Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 328, Juin 2002

1. 617. The complaint in this case is contained in a communication from the Departmental Association of Public Employees of Canelones (ADEOM) of 16 June 2001. This communication was followed by a number of documents that supported the complaint. The Government sent its observations in a communication dated 23 August 2001.
2. 618. 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 619. In its communication of 16 June 2001, the Departmental Association of Public Employees of Canelones (ADEOM) states that, in spite of the fact that the Municipal Administration of Canelones had been using the check-off facility for trade union dues since the middle of the last century, on 9 June 2000 the Administration issued Internal Service Order No. 562/2000 to the Director-General of the Ministry of Finance as follows: "Faced with the need to rationalize the deductions from the wages paid to civil servants, we request that you do not use the check-off facility for trade union dues, to take effect, without exception, as of payment of wages for the month of July of this year". The complainant organization states that this seriously affected the trade union (the Administration has 200 places of work) and its members, who receive social services, health services, legal advice, training, etc. The Courts of the First and Second Instances have declared this Order to be contrary to that which is laid down in the national Constitution and Conventions Nos. 87, 98 and 151, but the order has still not been suspended.
2. 620. The ruling of the Court of First Instance on a petition for constitutional guarantee for protection of civil rights (amparo) considers that "the Administration has manifestly acted in an arbitrary manner", orders "the Administration to continue with the check-off facility for the trade union dues" and decrees "the definitive suspension of the implementation or the fulfilment of the contested decision" (Service Order No. 562/2000). The Court of Second Instance considered that Service Order No. 562/2000 "is manifestly illegal in that it restricts the exercise [...] of a right recognized in the Constitution of the Republic (article 57) and is not based on sufficient cause [...]"; "such decision [...] affects the financing of the activities of the [...] ADEOM [...], interfering with the organizing of its administration in violation of the legal rights of protection (tutela) laid down in Article 3 of Convention No. 87 and Article 2 of Convention No. 98 of the ILO [...] and Convention No. 151 of the ILO"; "the suspension of the administrative decision being contested will be temporary until this matter is resolved with recourse to the Administration itself and, possibly, to the courts".
3. 621. Subsequently, the complainant organization filed another amparo proceedings based on a new decision (No. 3866 of 31 July 2001) of the Municipal Administration of Canelones, which once again prohibited the deduction of trade union dues (among other deductions, from 1 April 2002) in spite of a decree from the Departmental Board (No. 16/2001 of 9 March 2001) that ordered the deduction of trade union dues as follows:
4. ... the public employees of the Municipal Administration who are employed permanently, contractually or seasonally whether or not they are, or become, members of the Departmental Association of Public Employees of Canelones (ADEOM), may request in writing to the Financial Department that the amount due for membership to this trade union is deducted from the monthly wage packet. Once this request, signed by the public employee, has been received by the Financial Department, the latter must deduct the amount due for membership to ADEOM from the monthly wage packet starting from the month in which the request was presented [...]. The authorization by public employee to have his/her trade union dues deducted from the monthly wage packet remains in force until the public employee communicates to the Financial Department in writing his/her decision to cancel the deduction of this amount.
5. In a ruling on 17 September 2001, the legal authorities admitted the petition for protection of constitutional rights of ADEOM (the complainant organization), condemning the conduct of the Administration and:
6. ... summoning the Municipal Administration of Canelones (in the form of the person in charge), within the period of three (3) days, to re-establish and to do whatever is necessary to deduct, without exception, the trade union dues of those public employees who are members of the Departmental Association of Public Employees of Canelones for the immediate and subsequent transfer of the said monies to that organization, in accordance with the conditions laid down in Decree No. 16/2001 (sections 7-8) of the Departmental Board of Canelones. With regard to the protection to act extended by Decision No. 3866/2001 of the Municipal Administration of Canelones, the defendent administration shall refrain from implementing this with regard to the deductions of the trade union dues of the members of ADEOM of Canelones, decreeing its preventive and conditional suspension until the Court of Administrative Law hands down its ruling.
