Informe provisional - Informe núm. 233, Marzo 1984

1. 425. The World Confederation of Labour (WCL) presented its complaint in a letter dated 2 June 1983, with which it enclosed a communication signed by the trade union leaders Juan Pedro Ciganda and Richard Read on behalf of the Inter-Union Plenary of Workers of Uruguay. In a subsequent communication dated 15 November 1983, the World Federation of Trade Unions (WFTU) associated itself with the allegations contained in the communication of the Inter-Union Plenary of Workers of Uruguay. The Government replied in communications dated 31 October and 15 November 1983 and 6 February 1984.
2. 426. Uruguay has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 427. The complainants allege that trade union legislation in Uruguay - specifically, Act No. 15137 of 21 May 1981 respecting occupational associations and Decree No. 513 of 9 October 1981 made there under and Act No. 15328 of 1 October 1982 respecting collective labour agreements and Decree No. 390 of 3 November 1982 made there under - contain provisions that violate the ILO's Conventions on freedom of association and collective bargaining.
2. 428. The complainants add that, despite the Government's previous assertions that public employees are entitled to join trade unions by virtue of the Public Employees Statute of 1943, the Statute can hardly be said to recognise the right of association inasmuch as it contains no reference to the right of coalition, the right to strike or the possibility of concluding collective agreements governing the employment relationship. As far as the right to strike is concerned, the complainants state that, although article 57 of the Constitution contains a provision to that effect, it has in practice been denied, while the Government has merely announced that regulations are to be issued on the subject.
3. 429. The complainants further allege that the Ministry of Labour and Social Security has not authorised the holding of definitive elections within the various labour associations that have been registered, with the result that they are still operating with provisional authorities.
4. 430. The complainants go on to state that the Ministry of the Interior has prohibited José Custodio, Asdrúbal Gadea, Nelson Curbelo and Julio Alonso, all members of the provisional committee of the Union of Manual Workers, Employees and Supervisors of FUMSA, from taking part in any trade union activities and has dismissed Roberto Mourijo, Miguel Miraballes, Daniel Buscarons, Hugo Nicola, Doroteo Díaz, Anselmo Oyarzábal, Enrique Larnaudie and César Martínez Yaquelo, militant members of the said trade union. It has also dismissed Daniela Amoroso, a member of the provisional committee of the Trade Development Bank, for having protested against the dismissal of a union official. In addition, Carlos Larraya (Association of Officials of the Welfare Centre of the Medical Trade Union of Uruguay), Andrés Brun, Emeli Landriel and Julio Betervide (Association of Officials of the Association of Bank Employees of Uruguay), José Curbelo, Milton Antognazza. [The Committee has already examined the allegation regarding the disqualification of Mr. Antognazza in connection with Case No. 1153 (see 226th Report, paras. 174 and 180).] (Association of Employees of the Banco La Caja Obrera), Gonzalo Rodríguez (Association of Employees of the Banco de Credito), Joaquín Pau (Association of Employees of the Banco Exterior de España), Francisco Rama (Association of Employees of the Banco de Londres y America del Sur), Daniel González Mazzei and Roberto E. Miranda (Association of Employees of the Banco de Santander), Luis Becerra and Edgar Covagnaro (Association of Manual Workers and Employees of the Fábricas Nacionales de Cerveza) and Mario Carbajal (Association of Employees of the Banco SUDAMERIS) have been disqualified from holding trade union office.
5. 431. The complainants moreover state that the Government has not complied with its obligations under article 19, paragraphs 5(b) and 6(b), of the Constitution of the ILO, by failing to submit the Collective Bargaining Convention (No. 154) and Recommendation (No. 163) to the competent authorities. Finally, the WCL observes that the Government has refused to recognise the representative nature of the Inter-Union Plenary Workers of Uruguay. [The complainants have also submitted a number of allegations that have already been examined in connection with other cases (Cases Nos. 763, 1153 and 1207).]

