Informe provisional - Informe núm. 254, Marzo 1988

1. 428. The complaint is contained in communications dated 25 March and 14 May 1987 from the Single National Trade Union of Workers in the Clothing and Allied Industries (SUA-VESTIMENTA), the Inter-Union Workers' Assembly and the National Workers' Convention (PIT-CNT). SUA-VESTIMENTA submitted new allegations in communications dated 3 August and 2 September 1987. The World Federation of Trade Unions (WFTU) supported the complaint in a communication dated 9 September 1987. The Government sent certain observations in communications dated 8 and 23 October 1987.
2. 429. In its communications the Government stated that it would be sending the report of a committee of inquiry set up to determine the truth of the allegations brought before the Committee on Freedom of Association. Nevertheless, the Government requested the Committee to examine the aspects of the complaint concerning the right to strike of public officials and state employees contained in the communication from the complainants of 14 May 1987.
3. 430. 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. The complainants' allegations

1. 431. The complainant organisations allege that Act No. 13720 of 16 December 1968, which in their opinion is unconstitutional, infringes the right to strike under section 4 by establishing that "in the case of public services, including those administered by private individuals ... the Committee (at present the Ministry of Labour and Social Security) may indicate, after stating the grounds for its decision, ... those essential services which must be maintained in operation by emergency shifts and whose interruption would determine the unlawful nature of a strike"; the Act goes on to stipulate that "in the case of interruptions in essential services, the public authority may take the necessary steps to maintain these services, including having recourse to the use of the equipment and the hiring of outside workers that are indispensable to maintain the services in operation, on the understanding that the relevant legal sanctions continue to be applicable to the staff concerned". The complainants point out that the provision is so worded that all public services might be considered essential, in so far as the text neither defines the type of activity concerned nor requires any justification for its being deemed to be essential.
2. 432. The complainant organisations add that under Act No. 13720, and contrary to the principles of the ILO, the following have been declared as essential services: services carried out by the Social Security Directorate (Ministerial Resolution of 28.5.86); services carried out by the National Customs Directorate (Ministerial Resolution of 29.5.86); loading and unloading and similar activities (Ministerial Resolution of 25.6.86); and services carried out by the National Fuel, Alcohol and Portland Cement Administration (ANCAP) (Ministerial Resolution of 3.12.86).
3. 433. As regards the declaration of the services carried out by the Social Security Directorate as essential, the complainant organisations deny that these are essential in the strict sense of the term and point out that, apart from the fact that at the time the dispute had reached a point when agreement between the parties seemed highly unlikely, the Ministry of Labour's intention in consulting the PIT-CNT had been to reach consensus on its decision to declare the service essential. As to maintaining the health service in operation, the trade union organisations have their own procedure in the event of a dispute and organise shifts to keep the service going so as not to endanger the population. Similarly, as part of its contingency programme, the trade union organisation had provided for the payment of social security benefits. Furthermore, the Ministerial Resolution states that "the running of essential services requires the functioning of other indispensable support services, and these are therefore likewise essential". Thus, related services are also declared to be essential.
4. 434. The complainant organisations point out that, as regards social security, the Government's note calling for the consultation had already classified certain services as essential in advance. Despite this serious fault on the Government's part, the trade union organisation to which the workers concerned belong agreed to participate in the dialogue (26.5.86). The Government announced publicly that "it would not enter into discussions with unofficial groups of workers" and that "it would not give in to their demands"; it also publicly refused mediation by the Committee on Labour Legislation of the Chamber of Deputies. The fact that the entire staff of the Raigon Holiday Camp, including 26 caretakers, nine administrators and 18 members of the personnel office, were listed as performing essential services shows clearly how the Government has deliberately misinterpreted and distorted the situation in the social security sector.
5. 435. The complainant organisations further state that, in the case of ANCAP, the staff on the boats servicing oil-tankers decking at the mooring buoy were listed as performing essential services, even though no tanker was due two months; even the painting of the mooring buoy was declared to be an essential service. ANCAP also attempted to oblige staff entering the factory to sign an undertaking not to resort to trade union action; 13 out of the 17 trade union officials were thus denied entry during the dispute. Thirty workers were arrested for having obeyed strike orders. Once the ANCAP dispute had ended, all kinds of discriminatory measures were taken against the strikers, including sanctions, legal proceedings and transfers. The army was called in to fight the strike and defend the Government's position. The complainants enclose copies of three decisions by the ANCAP Board dated 18 December 1986, one penalising officials who took part in the dispute, a second expressing approval of those officials who had not taken part in the dispute, and a third approving the payment of overtime to these officials, and of a decision of 3 December 1986 summoning all the officials who had taken part in the dispute and suspending those who did not come forward.
