Rapport définitif - Rapport No. 73, 1964

1. 43. The present case has already been examined by the Committee at its 32nd Session (October 1962), when it was decided to ask the Government for additional information on several aspects of the complaint. This was presented by the Uruguayan Federation of Salaried Employees in Commerce and Industry and set forth in a communication from that organisation dated 14 April 1961, supplemented by another of 26 May 1961. The Government of Uruguay sent its observations by letter dated 21 May 1962 and gave the requested additional information in a letter of 7 May 1963.
2. 44. At its 34th Session (May 1963) the Committee decided to defer consideration of the case until the autumn session because the additional information sent by the Government had arrived too late to be able to be examined in May.
3. 45. Uruguay has ratified both 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. A. The complainants' allegations

1. 46. The complaint presented by the Uruguayan Federation of Salaried Employees in Commerce and Industry comprises five sets of allegations : the first concerns government interference in the appointment of members of wages councils; the second refers to government interference in the holding of a ballot to determine whether a strike should be continued or called off; the third to collective bargaining without consultation of the most representative trade unions and in spite of their categorical opposition; the fourth to the absence of measures to protect the workers against dismissal for anti-union reasons; and the fifth to a Bill to introduce regulations governing trade unions. Each set of allegations is discussed separately below.
   • Allegations relating to Government Interference in the Appointment of Workers' Representatives on Wages Councils
2. 47. The complainants alleged that under the Decision of 10 September 1960 the representatives of the textile workers on the Wages Council for that industry, who had been appointed in accordance with the relevant national legislation and enjoyed the support of the organisation representing the workers concerned, were replaced by persons who enjoyed the trust of the public authorities but were not members of the industry in question and were consequently repudiated by the union directly concerned and all the other workers' organisations.
3. 48. In its reply dated 21 May 1962 the Government stated that the workers' representatives were replaced because the situation had arisen for which provision is made in section 14 of the Act of 12 November 1943, namely:
   • The decisions of the wages councils shall be adopted by a simple majority, but no vote in respect of wages may be taken without such vote being placed on the agenda and without notice thereof being given at least 48 hours beforehand Provided that a vote may be taken without the foregoing conditions being complied with if it is unanimously so decided. For a vote to be valid all three sectors must be represented by delegates.
   • In cases where the absence from three sittings of one or more delegates renders it impossible for valid decisions to be taken, any member shall be empowered to request the Ministry of Industries and Labour that substitutes be co-opted to the Council, in accordance with the established procedure.
   • The Government added that the replacement was consequently effected in accordance with the procedure laid down by law, and that though there exists a right to appeal against administrative decisions (article 309 of the Constitution) to a body completely independent from the political authorities (the Administrative Disputes Tribunal), which has jurisdictional powers and enjoys the utmost confidence of all sectors of public opinion, no appeal had been made to the aforementioned body against the administrative act in question. The Government further stated that national practice had always held that in cases where delegates had to be appointed by the authorities the persons chosen should not be members of the industry involved; that this was how the Executive Power had always understood it; and that the signatory to the complaint himself, Mr. José d'Elia, had also shared this view, even though he now took the opposite stand. As proof it attached a copy of the Official Gazette dated 20 February 1954, in which it is stated that Mr. José d'Elia was appointed by the authorities to be workers' representative in the plastics industry, in which he had never worked.
4. 49. The Committee observed that, while the complainants contended that the person appointed as workers' representative on the Wages Council came from outside the industry in question-the textile industry in this instance-the Government declared that it had followed the procedure laid down by law for cases of repeated absence of titular members, and that according to national practice representatives appointed by the authorities should not be members of the industry involved, this view having been shared by the signatory to the complaint himself when he agreed on an earlier occasion to his appointment by the authorities as workers' representative on the wages council of an industry in which he had never worked.
5. 50. The Committee observed that section 6 of Act No. 10449 of 12 November 1943 establishing the wages councils stipulates that candidates for election as representatives must be drawn from a list of " salaried and wage-earning employees in the industry or trade or belonging to trade union bodies.".
6. 51. The Committee considered, moreover, that the fact that one of the complainants had at one time shared the Government's viewpoint and accepted appointment as workers' representative on a wages council for an industry in which he had never worked, did not preclude him from adopting a condemnatory attitude now, in a similar case.
7. 52. The Committee felt that the appointment by the authorities, to replace the workers' delegate, of a person from outside the industry concerned appeared to run counter to section 6, quoted above, in which it is stated that the representation of the workers in a given industry on the wages council for that industry should be entrusted to workers in that industry and no other.
