Rapport intérimaire - Rapport No. 283, Juin 1992

1. 356. In a letter dated 31 July 1991 the Trade Union Centre of Paper and Cellulose Workers (its Spanish acronym being: CUOPYC) lodged a complaint alleging violations of freedom of association. The Government furnished its observations in a letter dated 10 January 1992.
2. 357. Uruguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 358. The Trade Union Centre of Paper and Cellulose Workers, after stating that it is made up of the workers of the National Paper Factory (FNP), one of the most dynamic and modern firms in the paper industry, explains that the collective agreement of September 1985 regulated various aspects of industrial relations (system of work in certain sectors, annual leave, attendance bonuses, etc.) and stipulated that in the event of a strike the vital or critical sectors of the enterprise would be kept running, though at a reduced pace (70 per cent of maximum capacity), in a spirit of good will so that as soon as the strike was over activities might be resumed normally.
2. 359. The complainant organisation states that in August 1990 the Ministry of Labour and Social Security outlined the framework for the negotiations of the wages boards, proposing long-term agreements (of 12, 14 or 16 months) to catch up with real wages. The complainant adds that negotiations were begun with the firm in May 1990 but without any positive outcome, so that partial work stoppages, in pursuance of the exercise of the right to strike and in line with the provisions of the collective agreement of September 1985, were organised in the month of August.
3. 360. The complainant states that the FNP, confronted with these measures, not only refused to negotiate on wage increases, but also decided to suspend activities in various sectors of the factory (continuous processes II and III and the JAGEMBERG winding machine), including in the non-"critical" sectors. The complainant adds that, after taking these measures, the firm decided to close from 22 to 24 August 1990 and subsequently suspended activities in various sectors.
4. 361. The CUOPYC states that the FNP went too far with the conditions it was trying to impose on the negotiations (restrictions on the right to strike, work on national public holidays, etc.) and that finally, following the issue of the Order of the Ministry of Labour of 6 December 1990, a document was signed in which both sides undertook to promote an industrial relations climate compatible with the operating needs of the enterprise; the document specified that no reprisals would be taken in respect of the dispute that had been under way until that date. The complainant adds that although the enterprise had undertaken, in the document signed at the Ministry of Labour, not to resort to reprisals, 117 workers were dismissed on 28 December 1990. Among the 117 (representing 15 per cent of the staff) were five titular and five deputy members of the executive committee of the union and four members of its auditing committee, i.e. altogether 50 per cent of the union executive. The complainant specifies that, at the same time as it dismissed the majority of the members of the union executive, the firm put out an explanatory leaflet describing its situation and including a study undertaken by consultants.
5. 362. The complainant states that in Uruguay there are insufficient legislative guarantees in regard to respect for trade union activities; in fact there is no legislation protecting workers against anti-union discrimination. The complainant also states that there are signs that the Supreme Court of Justice is giving ground in this area. Lastly, it states that it has approached the Ministry of Labour and Social Security with a view to securing the reinstatement of the dismissed leaders and the enforcement of the penalties provided for in Decree No. 93/68. It has also applied to the competent courts for the payment of the wages that remained unpaid during the lock-out and for compensation for the moral damage caused.

