Report in which the committee requests to be kept informed of development - Report No 336, March 2005

1. 798. The Committee has previously examined the substance of this case at its May-June 2001, May-June 2002 and March 2004 meetings, at which times it presented interim reports to the Government Body [see 325th Report, paras. 561-575, approved by the Governing Body at its 281st Session (June 2001); 328th Report, paras. 606-616, approved by the Governing Body at its 284th Session (June 2002); and 333rd Report, paras. 1002-1012, approved by the Governing Body at its 289th Session (March 2004)]. The Government has sent new observations in a communication dated 28 December 2004.
2. 799. 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. Previous examination of the case

1. 800. In this case, it is alleged that, when the unionized workers of the Savings and Loans Cooperative of Officials of the Armed Forces (CAOFA) decided that the trade union at the CAOFA needed to affiliate to the complainant organization, the CAOFA denounced the collective labour agreement that was in force at the time, and which had been concluded with the union in question. Following this, it dismissed six trade union leaders, transferred another trade unionist to a different position and threatened to dismiss the workers who intended to retain their affiliation to the AEBU. In light of the interim conclusions given by the Committee when it last examined the case, the Governing Body approved the following recommendations at its March 2004 session [see 333rd Report, para. 1012]:
   • (a) Noting that both the judicial authority and the administrative authority have established that the dismissal of the six trade union members in question arose as a result of their trade union membership, the Committee considers that this case involves a serious violation of trade union rights and, in these circumstances: (1) it requests the Government to provide information on which the legal decision of July 2002 has been carried out; (2) it requests the Government to take measures to expedite the administrative appeals lodged against the administrative decision of April 2003 and to provide information on the outcome; and (3) it once again requests the Government to mediate immediately between the parties in order to obtain the reinstatement without loss of pay of those workers affected.
   • (b) The Committee regrets to note that the Government makes no reference to the allegations relating to: (i) the denouncement of the collective agreement by the CAOFA once it became aware of the intentions of union leaders of the cooperative to become affiliated to the AEBU; (ii) the transfer to trade union member Virginia Orrego; and (iii) the threats to dismiss workers who joined the AEBU. In these circumstances, the Committee urges the Government to send its observations in this respect without delay.

B. The Government’s reply

1. 801. In its communication of 28 December 2004, the Government provides the following, more detailed information on the situation with regard to the judicial and administrative proceedings under way at national level and relevant to this case.
2. 802. The CAOFA launched an appeal with regard to the decision of the Labour Court of First Instance (No. 78, dated 22 July 2002), noted by the Committee in its last examination of the case [see 333rd Report, para. 1009] concerning the dismissal of the six trade union representatives. The Court of Appeal passed a decision on 10 June 2003, a copy of which has been sent by the Government. In this decision, the appeal court confirms the lower court’s judgement with regard to the anti-union nature of the dismissals and the sentencing of the CAOFA to pay damages with interest – a sentence with which the CAOFA has complied.
3. 803. With regard to the administrative proceedings, the complainant organization’s allegation against the CAOFA, of which the General Labour and Social Security Inspectorate has been informed, initially resulted in a decree from the Inspectorate, dated 28 April 2003, penalizing the CAOFA for dismissing workers because of their trade union membership by fining it 690 variable units (equivalent to US$5,347) [see 333rd Report, para. 1009]. In regard to this, the Government states that the CAOFA lodged administrative appeals with both the Inspectorate and its immediate superior. These two appeals resulted in two decisions, dated 5 and 30 January 2004 respectively, confirming the decree of 28 April 2003 (the Government encloses copies of the decisions). Having exhausted the administrative options, the CAOFA has lodged an appeal with the Court of Administrative Proceedings to have the decree revoked. These proceedings are currently at the evidence gathering stage; in fact, the Court has ordered an on-site inspection in accordance with the notice received by the Ministry of Labour and Social Security on 6 December 2004. The Government will communicate the Court’s judgement to the Committee as soon as it has been given.
4. 804. Regarding the reinstatement of the dismissed workers, the Government reiterates that Uruguay has no legal provisions under which it would be possible to force the enterprise to reinstate the dismissed workers, and that this has been confirmed numerous times by the national courts. For instance, in its Judgement No. 148 of 29 August 1998, the Supreme Court ruled that an employer could not be constrained to reinstate [a worker] in the absence of an explicit text stipulating this obligation. The Government encloses several examples of this fact from case law with its reply.
5. 805. In respect of the allegations concerning the denouncement of the collective agreement by the CAOFA, the transfer of Ms. Virginia Orrego and the threats to dismiss workers affiliated to the complainant organization, the Government claims that all of these aspects of the case were denounced during the administrative proceedings that took place before the general labour inspection that resulted in the appropriate penalty for violation of freedom of association being imposed. The Government adds that a judicial appeal was made concerning Ms. Orrego’s case, which resulted in decisions vindicating her in both the first instance and the appeal courts. According to the information received by the Government from the complainant organization, these decisions were respected by the CAOFA, which thus paid the special compensation required of it. The Government states that it will keep the Committee informed of all developments relating to this case.