7. 622. Finally, the complainant organization states that on 27 October 2000, the Office of Personnel and Human Resources of the Municipal Administration of Canelones issued Service Order No. 007/2000 which stated, as follows:
8. In the light of a rearrangement of employees and a reassignment of duties, the Office of Personnel and Human Resources considers it expedient to facilitate administratively the situation of the officials of ADEOM so that they can freely exercise their trade union activities.
9. Therefore, it informs all state officers, local councils and municipal dependencies that they should dispense with submitting trade union meeting records, as the members of the Departmental Committee of ADEOM are exclusively exempt from recording their attendance, or the attendance of their deputies when the officials request trade union leave through an official communication to this office.
10. This resolution clearly states that only the nine members of the Executive Committee of ADEOM are entitled to carry out trade union activities (the total number of employees at the Administration is 1,750 in 200 places of work). It is now impossible for the remaining trade union members to carry out trade union activities.
11. B. The Government’s reply
12. 623. In its communication of 23 August 2001, the Government states that in a written answer to a charge the Municipal Administration of Canelones declares that the Administrative Act that suppressed the automatic deduction of trade union dues was not issued by the General Secretariat but by the Municipal Administration itself, which is the body with the legal authority to issue this type of Act, while the former merely countersigns and circulates it. The Administration states that Law No. 13.100 authorizes the Treasury to carry out deductions following authorization by those involved. This authorization had not been communicated by those involved but by the trade union, whose authorization it considered insufficient. It adds that this type of deduction is optional, and not obligatory, for the employer. Furthermore, it states, as the basis for the suppression of the check-off facility, the inviolable nature of wages and the claim that the wage earner has over them, based on Articles 8 and 10 of the Protection of Wages Convention, 1949 (No. 95). With regard to its behaviour following the rulings handed down by the two courts, photocopies of which are attached to the complaint, the Government provides reliable documentation that, on 11 October 2000, the Administration complied with the ruling of the Court of First Instance, paying trade union dues that had been deducted for July and August 2000 to representatives of the trade union, and on 25 October 2000 paying the trade union dues for the month of September. The trade union did not lodge an appeal to executive authority against the decision of the Administration that suppressed the check-off facility for trade union dues, with the result that this Administrative Act became definitive. The fact that appeals were not lodged prevents the requirement that executive action run its course in order to begin action in the administrative law courts, which have the legal competence to annul. Individual appeals -- copies of which are not available in the file -- were lodged by Juan del Hoyo del Puerto, Daniel Roberto Mazzine Ferreri, Juan José and Alfredo Cabrera, who participated in the petition for protection of constitutional rights that took place in the Court of First Instance. Consequently, the Administration is complying with the ruling handed down by the Court of Appeal (Court of Second Instance) and therefore deducting and paying the trade union only those trade union dues of the four people mentioned earlier, on a temporary basis and until such time as proceedings have been decided once and for all through appeal to the executive authority of the Administration itself and, possibly, in the courts for administrative law.
13. 624. The administrative proceedings are currently at the stage of notifying the complainant and the defendant that evidence is being taken so that they might present evidence or bring witnesses.
14. 625. Regarding the merits of the case, the Government states that the Municipal Administration of Canelones is the executive body of the departmental government of Canelones, and is one of the 19 political-administrative jurisdictions of Uruguay. It is situated to the north-east of Montevideo, is the second largest in terms of population, and, as indicated in the complainant’s case, has local offices throughout the region to which administrative matters are decentralized.
15. 626. The Departmental Board of Canelones, as the departmental government, issues legislative acts on matters assigned to it by the Constitution of the Republic or municipal organic law and these have legal force within its jurisdiction. The departmental government is not affected in this matter by laws issued by the National Parliament.
16. 627. The Ministry of Labour and Social Security, as an integral part of the Central Administration, is not competent to oversee or to punish departmental governments for the possible non-fulfilment of their obligations to their dependants; the decisions taken by these departmental governments must be challenged through appeals to executive authority, action for protection of constitutional rights and possibly action for legal annulment when appeals have no effect. Notwithstanding, international representation of the State and the essence of the political and social values in question mean that the active intervention carried out by this ministry must be brought to the knowledge of the Committee.