B. The Government's reply

1. 432. The Government states that, contrary to the allegation of the complainants, the executive authority submitted Convention No. 154 and Recommendation No. 163 to the Council of State in a message dated 19 May 1982 in which it requested, for reasons which it explained, that the said Convention should not be approved. On 31 May 1982, in accordance with article 19, paragraphs 5(c) and 6(c), of the Constitution of the ILO, it informed the ILO that the two instruments had been submitted to the Council of State and enclosed the text of the message from the executive authority, with the observation that copies of the message were being sent simultaneously to the recognised representative organisations in accordance with the requirements of article 23, paragraph 2 of the Constitution of the ILO.
2. 433. With regard to Act No. 15137 of 21 May 1981 and Decree No. 513/81 made there under, the Government states that the reports of the Committee on Freedom of Association and of the Committee of Experts on the Application of Conventions and Recommendations both draw attention to the improvements introduced into the Occupational Associations Act by comparison with the draft texts on which the ILO had been invited to submit its comments. The Government also refers to the Committee on Freedom of Association's recommendation concerning Case No. 1064 (paragraph 220) in its 214th Report, which the Governing Body approved at its 219th Session (March 1982), to the effect that: "(a) as regards the allegation concerning the Occupational Associations Act, the Committee, having already examined this Act at its May 1981 Session and having reached its conclusions on the substance of the matter, considers that this aspect of the case does not call for further examination on its part."
3. 434. Referring to the provisions of Decree No. 390, the Government states that this Decree recognises as possible bargaining agents in the collective bargaining system both trade unions and staff delegates elected by secret vote (sections 3 and 4). The Government considers that this is in conformity with the ILO's principles concerning collective bargaining since the collective Bargaining Convention, 1981 (No. 154) accepts recourse to such representatives in so far as this does not undermine the position of the workers' organisations.
4. 435. The Government states further that Act No. 15328 and Decree No. 390 do not prohibit collective bargaining at the federation and confederation level, but merely regulate this activity at the level of the undertaking. According to the Government, it is not unlikely that, once organisations start being formed at the higher level, the possibility of extending the regulation of collective bargaining to the higher levels will be studied.
5. 436. As regards the necessity of having collective agreements approved by an absolute majority of the employees concerned (sections 4(b) of the Act and 11(b) of the Decree), the Government states that this is not a sign of distrust but rather guarantees an endorsement from the workers of the agreement. It must not be forgotten that a collective agreement applies to all members of the negotiating unit - including non-union workers who could have signed it - and those workers who oppose it.
6. 437. The Government adds that the control exercised by the Ministry of Labour and Social Security over collective agreements (sections 4(a) of the Act and 11(a) of the Decree) is only a formal control of legality. Its only aim is to verify that the standards accorded in the agreement do not establish levels of protection inferior to those laid down by law. It is not a verification of acceptability in the light of the Government's economic policy. Lastly, the Government states that since 3 November 1982 the Ministry of Labour and Social Security has registered 794 collective agreements which fall exactly within the Article 4 of Convention No. 98's "promotion obligation".

