Informe provisional - Informe núm. 334, Junio 2004

1. 763. The complaint is contained in a communication from the InterUnion Workers’ Assembly-National Confederation of Workers (PIT-CNT) and the Confederation of Civil Service Trade Unions (COFE) dated June 2003. The Government sent its observations in a communication dated 30 December 2003.
2. 764. Uruguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 765. In its communication of June 2003, the InterUnion Workers’ Assembly-National Confederation of Workers (PIT-CNT) and the Confederation of Civil Service Trade Unions (COFE) allege that, with occasional exceptions, in the central administration, i.e. civil servants working for the departments of state, no form of collective bargaining exists to regulate working conditions. Furthermore, the authorities have in fact been negligent in addressing the unions’ demands, in the sense that the reforms of the organizational structures were not negotiated as they had implications for the profession and jobs, and that they ostensibly caused very serious changes to working conditions.
2. 766. As regards legislation, the only attempt at regulation has been section 739 of Act No. 16736 of 5 January 1996, which established a Permanent Committee on Labour Relations, within the purview of the Ministry of Labour and Social Security, for the central administration and the bodies included in article 220 of the Constitution of the Republic (judicial authority, court of auditors, administrative court, electoral court, autonomous bodies and decentralized services, these last with the exception of industrial and commercial organizations). This Permanent Committee was given the strict task of advising on matters concerning salaries, working conditions and other issues regulated by international labour Conventions.
3. 767. However, neither the composition of the committee (since it is not bipartite) nor its mandate - to play an advisory role - corresponded to the standards laid down in ILO Convention No. 154. The committee has not been established, nor has any kind of functioning been recorded. It has convened only on two occasions. Thus, the claims and expectations of the civil servants’ trade unions were not considered. These facts influenced the observations of the Committee of Experts on the Application of Conventions and Recommendations in its reports for 1998 (69th Session), 1999 (70th Session), 2000 (71st Session) and 2001 (72nd Session).
4. 768. The complainants state that, at present, there is a clear and growing tendency in the central administration to increase the precariousness of labour relations, as a result of labour stability being undermined, access to the civil service taking place through fixed-term contracts, trade union rights - and the freedoms and guarantees which support them - being violated, etc. This situation is the consequence of the unilateral imposition of working conditions in all areas imaginable and the absence of collective bargaining. The complainants cite several specific cases in this regard: (1) state reform programmes, under budgetary Act No. 16736 and its regulatory decrees, continuing the process of reforming budgetary and subsequent accounting standards which culminated in accounting Act No. 17556 of 18 September 2002 and its regulatory decree. According to the complainants, these standards have been used to introduce a regime of compulsory exclusion of civil servants from the administration and permanent civil servants are being replaced by civil servants with precarious contracts. In some cases, the authorities have declared their intention to force civil servants who are already in precarious situations to establish sole proprietorships; and (2) with regard to salaries, a further example of the various unilateral decisions which cannot be denied are Decrees No. 43/003 of 30 January 2003 "Advances on future salary increases for civil servants covered by the national budget and article 221 of the Constitution of the Republic" and No. 191/003 of 16 May 2003 "Pay adjustments for civil servants". According to the complainants, the first of these decrees implemented a salary increase through a loan contract taking the form of handing in "food vouchers" which, given its legal nature, is subject to the effect of future salary increases, and the second decree introduced a pay rise which contravened the regulations setting out the indices which must be taken into account for salary increases, as well as Convention No. 154 on collective bargaining.
5. 769. The complainants add that, on the few occasions when collective bargaining has taken place, the administration has later failed to comply with what was agreed. This is the case with the agreements made between the Federation of Public Health Civil Servants and the Ministry of Health on 30 November and 27 December 2000, pertaining to the regulation of integral assistance benefit and later regulated by Decree No. 346/002 of 3 September 2002 as regards extending these benefits to disabled persons.
