Editor’s Note
This summary outlines a recent Argentine federal court ruling regarding a public employee’s exclusion from union protection, highlighting ongoing legal interpretations of labor rights within the state administration.
Parties: National Treasury – Federal Administration of Public Revenues – General Directorate of Customs vs. José María Pellino re: Exclusion from Union Protection
Court: Federal Court of Paraná
Chamber / Court / District / Nomination: II
Date: February 28, 2024
Collection: Rulings
Citation: MJ-JU-M-149272-AR|MJJ149272|MJJ149272
1. Union protection shields the worker from anti-union behaviors, without establishing a bill of indemnity for worker conduct contrary to the proper fulfillment of labor duties; therefore, the Judge in the summary action for exclusion from protection must limit their jurisdiction to the object of the action, determining whether the intended measure shows any sign of labor discrimination.
2. The Judge in the action for exclusion from union protection is prohibited from ruling on the appropriateness or inappropriateness of the measure, and even on its eventual proportionality—except in cases of manifest disproportionality that would preclude exclusion—as this is proper to the subsequent control that may correspond in case of a challenge to the sanction.
3. The resolution that excludes the Worker from the protection they enjoy for union reasons is limited to establishing that there is no anti-union and/or discriminatory conduct, and the only thing it authorizes is the implementation of the decreed measure without this implying endorsement of it.
4. At no point do Article 52, nor Article 47 of Law 23,551 establish a deadline for exercising the action for exclusion from protection, and the consequence of non-compliance with its request is to trigger a reinstatement action in favor of the worker, an action that in this case has been exercised and in which precautionary protection has been granted to the worker for non-observance of the procedure.
5. The alleged duplication of sanctions cannot be admitted, given that, if the agent had considered the transfer as a sanction, they would surely have appealed the measure, and not having done so, the administrative decision is final and consented to, without it having been proven that it responds to disciplinary reasons.
Paraná, February 28, 2024.
HAVING SEEN:
These case files titled “NATIONAL TREASURY – FEDERAL ADMINISTRATION OF PUBLIC REVENUES – GENERAL DIRECTORATE OF CUSTOMS VS. JOSÉ MARIA PELLINO RE: EXCLUSION FROM UNION PROTECTION” – File No. FPA 16182/2017-, in process before the Civil and Commercial Secretariat No. 2 of Federal Court No. 2 of Paraná; AND WHEREAS:
That on folios 131/137 and back, Attorney ROSA ALICIA R WARLET appears, invoking the capacity of Legal Representative of the NATIONAL TREASURY – FEDERAL ADMINISTRATION OF PUBLIC REVENUES – GENERAL DIRECTORATE OF CUSTOMS, a circumstance she accredits with Resolution No. 054/98 (DGA) and promotes a summary action for exclusion from the union protection enjoyed by Agent JOSÉ MARÍA PELLINO, in his capacity as Union Delegate as Representative of the Personnel of the Diamante Customs by the SINGLE UNION OF CUSTOMS PERSONNEL (S.U.P.A.R.A.).
She continues by reporting that on 09/05/2006 and by anonymous complaint, proceedings were ordered aimed at verifying the truthfulness and consistency of the reported facts.
As a consequence of the investigation’s result, the Customs Administrator of San Nicolás denounces Agents LUIS JOAQUÍN LAFALCE and JOSÉ MARÍA PELLINO before Federal Court No. 2 of San Nicolás.
The complaint in question was based on alleged irregularities derived from both being Partners of the firm PONAL S.A., a Company that at the time of the facts had deposits in the primary customs zone of San Nicolás.
Added to this—according to the complaint—was the determination of the existence of several trips to Brazil and Uruguay by the mentioned Agents on dates when—according to attendance sheets—they were performing their own duties at the Customs.