C. The Committee’s conclusions

1. 806. The Committee recalls that the complainant organization alleged: (i) the denouncement of the collective agreement in force at the time by the Savings and Loans Cooperative of Officials of the Armed Forces (CAOFA) when the management of this enterprise became aware of the intentions of trade union leaders at the enterprise to affiliate to the Association of Bank Employees of Uruguay (AEBU); (ii) the dismissal of several trade union members (Mr. Nelson Corbo, Mr. Eduardo Cevallos, Mr. Gonzalo Ribas, Mr. Andrea Oyharbide, Mr. Gerardo Olivieri and Mr. Marcelo Almadia) and the transfer of a unionized worker (Ms. Virginia Orrego); and (iii) threats to dismiss workers who were members of the AEBU. Furthermore, the Committee recalls that, at its March 2004 meeting, it requested the Government to provide information on whether the legal decision of 22 July 2002 had been carried out, to take measures to expedite the administrative appeals lodged by the CAOFA against the administrative decision of 28 April 2003 by the General Labour and Social Security Inspectorate and provide information on the outcome and, lastly, to mediate between the parties in order to obtain the reinstatement without loss of pay of those workers affected. The Committee also requested the Government to provide its observations on the allegations concerning the denouncement of the collective agreement by the CAOFA, the transfer of Ms. Virginia Orrego and the threats to dismiss workers who were members of the AEBU.
2. 807. Regarding the issue of dismissals, the Committee recalls that the dismissal of the six trade union representatives has been examined in two parallel sets of proceedings – one judicial and one administrative. These two proceedings led to the same conclusion – that the dismissals were anti-union in nature – and resulted in two decisions dealing with two aspects of national-level protection against anti-union discrimination: rectification of the loss to the victims by the judicial proceedings, and the imposition of a penalty by the administrative proceedings.
3. 808. In respect of the judicial proceedings, the Committee notes the Government’s statement that Decision No. 78 of 22 July 2002 of the Labour Court of First Instance was confirmed by the Court of Appeal, with regard both to the anti-union nature of the dismissals and to the requirement that the CAOFA pay damages with interest. In view of the fact that over five years have elapsed since the six workers were dismissed, and that they have been paid damages with interest, the Committee takes note of the decision of the Court of Appeal.
4. 809. Regarding the administrative proceedings, the Committee notes the Government’s statement that the decree of 28 April 2003 of the General Labour and Social Security Inspectorate punishing the CAOFA for dismissing the workers because of their trade union membership has been confirmed following two judicial appeals. This decree is at present the subject of an administrative action which is currently at the evidence-gathering stage, and the competent court has ordered an on-site inspection. The Committee requests the Government to do all in its power without delay in order that the appeals of the CAOFA against the decree of 28 April 2003 of the General Labour and Social Security Inspectorate result in a definitive decision as soon as possible. The Committee requests the Government to keep it informed in this regard.
5. 810. With regard to the transfer of Ms. Virginia Orrego, the Committee notes that, according to the Government, the CAOFA was required to pay her special compensation and that this payment has been made. However, the Committee requests the Government to verify that Ms. Virginia Orrego has been returned to the position that she occupied at the time of her transfer or to another equivalent post appropriate to her qualifications and experience, if the court establishes that this transfer had anti-union motives. The Committee requests the Government to keep it informed in this regard.
6. 811. Finally, with regard to the allegations relating to the denouncement of the collective agreement by the CAOFA and to the threats to dismiss workers who were members of the complainant organization, the Committee takes note of the Government’s claim that these aspects of the case were denounced in the administrative proceedings which took place before the General Labour and Social Security Inspectorate – proceedings which led to the imposition of the appropriate penalty for violation of freedom of association. Nevertheless, the Committee requests the Government to provide it with information on the current trade union situation in the CAOFA and, in particular, on the following aspects: (1) the possibility for workers to join an organization of their choice in practice, and, in particular, to join the complainant organization, without fear of reprisals, and the question of which trade union is currently active in the cooperative; (2) the situation with regard to collective bargaining and, in particular, to the conclusion of a collective agreement.