Informe provisional - Informe núm. 328, Junio 2002

1. 606. The Committee last examined this case at its June 2001 meeting, at which time it submitted an interim report [see 325th Report, paras. 561-575, approved by the Governing Body at its 281st Session (June 2001)]. The Government sent its observations in communications dated 23 August 2001 and 16 January 2002.
2. 607. 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. 608. When it last examined this case, the Committee presented the following recommendations [see 325th Report, para. 575]:
   • Noting that the Government states that an administrative investigation is under way, initiated following a complaint lodged by the Association of Bank Employees of Uruguay (AEBU) against the Savings and Loans Cooperative of Officials of the Armed Forces (CAOFA) for anti-union acts, the Committee requests the Government to:
     • - take measures so that this investigation, started more than one year ago, is quickly concluded;
     • - ensure that the investigation covers all the allegations made by the complainant in this case;
     • - take measures, if during this investigation the allegations are found to be true, so that: (i) workers dismissed on trade union grounds or transferred are reinstated immediately in their jobs, with the payment of back wages; and (ii) in the future, the respect of established collective agreements is fully guaranteed at CAOFA as well as that of legal provisions against acts of anti-union discrimination; and
     • - transmit information on the results of the investigation and any measures adopted.

B. The Government’s reply

1. 609. In communications dated 23 August 2001 and 16 January 2002, the Government stated that the following stages of the administrative investigation had been reached:
   • (a) statements in their defence have been received from the Savings and Loans Cooperative for Officials of the Armed Forces (CAOFA), in which they deny having taken and implemented any decisions on the grounds of anti-union discrimination, and that these decisions were a result of a process of restructuring and rescuing the enterprise from the economic and financial situation in which it had been left by the outgoing executive committee. As proof of this they state that there is a penal denunciation under way against the outgoing executive committee for alleged fraudulent management, and that there is a request before a commercial court to negotiate a legal arrangement with creditors to avoid bankruptcy;
   • (b) on 8 November 2000, the General Inspectorate of Labour and Social Security (the division responsible for investigating the complaint) considered the hearing of the enterprise concluded and ordered the taking of evidence from the parties, consisting of testimony from the plaintiff and the results to date of the legal proceedings from the defendant. At the same time, it set the date of 20 November 2000, 1 p.m., for receiving the testimonial evidence mentioned above, and reminded the plaintiff organization that it was responsible for producing the chosen witnesses;
   • (c) the plaintiff, the enterprise and the civil servants’ association of the CAOFA were notified of this date, and on 16 November official communications were sent to the two courts, requesting them to send copies of the relevant proceedings taking place before them;
   • (d) on 20 November 2000 the testimonial evidence was not heard as neither the parties summoned nor the witnesses appeared in court;
   • (e) since then, the file has remained at the disposition of the parties, but not one has shown any active interest in following this up. At the end of June 2001, given the seriousness of the complaints and acting under Decree No. 500/991 of the executive authority governing the administrative proceedings of the central administration, the Inspector-General of Labour and Social Security officially decided to continue the hearing of testimonial evidence submitted by the parties. To this effect, it was decided to hold a new hearing to receive testimonial evidence and the parties were so notified; this hearing has not yet taken place.
2. 610. Consequently, the Government indicates that the administrative investigation had not been concluded as a result of a lack of action on the part of the parties concerned and that the Government had had to act officially in order to ensure that the facts came to light and that they could be considered from a legal point of view. In this respect, the Government states that it still does not have sufficient evidence to pronounce on the case as, to date, it only has the evidence on file, which is documentary, and which needs to be compared to the evidence presented by the parties in the denunciation and the reply. Furthermore, the Government notes the Committee’s recommendation that the investigation should cover all the allegations made by the complainant in this case, and it confirms that it will apprise the Committee of the outcome.
3. 611. With regard to the accuracy of the allegations, the Government states that, in view of the difference in the statements made by the parties and the fact that the proceedings are in the preliminary stages, it is in no position to take any specific measures in this case. Without prejudice to this, the Government repeats that which has already been stated with regard to other complaints laid before the Committee on Freedom of Association against the Government of Uruguay, inasmuch as the reinstatement of a worker who has been dismissed on trade union grounds is not provided for in national legislation and has been expressly rejected by the labour courts. The fact that a worker has been dismissed on such grounds, and that this dismissal is illegal, in accordance with legislation and jurisprudence, leads to the imposition of a fine that may be accompanied by a legal penalty to pay compensation, but it does not provide for specific execution in the form of reinstatement of the worker in the private enterprise.
4. 612. Finally, the Government states that the measures used to guarantee respect of collective agreements, in accordance with national legislation, are preventive, dissuasive and punitive: (a) a collective agreement must be registered with the National Directorate of Labour, which endorses its date of establishment and publicizes it; (b) the General Inspectorate of Labour and Social Security has the authority to impose fines on those enterprises not respecting the agreements, relative to the seriousness of the omissions or violations and the numbers of workers in the enterprise affected by these violations; and (c) a record is established of previous violations and penalties with regard to each enterprise in order to ensure that steeper fines are imposed on those enterprises that continue to violate the collective agreements. These measures take place without prejudice to other types of remedy that may be imposed by the independent legal system and that the Government lack, such as protective measures and proceedings or appeals for protection of constitutional rights (amparo). The Government states that as soon as the investigation is concluded, it will inform the Committee of the outcome and the measures to be taken.

