Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 307, Junio 1997

1. 455. This complaint was presented in a communication from the Association of Banking Employees of Uruguay (AEBU) dated 6 June 1996. The Government sent its observations in a communication dated 23 January 1997.
2. 456. 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 complainant's allegations

1. 457. In its communication dated 6 June 1996, the Association of Banking Employees of Uruguay (AEBU) states that on 17 January 1991 it lodged a complaint with the General Inspectorate of Labour and Social Security (IGTSS) concerning anti-union conduct by Lloyds Bank (BLSA) Limited against members of the banking union. The complainant adds that in an IGTSS administrative decision dated 10 March 1994, Lloyds Bank (BLSA) Limited was fined R.U.1,440 (one thousand, four hundred and forty readjustable units), as a penalty for the following anti-union conduct in violation of paragraphs 1 and 2, Article 1, of Convention No. 98: (a) awarding bonuses in 1990 to staff who worked during collective protest action; (b) only nominating non-union members for executive posts; and (c) granting a salary increase of 6 per cent in 1985 to non-union members. Lloyds Bank (BLSA) Limited subsequently submitted a request for review to the IGTSS and, as a back-up, an application for hierarchical remedy to the Executive Power. The complainant adds that on 12 February 1996 the Executive Power, citing errors of interpretation of the facts and of the applicable legal principles, revoked the administrative decision handed down by the General Inspectorate of Labour and Social Security dated 10 March 1994 imposing punitive action on Lloyds Bank for involvement in acts of anti-union discrimination. The complainant annexes copies of the report of the legal advisory office of the General Labour Inspectorate and of the administrative decisions handed down by the General Inspectorate of Labour and Social Security and by the Executive Power.
2. 458. The complainant adds that it was informed of the Executive Power's administrative decision on 28 February 1996 and that within the legal deadline it lodged an action for annulment of the decision with the Administrative Court. Lodging an action for annulment entails a judicial process which last an average of three years. The complainant explains that the Administrative Court does not specialize in collective labour law and that, therefore, a complaint lodged by a trade union relating to anti-union conduct by a transnational enterprise will take at least nine years to determine. The time already spent and that will continue to be spent in litigation is testimony to how suitable national mechanisms are for obtaining redress for violated legal rights.
3. 459. In conclusion, the complainant declares that Conventions Nos. 87 and 98 have not been respected in this case.

B. The Government's reply

1. 460. In its communication dated 23 January 1997 the Government states as follows: (1) on 10 March 1994 the General Inspectorate of Labour and Social Security of the Ministry of Labour and Social Security handed down an administrative decision - concluding the corresponding administrative investigation - in which Lloyds Bank (BLSA) Limited was fined for infringement of international labour Convention No. 98 as a result of anti-union conduct; (2) Lloyds Bank (BLSA) Limited made the corresponding applications for administrative remedy against the administrative decision in accordance with the provisions of article 317 et seq. of the National Constitution, that is to say a request for review and an application for hierarchical remedy; (3) on 12 February 1996 the Executive Power, delivering its decision on the hierarchical remedy sought, revoked the administrative decision handed down by the General Inspectorate of Labour and Social Security, rendering the punitive action invalid; (4) on 6 June 1996 the Association of Banking Employees of Uruguay presented a complaint to this body concerning the administrative decision handed down by the Executive Power, maintaining that it contains errors both in its reasoning and its substance; and (5) furthermore, the AEBU concurrently lodged an action for annulment with the Administrative Court to obtain the annulment of the Executive Power's decision.
2. 461. The Government stresses that the Administrative Court is the highest jurisdiction for administrative matters, that it tries requests for the annulment of definitive administrative instruments, judging their lawfulness. When it hands down the final judgement it either confirms or annuls the contested instrument. If it hands down a decision for annulment, the instrument is extinguished automatically, the extinction applying retroactively, the scope of the extinction being examined on a case-by-case basis. In the case under consideration, the annulment process referred to is currently at the proof stage, the request having been responded to by the administration, meaning that several procedural stages still remain to be completed (the parties' allegations, the report of the State Attorney-General) before a final decision is reached. The Government states that it will inform the Committee on Freedom of Association at the appropriate time of the results of this judicial process.

