Definitive Report - REPORT_NO115, 1970

1. 9. The complaint is contained in a communication dated 13 August 1969 addressed to the ILO by the Trade Unions International of Transport, Port and Fishery Workers (a Professional Department of the World Federation of Trade Unions), to which the complaining organisation appends a document emanating from the Single Sea Transport Workers' Union of Uruguay (Sindicato Unico del Transporte Marítimo del Uruguay), an affiliate of the International. The text of this communication and its annex were transmitted to the Government for comment, and the latter forwarded its observations in a communication dated 19 September 1969.
2. 10. 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. A. The complainants' allegations

• Allegations relating to a Decree concerning Employment in the Merchant Marine
  11. 11 The complaining organisation alleges that certain rules hitherto in force have been modified as the result of a measure held to be unconstitutional and gravely prejudicial to the personnel of the Merchant Marine. In its view the measure in question constitutes an infringement of trade union rights. The document appended to the complaint is a copy of a communication dated 1 August 1968 from the Single Sea Transport Workers' Union of Uruguay to the President of the Republic in which the Union files a petition for the repeal of Executive Decree No. 463 of 23 July 1968.
  12. 12 The petition is based partly on arguments of form and partly on allegations to the effect that the decree restricts rights guaranteed by the Constitution of the country, such as the right of an individual to work. The Union declares that the decree directly affects the conditions of employment and social security of the personnel; conditions of admission to employment, access to employment, health requirements, the selection of employees by the employer, etc.
  13. 13 The Union further states that sections 3 and 5 of the regulations provide for the setting up of two administrative committees, one for captains and officers and the other for seamen, on a tripartite basis, but adds that the occupational representatives do not come from the most representative organisations. The shipowners are to be represented by a representative of the overseas shipowners and a representative of the coastal shipowners. On the workers' side there is to be " a representative for each of the occupational organisations possessing legal personality ". This last condition, according to the complainants, imposes a requirement which should not be laid down and which admits, on an equal footing, all organisations fulfilling this requirement, regardless of their relative representativeness. This signifies the abandonment of the principle of recognition of the most representative organisations enshrined in the country's legislation " as well as in the ILO Conventions and the very Constitution of the ILO ". The Union singles out for more specific reference the Placing of Seamen Convention, 1920 (No. 9).
  14. 14 The Union asserts that, under the regulations, once a period of 180 days has elapsed the register for seamen is once and for all closed and no provision is made for the filling of future vacancies. On the other hand, section 26 gives the Director of the Merchant Marine the power to authorise new entries to cover vacancies whenever they occur. The Union considers that the placing of this and other functions in the hands of the Director of the Merchant Marine is in violation of the principle that representative associations of shipowners and seamen should participate in the Organisation and maintenance of a system of offices for finding employment for seamen without charge.
  15. 15 In its observations the Government points out that the complaint confines itself to expressing the opinion that the decree infringes the Constitution and the ILO Conventions ratified by Uruguay, and is accompanied by the text of an administrative petition for its repeal. Under the National Constitution administrative measures may be challenged by means of such a petition, to be filed with the authority that issued them. If no ruling is pronounced within 120 days the measure is deemed to have been tacitly upheld. Once the administrative channels have been exhausted, the petitioners may bring proceedings for the quashing of the measure in question in the Administrative Disputes Court. The Government offers to supply detailed information concerning the decision to be taken on the petition, whether on the administrative plane or in the courts.

B. B. The Committee's conclusions

1. 16. The Committee takes note of these observations.
2. 17. It emerges from a perusal of Decree No. 463 of 23 July 1968 that its purpose was to approve regulations concerning the drawing up and keeping of registers of merchant marine personnel. Under these regulations the supervision of the registers for captains and officers on the one hand, and seamen on the other, is entrusted to two " administrative committees " composed of the Director of the Merchant Marine, as chairman, and representatives of the shipowners and personnel concerned (in the case of the latter, representatives of occupational organisations possessing legal personality). The essential purpose of the registers appears to be to act as a placement service. Any member of an " administrative committee " may challenge, giving his reasons, the inclusion of any person on the list of those available for work, and the challenge will be examined by a tripartite board whose ruling is final. If for any reason no more registered personnel should be available, the Director may authorise the engagement of personnel not on the register who fulfil the statutory requirements.
3. 18. In these circumstances the only allegation which could have any bearing on the exercise of trade union rights is that referring to the conditions of appointment of the trade union representatives on the " administrative committees ". It is to be noted that in this case all workers' organisations possessing legal personality are entitled to appoint a representative. Consequently there is no question of one organisation being appointed to represent all the workers in the branch of employment in question, which would have made it necessary, from the standpoint of trade union rights, to assess, on the basis of objective and impartial criteria, the relative representativeness of the organisations concerned. The only requirement laid down in the regulations is that the organisations represented should possess legal personality. Article 7 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Uruguay, stipulates that the acquisition of legal personality by workers' and employers' organisations shall not be made subject to conditions of such a character as to restrict the application of the rights and guarantees provided for in Articles 2, 3 and 4 of the Convention. In the present instance, the national organisation directly concerned merely claims that such a requirement " should not be laid down " without supplying any evidence to prove that the acquisition of legal personality is made subject to conditions of such a character as to restrict the exercise of any of the rights and guarantees generally recognised in relation to freedom of association.