6. 436. The complainants conclude by stating that Act No. 13720 is an attempt to regulate strikes by administrative orders, in other words to restrict a basic right and an essential public freedom by orders emanating from the public authority - which leaves both the individual citizen and the organisations that are entitled to strike without any defence. The only way to contest administrative orders stipulating the essential nature of services is through the ordinary appeals procedure, but this does not have the effect of suspending the order and is therefore useless as a defence; besides, the time-limits within which the State has to rule on an appeal are very broad, which far from offering any kind of a guarantee is purely and simply a denial of justice.

B. The Government's reply

1. 437. The Government states that section 4 of Act No. 13720 does not empower the Ministry of Labour and Social Security to ban public officials from striking but only to restrict its exercise by determining, if need be, which essential services must be maintained by emergency shifts. In the opinion of this Ministry, its restrictions concern essential services in the strict sense of the term (i.e. whose interruption would endanger the life, personal safety or health of the whole or part of the population), as well as those services which might, by extension, become essential because of the extent of the consequences of their interruption or because of the particular circumstances in each case, in so far as they would endanger the normal living conditions of the population. The Government develops a number of arguments to show that section 4 of Act No. 13720 is constitutional. It observes that no action of the type provided for in the Constitution has been brought to have section 4 of the Act declared unconstitutional and that the complainants have not made use of the administrative and judicial appeals procedures provided for in Uruguayan legislation against the ministerial decisions imposing a minimum service in the four above-mentioned cases (payment of social security benefits, customs, port loading and unloading services, and fuel and alcohol supplies). The Government states that it agrees with the Committee's criteria with respect to the conditions for organising a minimum service and the participation of workers' organisations in these arrangements. The Government states that each time the Ministry of Labour and Social Security has had to make use of the power conferred upon it by the law to establish a minimum service, it has given orders (though in vain because the complainant organisations consider that it is the prerogative of the workers' organisations themselves to organise minimum services through their own procedures) for the workers' representatives to be convened in order to determine the essential services that have to be maintained by emergency shifts as long as the work stoppages last.
2. 438. With regard to the General Social Security Directorate (now known as the Social Welfare Bank), the Government states that, as an interruption in the payment of pensions and other social security benefits endangers the normal living conditions of a large sector of the population and its subsistence level, the Ministry of Labour and Social Security requested the Director-General of the Social Security Directorate on 19 May 1986 to convene the workers' representatives to determine the services which should be maintained by emergency shifts to safeguard the payment of pensions and other social security benefits and health assistance. As the workers' representatives refused to take part, the Ministry of Labour and Social Security took a decision on 28 May 1986, in accordance with the provisions of section 4 of Act No. 13720, in which it declared the essential public services to be maintained by emergency shifts so as to guarantee the payment of old-age pensions, annuities, unemployment benefits and other cash benefits paid directly to the social security beneficiaries and to provide hospital services and medical care. The emergency shifts which, in view of the trade union organisation's refusal to co-operate, were decided upon unilaterally by the General Social Security Directorate, consisted of only 1,680 officials, a mere 27 per cent of the total staff. Furthermore, only minor disciplinary sanctions were imposed on officials who had refused to participate in the emergency shifts at the Directorate's administrative headquarters.
3. 439. As regards the National Customs Directorate, customs activities are an integral part of the State's financial police force, and as an essential responsibility of the State, can be directly exercised only by the State itself. The National Customs Directorate includes all the customs services throughout the country and its officials belong to a category of civil servants working for an administration with respect to which the Committee has acknowledged the possibility of a ban on strike action. Nevertheless, when the dispute caused by the National Customs Directorate officials arose, the Ministry of Labour and Social Security, in the beginning, considered it inappropriate to ban the strike and decided to set up a minimum service to guarantee the dispatch of all perishable goods and raw materials, as well as manufactured goods, the lack or shortage of which would endanger the normal living conditions of the population. To this end and in accordance with the general conditions governing the application of section 4 of Act No. 13720, established by the Ministry of Labour and Social Security, the workers' representatives were convened on 28 May 1986 to determine the services to be maintained by emergency shifts. The Association of Customs Officials replied in a note of the same date that it was not its responsibility to define the concept of essential services in this case and that the matter should be determined by the legislative or constitutional bodies concerned. In the face of this refusal, the Ministry of Labour and Social Security made use of the powers conferred upon it by section 4 of Act No. 13720 and stated, in a decision dated 29 May 1986, that "the processing of the usual formalities and documents concerning the import, export and transit of perishable goods, raw materials and manufactured or semi-manufactured goods, the lack or shortage of which might run the risk of causing a collective disaster for the society as a whole or endanger the life, personal safety and health of part or all of the population" must be guaranteed as a minimum service. No sanctions were imposed during this dispute.
