The End of Asymmetry in Unfair Labor Practices

While it is understood that the most significant transformation in collective matters is the restructuring of collective bargaining, with the preeminence of company‑level agreements and the recognition—logically deriving from that shift—of the company‑level union as the new core of the Argentine system (an aspect addressed in a separate article), the remaining changes proposed in the Labor Modernization Bill—also relating to collective matters—address fundamental issues that are likely to redefine labor relations in the years ahead. Several of these reforms directly affect the Trade Union Associations Law itself, as well as the framework governing collective bargaining

Interestingly, the Trade Union Associations Law (Law 23551, enacted on April 14, 1988), in nearly forty years of existence, has never included within “unfair labor practices”—or “anti‑union practices”—conduct attributable to trade‑union associations. In Chapter XIII, “On Unfair Labor Practices,” article 53 enumerates, across its original eleven subsections (which have remained unaltered), a series of employer‑related behaviors—indeed reproachable—classified as “unfair,” generally for “concealing” practices detrimental to trade‑union freedom, whether in its collective or individual dimension.

Argentine legislation, however, has never contemplated the possibility that conducts which are contrary to trade‑union freedom—understood in all its facets—could originate from trade‑union associations themselves. At a minimum, it never characterized such conduct, and therefore no sanctions or corrective mechanisms exist within the system of collective labor relations.

Yet practice demonstrates that there have been—and continue to be—reproachable forms of conduct by certain trade‑union organizations that directly affect the very workers they represent, at times restricting and at other times preventing the full exercise of the freedom to work, not to work, to join or resign from a union, among others. Some of these behaviors, which undeniably appear in daily labor relations, are addressed in the Labor Modernization Bill: the regulation of the so‑called “informative assemblies”—currently used as concealed direct‑action measures, convened without prior notice and at times most disruptive to production or work organization; the “indefinite allocation” of union hours for workplace delegates—often used to attend protests or demonstrations in other companies, among others.

The new article 53 bis: clear and balanced rules for all parties

The most significant development—given its clear intention to function as a counterbalance—is the proposed inclusion of article 53 bis immediately after article 53, within Chapter XIII, “On Unfair Labor Practices.” The Bill provides: “The following shall be deemed unfair labor practices and contrary to the ethics governing professional labor relations when committed by trade‑union associations, or, where applicable, by their representatives:

“a) Engaging in any of the actions provided for in article 20 ter of this law. (This article, also proposed within the reform, states: “The following shall be deemed very serious infringements: (a) Affecting the freedom to work of those who do not adhere to a strike through acts, deeds, intimidation, or threats; (b) provoking, inciting, or organizing the blockade or occupation of an establishment; preventing or obstructing, in whole or in part, the entry or exit of persons or goods to or from the establishment; (c) causing damage to persons or to property belonging to the company or to third parties, whether located within the employer’s premises or not (facilities, merchandise, supplies, raw materials, tools, etc.), or unlawfully retaining such property. Once such actions are verified as measures of trade‑union direct action, the responsible entity shall be subject to the sanctions established by regulation, following completion of the procedure determined by the Enforcement Authority, without prejudice to any civil and/or criminal liabilities that may apply.”).

“b) Intentionally intervening in or interfering with the normal operation of the company’s activities by convening assemblies in violation of article 20 bis (also introduced by the Bill), or through other direct‑action measures.

“c) Promoting compulsory and involuntary affiliation of workers, directly or indirectly.

“d) Engaging in extortionate conduct and/or mechanisms aimed at securing compulsory or involuntary affiliation of workers;

Engaging in extortionate conduct and/or mechanisms directed against employers.

“f) Taking reprisals against workers who do not adhere to a strike.

“g) Refusing to engage in collective bargaining with duly authorized employer representatives or causing delays intended to obstruct the bargaining process.

“i) Failing to comply with compulsory conciliation ordered by the competent authority.”

The majority of the behaviors listed in the proposed article 53 bis mirror those currently classified as unfair labor practices in article 53 with respect to employers.

It bears emphasizing that article 53 defines unfair labor practices as a mechanism of “protection” against conduct capable of undermining trade‑union freedom, under the long‑standing assumption—implicit until now—that only employers could perpetrate acts contrary to such freedom. By typifying conduct that may be carried out by trade‑union associations, the Bill seeks to align their obligations with those already imposed on employers, thereby ensuring respect for the right to trade‑union freedom for all workers in Argentina.