Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the Government’s reply to the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) referring to acts of violence by police against workers in the sugar and steel sectors who took part in demonstrations, and to arrests of trade unionists. With regard to incidents that took place in a sugar plant, the Committee notes that according to the Government, in May 2007 a number of workers in the Tebicuary area blocked the access roads to the sugar plant and played a leading part in violence that prompted the police to intervene to restore the peace, protect private property and ensure workers’ free access to the plant. According to the Government, negotiations at the initiative of the enterprise put an end to the dispute. As to the comments regarding the steel enterprise, the Committee notes the Government’s statement that trade unionists initiated a strike and used violence and weapons to prevent the workers from entering or leaving the enterprise, even blocking the way of an ambulance that was transporting a member of the anti-riot squad who was seriously hurt, which prompted the police authority to arrest three people; the strikers went to the police station to object the arrest and assaulted the police officers present and the latter reacted. The Committee also notes the ITUC’s comments of 26 August 2009 referring to these matters. Lastly, the Committee notes with regret that the Government has not sent its observations on the comments of 2005 by the International Confederation of Free Trade Unions (ICFTU) – presently known as ITUC – referring to numerous acts of violence, including the murder of trade unionists. The Committee emphasizes in this respect that in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. The Committee urges the Government to conduct such an inquiry.

The Committee reminds the Government that for many years it has been pointing out that the following provisions of the law are incompatible with the Convention:

–           the requirement of an unduly high number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

–           the prohibition on joining more than one union even if the worker has more than one part-time employment contract, whether at the level of the enterprise, industry, occupation or trade, or institution (section 293(c) of the Labour Code);

–           imposition of unduly demanding conditions of eligibility for office on the executive body of a trade union: the need to be an employee in the enterprise, industry, occupation or institution, whether active or on leave (section 298(a) of the Labour Code), to have reached the age of majority and to be an active member of the union (section 293(d) of the Labour Code);

–           the requirement for trade unions to respond to all requests from the labour authorities for consultations or reports (sections 290(f) and 304(c) of the Labour Code);

–           the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code);

–           the obligation to provide a minimum service in the event of a strike in public services that are essential to the community without any requirement to consult the employers’ and workers’ organizations concerned (section 362 of the Labour Code);

–           the referral of collective disputes to compulsory arbitration (sections 284–320 of the Code of Labour Procedure).

The Committee notes with interest that the Government has sent information on the drafting of a Bill to amend certain provisions of the Labour Code and Amending Act No. 496/94 which was submitted to the President of the Republic on 5 June 2009 for consideration. The Committee observes that various provisions have been amended to take account of the comments made by the Committee of Experts. Specifically: section 290(f), which limits the information the labour authorities may require to annual financial statements; section 293(c), allowing every worker to belong to several unions corresponding to the categories of work they perform; section 293(d) extending to non-active members of the union the possibility of standing for membership of the executive body; section 298(a), establishing that the general meeting shall decide as to the appointment to and removal from offices to be filled by workers who are employed in or are independent of the enterprise, industry or occupation, whether active or on leave; sections 358 and 376, extending the purposes of lawful strikes to economic and social protection interests as well as occupational ones.

Furthermore, the Committee is of the view that other amendments proposed in the Bill could be better drafted to bring them fully into line with the freedom of association, in particular:

–           the amendment proposed to section 292 reducing the minimum requirement for establishing a branch union from 300 to 100. Although this is a significant reduction, the Committee is of the view that a membership of 100 workers could be difficult to reach and that the number should therefore be reduced to 50. Likewise, the minimum number of workers needed for trade unions in the public sector should be reduced by one half;

–           the amendment to section 304(c), restricting the obligation to provide information and data “in the event of complaints raised by trade unionists”. The Committee is of the view that in order to avoid interference in trade union activities, there should be a requirement for a percentage of the membership (for example 10 per cent) in order to request administrative intervention;

–           the amendment to section 362 on minimum services introducing a final sentence that reads “The decision shall be notified to the organization of workers and employers to allow them to participate in the determination of the services and, in the event of disagreement, shall be referred to the competent authority.” In the Committee’s view, any disagreement in the determination of minimum services should be settled by an independent body – such as the judicial authority – that has the trust of all the parties.

The Committee further observes that the abovementioned Bill does not provide for any amendment of sections 284–320 of the Code of Labour Procedure regarding the referral of collective disputes to compulsory arbitration. The Committee points out that in an earlier observation it noted that according to the Government, these provisions had been tacitly repealed by article 97 of the Constitution of the Republic promulgated in 1992 which states that “the State shall facilitate conciliatory solutions to labour disputes and social dialogue. Arbitration shall be optional.” The Committee again asks the Government to take the necessary steps, in accordance with the Constitution and in order to avoid all confusion, expressly to repeal sections 284–320 of the Code of Labour Procedure.

The Committee hopes that in the near future it will be able to note progress in the legislation and asks the Government to provide information on any developments in this respect in its next report. Lastly, noting that the Government has requested technical assistance from the Office in addressing the matter of the abovementioned legislative amendments within the National Congress, the Committee expresses the hope that this will be forthcoming in the near future.