17. 628. There are no provisions with legal force in the jurisdiction of Canelones issued by the Departmental Board and known as departmental decrees that refer to the trade union dues of employees of the Administration. The few legal provisions issued by the National Parliament do not apply to departmental governments. For purposes of information, article 1 of Law No. 13.100 of 18 June 1962 and article 52 of Law No. 13.349 of 29 June 1965, reproduced as article 173 of the Text Governing the Civil Service (TOFUP), Executive Decree No. 200/997 of 18 June 1997, state: "Legal authorization. Authorizes the Department of Finances, Supplies and Accountancy of the Ministry of Livestock, Agriculture and Fisheries to retain and to pay out on a monthly basis to the Civil Servants’ Association of that organization, subject to the agreement of its members, the amount of their trade union dues. Moreover, this provision covers all civil servants’ organizations of the State that have or obtain legal personality with the effect that the the relevant offices or sections of these institutions will comply with this provision".
18. 629. Similarly, article 368 of TOFUP states: "Deduction of trade union dues. All state organizations of civil servants that have or obtain legal personality are authorized to deduct from the wages of trade union members the amounts corresponding to their trade union dues, in accordance with article 173 of this text".
19. 630. The departmental government of Canelones, by analogy with these provisions, is found to be right for both reasons put forward: first, in that the agreement of the trade union member is required before trade union dues are deducted and it is not enough that the trade union itself makes the request or authorization; second, in that the organization is authorized but not obliged to carry out deductions and payment of trade union dues.
20. 631. Of the legal standards in force in the Republic for the protection of salaries, the application of those invoked by the Administration are equally relevant: Articles 8 and 10 of ILO Convention No. 95, which state that "deductions from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award" and that "wages may be attached or assigned only in a manner and within limits prescribed by national laws or regulations". There is no collective agreement between the Administration and the Departmental Association of Public Employees of Canelones.
21. 632. Article 144 of TOFUP states: "Legal authorization. As a general principle, deductions from wages can only be made where there is a legal provision expressly authorizing this".
22. 633. The Government does not agree with the fact that the complainant organization denounces the Administrative Act declaring an end to the deduction of trade union dues as illegal, based on Articles 2 and 3 of Convention No. 87, Articles 1 and 2 of Convention No 98, and Articles 4, 5 and 9 of Convention No. 151.
23. 634. The Administrative Act neither limits nor circumscribes the right of the workers’ organization to draw up its constitutions and rules, to elect its representatives in full freedom, to organize its administration and activities and to formulate its programmes (Article 3 of Convention No. 87).
24. 635. Neither does the Administrative Act constitute a discriminatory act that aims to reduce freedom of association in relation to employment or imply the existence of interference in the establishment, functioning or administration of the workers’ organization (Articles 1 and 2 of Convention No. 98, Articles 4 and 5 of Convention No. 151), or reduce the civil and political rights which are essential for the normal exercise of freedom of association (Article 9 of Convention No. 151).
25. 636. The detrimental situation caused by the difficulties experienced by the workers’ organization in amassing the trade union dues of members who are geographically scattered across the region is valid, but this does not mean it is impossible, nor does it mean that the Municipal Administration of Canelones is unduly interfering in the organization. This situation should not be confused with the freezing of the trade union’s account as the Administration does not have money belonging to the trade union in its possession.
26. 637. With regard to the fact that suppression of the possibility of using the check-off facility might cause financial difficulties for trade union organizations and would not encourage harmonious professional relations, the Government agrees that it would be desirable to avoid this suppression but that it is also true that the situation in this case is not governed by a law or collective agreement that demands that the practice carried out up until last year be customary.
27. 638. The administrative proceedings did not reveal that, following the decision issued by the Administration, the trade union members might have requested deduction and payment of their trade union dues to representatives of the organization, nor that the Administration would necessarily have refused in advance to do so, given the existence of express agreement in writing.
28. 639. The end of the process of deduction of trade union dues is neither incompatible nor contrary to the administrative rationalization and the financial administration of the municipal government: if the worker does not provide express consent that his trade union dues be deducted, such deduction from his salary, whether or not it is requested by the trade union, constitutes an improper and illegal act liable to be the subject of a claim by the employee affected and to incur the responsibility of the Administration, and for this reason the fact that the deduction of trade union dues must be preceded by the express agreement of the worker concerned is not only in accordance with law but also with the appropriate technical application by the financial administration.