6. 770. The complainants further state that, with regard to the enjoyment of trade union freedoms and immunity, situations have been recorded in which these were not recognized, in clear violation of the provisions of Convention No. 151. The most serious cases of this involve sums being discounted from the salaries of officials who participated in trade union activities. One of these was against an official of the Association of Civil Servants of the Ministry of Industry, Ms. Leonor Quefan, and ended in an action being brought before the administrative court, which found in favour of the worker; a second, involving an official of the Association of Civil Servants of the Radio Broadcasting Service, Ms. Anahí Oldán, is currently being contested. In addition, they allege that workers affiliated to the Association of Workers of the National Transport Directorate of the Ministry of Transport and Public Works resolved at an assembly to undertake industrial action; the decision was communicated to the authorities, who immediately afterwards began disciplinary proceedings against the said officials.
7. 771. Lastly, the complainants state that the State’s failure to recognize the right to collective bargaining creates a situation which is not only adverse in terms of current working conditions in the civil service, but has also caused alarming new outbreaks of repression with regard to the exercising of fundamental civil rights. In this context, they allege that, up to the date when the complaint was presented, it had been determined that around 100 civil servants from the electoral court had been subject to sanctions for the mere fact of having exercised their right to petition in relation to certain working conditions. The sanctions were the only response to their petition, with no right to previous defence. However, more serious still, when these sanctions were contested by means of the mechanisms laid down in the Constitution of the Republic, greater sanctions were applied.

B. The Government’s reply

1. 772. In its communication dated 30 December 2003, the Government first states that, in order to arrive at an approximation of the problem raised, it is necessary to define specifically the term "central administration". This refers to the executive authority with its various departments or secretariats of state. The existence of autonomous bodies and decentralized services linked to the executive authority via the various ministries should also be pointed out.
2. 773. The Government states that civil servants in general, and those within the central administration in particular, are governed by a statute (an organic body of constitutional, legal and regulatory standards) which regulates their rights, duties and obligations. Certain of these rights stand out, namely, those relating to job stability, promotion, remuneration and the administrative disciplinary procedure with guarantees of due process, without prejudicing the right to a subsequent review through legal channels. This statute which, let us reiterate, has had constitutional value since 1934, forms a solid guarantee for civil servants, as regards protecting administrative careers, as well as citizens’ rights and rights deriving from freedom of association and collective bargaining. One of the most characteristic features of the statute for civil servants in Uruguay, which also distinguishes them from private activity, governed by a relatively stable system, is the so-called security of tenure, which means that the State cannot terminate a civil servant’s contract except in cases of incompetence, negligence or criminal offences, following disciplinary action, with full guarantees of due process, and authorization from the Senate of the Republic. It is up to the President of the Republic, acting with the appropriate minister or ministers, or the relevant council of ministers, to dismiss public servants for incompetence, negligence or criminal offences, in all cases with the agreement of the chamber of senators.
3. 774. The Government points out that Uruguay has not been through a period of extensive privatization, and that instead, as a key part of its development strategy, it has begun a process of state reform aimed at reducing the State’s influence on the economy and providing better public services, thus to some extent overcoming the problem of State versus privatization. One of the instruments used in the process of state reform has been Act No. 16736 of 5 January 1996, which created the Executive Committee for State Reform (CEPRE), consisting of the Director of the Office of Planning and Budget, who chairs it, the Minister of Economy and Finance and the Director of the Office for the Civil Service. This committee is in charge of supervising the implementation of state reforms within the central administration, and also controlling the administrative restructuring proposed by the various ministries. At the same time, the above Act allowed the executive authority to enter into contracts with third parties to supply non-essential and support services, giving preference to companies formed by ex-civil servants or civil servants who are available because they have been granted extended leave of absence.
4. 775. With regard to the restructuring of the central administration, the executive authority approved Decree No. 186/96 dated 16 May 1996. State reform should focus on the major tasks within its mandate, reassigning to them the resources given to low productivity activities or the resources from activities which should not be directly funded by the State, such as workshops, printing, cleaning, maintenance, security, transport of persons and goods, buildings, medical certificates and canteens, among others, which can all be contracted to third parties. Decree No. 361/96 of 12 September 1996 regulates the systems for reinserting civil servants in jobs or companies, and the system of extended leave of absence for jobs and tasks contracted by the public administration. The doctrine has characterized this process as structural adjustment measures to restrict the activities carried out directly by the State, to rationalize existing services, to reduce the number of civil servants, and to introduce changes to the management and system of remuneration, with an active policy of transferring civil servants to the private sector, by means of reinsertion in jobs and companies. At the same time, efforts are made at trying to establish areas in which civil servants can participate, through their most representative organizations, in the Permanent Committee on Labour Relations. Therefore, the "compulsory exclusion" alleged by the complainants does not reflect reality, since there are various alternatives for civil servants, with appropriate guarantees, time periods and procedures.
