Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Uruguay (Ratification: 1954)

Other comments on C098

Observation

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The Committee notes the joint observations of the International Organisation of Employers (IOE), the Chamber of Industries of Uruguay (CIU) and the National Chamber of Commerce and Services of Uruguay (CNCS), received on 31 August 2016, 2017 and 2018, which refer to the issues examined by the Committee in the present comment. The Committee notes the additional joint observations of the IOE, CIU and CNCS received on 28 November 2018. The Committee requests the Government to provide its comments thereon.

Article 4 of the Convention. Promotion of free and voluntary bargaining. Regarding the revision of Act No. 18566 of 2009 (establishing the fundamental rights and principles of the collective bargaining system, hereinafter Act No. 18566) requested by the Committee on Freedom of Association (Case No. 2699) and the Committee with a view to ensuring the full compliance of the Act with the principles of collective bargaining and the Conventions ratified by Uruguay in this area, the Committee recalls that, in its previous comments, it: (i) welcomed the tripartite agreement concluded in March 2015 through which a process of tripartite dialogue was initiated on this matter; (ii) noted the concerns of the employers’ organizations regarding the absence of progress in this dialogue; and (iii) firmly hoped that the dialogue process would lead to concrete measures being taken to bring the law and practice into full conformity with the Convention. In this regard, the Committee notes that, in their observations, the employers’ organizations: (i) refer to the regulatory proposals discussed in 2016 and 2017 by the Government and the employers within the framework of the above tripartite dialogue and the technical assistance provided in this respect by the Office through a Technical Note in October 2017; (ii) clearly set out their alternative proposals to those of the Government with regard to various aspects of the revision of Act No. 18566; (iii) assert that, with regard to the jurisdiction of the Wage Boards over remuneration and working conditions, the Government has not proposed any legislative amendments and still refuses to acknowledge that the tripartite negotiations that are held within the framework of the Wage Boards equate in practice to a form of compulsory arbitration in which representatives of the Ministry of Labour and Social Security set out and define the limits of the negotiation; and (iv) assert that, in so far as the Government has not achieved tripartite agreement on the reforms requested for eight years by the Committee on Freedom of Association and the Committee, it must now fulfil its obligation to submit to Parliament a draft bill that remedies the non-conformity with the principles derived from the international Conventions ratified by Uruguay in the area of collective bargaining.

The Committee duly notes that, in the framework of the tripartite discussions following the agreement of March 2015, the Government submitted to the social partners several proposals for legislative amendments in December 2015, September 2016 and March 2017. The Committee considers that several of the amendments to Act No. 18566, proposed by the Government with the aim of addressing the comments of the ILO supervisory bodies, are in compliance with the obligations arising out of Article 4 of the Convention to promote free and voluntary collective bargaining. The Committee refers in particular to the proposals: (i) to include a final phrase in section 4 of Act No. 18566, requiring that trade unions have legal status to be able to receive information from enterprises in the context of the collective bargaining process, with a view to facilitating the initiation of liability action in the event of violations of the duty of confidentiality; (ii) to remove section 10(d) of the Act, which establishes the jurisdiction of the Higher Tripartite Council to define the level of bipartite or tripartite negotiations; (iii) to remove the final part of section 14 of the Act, which attributes, in the absence of a trade union in an enterprise, negotiating capacity to higher-level trade unions; (iv) to amend section 17(2) of the Act so that the issue of continuing effect is subject to negotiation for each agreement, allowing for the establishment of total continuing effect, partial continuing effect, or a time frame for the extension of the effect of the agreement to allow its renegotiation; and (v) to clarify that the registration and publication of the decisions of the Wage Boards and collective agreements do not constitute any requirement for authorization, validation or approval from the Executive Branch.

While noting that some of these proposals are the subject of tripartite agreement or partial agreement, while others still have not been agreed upon, the Committee welcomes their formulation and emphasizes their potential contribution to bringing Act No. 18566 into conformity with the Convention. However, the Committee notes with regret that the Government’s proposed amendments still do not include amendments and clarifications regarding the jurisdiction of the Wage Boards, which are tripartite bodies, in relation to adjustments to wages that are above the minimum for the occupational category and of working conditions. The Committee notes in this respect: (i) the Government’s assertion that Act No. 18566 gives absolute priority to bipartite negotiation, as Wage Boards may not be convened if a collective agreement of the same level is in force in the same sector of activity; and (ii) the assertion by the employers’ organizations that tripartite negotiations held within the framework of the Wage Boards are equivalent in practice to a form of compulsory arbitration, which goes beyond the fixing of minimum wages. The Committee once again recalls in this respect that, while the fixing of minimum wages may be subject to decisions by tripartite bodies, Article 4 of the Convention seeks to promote bipartite bargaining for the determination of terms and conditions of work, and any collective agreement determining terms and of conditions of work must therefore be the result of an agreement between employers or their organizations and workers’ organizations. The Committee also emphasizes that mechanisms may be established that guarantee both the free and voluntary nature of collective bargaining and its effective promotion, thereby ensuring a high level of coverage of collective agreements.

In light of the above and taking due note of the tripartite dialogue undertaken since the conclusion of the agreement of March 2015, as well as of the formulation of legislative proposals that address some of its comments, the Committee requests the Government, after submitting the text for consultation with the social partners, to submit to Parliament a draft bill guaranteeing the full compliance of national law and practice with the Convention. Recalling that the Government may continue to avail itself of ILO technical assistance, the Committee firmly hopes that the Government will be able to report tangible progress in this regard in the near future.