Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

Other comments on C098

Observation

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The Committee notes the joint observations of the International Organisation of Employers (IOE), the Chamber of Commerce and Services of Uruguay (CNCS) and the Chamber of Industries of Uruguay (CIU) received on 31 August 2021 and 31 August 2022 dealing with matters addressed by the Committee in this comment and also notes the Government’s reply in this respect. The Committee observes that the OIE, CNCS and CIU indicate that in July 2022, the Government introduced a preliminary Bill on Social Security Reform that would allow the establishment of voluntary contributions to the social security system through collective bargaining and observe that such a measure could be approved by the wage councils, which are tripartite bodies. The Committee notes the Government’s indication in this regard that the preliminary Bill allows for the possibility of making voluntary social security contributions only through bipartite collective bargaining, without in any way promoting the involvement of the wage councils in the matter.

The Committee also notes the observations of the Inter-Union Assembly of Workers – Workers’ National Convention (PIT-CNT) received on 31 August 2022 relating to issues addressed by the Committee in this comment and reporting acts of anti-union discrimination, including the suspension for a period of 14 days of a shop steward for alleged statements in the press which, in the view of the enterprise, damaged its image. The Committee notes the Government’s reply to the observations of the PIT-CNT. Observing that, in its reply, the Government does not refer to the alleged suspension of the shop steward, the Committee requests the Government to provide information on the outcome of any complaints filed in this respect.

Article 4 of the Convention. Promotion of free and voluntary collective bargaining. For a number of years, the Committee, together with the Committee on Freedom of Association (Case No. 2699) and the Conference Committee on the Application of Standards, has been requesting the Government to revise Act No. 18566 of 2009 (establishing the fundamental rights and principles of the collective bargaining system, hereinafter Act No. 18566) with a view to ensuring the full compliance of the Act with the principles of collective bargaining and the Conventions ratified by Uruguay in this area. In 2015, 2016 and 2017, the Government submitted several proposals for legislative amendments to the social partners without reaching agreement, and in 2019 it introduced a bill to Parliament which partially addressed the Committee’s comments and ended up being archived in 2020. The Committee recalls that, while the IOE, CNCS and CIU considered the proposed amendments contained in the Bill to be insufficient, the PIT-CNT was of the understanding that Act No. 18566 did not merit amendment. The Committee recalls that the 2019 Bill proposed to:

–include a final sentence in section 4 of Act No. 18566, requiring trade unions to have legal personality so that they can receive information from companies within the framework of the collective bargaining process, with a view to facilitating the possibility of bringing proceedings for liability in the event of a violation of the duty of confidentiality;
–remove section 10(d) of the Act establishing the competence of the Tripartite Higher Council to define the level of bipartite or tripartite negotiations;
–remove the final part of section 14 of the Act which, in the absence of a trade union represented in the company, confers bargaining power on higher-level trade unions;
–amend section 17(2) of the Act so that, for each agreement, the issue of continuing effect is subject to negotiation; and
–clarify that the decisions of wage councils and collective agreements do not require the authorization, approval or adoption of the executive authorities in order to be recorded and published.

In its latest comments, the Committee noted that these proposed amendments were consistent with the obligation under Article 4 of the Convention to promote free and voluntary collective bargaining and noted with regret that, despite its reiterated comments, the Bill did not propose amendments or clarifications regarding the competence of the wage councils, which are tripartite bodies, in relation to adjustments made to wages that are above the minimum for the occupational category and working conditions (section 12 of Act No. 18566). The Committee recalled that although the establishment of minimum wages may be subject to decisions by tripartite bodies, Article 4 of the Convention seeks to promote bipartite negotiation for the setting of working conditions, whereby all collective agreements establishing conditions of employment shall result from an agreement between employers or employers’ organizations and workers’ organizations. The Committee recalled that mechanisms can be established that would guarantee both the free and voluntary nature of collective bargaining and the effective promotion thereof, while ensuring that the country’s existing collective agreements continue to offer a high level of coverage.