8. 53. Before going further into this aspect of the case the Committee decided to ask the Government to give the reasons why members of wages councils appointed by the authorities should be persons from outside the industry concerned and not members of it as stipulated by section 6 of the above-mentioned Act when referring to the election of workers' representatives on wages councils.
9. 54. In its reply of 7 May 1963 the Government states that opinions are divided as regards the conditions which members of wages councils appointed by the authorities are required to fulfil; whereas the chair of labour law in the Faculty of Law, the Executive Power and trade union leaders consider that such members do not have to fulfil the conditions required by law in respect of members nominated by the occupational associations (inter alia, the requirement of belonging to the industry or occupation concerned), a second school of thought-including the Office of the Legal Adviser to the Ministry of Industries and Labour-considers that members appointed by the authorities should fulfil all the said conditions; but neither statute nor doctrine justifies the statement that persons outside the industry or occupation necessarily must be appointed.
10. 55. The Committee observes that there does not appear to be a clear doctrine as to the conditions which must be fulfilled by persons appointed by the authorities to complete the membership of the wages councils and notes the Government's view that neither statute nor doctrine justifies the statement that persons outside the industry or occupation must be appointed. The Committee observes that in Uruguay wages are determined in general by a network of wages councils, the function of which is to fix minimum wages.
11. 56. Uruguay has ratified the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26). Under Article 3, paragraph 2, of that Convention " the employers and workers concerned shall be associated in the operation of the machinery, in such manner and to such extent, but in any case in equal numbers and on equal terms, as may be determined by national laws or regulations ". The principle that it should be " the employers and workers concerned " who should take part in the deliberations and decisions of the wage-fixing body is also set forth in the Minimum Wage-Fixing Machinery Recommendation, 1928 (No. 30).
12. 57. The above principle is embodied in Uruguayan legislation by Act No. 10449 of 1943. However, as regards the appointment of members of wages councils by the authorities, the legal position seems to be doubtful. In these circumstances and having regard to the fact that Convention No. 26 provides for the association of employers and workers "in such manner and to such extent, but in any case in equal numbers and on equal terms, as may be determined by national laws and regulations ", the Committee recommends the Governing Body to suggest to the Government that it, might care to consider providing that, in the exceptional event of neither the titular t nor the deputy workers' or employers' representative on a wages council discharging his functions, the member appointed by the authorities shall normally be a person belonging to the industry or occupation concerned.
    • Allegations relating to Government Interference in the Holding of a Ballot to Determine whether a Strike Should Be Continued or Called Off
13. 58. The complainants alleged that a Decision of 2 March 1961 gave effect to a proposal, originating with an unidentified group of workers in the undertaking concerned and supported by the management, that a ballot be held to determine the desires of the workers with regard to the continuance or calling off of a strike. They added that steps of this kind had been taken without consultation of the most representative organisation and notwithstanding its clear opposition.
14. 59. The Government stated in its first reply that there is no statutory provision forbidding the holding of a ballot-at the request of the workers concerned-to decide whether to end or continue a strike, subject to the guarantees that the ballot be secret and that only workers take part to the exclusion of all outside parties whose interest in the continuance or ending of the strike might be motivated by other than plainly occupational reasons. The Government found it remarkable that an organisation of workers should consider it an act of interference " for the Executive Power to collaborate with a view to the settlement of occupational problems free from coercion " through the guarantee of a secret ballot among those concerned alone with no interference from outside parties who might have ulterior motives. The Government added in conclusion that in this case also no appeal had been made to the Administrative Disputes Tribunal.
15. 60. The Committee observed that, while the complainants alleged interference by the Government in the holding of a ballot to determine whether a strike should be continued or called off, the Government, on its side, found it remarkable than an organisation of workers should consider it an act of interference for the Executive Power to collaborate with a view to the settlement of occupational problems, and felt that before proceeding further with its examination of this aspect of the case it would wish the Government to specify the circumstances which led to the collaboration of the Executive Power and the exact form which this collaboration took.
16. 61. In its letter of 7 May 1963 the Government transmits the text of the decision ordering a ballot to be held among the personnel of the undertaking affected by the strike. This states that the ballot was requested by a group of employees of the company concerned and that, provided exercise of the Constitutional right to strike is not thereby restricted, there is no reason why the Government should not accede to their request. Accordingly the Wages Councils Elections Tribunal was entrusted with organisation of the ballot.
