Informe definitivo - Informe núm. 143, 1974

1. 105. The complaint of the Uruguayan Workers' Federation is contained in a communication dated 9 October 1973 addressed to the Director-General of the ILO and the Federation provided further information in a letter dated 5 November 1973. These communications were transmitted to the Government which sent its observations on 16 January 1974.
2. 106. 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

1. 107. In its complaint the Uruguayan Workers' Federation alleges that Decree No. 622/973 to promulgate the Act regulating the organisation and activities of trade unions, and in particular sections 2, 5, 7, 9, 10, 12, 17, 20-24, 26, 29 and 31 of the Act, violate the terms of Convention No. 87.

108. The Committee has examined the sections in question and is of the opinion that the following matters in particular call for certain comments in the light of the principles and standards contained in the Convention.

1. 109. Section 2 provides that only workers who are engaged in the same occupation or calling or similar or related occupations or callings, or who work in the same establishment, may form trade unions. No union may be formed unless it includes in its membership at least 10 per cent of the total number of workers in the trade or establishment, with a minimum number of 15 members. The Government states that section 2 gives workers of a particular calling or undertaking the opportunity to form one or more trade unions. Besides ensuring that unions shall be the natural expression of the wishes of the workers to be represented, this section, according to the Government, guarantees the appropriate union representation by preventing the trade union anarchy which would arise from the existence of unions having fewer than 15 members, which would in any case be too weak to defend their members' interests.
2. 110. As regards the minimum required number of workers, the Committee notes that this may be considerably higher than 15 in cases where the number of workers in the activity concerned is very large since then it is not 15 individuals, which would not seem excessive, but 10 per cent of all the workers in the activity, which constitutes the minimum. In this connection the Committee recalls its opinion that the establishment of a trade union may be considerably hindered or even rendered impossible when legislation fixes the minimum number of members of a trade union at obviously too high a figure, and it considers that provisions of this type are not in conformity with Articles 2 and 11 of Convention No. 87.
3. 111. Section 7 of the Act states the conditions for union office: at least 25 years of age, Uruguayan citizenship, three years' employment in the particular occupation (except in the case of new industries or enterprises), and the obligation to continue in employment in the same occupation during the holding of union office. Also, no one is permitted to be an officer of more than one union and all union offices must be non-remunerative.
4. 112. The Government explains this section on the grounds that the minimum age and three years' employment requirements ensure that union leaders shall be capable, mature and responsible in the exercise of their duties, and this also has an influence on the more general level of the national economy as a whole. The other provisions prohibiting holding office in more than one union or after having left the occupation are aimed, according to the Government, at improving trade union life in Uruguay by preventing the "professionalisation" of trade union leadership, since the latter situation is harmful to the interests of the unions themselves and assists the manoeuvres of infiltrators and political agitators.
5. 113. The Committee has already stated on previous occasions that if the national legislation lays down that all trade union leaders must belong to the occupation in which the organisation functions, there is a danger that the guarantees provided for in Convention No. 87 may be set aside. In fact, in such cases, the dismissal of a worker who is a trade union official can, besides making him forfeit his position as a trade union official, affect the freedom of action of the organisation and its right to elect its representatives freely, and encourage acts of interference by employers.
6. 114. Further, the Committee would like to point out that a stipulation that a trade union leader is not entitled to remuneration of any kind, like the requirement that a trade union leader shall remain employed in his occupation during his term of office, prevents the existence of full-time officers. This, in turn, may be highly detrimental to the interests of trade unions, in particular those whose size or geographical extent require the contribution of a considerable amount of time by the officers. The Committee is therefore of the opinion that such provisions impede the free functioning of workers' organisations and thus do not comply with the requirements of Article 3 of the Convention.
7. 115. Section 20 of the Act concerns the election of union officers. It provides that union members shall elect both an executive Committee and a financial Committee for terms of not less than two and not more than three years, and that officers be re-elected only once. Every union member is obliged to participate in the secret ballot or be subject to a fine equivalent to five days' pay (section 28). Officers are chosen by a simple majority vote. The Electoral Court of Uruguay regulates and controls all union elections and an appeal lies to this Court in cases of contested results. Provisionally, however, and until the Council of State approves the mandate given to the Electoral Court, these functions are to be exercised by the Ministry of Labour and Social Security (section 2 of the Decree).
8. 116. The Government points out that this section provides all the necessary guarantees for free and democratic elections. The obligation to vote exists also for public and private elections in the country in order to ascertain the true wishes of the majority.
