Rapport intérimaire - Rapport No. 183, Juin 1978

COMPLAINT CONCERNING THE OBSERVANCE BY URUGUAY OF 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), PRESENTED BY A NUMBER OF DELEGATES TO THE 61st SESSION OF THE INTERNATIONAL LABOUR CONFERENCE (1976) UNDER ARTICLE 26 OF THE CONSTITUTION OF THE ILO

• COMPLAINT CONCERNING THE OBSERVANCE BY URUGUAY OF 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), PRESENTED BY A NUMBER OF DELEGATES TO THE 61st SESSION OF THE INTERNATIONAL LABOUR CONFERENCE (1976) UNDER ARTICLE 26 OF THE CONSTITUTION OF THE ILO
  6. 6 A number of trade union organisations, including the WCL and the WFTU, have presented allegations of violations of freedom of association in Uruguay. In addition, three delegates to the 61st Session of the International Labour Conference (June 1976) presented a complaint under article 26 of the Constitution of the International Labour Organisation to the effect that the Government of Uruguay was not securing the effective observance of 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). Both of these instruments have been ratified by Uruguay.
  7. 7 The Committee has examined the entire affair on several occasions. In addition, a representative of the Director-General has carried out two direct contact missions to the country (June-July 1975 and April 1977). The Committee last examined the case in February 1978, when it submitted interim conclusions in paragraphs 5 to 20 of its 179th Report. This report was adopted by the Governing Body at its 204th Session in February-March 1978.
  8. 8 On the recommendation of the Committee the Governing Body requested the Government to transmit detailed information, particularly concerning the trade unionists mentioned in the Annex to the 179th Report, as well as concerning the progress made in the preparation of new trade union legislation. Furthermore, in order to have more precise information, it invited the minister of Labour - on if he could not be available, his representative - to supply orally to the Committee, at its meeting in May 1978, detailed information on the evolution of the situation, and on the prospects for a rapid return to a normal trade union situation. Finally, the Governing Body invited the complainant organisations which have consultative status with the ILO, namely the WCL and the WFTU, to provide oral information at the next meeting of the Committee.
  9. 9 Since then the WFTU has presented further allegations in telegrams dated 6 and 12 April 1978. These communications were transmitted to the Government for its observations.
  10. 10 The Government sent information in communications dated 17 and 20 April and 25 May 1978.

A. Previous examination of the case by the Committee

1. 11. In May 1977 the Committee noted that there had been no change in the legal position of-trade unions since the representative of the Director-General had carried out his first mission in June and July 1975. What had changed was the factual situation: although that of the unions affiliated to the General Confederation of Workers of Uruguay (CGTU) had improved and they were able to perform certain internal activities (meetings, elections, etc.), the affiliates of the National Workers' Convention (CNT), which had been dissolved by the Government after the change of regime in 1973, appeared to have remained to a large extent inactive; many of their leaders were under arrest, had left the country or had been dismissed; the premises of certain of these unions were under police control, closed, under surveillance, etc. As for industrial relations activities, the extent of recognition of the unions of CGTU and their leaders depended on whether they were on good terms with the employers or the heads of their public administrative services. As to the unions affiliated to the CNT, these did not appear to be recognised either in the private or in the public sector.
2. 12. In the information which it supplied to the Committee for its November 1977 session, the Government referred, as it had done on earlier occasions, to the subversive activities with which it had had to deal and which had constituted the reasons for the exceptional measures taken. Normalisation of occupational organisations, in the Government's opinion, had to be analysed within the broader framework of the political and institutional normalisation of the country. In this respect the Committee emphasised that, although respect for freedom of association was closely bound up with respect for civil liberties in general, it was nevertheless important, with this reservation, to distinguish between the recognition of freedom of association and questions relating to a country's political evolution. Neither should there be confusion between trade unions' performance of their specific functions, i.e. the defence and promotion of the occupational interests of workers, and the possible pursuit by certain of their members of other activities having nothing to do with trade union functions. The penal responsibility which such persons might incur by such acts should in no way result in measures amounting to depriving the unions themselves or their leaders of their means of action.
3. 13. The Committee regretted that despite the time which had elapsed the trade union organisations were still encountering serious difficulties. The continuing existence of serious divergences between the Conventions on freedom of association on the one hand and national law and practice on the other was a matter for great concern. It considered it urgent that the Government permit a return to normal trade union activity and remove the related legal and factual restrictions. The adoption and implementation of new trade union legislation would undoubtedly constitute a decisive step in this direction.
