Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Other comments on C098

Observation

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 4 August 2011, alleging acts of anti-union discrimination and obstacles to collective bargaining. The Committee requests the Government to send its observations on this matter.

The Committee notes the discussion that took place within the Committee on the Application of Standards at the International Labour Conference at its June 2011 session, particularly that in its conclusions: (1) it noted the widespread exercise of trade union rights in the country and the respect for human rights; (2) it welcomed the fact that negotiations on the matters under examination had continued during the Conference and that an ILO mission would visit Uruguay in relation to these issues; and (3) it trusted that this mission would be able to note tangible progress and that, with the objective of bringing the legislation fully into conformity with the Convention, the necessary measures would be taken without delay to prepare a bill that reflected the comments of the supervisory bodies.

The Committee noted that an ILO mission visited the country in August 2011 and that during this mission, the Government and the social partners reached an agreement setting in motion a new stage of dialogue on the matters under examination.

Article 4 of the Convention. In its previous comments, the Committee noted the adoption of Act No. 18566 of September 2009 concerning collective bargaining, and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2699, which raised problems of conformity of the abovementioned Act with the Convention (see 356th Report, paragraph 1389). These were referred to in the following conclusions:

I. With respect to the exchange of information necessary to allow the normal conduct of the process of collective bargaining and that in the case of confidential information, its communication carries the implicit obligation of secrecy, and breach thereof would give rise to civil liability of those who are in breach (section 4), the Committee considers that all the parties to the negotiation, whether or not they have legal personality, must be liable for any breaches of the right to secrecy of the information which they receive in the framework of collective bargaining. The Committee requests the Government to ensure that this principle is respected.
II. As regards the composition of the Higher Tripartite Council (section 8), the Committee considers that an equal number of members could be taken into account for each of the three sectors, and also the appointment of an independent chairperson, preferably nominated by the workers’ and employers’ organizations jointly, who could break the deadlock in the event of a vote. The Committee requests the Government to hold discussions with the social partners on the modification of the law so as to arrive at a negotiated solution to the number of members of the Council.
III. With respect to the powers of the Higher Tripartite Council and in particular considering and pronouncing on questions related to the tripartite and bipartite bargaining levels (section 10(d)), the Committee has emphasized on many occasions that “the determination of the bargaining level is essentially a matter to be left to the discretion of the parties” (see Digest of the decisions and principles of the Committee on Freedom of Association, 5th edition, 2006, paragraph 989). The Committee requests the Government to take the necessary measures including the amendment of existing legislation to ensure that the bargaining level is established by the parties and is not subject to voting in a tripartite body.
IV. As regards the possibility of wages councils establishing conditions of work for each case to be agreed by the employers’ and workers’ delegates in the respective wage group (section 12), the Committee recalls, firstly, that under ILO standards, the fixing of minimum wages may be subject to decisions by tripartite bodies. On the other hand, recalling that it is up to the legislative authority to determine the legal minimum standards for conditions of work and that Article 4 of the Convention seeks to promote bipartite bargaining to fix conditions of work, the Committee hopes that in application of those principles, any collective agreement on fixing of conditions of employment will be the result of an agreement between the parties, as the section in question appears to envisage.
The Committee had noted in this connection the Government’s statement in its report that the competence of the wages councils was aligned with the provisions of section 83 of Act No. 16002 of 25 November 1988, covering conditions of work, but extended to the latter only when there was agreement between the social partners, which meant that a tripartite body may not vote on matters pertaining to conditions of work, but does have a vote when it comes to determining minimum wages by category. (The Committee understands that these matters have been cleared up between the parties.)
V. With respect to the subject of bipartite collective bargaining and, in particular, that in company collective bargaining where there is no workers’ organization, bargaining authorities should pass to the representative higher level organization (section 14, last sentence), the Committee observes that the complainant organizations consider that the absence of a trade union does not mean the absence of collective relations in the company. The Committee considers, on the one hand, that bargaining with the most representative higher trade union-level organization should only take place if it had a number of members in the company in accordance with the national legislation of each country. The Committee recalls, on the other hand, that the Collective Agreements Recommendation, 1951 (No. 91), gives pre eminence to workers’ organizations as one of the parties to collective bargaining, and refers to representatives of non-organized workers only in the case of absence of such organizations. In these circumstances, the Committee requests the Government to take the necessary measures to ensure that future legislation takes these principles fully into account.
VI. As regards the effects of the collective agreement and, in particular, that the collective agreement by sector of activity concluded by the most representative organizations is of mandatory application to all employers and workers at the respective bargaining level once it has been registered and published by the Executive Power (section 16), the Committee, taking into account the concern expressed by the complainant organizations, requests the Government to ensure that the process of registration and publication of the collective agreement only involves checks on compliance with the legal minima and questions of form, such as, for example, the determination of the parties and the beneficiaries of the agreement with sufficient precision and the duration of the agreement.
VII. As regards the duration of collective agreements and, in particular, the maintenance in force of all the clauses of the agreement which have expired until a new agreement replaces it, unless the parties have agreed otherwise (section 17, second paragraph), the Committee recalls that the duration of collective agreements is primarily a matter for the parties involved, but if government action is being considered any legislation should reflect tripartite agreement (see Digest, op. cit., paragraph 1047). In these circumstances, taking into account that the complainant organizations have expressed disagreement with the whole idea of automatic continuing effect of collective agreements, the Committee invites the Government to discuss with the social partners on amendments to the legislation in order to find a solution acceptable to both parties.

The Committee is pleased to note in the Government’s report that: (1) in the framework of the ILO’s mission to the country in August 2011, a tripartite agreement was drawn up between the Ministry of Labour and Social Security and representatives of the workers’ sector (Inter-Union Assembly of Workers – Workers National Convention (PIT–CNT)) and the employers’ sector (National Chamber of Commerce and Services of Uruguay), thereby setting in motion a new dialogue on the comments made by the Committee on Freedom of Association, the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards; and (2) the dialogue process, which is the result of a tripartite agreement, was due to start on 10 October 2011 and the Government will send a progress report or draft legislation envisaging possible amendments to Act No. 18566 to the International Labour Standards Department so that it might make comments. The Committee notes with interest that the Government has indicated in a recent communication that following the dispositions provided for in the tripartite agreement abovementioned, it has invited the social partners to a meeting on 28 October 2011 in order to continue the work as planned by the tripartite agreement and it has presented to the social partners a modification proposal to Act No. 18566 in accordance with the conclusions of the Committee on Freedom of Association. (The Government has also sent the employers’ sector’s contribution and the comments from the workers as regards the said proposal.) The Committee trusts that, in the course of the tripartite dialogue initiated, the necessary measures will be taken, taking into account the comments of the Committee on Freedom of Association and of this Committee on Act No. 18566 and the matter relating to the occupation of workplaces, to ensure that law and practice is in full conformity with this Convention. The Committee stresses the importance of the parties reaching an agreement as rapidly as possible on the matters pending, given that it is vital that the regulations governing labour relations should be shared by the social partners with a view to future action. The Committee requests the Government to keep it informed on the matter in its next report.