Rapport définitif - Rapport No. 270, Mars 1990

1. 47. The Committee examined this case at its November 1989 meeting and submitted an interim report to the Governing Body (see 268th Report of the Committee, paras. 535 to 573, approved by the Governing Body at its 244th Session (November 1989)), and decided to examine certain allegations at its February 1990 meeting, since the Government's observations on this matter had been received only a few days before its November 1989 meeting. (See 268th Report, paras. 572 and 573.)
2. 48. Uruguay has ratified 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. Allegations pending since the last examination of the case

1. 49. The PIT-CNT alleges in its communication dated 21 June 1988 that on 4 December 1987 the Puma Trading SA enterprise, which employs 130 workers, dismissed Messrs. Carlos Báez and Williams Maciel, members of the executive committee of the Trade Union of Manual and Office Workers of Puma (SOEP) in violation of the provisions of Convention No. 98. In support of its allegation, the PIT-CNT highlights the following indications of the anti-union nature of the dismissals: (1) in 1987, labour-management relations became extremely difficult, being constantly obstructed by the employer; (2) the trade union leaders concerned were on the list of candidates for union elections which were to take place four days after the dismissal; (3) the dismissal cited "grounds of improving the service" as the persons involved "failed to meet the general requirements of the enterprise"; (4) hearings held in the Ministry of Labour established the impossibility of technically justifying the grounds cited by the employer; (5) the work records of the persons dismissed were excellent, since they had met all the requirements for admission to the enterprise and for employment in an occupational category involving considerable responsibility; (6) the enterprise did not give any explanation of the reason it had chosen this particular time to carry out the dismissal.
2. 50. The PIT-CNT emphasises that Uruguayan legislation still includes provisions which allow free dismissal of workers without giving reasons, on the sole condition that the statutory compensation is paid; the system of small fines imposed by the Ministry of Labour or the Labour Inspectorate (Decree No. 93 of 3 February 1968) in the event of acts of anti-union discrimination is absolutely inadequate, given the reality of the Uruguayan trade union movement. In this particular case, the National Labour Directorate was manifestly ineffective, with the result that the conflict was aggravated; the mediating officials refrained from acting and left it to the parties to settle the dispute.
3. 51. The PIT-CNT also alleges that in the second half of 1987, the "Sociedad Anónima Cristalerías del Uruguay", which employs about 650 workers, introduced changes in its machinery. According to the trade union, this new machinery involved technological changes, which meant that the collective agreement in force since 1973 and registered with the Ministry of Labour, which had been concluded between the parties and governed this important subject, should have been applied. The trade union organisation demanded that the Ministry ensure compliance with this agreement. Industrial action was also taken, consisting, inter alia, in the exercise of the right to strike with partial and total stoppages in the enterprise. At a time when both parties were willing to negotiate, the trade union decided to cease one of the stoppages, and the enterprise took this opportunity to accuse Messrs. Carlos Chemino (treasurer of the Workers' Union of Cristalerías del Uruguay) and Aníbal López (shop steward) of flagrant misconduct, and dismissed them in September 1987 in violation of Convention No. 98. The dismissal of these leaders was clearly motivated by anti-union aims, on the pretext of misconduct which had not been committed, as the Ministry of Labour concluded in its decision. Nevertheless, the enterprise compelled them, under threat of losing their jobs and unemployment benefit, to accept the dismissal compensation provided for by national legislation, in an attempt to "clear themselves" of the violation of trade union rights. According to the PIT-CNT, this paying off, which occurred seven months after the termination of the employment relationship, does not cancel out the act of discrimination, and the investigation should continue.