C. The Committee’s conclusions

1. 613. The Committee recalls that in this present case, the complainant organization had alleged: (i) that the Savings and Loans Cooperative for Officials of the Armed Forces (CAOFA) denounced the collective agreement in force once it became aware of the intentions of union leaders of the cooperative to become affiliated to the Association of Bank Employees of Uruguay (AEBU); (ii) the dismissal of members of this trade union (Nelson Corbo, Eduardo Cevallos, Gonzalo Ribas, Andrea Oyharbide, Gerardo Olivieri and Marcelo Almadia) and the transfer of another member (Virginia Orrego); and (iii) that workers joining the AEBU were threatened with dismissal. Moreover, the Committee recalls that at its June 2001 meeting, it requested the Government to take steps to ensure that the investigation, which was begun more than one year ago, was concluded quickly, that it covered all the allegations made by the complainant and that if those allegations were found to be true that those workers who had been dismissed or transferred for trade union reasons were reinstated in their positions with payment of back wages and that respect of established collective agreements was fully guaranteed at CAOFA.
2. 614. The Committee notes that the Government: (1) provides details on the different stages of the administrative investigation; (2) states that the parties to the proceedings showed no interest in this moving forward and that the Government, in June 2001, decided officially to continue to receive testimonial evidence and fixed a hearing for this, which had not yet taken place; (3) states that the administrative investigation had not been concluded owing to inaction by the parties and that there was a lack of sufficient evidence to pronounce on the case as the only evidence available (documentary evidence) needed to be compared with the testimonial evidence submitted by the parties in the denunciation and reply; (4) indicates that it has noted the Committee’s recommendation that the investigation should cover all the allegations made by the complainant; and (5) states that regarding the accuracy of the allegations, in view of the difference between the parties’ statements and the fact that the proceedings are still in the preliminary stages, it is not in a position to take any measures in this regard.
3. 615. In this regard, the Committee regrets that, in spite of two years having passed since the date of the dismissals and the other acts of anti-union discrimination (January 2000) and two years since the beginning of the administrative investigation (March 2000), the facts have still not yet been ascertained. In these circumstances, the Committee strongly urges the Government to: (1) take measures to ensure that the administrative investigation under way is immediately concluded; (2) ensure that the investigation covers all the allegations made by the complainant in this case; and (3) transmit information on the results obtained in this respect. Finally, noting that the Government states that reinstatement of those workers dismissed for anti-union reasons is not laid down in national legislation and has been expressly refused by the labour courts when such measures had been requested, the Committee requests the Government that, if it finds that these dismissals and transfers have occurred for anti-union reasons, it apply the sanctions laid down in national legislation, referred to in its reply (a fine and the imposition of a legal penalty to pay special compensation), and that it mediate between the parties in order to obtain the reinstatement of those workers affected. The Committee brings the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.