17. 62. The Committee has dealt on many occasions with cases in which denial of the right to strike was alleged, and has followed the principle that it is competent in such matters in so far, but only in so far, as the prohibition affects the exercise of trade union rights. The Committee observes that in the present case there has been no prohibition of a strike. The Government expressly states that, in consequence of the Constitutional provisions which are in force, it is itself unable to adopt measures which would restrict the right to strike, from which it would seem to appear also that the exercise of this right cannot be prohibited by the Government when the results of the ballot are known. The Committee also observed that the organisation of the ballot was entrusted to a permanent, independent body and that the workers enjoyed the safeguard of a secret ballot.
18. 63. The Committee recommends the Governing Body to note the Government's statement that the Constitution does not empower it to restrict the exercise of the right to strike, but to emphasise the desirability, in situations such as that which arose in the present case, of consulting representative organisations with a view to ensuring freedom from any influence or pressure by the authorities which might affect the exercise of this right in practice.
    • Allegations relating to Collective Bargaining Without Consultation of the Most Representative Trade Unions and in Spite of Their Categorical Opposition
19. 64. The complainants alleged that under a Decree dated 24 January 1961 it is permitted to register multilateral agreements between undertakings and sections of their employees without consultation of the most representative trade unions and in spite of their categorical opposition.
20. 65. The Government first replied that in Uruguay it has always been understood that collective agreements may be concluded not only between members of organisations but also between undertakings and their employees, and that this is the understanding in national legislation, in Bills now under discussion and in the draft Labour Code, which has been signed without dissent by the legal adviser to the Uruguayan Federation of Salaried Employees in Commerce and Industry.
21. 66. The Committee observed that section 1 of the Decree of 24 January 1961 stipulates that " where no collective agreement has been registered by the most representative trade unions, the National Labour Institute is empowered to register agreements between undertakings and their personnel provided they are concluded by the management of the undertaking concerned and at least 70 per cent of its employees ". The Committee decided to ask the Government for additional information on this aspect of the case.
22. 67. In its reply of 7 May 1963 the Government states that a collective agreement may be concluded between an undertaking and 70 per cent of its personnel even though an agreement between organisations is being negotiated at the time or it is intended to negotiate one; the personnel of an undertaking cannot be expected, the Government argues, to abstain from reaching an agreement on the leave system which suits it best merely because of a negotiation or intention which is by no means certain to bear fruit.
23. 68. The Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which Uruguay has ratified, calls (in Article 4) for measures "to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment...". The Collective Agreements Recommendation, 1951 (No. 91), Paragraph 2 (1), defines a collective agreement as an agreement concluded between " an employer, a group of employers or one or more employers' organisations " and " one or more representative workers' organisations or, in the absence of such organisations, the representatives of the workers.".
24. 69. The Committee observes that the above-mentioned international instruments stress the role of workers' organisations as one of the parties in collective bargaining; they refer to representatives of unorganised workers only when there is no organisation. In these circumstances the Committee considers that direct negotiation between the undertaking and its employees, by-passing representative organisations where these exist, may be detrimental to the principle that negotiation between employers and organisations of workers should be encouraged and promoted.
25. 70. The Committee therefore recommends the Governing Body to draw the attention of the Government to the desirability of considering the possibility of taking steps to give full effect in the legislation to the aforesaid principle of collective bargaining with workers' representative organisations which is enunciated in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Agreements Recommendation, 1951 (No. 91).
    • Allegations relating to the Absence of Measures to Protect the Workers against Dismissal for Anti-Union Reasons
26. 71. The complainants alleged that the Government had consistently failed to take adequate steps to protect the workers against dismissal from undertakings in an obviously discriminatory manner intended to encroach on freedom of association. They added that the victims of such measures had included officials of the complaining organisation, and that each such matter was brought to the notice of the authorities in due time.
27. 72. The Government stated in its first reply that obviously the Executive Power should confine its activities to ensuring compliance with the law, that any disputes which occur should be settled in accordance with legal procedure, and that only a person unacquainted with the principles governing a law-abiding State could claim that the Executive Power is invading the field of competence of the Judicial Power.
28. 73. The Committee recalled that under Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Uruguay, workers must enjoy adequate protection against acts of anti-union discrimination in respect of their employment. The same Article further specifies that such protection shall apply more particularly in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities. The Committee noted that some of the alleged acts are of the very type that Convention No. 98 seeks to prevent. In view of the importance which the Committee has always attached to faithful observance of the principles embodied in this Convention, and bearing in mind that Article 3 of the Convention provides that machinery appropriate to national conditions shall be established where necessary for the purpose of ensuring respect for the right to organise, the Committee felt that in order to be able to reach a final decision on this particular allegation in full awareness of the facts it should be informed as to what statutory or other provisions exist for the protection of the workers of Uruguay against any act calculated to cause their dismissal or otherwise prejudice them by reason of union membership, and also as to whether there is machinery to ensure respect for the right to organise.