B. The Government's reply

1. 363. In its communication of 10 January 1992, the Government states that throughout the dispute between the CUOPYC and the FNP, the Ministry of Labour, through the National Directorate of Labour, constantly endeavoured through conciliation efforts to bring the two sides to an understanding and that subsequently, when a complaint was lodged for infringement of trade union rights, it intervened in the administrative inquiry in which the two sides submitted evidence. This administrative inquiry is continuing and will culminate in a ministerial decision that will determine the validity of the complaints and the measures to be taken. This administrative procedure is distinct from the ordinary legal proceedings to which the parties may also have recourse.
2. 364. The Government states that it deplores situations such as the one that gave rise to the complaint - namely a situation in which the dismissal of a large number of workers coincided with a struggle to secure pay negotiations and to determine conditions of work collectively. The Government adds that this reaction is caused by the organisation of revolving strikes which considerably disrupt activity and frequently entail irreparable damage for production capacity. The consequences of labour disputes of this kind are felt long after the struggle has ended and seriously compromise job stability given the particularly vulnerable situation of the Uruguayan economy. Furthermore, the Government emphasises that the complaint also relates to the employers' refusal to bargain collectively, and states that the lack of a legal provision making negotiation compulsory is a serious shortcoming in Uruguayan law (the Government adds that it has tried by various means to establish rules on collective agreements and that provision is made in the preparatory work already accomplished for an obligation in this respect).
3. 365. The Governments adds that the complaint in question is a case in point that illustrates how necessary it is to have rules that can be applied in the event of a labour dispute. In this respect it should be mentioned that the Uruguayan legal system makes no legal provision - or at least no suitable provision - concerning procedures in respect of dispute settlement, collective bargaining, the protection of trade union activity, lockouts, the effects of strikes, workers' representation in the undertaking, etc. The Uruguayan trade union movement has traditionally opposed any legislative intervention on these matters and has made this one of the fundamental points of its policy and its programme of demands. Moreover, the scant case law on the subject is insufficient to furnish the social partners with applicable criteria.
4. 366. In these circumstances, the Government states that it is convinced the Committee will agree that it is desirable and necessary for Uruguay to establish clear and specific rules on collective labour law. In this respect the Government states that: (1) it has been acknowledged on several occasions that the present shortcomings are among the factors that discourage both national and foreign investment; (2) Uruguay has a fragile and dependent economy and it is essential for it to make preparations for the process of integration with Brazil, Argentina and Paraguay; this situation is decisive in the shifting of productive efforts towards sectors in which Uruguay has a comparative advantage in the new community space; (3) the Uruguayan Constitution has long recognised the right to strike and requires the laying dwon of regulations for the exercise of this right, a task which no democratic government has achieved to date; (4) the present Government which, in its electoral programme, undertook to introduce provisions on industrial relations, has submitted draft legislation to Parliament establishing a certain number of rules in respect of the exercise of the right to strike; this draft legislation was first examined by ILO experts, whose recommendations were followed; from the outset, the Trade Union Centre in question has expressed its total opposition to the approval of statutory provisions; it should be mentioned that the Government, in its draft legislation, has made provision for workers who are dismissed for exercising their right to strike to be able to apply for reinstatement, and establishes rules and safeguards concerning labour disputes in addition to the provisions on the bilateral settlement on which the parties themselves may agree; (5) an ILO technical mission which, in 1986, studied the industrial relations system in Uruguay, stated expressly in its report that it was desirable to devise reliable and efficient regulations.
5. 367. As regards the protection of trade union activity in Uruguay, the Government draws attention to Decree No. 93/968 of 3 February 1968 the terms of which are similar to those in Convention No. 87, even though worded differently and more categorically. The Decree, which is currently in force, does not provide for dismissal to be invalidated in cases of discrimination or infringement of trade union guarantees, but stipulates that the enterprise in question is liable to a fine representing between one and 50 days' remuneration. The fine concerns the responsibility of the enterprise vis-à-vis the Administration but individual workers also have rights of which they may avail themselves if the employment contract has been breached. Moreover, Act No. 15,903 makes provision, in the event of failure to respect labour standards (including international labour Conventions) for warnings, establishment closures or fines.
6. 368. The Government adds that the Administrative Court has upheld several decisions of the Ministry of Labour and Social Security demanding the reinstatement of trade union activists unfairly dismissed for their trade union activities as well as fines for non-compliance with these decisions. In one of the sentences handed down following the refusal of an enterprise to reinstate workers who had been dismissed for trade union reasons (November 1990), this court decided that the amount of the fine should be calculated on the basis of the wages of the entire staff since the issue was the defence of the right to organise of all the workers and not just of one of them. The ordinary labour court, however, has taken different decisions because of the lack of provisions, under law or collective agreements, requiring the employer to reinstate a trade union leader who has been dismissed because of his activities. In one case the court ruled that the question of reinstating workers did not arise since Act No. 12,030 provides for fines in the event of non-application of international Conventions that have been ratified, but does not mention reinstatement. In another case the judges did not call for the workers to be reinstated since there was disagreement among the staff, which meant that the reinstatement would have raised difficult practical problems, though it would not have been impossible from the legal point of view, and they sentenced the enterprise to pay three times the statutory compensation which was also being claimed. Sometimes the Uruguayan courts have considered the unlawful dismissals that have followed a strike to be abusive (hence the right to special compensation apart from the statutory compensation). According to the Government, the right solution would seem to be for it to be left to the judges to decide whether a contract should be allowed to lapse if there is reason to think that maintenance of the employment relationship is impossible (trusted personnel, confrontation following the dispute, etc.) so as to avoid reinstatement giving rise to serious disturbances and disrupting the harmony that should prevail in any work setting.

C. The Committee's conclusions

1. 369. The Committee observes that the allegations presented by the complainant organisation relate, on the one hand, to the dismissal of 117 workers, including 14 trade union leaders, from the National Paper Factory (FNP) and, on the other hand, to the inadequacy of legislative guarantees against acts of anti-union discrimination.
2. 370. As regards the dismissal of 117 workers (including 14 trade union leaders) immediately after the CUOPYC and the FNP had signed an agreement putting an end to the strike and the dispute between them, the Committee notes that an administrative inquiry is under way and will culminate in a ministerial decision determining the validity of the complaints and the measures to be taken. The Committee wishes to emphasise that, in this case, real factors exist indicating the anti-union nature of the dismissals: (1) they took place following lawful strikes; (2) they concerned half the executive committee of the union and many other workers; (3) in the agreement signed by the parties to bring the dispute to an end, the enterprise undertook not to resort to reprisals against the strikers. The Committee also notes the Government's statement that it deplores situations such as this one, i.e. a situation in which the dismissal of a large number of workers coincided with a struggle to secure wage negotiations and determine conditions of work collectively.
3. 371. In these circumstances, the Committee regrets that the administrative inquiry has not yet been completed although the dismissals took place in November 1990 and it requests the Government to take measures to ensure that this inquiry and any other inquiries that might be conducted in the future yield results quickly. The Committee also requests the Government to inform it of the outcome of the administrative inquiry and if, as the indications seem to confirm, the latter reveals that the dismissals constituted anti-union discrimination, to take measures urgently to reinstate the dismissed workers and to apply strictly the penalties prescribed by law.
4. 372. As regards the allegation concerning the lack of legislative guarantees against anti-union discrimination, the Committee, at its February 1990 Session, considered that the current system of protection against anti-union practices (heavy fines in the case of anti-union dismissals, administrative orders to reinstate workers so dismissed and the possibility of closing down the enterprise) "does not infringe Convention No. 98" but "could be improved in so far as accelerating the procedure". (See 270th Report, Case No. 1460 (Uruguay), para. 60.)
5. 373. The Committee has noted the reasons for which the Government deems it desirable and necessary to have clear and precise rules on the various aspects of collective labour law since at the moment there are only very few statutory provisions in this area. In this regard, the Committee wishes to point out that its mandate consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions and that it is not within its terms of reference to give an opinion on the type or characteristics - including the degree of legislative regulation - to be followed by the industrial relations system in any particular country. The Committee requests the Government to submit any draft law on freedom of association and collective bargaining to the Committee of Experts on the Application of Conventions and Recommendations so that it may examine it in the context of Conventions Nos. 87 and 98.