5. 776. The Government adds that, more recently, it sanctioned Act No. 17556 of 18 September 2002 (accounting and budget execution balance for the 2001 accounting period), which continues the restructuring process for staff who fulfil roles in the public administration, reiterating the restrictions for designating staff for public service, creating incentives for civil servants to retire, modifying the payment system and creating a statute for staff with fixed-term contracts. In reality, this Act has not introduced the concept of fixed-term contracts, since they already existed. The Act represents another contribution, both for workers and for the State, to the rights and obligations of this type of contracting and, far from making the situation more precarious, in fact provides legal assurance and establishes in written form a series of rights such as social benefits, annual leave, sickness cover, unemployment insurance and severance pay.
6. 777. The Government reports that Uruguay’s enacted law has not limited freedom of association and has respected the autonomy and autarky of trade union organizations. The lack of heteronomous regulation of trade union organizations is perhaps one of the most characteristic aspects of Uruguayan labour law, and already incorporates a national legal conscience. By virtue of the national legal background and with the maximum guarantees, Uruguay’s civil servants have formed and developed various trade union structures (COFE, ADEOM, AEBU), which in turn form part of the trade union umbrella organization PIT-CNT. From 1990, these organizations began to make collective agreements at the level of industrial and commercial entities, as well as within government departments. Even though the organization in charge of social security - the Social Security Bank, incorporating social representatives - was at that time already developing collective bargaining quite smoothly, section 224 of Act No. 16462 of 11 January 1994, and interpretative Act No. 16560 of 19 August 1994, expressly authorized it to make collective agreements with staff, with the agreement of the Office of Planning and Budget, as well as to give advances, if it could not obtain the Office’s approval.
7. 778. Act No. 16736 of 5 January 1996 established the Permanent Committee on Labour Relations for the central administration and the bodies included in article 220 of the Constitution of the Republic, i.e. the judicial authority, the administrative court, autonomous bodies, and non-industrial and commercial decentralized services, with the task of advising on matters concerning salaries, terms and conditions of employment and other issues regulated by international labour Conventions. In this respect, it should be pointed out that the committee maintained intensive activity in the period following its creation, but recently no meetings have been held between the parties. However, it should be stressed that, any of the parties involved can, by express legal provision, call a meeting on the basis of its interests. In fact, none of the organizations have done this, which can be explained by the fact that, independently of any meetings called in this framework, labour relations in the public sector are developing in complete normality, among state civil servants who show the highest rates of union membership.
8. 779. The Government points out that, between 1995 and 1999, there was free and smooth collective bargaining both in public companies and government departments and that, whilst it may be true that no collective agreements were made in the central administration, it is no less true that, in various bodies within the central government, there were instances of bargaining which enabled trade unions to carry out the demands of the administration in their respective budgetary provisions. This was the case with the Uruguayan Teachers’ Federation (FUM), which pursued an intensive strategy of mobilization and participation, and was able to influence the transformation of the sector. Similarly, one could also cite the case of the Federation of Public Health Civil Servants (FFSP), which, during the aforementioned period, participated in the decision-making process concerning salary issues in its sector and influenced as a result both the five-year budget and the accounting Act.
9. 780. The Government explains that, in public companies, between 1995 and 1999 there were two spheres of bargaining: one centralized, in the Office of Planning and Budget, dealing with general matters, and the other decentralized in each of the companies. Centralized bargaining was never interrupted and in this sphere successive agreements were signed in the National Ports Administration (ANP), the telecommunications sector (ANTEL), state factories (UTE), the National Postal Administration (ANC), and the Social Security Bank (BPS), among others. As in public companies, in the public banking sector a centralized agreement was drawn up and signed in 1998 to cover the four official banks, intended as a framework for improving and homogenizing labour relations within the sector, bringing them into line with the national and regional socio-economic climate.