4. 14. Finally, in February 1978, the Committee noted the decision taken by the Government at the highest level to legislate in the near future on the status and functioning of occupational associations. A Committee had been set up to prepare appropriate legislation. The Government insisted that it had decided to legislate in the near future and that the trade union Bill would be transmitted to the ILO. It would appear, however, that the results of this work would depend on the institutional restructuring of the country (national elections were to be held in 1981 and measures for the purpose would be taken from 1980). On the recommendation of the Committee the Governing Body noted the information provided by the Government but expressed its concern at the delay with which the new trade union legislation, which had been announced on a number of previous occasions and the preparation of which was only then to be undertaken, could be brought into force. It noted the Government's promise that the trade union Bill would be transmitted to the ILO and pointed out the importance which it attached to this legislation being in conformity with the freedom of association Conventions ratified by Uruguay.
5. 15. As regards the arrest of trade unionists the representative of the Director-General had noted in the report on his second mission to Uruguay that there had been a decrease in the number of those detained on account of acts linked with trade union activities. The report also contained detailed information on the specific charges against certain trade unionists whom he had been able to meet or whose files he had been able to examine. The Committee noted that certain of those persons had been arrested in connection with matters which could be considered as being linked to trade union activities. In the remaining cases the information gathered, although incomplete, gave the impression that the criminal procedures set in action were aimed first of all at activities of a political character considered by the Government to endanger security and public order; however, he added that some of the charges were linked to the activities of the CNT, which had been dissolved by the Government in 1973.
6. 16. In November 1977 the Committee observed that no judgement had been rendered in respect of these persons since the last visit of the Director-General's representative to Uruguay, although many of them had been imprisoned for many months, if not years. The Director-General's representative had already noted, during his first visit to Uruguay, that initial inquiries and investigation were slow moving. The Committee expressed its concern at the continuing existence of such a situation. It considered that although the fact of exercising a trade union activity or holding trade union office did not give immunity from the application of normal penal law, the prolonged detention of trade unionists without being promptly tried could constitute a serious handicap to the exercise of trade union rights.
7. 17. In its 179th Report the Committee again noted that no judgements had been pronounced in respect of the persons against whom proceedings had been instituted before the military tribunals. On its recommendation the Governing Body, at its February-March 1978 session, noted the information provided by the Government concerning the provisional release of a number of trade unionists but regretted that the Government had sent no information concerning the majority of the trade unionists mentioned by the Committee earlier. It once again expressed its concern at the slowness of the judicial proceedings as regards the numerous trade unionists who were still in detention.
8. B. Communications received prior to the meeting of the Committee
9. 18. In its communications of 6 and 12 April 1978 the WFTU refers to the situation of Messrs. Luis Iguini Ferreira and Ricardo Vilaro, officials of the CNT. The former, who is a member of the General Council of the WFTU, is under detention at La Paloma and is, according to the complainants, being subjected to inhuman torture despite his fragile health. The latter, who is an official of he Federation of Secondary School Teachers, was released by court order on 7 April 1978, but was immediately rearrested by the Navy. The WFTU requests that measures should be taken to protect the lives and guarantee the safety of these persons, to secure respect for the right of Mr. Iguini to defend himself before an impartial judicial authority and to ensure that court orders are complied with.
10. 19. In its letter of 17 April 1978 the Government supplies information on all the trade unionists mentioned in the Annex to the 179th Report. Most of them are still being prosecuted by the military tribunals although certain of them have been provisionally released, as mentioned earlier. Other persons mentioned by the complainants do not, according to the Government, appear on the court records.
11. 20. Some of the persons mentioned have been brought to trial by the military tribunals and sentenced for one or more of the following offences: subversive association, assistance to a subversive association, violation of the Constitution, contempt of the armed forces. Their names are as follows: Barrios Ramos, Raúl Nestor (sentenced to six years' imprisonment; an appeal has been lodged with the Supreme Military Tribunal), Fassano Mertens, Carlos Ignacio (sentenced to five years' and six months' imprisonment; an appeal has also been lodged with the same tribunal), Lanza Perdomo, Alcides Martin (sentenced to three years' imprisonment), Raymundo Piaggio, Marcos Liber (sentenced to eight years' imprisonment by the court of first instance), Rubio Bruno, Enrique Vicente (sentenced but released on account of the length of preventive detention; the case is now before the Supreme Military Tribunal).