4. 440. As regards loading and unloading in ports, the Government points out that these services are provided by private workers registered with the labour exchange and that it is the responsibility of the National Docks Administration (ANSE) to administer and control these lists. The collective dispute which gave rise to the resolution cited in the present complaint and which resulted in the strike of the dockers brought all harbour services to a halt. Nevertheless, the Ministry of Labour and Social Security bore in mind that the Committee on Freedom of Association has stressed on several occasions that in normal circumstances general dock work does not appear to be essential in the strict sense of the term in so far as its interruption would not endanger the life, personal safety or health of the whole or part of the population. However, it realised that, with the extension and duration of the strike, the total stoppage of dock work might bring about a crisis in which the normal living conditions of the population might be endangered. This was particularly the case for the export of perishable goods currently under way, as well as for the import and export of raw materials the lack or shortage of which might run the risk of causing a collective disaster for the society as a whole. In these circumstances, the Ministry of Labour and Social Security considered that it was lawful, in both cases, to set up a minimum service limited exclusively to the operations that were necessary for the normal living conditions of the population not to be endangered. It is for this reason that it convened the workers' organisations to decide upon the minimum services which should be guaranteed by emergency shifts. Given the refusal of the workers' representatives, who made the acceptance of their basic claims a condition for their participation, the Ministry of Labour and Social Security, by a resolution of 25 June 1986, decided that loading and unloading services and other directly related activities having to do with perishable goods, raw materials and manufactured and semi-manufactured goods the lack or shortage of which might run the risk of causing a collective disaster for all or part of the society and endanger the life, personal safety and health of the whole or part of the population, should be maintained in operation by emergency shifts. In fact, this resolution was not implemented because on the following day, 26 June 1986, the dispute ended and an agreement was signed, with the participation of the Ministry of Labour and Social Security itself, stipulating that no sanctions would be imposed.
5. 441. As regards the services provided by the National Fuel, Alcohol and Portland Cement Administration (ANCAP), the Government states that Uruguay does not produce petroleum and that all its needs are met by importing crude oil which is refined within the country. All means of transport, with the sole exception of a small trolleybus service in the capital, depend upon an adequate supply of fuel. There are no electric railways and Uruguay does not produce any natural gas. Only a very small area of Montevideo has a mains gas system. In the other areas, the population uses propane gas. ANCAP, a state enterprise which plays a key role in the country's economy, holds the legal monopoly for importing and refining crude oil and petroleum by-products. This monopoly also extends to the import of all liquid, semi-liquid and gaseous fuels, whatever their state and composition. As a result, all fuels derived from petroleum used in the country are refined or imported by ANCAP. Private companies in Uruguay only distribute to the public the fuels imported or refined by ANCAP, which is the sole supplier. ANCAP also holds the legal monopoly for the import, manufacture and marketing of alcohols.
6. 442. According to the Government, when the ANCAP officials announced their dispute, the one and only petrol refinery in the country had already been out of operation for several days for technical reasons. This stoppage, which is necessary from time to time, had been planned in advance and the necessary amount of fuel had been stored so that supplies could be maintained during the interruption. Obviously, these supplies were limited by the available storage capacity and were intended to cover the normal duration of the technical operations to be carried out in the refinery. To begin with, the action taken by the officials involved in the dispute took the form of partial work stoppages which were so frequent that they interfered with the maintenance work that was under way in the refinery, which meant that the work in fact took longer. Thereupon, the mere announcement that the strike was to be officially declared brought about an artificial increase in demand that immediately provoked a crisis in the normal supply of fuel to the public. Had the situation continued, there was a danger that stocks might run out, especially since, as already pointed out, even the importation of refined petroleum products could only be carried out by ANCAP. It was therefore obvious, in these circumstances, that the interruption of services would create a crisis that was liable to endanger the normal living conditions of the population. It should also be stressed that the Ministry of Labour and Social Security had, quite normally and sufficiently in advance, advised the Board of the National Fuel, Alcohol and Portland Cement Administration (ANCAP) to convene the workers' organisation to discuss and draw up an agreement concerning the services to be maintained in the event of a dispute. This was done in September 1986, whereupon the trade union organisation replied that it did not accept the interference of either the Government or the employers in deciding how it was to conduct its defence of the workers' interests and consequently would not discuss with the Board what services should be maintained during a dispute with the management, adding that the matter would be decided in each case at the assemblies of the organisation. As any hope of reaching an agreement on minimum services was thus out of the question, and in view of the announcement of more and more work stoppages by ANCAP officials, the Ministry of Labour and Social Security, making use of the powers conferred upon it by section 4 of Act No. 13720, decided which ANCAP services should be maintained in operation by emergency shifts. The latter affected a total of 557 officials, scarcely 7.78 per cent of the total number of workers. Furthermore, considering the complainant's allegations, it must not be forgotten that the officials assigned to emergency shifts who did not report for work were subjected only to disciplinary sanctions of a purely administrative nature; this took the form of a suspension of their duties, with a corresponding loss of remuneration, but at no time were those involved deprived of their freedom. The arrest of strikers referred to by the complainant occurred because they were intimidating distributors outside the workplace; only the strict minimum of arrests were made and the judicial authorities took immediate action.