B. The Government's reply

1. 52. In its communication dated 3 October 1989, the Government states that violation of the standards laid down in Conventions Nos. 87 and 98 (including cases of anti-union dismissal) may be administratively penalised by a reprimand, fine or closure of the establishment for up to six days (Act No. 15.903); in the latter case, a ministerial resolution, with reasons adduced, is required. The amount of the fine ranges from one to five days' pay for each worker involved in the infringement or likely to be affected by it. In the case of dismissals discriminating against trade union leaders, the approach adopted by the General Labour Inspectorate, which is the labour law enforcement body, has been to fix the amount of fines taking into account the wages of all the workers employed by the enterprise, on the assumption that an act of anti-union discrimination affects all employees. The administrative procedure consists of investigating the facts, attempting conciliation, and ordering reinstatement if the discrimination took the form of a dismissal, failing which the enterprise is penalised. It is thus easy to see that the system of penalties applied not only is not weak but, on the contrary, has a deterrent effect.
2. 53. The Government adds that another procedure, entirely independent of the administrative one, is the judicial procedure, under which workers may claim the pay and compensation due to them and request an annulment of their dismissal before the ordinary courts. This judicial procedure includes summary proceedings which may be concluded in the second instance with a decision of the Labour Appeals Court. High court appeals may also be lodged with the Supreme Court which admits actions brought against anti-union dismissal, irrespective of the amount of the claim.
3. 54. The judicial procedure is laid down in Legislative Decree No. 14.188 of 5 April 1974, which provides for a procedure which is shorter than the ordinary one. However, the time necessary to obtain a definitive ruling is admittedly so long that the parties often prefer to reach agreements before exhausting the judicial procedure. A procedural reform has been implemented with the introduction of trial by hearing, effective in November 1989. One of the results envisaged is to speed up trials, including those of labour cases.
4. 55. Without prejudice to the above-mentioned independent relationship of the administrative and judicial procedures, it is obvious that any agreements or settlements reached by the parties, either in court or out of court, mean that the administrative proceedings in the case are closed.
5. 56. More specifically, the Government maintains that there were no violations of Conventions Nos. 87 and 98 in the Sociedad Anónima Cristalerías del Uruguay enterprise. According to the Government, the event that sparked off the dispute, which resulted in the dismissal of two workers, among other things, was the carrying out of tests ordered by the management on one of the machines of the "inspection department" with a view to achieving continuous production with considerable efficiency gains. The trade union representatives considered that the tests required by the enterprise involved technological change and restructuring of tasks, and therefore requested that the collective agreement of 18 December 1972 be applied. The enterprise later suspended the test and the trade union took industrial action. Finally, the Labour Relations Division of the National Labour Directorate, following a visit by a labour inspector to the enterprise, ruled that the type of tasks involved in the tests required by the enterprise did not constitute a technological change, nor did it involve a risk to the workers' safety or health.
6. 57. The Government states that the two employees of the Sociedad Anónima Cristalerías del Uruguay were dismissed by the enterprise on the grounds that they had obstructed the resumption of work once the dispute had been settled and the industrial action had ceased. As usual, the reasons for the ruling of the Ministry of Labour and Social Security on these dismissals were given: after a series of hearings and an examination of the documents presented by the parties, it was concluded that the versions of the facts clearly contradicted each other, and that there was not enough evidence indicating that the enterprise had acted with the intention of carrying out anti-union discrimination. What was confirmed by the workers' own statements was that they had ordered the stoppage of machinery once the dispute had been settled. In any case, there are discrepancies in the significance attributed by the parties to this attitude. In particular, it should be pointed out that the workers were not compelled to accept the amount of compensation. On the contrary, it was freely accepted by the workers, who not only did not go to court to claim compensation or request that their dismissal be annulled, but, in agreement with the enterprise, applied to the ordinary labour courts for confirmation of a settlement concluded out of court, without the participation of the Ministry or the trade union. Obviously, this agreement, confirmed by the court, meant that the Ministry suspended all administrative proceedings on the matter.
7. 58. Lastly, the Government states that it considers that the complaint of anti-union practices in the Puma Trading, SA enterprise does not prove that Conventions Nos. 87 and 98 have been infringed. The Government points out that, by a document dated 10 May 1988, the workers involved accepted payment of the dismissal compensation, which was made by the enterprise, without bringing any claims before the court.

C. The Committee's conclusions

1. 59. The Committee notes that the current allegations refer, on the one hand, to the inadequacy of the current system of protection against anti-union practices and, on the other, to the dismissal of four trade union leaders.
2. 60. As regards the first point, the Committee notes that the current system of protection against anti-union practices includes access to the administrative authority for purposes of conciliation or investigation of the facts, and that fines may be imposed or the establishment closed down temporarily if, for example, the enterprise fails to comply with an administrative order to reinstate the worker affected by discriminatory dismissal; the current system also provides for the possibility of requesting compensation and annulment of dismissal before the courts. In these circumstances, the Committee, while concluding that the current system does not infringe Convention No. 98, believes that it could be improved in so far as accelerating the procedure. In this respect it notes the recent reforms carried out to speed up proceedings in labour cases.
3. 61. As regards the dismissal of trade union leaders, the Committee notes that, according to the Government, Messrs. Carlos Chemino and Aníbal López did not appeal to the courts against their dismissal, that the Sociedad Anónima Cristalerías del Uruguay enterprise cited the grounds that these workers had obstructed the resumption of work once the dispute had been settled and the end of industrial action had been announced, and that the administrative investigation had come up against clearly contradictory versions of events, although it was confirmed by the parties (who, however, attributed a different significance to this fact) that the workers dismissed had ordered a stoppage of machinery in the Sociedad Anónima Cristalerías del Uruguay enterprise after the collective dispute in this enterprise had been settled. In view of the contradiction between the allegations and the Government's reply as regards the circumstances of these dismissals, the Committee is unable to reach conclusions.
4. 62. As regards the dismissal of Messrs. Carlos Báez and Williams Maciel, trade union leaders in the Puma Trading, SA enterprise, the Committee notes that the situation differs considerably from the one mentioned above. Thus, the Government fails to give any precise information as regards the specific grounds for the dismissal of these trade union leaders and confines itself to describing the possibilities of obtaining legal protection available to the persons concerned and to affirming that they accepted payment of the dismissal compensation. The Committee would mention several indications of the anti-union nature of the dismissal of these leaders put forward by the complainant, and regrets that the Government has failed to comment on this matter although the dismissals occurred in December 1987. The Committee notes, however, that according to the complainant in 1987 labour-management relations became extremely difficult, being constantly obstructed by the employer and that the trade union leaders concerned were on the list of candidates for union elections which were to take place four days after the dismissal. In addition, hearings held in the Ministry of Labour established the impossibility of justifying the grounds cited by the employer: the work records of the persons dismissed were excellent, since they had met all the requirements for admission to the enterprise and for employment in an occupational category involving considerable responsibility; and the enterprise did not give any explanation of the reason it had chosen this particular time to carry out the dismissal.
5. 63. In these circumstances, considering that acceptance of dismissal compensation without contesting it before the courts does not in itself imply that the dismissal is legitimate, the Committee draws the Government's attention generally to the importance of forbidding and penalising in practice all acts of anti-union discrimination in respect of employment such as dismissal or other prejudicial measures; this is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have an assurance that they will not be prejudiced on account of the mandate which they hold from their trade unions.