C. The Committee's conclusions

1. 462. The Committee observes that the allegations in this case refer to acts of anti-union discrimination by Lloyds Bank against workers belonging to the Association of Banking Employees of Uruguay. More specifically, the complainant organization alleges that on 17 January 1991 it lodged a complaint with the General Inspectorate of Labour and Social Security of the Ministry of Labour concerning salary increases for non-union members, the appointment to executive posts only of workers not belonging to the union, and the granting of bonuses to workers who carried on working during a collective dispute.
2. 463. The Committee notes that in its reply the Government states as follows: (i) on 10 March 1994, following an investigation, the General Inspectorate of Labour and Social Security of the Ministry of Labour handed down an administrative decision in which it imposed a fine on Lloyds Bank for infringement of international labour Convention No. 98 as a result of anti-union conduct; (ii) the enterprise applied for an administrative remedy against the administrative decision of the General Inspectorate of Labour and Social Security; (iii) on 12 February 1996 the Executive Power revoked the administrative decision handed down by the General Inspectorate of Labour and Social Security penalizing the enterprise; (iv) on 6 June 1996 the Association of Banking Employees of Uruguay applied for an administrative remedy and an application for annulment with the judicial authorities (Administrative Court) against the administrative decision handed down by the Executive Power; and (v) the judicial process is at the proof stage, meaning that various procedural stages still remain to be completed before a final decision is reached.
3. 464. With respect to the allegation concerning a salary increase of 6 per cent for workers who were not affiliated to the union in 1985, the Committee notes that, as the complainant points out, and as the administrative decisions of the General Inspectorate of Labour and Social Security and of the Executive Power show, the increase did not become effective for union members initially. Although it was subsequently also granted to them, notably following collective action by the union, the Committee considers that union members clearly were prejudiced due to their trade union membership. In these conditions, the Committee, stressing that "no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 690), requests the Government to take steps to ensure that in future such discriminatory acts do not occur.
4. 465. Turning to the allegations relating to bonuses granted during a collective dispute to workers not belonging to the union, the Committee observes that on the one hand, the administrative decisions of the General Inspectorate of Labour and Social Security and of the legal advisory office provide as follows:
   • ...Thus, it is fully proven in these proceedings that the advantages referred to were granted exclusively to officials who were not members of the union and during a period of considerable conflict in the banking sector given that the renewal of the collective agreement was being negotiated;
   • and
   • If the measure is neither in the nature of a sanction, nor constitutes a reward for excellent work independently of trade union membership as maintained by Lloyds Bank in a line of argument that it has now abandoned, the question should be asked what its true purpose is. And that purpose can be no other than the one mentioned in the report of the legal advisory office ... to reward during periods of conflict, staff who do not support trade union measures. This impairs trade union activity leading to the discriminatory anti-union conduct constituting the complaint.
   • On the other hand, the Committee observes that the Executive Power's administrative decision revoking the decision of the General Inspectorate of Labour provides as follows:
   • ... It appears from the documentation available that the bonus was not granted to all non-union employees, but to a number representing less than 30 per cent of non-union employees, meaning that this award of bonuses cannot be deemed an act of discrimination against union members. Bonuses are not a form of compulsory remuneration but are sums of money that the employer, without being obliged to pay them, decides to grant to those officials he believes deserves them ... .
5. 466. In this connection, notwithstanding the Executive Power's statement in its administrative decision that the bonuses were not granted to all workers who were non-union members, the Committee observes that no trade union member received a bonus and that the bonuses were granted during a period of conflict related to the negotiation of a collective agreement. This being the case, the Committee considers that granting bonuses to non-union member staff - even if it is not to all non-union workers - and excluding workers who are union members from such bonuses during a period of collective conflict, constitutes an act of anti-union discrimination contrary to Convention No. 98. The Committee therefore requests the Government to take the necessary measures to ensure against the repetition of such acts.