10. 781. In 2000 and 2001, the public sector maintained the same characteristics as in the preceding period. No agreements were registered in the central administration and ongoing bargaining took place in public companies and the public banking sector. At this level, it is interesting to point out the agreement signed by the National Administration of Fuels, Alcohol and Portland (ANCAP) in March 2000, which is a framework agreement that can be used in future as a basis for agreements in individual sections, modified to suit their own aims and objectives.
11. 782. According to the Government, the above clearly demonstrates that collective bargaining exists in the public sector and, in a regional and international context which is extremely complex and restrictive from the point of view of economic resources, has allowed society to coordinate the legitimate interests of civil servants with those of society in general, since it is society that supplies the resources to finance the budget, as well as being the end-user of the services provided by the State.
12. 783. In short, the Government repeats that there has been no change to the facilities offered by the Ministry of Labour and Social Security to parties wishing to bargain collectively, and that such bargaining is carried out without any kind of restriction. No laws have been repealed, nor have any international labour Conventions been denounced which would allow one to conclude that the country’s legislation has disintegrated towards deregulation of working conditions or precarious employment.
13. 784. The Government underlines, in relation to COFE’s observations on the state reform provisions contained in Acts Nos. 16736 and 17556, that the application of these provisions has not led to compulsory exclusion of civil servants, nor is there any tendency for relations to become more precarious but, on the contrary, there has been a gain in security of law, with express recognition of labour and social security rights.
14. 785. With regard to salaries, the Government states, in relation to Decree No. 43/003 of 30 January 2003, that it authorized the dependants of the bodies included in the national budget and article 221 of the Constitution of the Republic to obtain loans in respect of future salary increases, to be financed by the division of social credit of the Bank of the Oriental Republic of Uruguay which, by Decree No. 501/003 of 5 December 2003, stated that the advances in respect of future salary increases provided for in the Government’s Decree "will be offset against general profits in the case of the bodies included in the national budget and debited from each of the relevant budgets".
15. 786. As regards the alleged non-fulfilment of collective agreements on the part of the central administration, the Government states that civil servants, whether individually or collectively, have at their disposal the legal protection mechanisms provided under the rule of law. This can be illustrated by the case of civil servants in the Ministry of Public Health and the agreement recently concluded with the organization representing medical and non-medical staff.
16. 787. In relation to the cases of Ms. Leonor Quefan, a civil servant in the Ministry of Industry and Energy, and Ms. Anahí Oldán, a civil servant in the Official Service for Broadcasting, Radio, Television and Public Performances (SODRE), as well as in connection with the situation of the workers affiliated to the Association of Workers of the National Transport Directorate of the Ministry of Transport and Public Works, the Government states that it has requested information on these state dependencies, which it will submit shortly. Without prejudice to the foregoing, the Government states that civil servants enjoy the highest guarantees, both in the administrative sphere and the legal channels, which are absolutely independent of any kind of influence from the administrative authority.
17. 788. Lastly, with reference to COFE’s allegations regarding civil servants in the electoral court, the Government states that the problem raised in no way relates to matters of freedom of association in its broadest sense and therefore falls beyond the natural remit of the Committee (the Government states that the issue in question is the right to petition as exercised by a group of non-affiliated civil servants requesting the revocation of a circular regulating the right to recourse to referendum on national legislation). This controversy has been brought before the administrative court in order to resolve the matter.

C. The Committee’s conclusions

1. 789. The Committee observes that, in the present case, the complainants allege that: (i) there is almost no collective bargaining for the regulation of the terms and conditions of employment in the central public administration (the complainants state that, when a collective agreement is eventually concluded, the administration does not honour it and that the Permanent Committee on Labour Relations for the Central Administration, created in 1996 to advise on matters concerning salaries, working conditions and other issues relating to international labour Conventions, has only been convened on two occasions); (ii) the Government, through acts and decrees, unilaterally imposes working conditions which affect civil servants (on matters relating to reinsertion in jobs, reducing the number of activities carried out directly by the State, reducing the number of civil servants, staff restructuring, fixed-term contracting, etc.); and (iii) acts of anti-union discrimination have been committed against union officials and civil servants for having participated in legitimate union activities (specifically, the complainants allege that: (1) union officials Ms. Leonor Quefan and Ms. Anahí Oldán suffered salary reductions; (2) disciplinary measures were taken against workers affiliated to the Association of Workers of the National Transport Directorate of the Ministry of Transport and Public Works after its assembly had resolved to carry out industrial action; and (3) sanctions were imposed on civil servants at the electoral court for having exercised the right to petition in relation to certain conditions of work).