12. 21. The Government repeats that Santana Coronel, Dario, and Beltrán Pablo Camilo Viña, have been released. It also states that Ricardo Mario Acosta Baladon and Carlos Soria have been released. Julio César Santos Suárez has been acquitted for lack of evidence and released.
13. 22. The Government's communication of 25 May 1978 deals with the cases of Mr. Iguini and Mr. Vilaro concerning whom allegations had been made recently. The Government states that both are being prosecuted before the military courts.
14. 23. In addition, the government states in-its communication of 20 April 1976 that the working Party of Experts entrusted with the preparation of the draft Bill concerning trade union organisations has completed the first of the tasks assigned to it by Ministerial Resolution, namely the preparation of guidelines for the Bill. This preliminary document was submitted to the Executive for study and was approved by the President of the Republic on 18 April 1978. The Working Party is thus able to continue its work. The Government attaches to its letter a copy of the guidelines for the Bill; this document is reproduced below.
15. Guidelines for the draft Bill on the Constitution of occupational associations
16. I. Purpose. To regulate the formation of occupational associations.
17. II. Definition. Occupational associations are civil associations of either workers or employers, set up to promote, study, improve and defend their respective interests in the field of labour.
18. III. Constitution. Occupational associations may be formed without previous authorisation, in accordance with the provisions of section 39 of the Constitution of the Republic.
19. IV. By-laws. Their by-laws must contain the necessary guarantees that the following principles will be respected:
20. (a) the activity of the association shall be specifically occupational, to the exclusion of political, religious and profit-making activities;
21. (b) it shall not violate law and order;
22. (c) decisions shall be taken and elections held in duly constituted assemblies by compulsory secret vote;
23. (d) guarantees shall be established for the free holding and proper convocation of assemblies;
24. (e) there shall be full freedom to join and resign from the association;
25. (f) there shall be guarantees of proper supervision of the management of the association, and the scrupulous administration of its funds, and a detailed report and accounts shall be prepared at the end of each financial year.
26. V. Registry. A bureau shall be set up at the Ministry of Labour and Social Security to register occupational associations; registration shall be compulsory. Such registration may be refused only if the association fails to respect the requirements of institutional and legal order, does not limit itself to questions of an occupational nature, or fails to respect the provisions of the foregoing paragraphs on the content of its rules or the conditions to be fulfilled for registration.
27. VI. Rights and obligations. Occupational associations shall enjoy all the rights necessary for the achievement of their objectives and shall perform all the obligations enjoined upon them by the institutional order of the Republic.
28. VII. Membership. In order to join the association a person must be a citizen or be legally domiciled in the country and carry on his activities within the specific field of the association.
29. VIII. Officials. In order to be an official or to act on behalf of the association a person must be an adult and possess "natural or legal" citizenship and the faculty of exercising the rights conferred thereby, make a declaration that he will uphold democracy and have at least two years' membership in the association.
30. IX. Common provisions for all members. All members shall respect, in their activities within the association or on its behalf, the legal provisions laid down in the legislation of the Republic.
31. X. Suspension or dissolution of the association. Occupational associations shall be suspended or dissolved if they do not respect their objectives or the principles which they have undertaken to follow, or if, they infringe the obligations imposed on them for registration. The suspension or dissolution shall be pronounced by the labour appeal tribunal, without prejudice to any preventive measures that may be taken if the need arises.
32. C. Statements made before the Committee at its sittings on 25 and 26 May 1978
33. 24. Following the invitation mentioned in paragraph 8 above, the Committee heard, in turn, at its sittings on 25 and 26 May 1978, representatives of the complainant organisations and of the Minister of Labour of Uruguay.
34. Statements of the representatives of the WCL and the WFTU
35. 25. The representatives of the WCL and the WFTU made statements before the Committee and replied to questions put to them by the Committee. From the information submitted to it, the Committee noted, in particular, the following matters which are summarised below: the joint Committees, the trade union legislation, persons who are detained or who have disappeared, the conditions of detention and the guarantees for the right of defence.
