados”.  Abogado, Doctor en Ciencias Jurídicas.

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