6. 467. Concerning the allegation relating to the appointment of non-union workers to executive posts, the Committee observes that the administrative decisions of the General Inspectorate of Labour and Social Security and of the legal advisory office provide that
   • ... The infringement of Convention No. 98 is proven in these proceedings in that it is evidently impossible for staff who are members of the banking union to be promoted to executive duties. It is not then a matter of making the employer responsible for proving his claims by producing generic and negative proof, but of carefully analysing the concrete elements of proof made available in these proceedings. Reference can therefore be made to testimonial declarations and documentary proof in support of the conclusion that the bank's promotion policy has been discriminatory vis-à-vis AEBU members ... Of the declarations made in the above-mentioned proceedings, emphasis is placed on those which relate to the personal experiences of members who received proposals of promotion on condition that they ceased their membership (Mr. Vietez and Mr. Tucuna) as well as those of current executives who were promoted once they had ceased their membership ... the declaration made by Mr. David Oscar Vietez takes on fundamental importance in clarifying the subject in question. He testifies having received from Mr. Máximo Domínguez the insinuation that if he ceased his membership of AEBU he had a chance of being appointed as an executive. This leads us to the conclusion that there was clear anti-union conduct which was repeated over time, mention being made in various testimonies of specific cases of workers who were promoted to managerial positions once they had ceased their membership.
   • The Executive Power's administrative decision revoking the decision of the General Inspectorate of Labour provides as follows:
   • Our judicial practice in the labour sphere distinguishes as a determining factor in the duties of executive and managerial officials, as distinct from other officials, their leading role in decision-making and in guiding the enterprise. This is why it is not possible to restrict the selection process for the enterprise's executive staff, which cannot be seen to be discriminatory. It has not been proven that the cessation of membership of officials was due to promotion to executive positions as, in the cases referred to in these proceedings, the promotion occurred a number of years after the cessation of membership, and thus a causal link cannot be established between the two events.
7. 468. The Committee observes that the conclusions of the administrative decisions of the General Inspectorate of Labour and Social Security and of the Executive Power differ. Given this situation, the Committee considers that it does not have sufficient information to determine whether it was for anti-union reasons that the executive posts were reserved only for workers who did not belong to the trade union organization. In these conditions, the Committee requests the Government to send it the text of the Administrative Court's decision as soon as it is handed down.
8. 469. Lastly, the Committee notes with concern that the alleged acts of discrimination in this case were reported to the administrative authorities in January 1991, that three years and two months later, in March 1994, the General Inspectorate of Labour and Social Security of the Ministry of Labour handed down an administrative decision imposing punitive action on the enterprise in question, that one year and 11 months after that, in March 1996, the Executive Power ruled on the applications for remedy made by the enterprise, revoking the administrative decision of the Labour Inspectorate, and that in June 1996 the complainant initiated administrative and judicial actions against the administrative decision of the Executive Power (according to the Government in its January 1997 reply the process is still at the proof stage). While noting that over six years have passed since the complaint was initially lodged through administrative channels, the Committee observes that in a recent case it examined relating to a complaint against the Government of Uruguay, it had already had occasion to regret the slowness of administrative inquiries into acts of discrimination and had requested the Government to take measures to ensure that in future investigations of this kind were completed rapidly (see 283rd Report, Case No. 1596 (Uruguay), paras. 371 and 374(b)). In light of the foregoing and recalling that "cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination (...) constitutes a denial of justice and therefore a denial of the trade union rights of the persons concerned" (see Digest, op. cit., para. 749), the Committee urges the Government to take the necessary measures to ensure that in future, in the event of complaints of acts of anti-union discrimination, the corresponding authorities immediately carry out an investigation and take the appropriate measures to remedy the proven acts of discrimination.