36. 26. According to the complainant organisations, in 210 cases the managements of undertakings and the workers agreed to request the setting up of a joint Committee, in accordance with the provisions of the Decree of 15 February 1977.1 The Government took appropriate steps only in 37 cases (by verifying, inter alia, whether the workers concerned belonged to the CNT, in which case they were disqualified). To date no more than eight joint Committees had been set up. The complainants consider those Committees to be a lesser evil within the context of trade union life which, in Uruguay today, is paralysed. However, in principle, they are opposed to these Committee because their purpose is to avoid claims being made, to increase productivity and discipline, and to favour collusion with the managements of undertakings; moreover, there can be no joint Committees in the public sector. In practice, the workers' participation in these bodies is very limited.
37. 27. The complainants consider that the existing legislation could ensure normal trade unionism, since Conventions Nos. 87 and 98, by their ratification, are incorporated into the national legislation and have priority over other legal provisions. These Conventions, however, are not respected. There is no need in the country for new legislation in addition to these Conventions. Moreover, the Committee set up to draw up the guiding principles of the future law on trade unions has not had any consultations with workers' organisations.
38. 28. The representatives of the WCL and the WFTU submitted lists of numerous persons stated to have been arrested, or to have disappeared, and in particular, several hundred trade union leaders. The Committee requested further details concerning the trade union activities and functions of these persons.
39. 29. As regards the right of defence, the complainants stated that, at first, civil lawyers could carry out their functions and defend prisoners. This situation deteriorated progressively and they were confronted with obstacles in the exercise of their profession, especially as regards being able to communicate with their clients. Subsequently, lawyers were arrested and accused, for example, of complicity with the prisoners. Some were threatened and left the country. Those who were released could no longer exercise their professional activities. As for detained workers, they are informed, after a lengthy imprisonment, that they must choose a lawyer within 48 hours. Having no contact with the outside they are obliged to accept a lawyer appointed on their behalf so that the trial is not delayed further. In this connection, a representative of the complainant organisations, who was arrested in 1973 and again in 1976, described his personal case and the torture to which he had been subjected. He added that all prisoners were tortured.
40. Statements made by the representatives of the Minister of Labour
41. 30. In the first place these representatives commented on the guidelines for the draft bill concerning occupational associations (transmitted by the Government see paragraph 23 above). In particular they pointed out that this draft bill would require to be in conformity with the National Constitution as well as with international Conventions ratified by Uruguay which have force of law in the country (without any other legislative action being required for this purpose). In reply to one question they pointed out that it is for the judicial authorities to decide in each case whether these instruments take precedence over subsequent national legislation. The representatives of the Minister gave an assurance that the draft bill would be finalised in the near future and that they would transmit to the Government the desire expressed by the Committee to examine the text prior to its adoption.
42. 31. With regard in particular to the obligation contained in the guidelines of the draft bill for trade union leaders of occupational associations to make a declaration to uphold democracy, the representatives pointed out that any administrative decision which was taken in a case of breach of this declaration could be appealed against to the administrative courts and if necessary annulled by them. They stated that there was nothing to prevent the affiliation of these associations with international organisations of workers. In reply to a question by the Committee they stated that they would transmit to the Government the concern of the Committee as to the absence among the guidelines of an express recognition of the right of association to federate and confederate at the national level.
43. 32. Until the new legislation was adopted joint Committees, in conformity with the decree of 15 February 1977, have been authorised and set up by the labour authorities. Ten are already in operation; 8 others are on the point of being operational and 32 are being set up. It would be another 4 or 5 months before the figure of 210 was reached. These Committees are fully operational and are completely independent. They permit a dialogue between the workers and the employers on an equal footing in conformity with the wishes of the Government. The two parties have adopted collective agreements especially on productivity or time-off where no trade union existed because it is not the object of these bodies to compete with trade unions. The workers are consulted in full freedom. The joint Committees have been set up on an experimental basis but they could be maintained after the adoption of the trade union legislation since they are bodies in which dialogue can take place whereas organisations of workers are bodies whose role is to put forward claims.
44. 33. The representatives of the Minister of Labour pointed out that the question of detainees did not fall within the competence of their Ministry and that the Government had already replied on this matter. They nevertheless pointed out that no trade unionist had been arrested because of his trade union activities and that if certain were in prison this was for other reasons. These persons were well treated, as foreign scientists had been able to note when they recently visited the country. The Committee pointed out that the allegations which the complainants had made with regard to detained trade unionists, the lengthy judicial procedures, the guarantees for the right of defence and on the ill treatment of prisoners would be transmitted to the Government for its comments.