9. 117. The Committee has frequently drawn attention to the principle that workers' organisations should have the right to elect their representatives in full freedom, as provided in Article 3 of Convention No. 87. In this respect it has considered that legislation which minutely regulates the internal election procedures of a trade union is incompatible with the rights afforded to trade unions by the Convention. It has also expressed the view that it should be the unions themselves which decide on such matters as the majorities requisite for election to union office and that the ban on the re-election of trade union officers is not compatible with the Convention. The Committee also considers that the legislative imposition of fines on workers who do not participate in elections is not in harmony with the provisions of the Convention. Further, the Committee is of the opinion that the control of union elections, pending the approval of the mandate given to the Electoral Court, should rest with the judicial authorities. The Committee has indicated that the principles established in Article 3 of the Convention do not prevent the control of the internal acts of a trade union if those internal acts violate legal provisions or union rules. Nevertheless, in order to guarantee an impartial and objective procedure, this control should be exercised by the relevant judicial authorities.
10. 118. The complainant objects to sections 9, 23 and 31, as well as to sections 17 and 26, to which they refer. Section 17 provides, inter alia:
11. "17. Trade unions are especially prohibited from
12. (A) engaging either directly or indirectly in political or religious affairs or activities contrary to our republican democratic system;
13. ................................................................................
14. (C) jeopardising freedom of association or resorting to physical or psychological violence against workers, whether of its own membership or others, by not duly respecting the fundamental right to work, enshrined in section 36 of the Constitution of the Republic;
15. (D) jeopardising social harmony by advocating class struggles."
16. And section 26 establishes, inter alia:
17. "26. Trade unions, federations and Confederations, as the case may be, shall be dissolved and their registration annulled
18. ................................................................................
19. (C) for breaches of the provisions and prohibitions established in section 17 of the present law;
20. (D) for participation in anti-national activities or activities contrary to national security or for engaging in other criminal acts."
21. 119. The provisions of sections 9, 23 and 31 refer to sections 17 and 26 in the following terms: section 9 provides that a member contravening section 17(C) may be expelled by the vote of two-thirds of the members of the executive Committee. Section 23 provides that trade unions and national federations or Confederations shall not establish links or undertake engagements with international federations or Confederations which by their acts infringe the standards set in sections 17 and 26 of the Act; in such cases their registration shall be annulled. Section 31 requires all unions to expel members who contravene sections 17(C) or 26(D). In this connection, but in more general terms, section 29, also the subject of objections by the complainant, provides that unions in breach of any of the provisions of the Act shall be subject to fines imposed by the Ministry of Labour and Social Security.
22. 120. The Government states that the prohibitions set out in sections 17 and 26 do not harm trade union rights in any way, but, rather, protect them by clearly delineating the field in which such rights are to be operative and defining the areas in conformity with the very terms of Convention No. 87. It adds that sections 23, 24 and 26 require the same standards of federations and Confederations as they do of individual unions, and forbid federations to maintain links with international organisations which participate in antinational activities or activities contrary to national security or in other criminal acts. It is obvious, the Government declares, that any State which is concerned with the security and freedom of action of the trade unions will defend by the same token its own security and freedom of action.
23. 121. The Committee notes that certain of these provisions pose problems in connection with the right of trade unions to organise their activities, and in particular with the political activities and international affiliations of workers' organisations. A general prohibition of political activities of any kind would not seem to be compatible with the principles and guarantees of the Convention and it would also seem to be unrealistic as regards its application in actual practice. For instance, trade unions may wish to make publicly known their position on matters of economic and social policy which affect their members. As regards the right of workers' organisations to affiliate with international federations or Confederations, this is clearly established in Article 5 of the Convention. With respect to sections 17(A) (general prohibition of political activities), 17(D) (jeopardising social harmony by advocating class struggles), and 26(C) and (D) (dissolution of organisations for breaches of section 17 or for participating in antinational activities), the Committee is of the opinion that these provisions may raise difficulties by reason of the fact that the interpretation given to them in practice may change at any moment and considerably restrict the possibility of action of the organisations. In particular, provisions such as "jeopardising social harmony by advocating class struggles" and "participation in antinational activities" may fail to afford any precise criteria for judicial decision. More specifically, with regard to political activities, the Committee has often stated in the past that States should be able, without prohibiting in general terms political activities by occupational organisations, to entrust to the judicial authorities the task of repressing abuses which might, in certain cases, be committed by organisations which had lost sight of the fact that their fundamental objective should be the economic and social advancement of their members.