2. 790. With regard to the alleged lack of collective bargaining in the central administration, the Committee notes the Government’s statements that: (1) civil servants in general, and those within the central administration in particular, are governed by a statute which regulates their rights, duties and obligations; (2) from 1990, these organizations began to make collective agreements at the level of industrial and commercial entities, as well as within government departments; (3) the Permanent Committee on Labour Relations for the Central Administration maintained intensive activity in the period following its creation but has not been convened recently by any party; (4) whilst it may be true that no collective agreements were made in the central administration, in various bodies within the central government there were instances of bargaining which enabled trade unions to make demands which were taken up by the administration in their respective budgetary provisions; (5) in 2000 and 2001 there was ongoing bargaining in public companies and the public banking sector and no agreements were registered in the central administration; and (6) collective bargaining exists in the public sector and there has been no change to the facilities offered by the Government to parties wishing to bargain collectively.
3. 791. In this respect, the Committee observes that, at its meeting in June 2003, it examined a complaint presented against the Government of Uruguay which also alleged that there was an absence of collective negotiation in the central administration [see 331st Report, Case No. 2209]. In these conditions, the Committee refers to the conclusions reached on that occasion which are repeated below [see 331st Report, para. 733]:
4. ... the Committee recalls that Article 1 of the Collective Bargaining Convention, 1981 (No. 154), ratified by Uruguay in 1989, provides that it "applies to all branches of economic activity" and that "as regards the public service, special modalities of application of this Convention may be fixed by national laws or regulations or national practice", and Article 2 provides that "the term collective bargaining extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more workers’ organizations, on the other, for determining working conditions and terms of employment". In these circumstances, the Committee requests the Government to take the necessary measures to ensure full application of Convention No. 154 and promote collective bargaining also in the central public administration through appropriate mechanisms, in consultation with the trade union organizations concerned.
5. 792. With regard to the allegations relating to the unilateral imposition by the Government of terms and conditions of employment which affect civil servants through the promulgation of laws or decrees, the Committee notes that the Government refers to the necessity, the content and the impact of the laws and decrees which it promulgated as part of the process of state reform. In this respect, as the allegations are serious, the Committee underlines that, although the measures which countries adopt as part of the process of state reform pertain essentially to the competence of the public authority, insofar as such measures may affect the terms and conditions of employment of civil servants or public sector workers (as seems to be the case with the laws and decrees cited by the complainants) their organizations should be consulted before such legislation is adopted. The Committee urges the Government to promote consultations with the organizations concerned in cases of this nature. Finally, the Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service. It is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 793 and 931].
6. 793. As regards the alleged non-fulfilment of agreements made between the Federation of Public Health Civil Servants and the Ministry of Public Health on 30 November and 27 December 2000, the Committee notes the Government’s statement that the parties involved concluded a new agreement on 12 September 2003 (the Government has attached a copy of this agreement to its reply).
7. 794. With regard to the alleged acts of anti-union discrimination relating to the salary reductions imposed on union officials Ms. Leonor Quefan and Ms. Anahí Oldán, and the disciplinary measures taken against workers affiliated to the Association of Workers of the National Transport Directorate of the Ministry of Transport and Public Works after its assembly had resolved to undertake industrial action, the Committee notes the Government’s statement that it has requested information on these state dependencies, which it will submit shortly, and that civil servants enjoy the highest guarantees, in terms of both the administrative sphere and legal channels. In this respect, observing that the allegations refer to events which occurred in the central public administration more than eight months ago, the Committee regrets the absence of observations from the Government and requests it to send its observations in this respect as soon as possible.
8. 795. As regards the alleged imposition of sanctions on civil servants at the electoral court for having exercised the right to petition in relation to certain working conditions, the Committee notes the Government’s statement that the issue in question is the right to petition as exercised by a group of non-affiliated civil servants and that the problem raised in no way relates to matters of freedom of association (the matter is a request for the revocation of a circular regulating the right to recourse to referendum on national legislation). The Committee also notes the Government’s response that the matter has been brought before an administrative court for resolution. Bearing in mind this explanation, the Committee will not proceed with the examination of these allegations.