D. Conclusions of the Committee

1. 34. For the first time the Committee has invited the authorities of the country concerned and the complainant organisations to supply orally, in the course of one of its meetings, detailed information concerning the case. The representatives of the Minister of Labour and those of the WCL and the WFTU began by making a statement; thereafter they replied to questions put to them. The Committee wishes-to express its thanks to the representatives of the Government and to those of the complainant organisations for their co-operation. It considers that this procedure has proved useful. It wishes to stress, however, that this procedure is in no way designed to pronounce judgement against a government but that its purpose is to permit an exchange of views which may contribute to the ascertainment of the facts and to a greater respect for trade union rights.
2. 35. The exchanges of views dealt mainly with the guidelines of the draft law on occupational associations. The Committee considers that this document contains positive aspects such as the right of occupational associations to be constituted without prior authorisation. Certain basic ideas contained in the bill should however be made more precise taking account of the standards contained in the Conventions on freedom of association. Without making a detailed analysis at this stage of the guidelines, the Committee wishes to emphasise in particular the guarantees contained in Article 5 of Convention No. 87, namely that organisations of workers and employers should be able to establish and join federations and Confederations. It also considers that the obligation on trade union leaders of occupational associations to make a declaration, as provided in the Guidelines (paragraph 8), "to uphold democracy" could lead to abuses since such a provision does not include any precise criteria on the basis of which a judicial decision could be taken if a trade union leader was accused of having disregarded the declaration.
3. 36. The Committee notes the statement that the bill will be finalised in the near future. It trusts that the bill will be drafted prior to its session in November 1978 and that, as the Government previously promised, it will transmit a copy of the text so that the Committee may examine this.
4. 37. As regards the present situation, the Committee has noted the slowness with which the joint Committees referred to in the decree of 15 February 1977 have been set up. As the Committee has already pointed out, although it considers that these bodies cannot substitute for trade union organisations, they can play a useful role in the field of industrial relations. The workers representatives of these Committees should also be freely elected and they should not be able to be kept out of the Committees because of their past trade union activities. Furthermore, there should also be such Committees for the public sector.
5. 38. It also appears from the information communicated by the Government on the arrested trade unionists (mentioned in the annex to the 179th Report) that most of them are still awaiting trial; nevertheless a number of them have been judged and sentenced to terms of imprisonment (one has been released because he had completed his term taking account of the time spent under preventive detention). Others have been released (one acquitted for lack of evidence). There are a number of divergences between the latest information supplied by the Government and the information transmitted by it earlier.
6. 39. The Committee has noted once again with concern the slowness of the judicial procedure concerning detained trade unionists. It has noted for example that of the 19 persons to which paragraph 15 refers in particular 15 still await trial, in some cases for several years now, and only 3 have been provisionally released.
7. 40. Nevertheless certain trade unionists have been brought to trial and sentenced on account of subversive activities. The Committee wishes to receive in these cases a copy of the judgements together with the grounds adduced therefor which have been handed down concerning the trade unionists mentioned in paragraph 20. In fact, as it previously recalled, in the present case it is for the Committee itself to decide on the basis of the information available, and above all the texts of the judgements, whether these trade unionists were sentenced for common law crimes or for trade union activities. It could be the case in fact that acts which are legitimate as regards the principles of freedom of association may be at any given time considered as illegal under national law or by the authorities whose duty it is to apply it.
8. 41. In addition, the Government has not provided sufficient details in reply to the serious allegation that Mr. Ricardo Vilaro has been again imprisoned by the armed forces immediately after being released by the courts. Moreover, the representatives of the WCL and the WFTU made statements concerning the conditions of detention as well as of the rights of defence and submitted lists of numerous persons, mainly trade union leaders, who are alleged to have been arrested or who have disappeared. The names of the persons in respect of whom the complainants have given details as to their trade union affiliation and their trade union activities or functions will be communicated to the Government.
9. 42. Finally, certain allegations referred to the ill treatment which detained trade unionists are said to have suffered even recently (case of Mr. Iguini). The Committee has in the present case already expressed its strong disapproval of any vexations or brutality inflicted on any prisoners. It has also pointed out to the Government the importance which it attaches to all measures being taken including the giving of specific instructions and the imposition of exemplary penalties in order to guarantee that no person detained is subject to ill treatment.