Definitive Report - REPORT_NO292, March 1994

1. 46. The Committee examined this case at its May 1992 meeting, when it submitted an interim report to the Governing Body (see 283rd Report of the Committee, paras. 356-374, approved by the Governing Body at its 253rd Session (May-June 1992)). The Government sent further observations in communications dated 28 September 1992, 12 May and 28 September 1993.
2. 47. Uruguay has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 48. In May 1992, allegations remained pending concerning the dismissal, in 1990, of many strikers and trade union leaders from the National Paper Factory (FNP), immediately after the complainant organization and the FNP had signed an agreement putting an end to the strike and the dispute between them. This agreement provided that the enterprise would not resort to reprisals against the strikers. The Committee noted that an administrative inquiry was under way and would culminate in a ministerial decision determining the validity of the complaints and the measures to be taken.
2. 49. The Committee made the following recommendation to the Governing Body on the allegations pending (see 283rd Report of the Committee, para. 374): the Committee requests the Government to inform it of the outcome of the administrative inquiry that was undertaken following the dismissal of trade unionists and trade union leaders and if, as the indications seem to confirm, this inquiry reveals that the dismissals were based on anti-union motives, urgently to take measures with a view to securing the reinstatement of the dismissed workers and the strict application of the penalties prescribed by law.

B. The Government's reply

1. 50. In its communication of 28 September 1992 the Government of Uruguay, referring to the Committee's conclusions reached at its May 1992 meeting, in which it pointed out that the alleged dismissals had occurred after lawful strike action (283rd Report, para. 370), states that, although it is true that during the dispute between the National Paper Factory and its staff, the enterprise, alleging that the restructuring would necessarily involve a cut in staff, dismissed more that 100 workers including a number of trade union representatives, it is far from certain that a work stoppage exceeding three months might be described as a "legal strike", especially when it seriously threatened a factory's productive capacity, discouraged new investment, increased the risk of confrontation and undermined the climate of healthy industrial relations conducive to equitable solutions.
2. 51. The Government adds that after the corresponding administrative inquiry in the National Paper Factory had been carried out, in compliance with all the procedural guarantees, the competent officials of the Labour Inspectorate of the Ministry of Labour advised that severe penalties should be taken against the enterprise after noting, amongst other things, that there was sound evidence that the enterprise had used the pretext of rationalization to undermine trade union activity. The Government endorses the report of the administrative inquiry carried out by the qualified advisers of the General Labour Inspectorate, in which it notes "the dismissal of approximately 50 per cent of the executive and auditing committees" and "50 per cent of the trade union representatives negotiating on the wage boards and National Labour Directorate ... because of trade union activity ... with the intention of breaking up the trade union organization". Consequently, the General Labour Inspectorate of the Ministry of Labour and Social Security adopted a resolution on 20 August 1992, in accordance with the regulations in force, imposing a heavy fine (equivalent of 22,000 US dollars) on the National Paper Factory. The Government adds that the administrative measures adopted are separate from the legal proceeding initiated by the workers before the judiciary to redress their grievances.
3. 52. As regards the Committee's request that inquiries into situations such as the one in this case should be completed rapidly, the Government points out that although the CUOPYC submitted a complaint to the Secretary of State on 22 January 1991, the date upon which proceedings commenced, the seriousness of this complaint and the actual context in which the dismissals occurred (when the enterprise found itself having to undertake restructuration) warranted a more careful analysis and therefore took longer to determine than might have been wished.
4. 53. In its communications of 12 May and 28 September 1993, the Government states that the National Paper Factory requested that the admininistrative proceedings stipulating financial penalties for violation of freedom of association should be reviewed and that consequently it was concluded that: the enterprise had been studying the possibility of carrying out a restructuring programme of its staff and industrial reconversion for years, which caused a dispute ending with the signing of a collective agreement in 1991; in December 1990 the enterprise dismissed 117 workers; the need for restructuration was the outcome of a painstaking and long-term analysis; the Trade Union Centre of Paper and Cellulose Workers (CUOPYC) denounced the dismissals as being violations of ILO Conventions Nos. 87 and 98, as it considered the dismissals of trade union leaders and militants to be a means of trade union persecution; the administration considered the situation as presented to be a violation of trade union rights and heavily fined the enterprise.
5. 54. Similarly, the Government points out that after having carefully analysed the facts, it was observed that: the large majority of dismissed workers were not trade unionists; the dismissed workers were scattered throughout all branches of the enterprise, including managerial staff and workers at a much lower level; the dismissals were decided upon in accordance with impartial and well-founded criteria; the trade union still seems to exist; the development of industrial relations has been normal and satisfactory; the enterprise has not recruited new staff since the time it dismissed the workers in question; productivity has increased noticeably; five of the dismissed trade union leaders who had brought legal action against the enterprise reached an agreement which was upheld by the judicial authority, whereby they were paid a sum equivalent to one and a half times the compensation for a usual dismissal. As a result of this agreement, no more dismissals were made and the question of trade union persecution was not raised. Finally, the Government reports that the judicial complaint submitted by two dismissed trade union leaders had been rejected by courts of the first and second instance and that the other dismissed workers had accepted compensation paid them.

C. The Committee's conclusions

1. 55. The Committee notes that, in accordance with the conclusions it reached at its May 1992 meeting, the General Labour Inspectorate of the Minister of Labour and Social Security imposed a heavy fine (the equivalent of 22,000 US dollars) on the National Paper Factory, after having proved through an administrative inquiry that trade union officials had been dismissed on account of their trade union activity. Similarly, the Committee notes that according to the Government, five trade union leaders who had instigated legal action challenging their dismissal reached an agreement with the enterprise, after being paid compensation, and that the judicial complaint submitted by other trade union leaders was rejected; and that finally, the remaining trade union leaders and workers accepted the compensation paid to them by the enterprise.
2. 56. In this respect, the Committee wishes to draw the Government's attention to the principle according to which it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is accorded by legislation which enables employers in practice - on condition that they pay the compensation prescribed by law for cases of unjustified dismissal - to dismiss any worker, if the true reason is his trade union membership or activities.
3. 57. In the present case, the Committee notes that: (1) although the dismissals took place in the context of a collective dispute, they also took place during a process of restructuring by the enterprise for economic reasons; (2) subsequently, the enterprise did not hire any new workers; (3) a heavy fine was imposed on the enterprise; and (4) the enterprise reached an agreement with all the dismissed workers except two of them, whose judicial complaints were rejected by the judicial authority. Taking into account all the foregoing elements, the Committee considers that it need not pursue its examination of these allegations.