The Committee notes the Government’s indication that: (i) on 27 October 2020 during a meeting of the Higher Tripartite Council, the executive authorities raised the need to work on the comments of the ILO supervisory bodies in relation to Act No. 18566 and suggested that a special tripartite committee could be set up to assess and consider a new draft amendment to the Act, which was unanimously approved; (ii) between May 2021 and February 2022, various meetings of the special tripartite committee were held and on 3 May 2022, the Government submitted a bill to Parliament, based on the Bill introduced to Parliament in 2019 by the previous Government, which is currently under consideration by the Labour Legislation Commission of the Chamber of Representatives; and (iii) between June and August 2022, representatives of the Ministry of Labour and Social Security and workers’ and employers’ delegations attended the Labour Legislation Commission to provide their opinion with regard to Bill. The Government indicates that it will continue to work in tripartite bodies to bring about reform of collective bargaining in wage councils that takes into account the comment on section 12 of Act No.18566 and that, in the meantime, practicable measures are under consideration to ensure that the work of all delegates assigned to the wage councils results in agreements or decisions that expressly enable bipartite negotiation in situations where that is justified.

The Committee notes that, in their observations, the IOE, CNCS and the CIU indicate that although the Bill submitted to Parliament on 3 May 2022 contains a number of developments and while they value the legislative initiative, the Bill does not include an important aspect for employers which concerns the government intervention in the negotiation of issues that relate exclusively to the scope of bipartite negotiation. These organizations indicate that they have proposed adjustments to the text and observe that the current text could be substantially modified during the parliamentary debates. The Committee notes that, according to public statements issued by the PIT-CNT and reflected in documents provided by the Government, the PIT-CNT flatly rejects the Bill as a retrograde step for workers’ rights that undermines collective bargaining.

The Committee takes due note of the establishment in 2020 of the special tripartite committee to address the comments of the ILO supervisory bodies in relation to Act No. 18566 and of the tripartite dialogue that has taken place within it. The Committee notes that the Bill which the Government submitted to Parliament on 3 May 2022 proposes the same amendments as the Bill introduced to Parliament in 2019. The Committee notes with regret that this Bill does not address an essential element that it has been highlighting for years concerning the amendment of section 12 of the law to ensure the bipartite nature of collective bargaining. Trusting that the partial progress contained in the Bill submitted to Parliament on 3 May 2022 will be incorporated in the current legislation as soon as possible, the Committee strongly encourages the Government to continue working in tripartite bodies and to take the necessary further measures to amend section 12 of Act No. 18566 such that, in accordance with the Convention, the law fully guarantees both the free and voluntary nature of collective bargaining and the continued effective promotion thereof, thereby ensuring that the country’s existing collective agreements continue to offer a high level of coverage. The Committee requests the Government to provide information on any developments in this regard and recalls that it may continue to rely on the technical assistance of the Office.

Bill on Legal Personality. The Committee notes the Government’s indication that, following discussions in the special tripartite committee, the Government drafted a Bill on the Legal Personality of Industrial Associations, which it introduced to Parliament on 3 August 2021 and which is currently under consideration in the Senate. The Government indicates that the Bill relates to the proposal to amend section 4 of Act No. 18566 and that employers have expressed the view that, while the legal personality requirement is a desirable amendment, the procedure for obtaining legal personality should be swift and simple. The Committee notes that the Bill provides for the establishment of a register in the Ministry of Labour, that registration, which is optional, would result in the recognition of legal personality and that only trade unions with legal personality could receive information from enterprises in the framework of the collective bargaining process.

The Committee notes the indication of the IOE, CNCS and CIU that while they believed that this could constitute a step forward, they did not consider it necessary to establish a special regime such as the one proposed, since the country already has specific legislation whereby not-for-profit organizations can obtain legal personality, to which no objections have been raised. The Committee notes that the PIT-CNT has expressed the view, in public statements, that the fact that the unions are required to have legal personality in order to access the information necessary for the development of sound bargaining in good faith goes beyond what the ILO supervisory bodies have proposed. The Committee notes that the Bill provides that the information contained in the register shall be publicly accessible and recalls in this respect that the confidentiality of the processing of data on trade union membership in context of the registration procedure must be guaranteed, not only because such data relate to the private life of workers, but also because their disclosure could potentially expose workers to reprisals.

The Committee requests the Government to take the necessary steps to ensure that the concerns of workers’ and employers’ organizations in relation to the Bill are duly addressed in the tripartite social dialogue and the parliamentary discussion. It also requests the Government to ensure that whatever system of legal personality is required of organizations, it does not have the effect of hindering their activities and, consequently, collective bargaining. The Committee further requests the Government to take the necessary steps, in consultation with the social partners, to review the Bill in order to ensure the confidentiality of data relating to trade union membership and expects that if the Bill as submitted to Parliament is adopted, it will be implemented in such a manner as to contribute to maintaining the effective promotion of collective bargaining. The Committee requests the Government to keep it informed of any developments in this respect.