29. 74. In its reply of 7 May 1963 the Government states that as regards the protection of trade union officers against dismissal, although there is no statute ensuring the employment security of such persons, the rules laid down in Convention No. 98 are applied and Act No. 12030 provides for sanctions in case of infringement.
30. 75. Article 1 of Convention No. 98 provides that "workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment ". In this connection the Government points out that any infringement of the provisions of the Convention is punishable under domestic law and that any disputes which occur should be handled in accordance with legal procedure. But Article 3 of the Convention provides further that " machinery appropriate to national conditions shall be established, where necessary " to ensure respect for the right to organise. As the Committee of Experts on the Application of Conventions and Recommendations pointed out in its conclusions in 1959 " it may be difficult, if not impossible, for a worker to furnish proof " regarding an act of anti-union discrimination against himself, for which reason, the experts stated, in certain countries, " legislation affords special and more extensive protection to leaders of trade unions ". It is in such a contingency that the implementation of Article 3 of the Convention is of special importance.
31. 76. In these circumstances, since acts of discrimination against workers, including trade union officers, appear to have been committed-a fact which the Government does not deny-and having regard to the consideration set forth in the preceding paragraph, the Committee recommends the Governing Body to suggest to the Government that it may care to examine the problem of anti-union discrimination in Uruguay and to take special concrete action which will afford adequate protection to workers, as appropriate to national conditions, in accordance with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
    • Allegations relating to a Bill to Introduce Regulations Governing Trade Unions
32. 77. The complainants alleged that the Government intends to approve a Bill dated 15 February 1960 under which-(a) trade unions would be required to obtain previous authorisation to carry on activity; (b) restrictions would be imposed on trade unions with regard to the right to draw up their statutes; (c) the public authorities would be empowered to make the granting of legal personality to occupational organisations subject to certain conditions; and (d) restrictions would be placed on the right to form federations and Confederations. In addition, the complainants argued that the Bill fails to give the workers and their organisations any safeguard against what are described in Convention No. 98 as " acts of interference "; that it allows-and even authorises-organisations under the domination of employers to enter into collective agreements; and that it makes the exercise of fundamental trade union rights, such as the right to strike, subject to the completion of formalities in which the representative trade union organisations have no part and over which they have no control. By their communication of 26 May 1961 the complainants sent a copy of the Bill and additional information concerning it.
33. 78. In its first reply the Government said it was remarkable that the complaining organisation should raise this question when it was common knowledge that the Bill had not yet come before Parliament; notwithstanding this, the Ministry of Industries and Labour held the view that the framing of regulations governing trade union activities is a task which irrevocably falls upon the government in a law-abiding State.
34. 79. In a number of cases the Committee has had to decide how far it should go in expressing an opinion on proposed legislation. While in some cases the Committee has recommended the dismissal of allegations in this regard on the grounds either that the allegations were too vague or that the Bill in question had not been sponsored by the government, it has nevertheless remarked that in the face of precise and detailed allegations concerning a proposed enactment the fact that the allegations relate to a text which does not have the force of law should not of itself prevent the Committee from expressing its opinion on the merits of the allegations made. It has expressed the opinion that in such circumstances it is desirable that the government and the complainants should be made aware of the Committee's point of view with regard to a proposed Bill before this is enacted, in view of the fact that it is open to the government, on whose initiative such a matter depends, to make any amendments which may seem desirable.
35. 80. Although in the present case the Government stated that the Bill has not yet come before Parliament, the Committee was not absolutely clear as to whether it had been completely dropped. In these circumstances the Committee felt that before going; further into this aspect of the case it should ask the Government whether there is any likelihood that the Bill in question will come before Parliament at a later stage.
36. 81. In its reply of 7 May 1963 the Government states that the draft trade union regulations of 15 February 1960 were removed from the Bill in which they had been included and that, owing to its defects, the Bill was never considered by Parliament. The Government also states that removal of the draft from the Bill makes it impossible for Parliament to give it formal consideration.
37. 82. In these circumstances the Committee recommends the Governing Body to take note of the above statement by the Government, but expresses the hope that, if any Bill to regulate trade unions should be contemplated in the future, full regard will be had to the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Uruguay.