C. The Committee's conclusions

1. 438. The Committee observes that the allegations refer, on the one hand, to trade union legislation and, on the other, to dismissals on anti-union grounds, disqualification from holding trade union office and non-recognition of the representative nature of a trade union organisation.
2. 439. With regard to the trade union legislation, the Committee observes that it has already had occasion to examine and express its opinion on Act No. 15137 respecting occupational associations. The Committee therefore draws attention to the comments on the Act contained in its 209th Report (May 1981), [see 209th Report, paragraphs 5 to 82] as they apply equally to the provisions of Decree No. 513 made there under which reproduces provisions of the Act to which the Committee had objected. The Committee observes, however, that Decree No. 513 has introduced a number of new provisions under the Occupational Associations Act that are contrary to the principles of Convention No. 87: specifically, the requirement for election to trade union office that a person should not have held any executive post in organisations that have been declared unlawful and should have not have been disqualified by virtue of the Constitution (sections 39(d) and 46(e)), the requirement that a period of time elapse before the members of the executive body of an association can be re-elected (section 19), and the rules governing the affiliation to second- and third-level occupational organisations or to international organisations and the election and composition of the administrative bodies of second- and third-level organisations (sections 22 to 27).
3. 440. The Committee draws the Government's attention to the fact that these provisions imply an excessive restriction of trade union rights, in particular, the right of workers to elect their representatives freely. In addition, the Committee wishes to emphasise that sections 39(d) and 46(e) of Decree No. 513 give legal force to the possibility of disqualifying trade union leaders from carrying out their functions, even on trade union grounds - for example, for having held an executive post in a trade union organisation that has been declared unlawful.
4. 441. With regard to Act No. 15328 of 1 October 1982 respecting collective labour agreements and Decree No. 390 of 3 November 1982 made there under, the Committee observes that according to the Government, the provisions relating to the control of collective agreements by the Ministry of Labour and Social Security (sections 4(a) of the Act and 11(a) of the Decree) set out a simple formal control as to legality (checking whether the standards in the agreement do not establish levels of protection inferior to those laid down by law).
5. 442. The Committee also notes that, in relation to the above-mentioned Act and Decree, the Government states that it is not unlikely that, once organisations start being formed at higher levels, the possibility of extending the regulation of collective bargaining to federations and confederations will be studied. The Committee takes note of the Government's 'statement that the approval of collective agreements by a majority of workers (sections 4(b) of the Act and 11(b) of the Decree) is not a sign of distrust, but rather so as to ensure the endorsement by the workers of the agreement. Finally, the Committee notes that the Government refers to Article 3, paragraph 2 of Convention No. 154 to justify the compatibility of sections 3 and 4 of the Decree (possibility of both trade unions and staff delegates to conclude collective agreements independently within the same undertaking) with international labour standards.
6. 443. The Committee wishes to point out that federations and confederations should be able to conclude collective agreements and that the possibility for staff delegates who represent 10 per cent of the workers to conclude collective agreements with an employer (sections 3 and 4 of the Decree) even where one or more labour associations already exist is not conducive to the development of collective bargaining in the sense of Article 4 of Convention No. 98, i.e. "between employers or employers' organisations and workers' organisations"; in addition, in view of the small percentage required, this possibility could undermine the position of the workers' organisations contrary to Article 3, paragraph 2 of Convention No. 154. The Committee also considers that, in so far as the persons who conclude the collective agreements are trade union representatives, the requirement that they be approved by an absolute majority of the workers involved (sections 4(b) of the Act and 11(b) of the Decree may constitute an obstacle to collective bargaining which is incompatible with Article 4 of the Convention.
7. 444. The Committee further observes that, in so far as Act No. 15137 concerning occupational associations and the Decree made there under virtually prohibit the establishment of first-level organisations by branch of activity and considering that federations and confederations are not allowed to conclude collective agreements, there is in practice no possibility of concluding collective agreements outside the undertaking - and, specifically, at the level of the branch of activity - and that this constitutes a major restriction on the trade union rights of workers and their organisations which is contrary to the principles of collective bargaining.
8. 445. The Committee requests the Government to take the necessary steps to amend the provisions of the law that are contrary to Conventions Nos. 87 and 98 in the light of the principles outlined above.
9. 446. With regard to the exercise of the right to strike and the trade union rights of public employees and officials, the Committee observes that the Government informed the Committee of Experts on the Application of Conventions and Recommendations that the national authorities were studying the preliminary draft of a set of provisions governing the exercise of the right to strike and that the National Security Council had recommended that the executive authority revise and adapt the legislation relating to public officials and issue regulations governing their right of association. The Committee expresses its concern at the continued existence of differences for many years between the law and the principles of freedom of association and wishes to emphasise the importance which it attaches to these matters being settled as soon as possible. It expresses the hope that future legislation will be fully in conformity with the principles of freedom of association and asks the Government to keep it informed of any developments in this respect. It draws the legislative aspects of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
10. 447. Finally, the Committee observes that the Government has not replied to the allegations that the authorities have not yet authorised the holding of definitive elections for the officials of the labour associations or to the allegations concerning dismissals on trade union grounds, the disqualification of certain persons from holding trade union office and the refusal of the authorities to recognise the representative nature of the Inter-Union Plenary of Workers of Uruguay. The Committee requests the Government to communicate its observations on these allegations.