Legal background

From the core principle of the Argentine Constitution that guarantees all workers “a free and democratic union organization by the mere registration with a special registry”, stems the procedure set forth by the Labour Organizations Law (No. 23,551). This Law rules all matters related to the creation, operation, rights and duties of workers' associations, and the effects deriving from the acknowledgment of their legal capacity as unions by the Ministry of Labour.

Based on these legal principles, there are two kinds of trade union organizations in Argentina: (i) ordinary registered workers’ associations and (ii) registered workers’ associations with “exclusive recognition.” Needless to say, to reach stage (ii) a union must necessarily achieve and undergo the first stage (i).

This implies that the Argentine system authorizes a variety of workers’ associations for the same category of workers, but it provides that only one of them may be granted “exclusive recognition” by the Ministry of Labour. This is the power that gives such an association the exclusive right to be the representative of workers in a certain area, industry or activity. That is to say, there may be more than one registered association representing the same occupation, craft, rank, or profession of workers, but only the most representative one has the labour authority's authorization to represent a given group of workers before the employers.

To obtain said power, there are a number of conditions that a workers' association must necessarily meet, such as to have been registered and operational for longer than six months and gather more than 20 percent of all the workers whose representation is intended by it.

To the contrary, workers' associations that have not obtained the "exclusive recognition", but the mere registration with the Ministry of Labour, have no real power compared with those with "exclusive recognition", since: they cannot negotiate collective agreements, which also impliedly means that they cannot fix union contributions in their favor from workers of the represented industry, activity, profession or craft (even from those not voluntarily affiliated to the association); they cannot plan and call for strikes; they cannot negotiate with employers via the collective bargaining agreement procedure; they cannot create and administer the health and medical organizations for unionized workers, among other things.

This unique representation system outlined only for those associations with "exclusive recognition", as set forth by the Argentine system, has been harshly criticized throughout the years by the Experts Committee of the International Labour Organization ("ILO"), which deemed it contradictory with the Argentine Constitution itself (that as indicted, promotes the free organization  by the simple registration) and also with the ILO Conventions.

Practical matters and "imposed?" trends

The Ministry of Labour, the competent authority which manages the registry, and checks fulfillment of conditions to grant the "exclusive recognition",  has not been showing in the recent past, too much activity in registering organizations. Hundreds of petitions were waiting for that action to be taken to allow them to take the first step towards a longing "exclusive recognition".

One case that probably stirred the waters was the high-tech industry employees' union, which made its filing with the Ministry several years ago and - despite having complied with the applicable steps - was not being registered by the Ministry. This led the union to file a motion in court to obtain registration, and a court order was finally issued requiring the Ministry to proceed. Even with this court order, the Ministry took several weeks until it finally complied with the order and gave the union its registration.

During the past few months, the activity of the Ministry increased significantly when it came to granting ordinary registration to unions that are not necessarily the most representative ones of a given group of workers, activity, profession or craft. As a matter of fact, between October and November 2013, 26 registrations were made.

In most of these cases, the association being registered has its scope restricted to a certain area, city or location, and it does not overlap with the representation of another precedent association or union. There are, however, a couple of cases (e.g., that of the construction workers) where the new registered union does overlap in its scope of representation with a precedent one with the "exclusive recognition", in which this precedent one supersedes that new one. These types of cases would pose a lot of challenges for employers who might face and deal with two unions, which in time could be disputing between each other the representation of the employer's workers.