C. The Committee's conclusions

1. 443. The Committee notes that in the present case the complainant organisation objects to the declaration of certain services as essential and the ensuing imposition of minimum services by resolutions of the Ministry of Labour issued in 1986 under section 4 of Act No. 13720, in connection with strike action taken by public officials and state employees in the National Social Security Directorate and the National Fuel, Alcohol and Portland Cement Administration and by dockers. In the complainant's view, section 4 of the Act is unconstitutional and empowers the Ministry to decide unilaterally that any public service is essential and therefore subject to minimum service requirements. The Committee notes that the Government argues that section 4 of Act No. 13720 is constitutional and that the establishment of a minimum service under this Act in the sectors concerned was carried out in accordance with principles formulated by the Committee on Freedom of Association. The Government also stresses that the trade union organisations did not make use of the existing legal channels open for them to contest the Act or administrative resolutions.
2. 444. The Committee wishes to point out that it is not within its competence to pronounce on the constitutionality of the Act objected to by the complainant. However, in so far as it is applied in practice, the Committee must examine whether this Act and the administrative measures taken under it are in accordance with the principles of freedom of association. In this respect, the Committee, whilst noting the criteria for the application of the legislation in question that the Ministry of Labour claims to observe, feels bound to express its concern at the wording of section 4 of Act No. 13720. The wording, as pointed out by the complainant organisation, can be applied to any public service which may then be required to provide a minimum service in the case of a strike; this is in open contradiction with the principles of the Committee concerning the nature of the services in which such a restriction is admissible. Consequently, the Committee requests the Government to take the necessary measures so that the establishment of minimum services in the case of strike action is legally possible only in services where the interruption might endanger the life, personal safety or health of the whole or part of the population or in services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population.
3. 445. In the present case, as regards the minimum services established by administrative authority during strikes in the social security, customs, dock work and fuel supply sectors, the Committee wishes to recall the principles which it has repeatedly formulated on the matter and which must be seen as affording a minimum guarantee for the exercise of the right to strike, without prejudice to the possibility of individual national systems providing for a greater degree of protection of the exercise of the right to strike in their legislation and practice.
4. 446. On previous occasions, the Committee has considered it legitimate for a minimum service to be maintained in the event of a strike the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Similarly, the Committee has pointed out that, to be acceptable, the minimum service should be confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population and that, furthermore, the determination of minimum services should involve not only employers and the public authorities but also workers' organisations (see 234th Report, Case No. 1244 (Spain), paras. 153 to 155). This not only allows a careful exchange of viewpoints on what in a given situation can be considered as minimum services limited to the absolutely essential, but also contributes to guaranteeing that the scope of the minimum services does not result in the strike becoming ineffective in practice because of its limited impact and to dissipating possible impressions in the trade union organisations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services (see 244th Report, Case No. 1342 (Spain), para. 154).
5. 447. In the Committee's opinion, the branches of activity in which the strikes referred to in the present case were declared fulfilled on the whole the requirements of the aforementioned principle concerning the acceptability of establishing minimum services. Nevertheless, upon reading the administrative resolutions impugned by the complainant organisation and taking into account the various aspects of the complaint to which the Government made no specific reply, concerning the actual extent of the minimum services (particularly in the social security sector - in which, for example, the entire staff of the Raigon Holiday Camp were allegedly affected - and in ANCAP where the painting of mooring buoys for oil-tankers was allegedly declared essential), the Committee does not exclude the possibility that excessive minimum services were established, even if this is somewhat attenuated by the fact that the trade union organisations, which considered that Act No. 13720 was unconstitutional and claimed that it was their responsibility to provide the necessary minimum services during the dispute in accordance with their own procedure, did not accept the Ministry of Labour's proposal to take a joint decision on these minimum services. The Committee emphasises that in cases such as this a definitive ruling on whether the level of minimum services was indispensable or not - made in full possession of the facts - can be pronounced only by the judicial authorities, in so far as it depends, in particular, upon a thorough knowledge of the structure and functioning of the enterprises and establishments concerned and of the real impact of the strike action.
6. 448. The Committee expresses the hope that in the future matters relating to minimum services might be resolved through dialogue.