29. 640. Regarding the allegations relating to Service Order No. 007/2000 that exempts only the members of the Departmental Committee of ADEOM, or their deputies when they request trade union leave, from recording their attendance, this matter will be clearer following evidential proceedings, on which the Government will make regular reports, as well as report on the conclusion of the administrative proceedings and the measures it may take. Without prejudice to this, the Government reminds the Committee that Uruguay has no national legislation on trade union privileges.

C. C. The Committee's conclusions

• The Committee’s conclusions
  641. 641 Regarding the cancellation of the check-off facility as a result of decisions taken by the Municipal Administration of Canelones on 9 June 2000 and 31 July 2001, in spite of trade union dues having been deducted since the middle of the past century, the Committee notes the observations of the Municipal Administration on the allegations (relating to 2000) as follows: (1) that there is the express agreement of the parties concerned (it is not sufficient that this is communicated by the trade union); (2) that the deduction is contrary to that which is laid down in ILO Convention No. 95 concerning the protection of wages; (3) that the Administration complied with the ruling of the Court of First Instance relating to the payment of trade union dues and paid the amounts for July, August and September 2000; (4) that the complainant organization did not appeal to executive authority with regard to the decision of the Administration and the administrative action became definitive; (5) that regarding the ruling of the Court of Second Instance, the Administration is provisionally paying the trade union the dues of those four persons who appealed to executive authority on the basis of the action for protection of constitutional rights laid in the Court of First Instance, until the matter is resolved by the executive authority and, possibly, by the courts.
  642. 642 The Committee notes that the Government states that: (1) the competency extended to the Departmental Board of Canelones means that it is not affected by laws issued by the National Parliament (which fall outside this competency); (2) there are no legal provisions ("departmental decrees") in the jurisdiction of Canelones issued by the Departmental Board referring to the trade union dues of employees of the Administration; (3) the few provisions issued by the National Parliament on the subject of trade union dues are not applicable to the departmental government and, in any case, as a result of such provisions, the agreement of trade union members is required before trade union dues are deducted (it is not sufficient that the trade union requests or authorizes this); and the institution in question would be authorized, but not obliged, to deduct and pay trade union dues; (4) ILO Convention No. 95 concerning the protection of wages states that national laws or regulations, collective agreements or arbitration awards may authorize deductions (which is not the case in this complaint, as up until last year the practice of making deductions of trade union dues was based on custom); (5) there is no evidence in the administrative proceedings that, following the issuing of the decision by the Administration, the trade union members had requested that their trade union dues be deducted and paid to representatives of the organization, nor that the Administration would refuse to do this in the light of express agreement in writing to that effect. The Government believes that the Administrative Act calling for an end to deductions of trade union dues is not illegal and does not constitute an act of anti-union discrimination (collection of trade union dues can take place by other means). While acknowledging the specificity of the political structure and organization of each country, the Committee recalls that, by freely becoming a member State of the ILO, the Government has a responsibility to ensure full respect of freedom of association principles throughout its territory.
  643. 643 The Committee points out that the Government’s opinion does not match that expressed by the legal authority that issued rulings based on proceedings for protection of constitutional rights, ordering the Administration to proceed with the deduction and payment of trade union dues and condemning the conduct of the Administration as illegal, although it decreed the suspension of administrative decisions (that prohibited the deduction of trade union dues) as a precautionary and conditional measure until the ruling is handed down by the court for administrative proceedings.
  644. 644 The Committee notes that the decisions of the Municipal Administration of Canelones refusing to deduct the trade union dues do not seem to have been made in consultation with the trade union organization. The Committee also notes the rulings of the judicial authorities which, up until now, have called for the deductions to take place. There has been a clearly established custom to this effect since last century and, after the judicial authorities criticized the first administration decision to prevent the deduction, the Administration issued a new decision similar to the first one. Moreover, in the light of the Government’s statement that "it does not appear that ... the trade union members had requested the deduction ..." "without it being sufficient that the trade union make the request or authorization", it should be pointed out that effectively the agreement of trade union members is a precondition to carry out the deduction of trade union dues, and this condition is explicitly mentioned in Decree No. 16/2001 of the Departmental Board. The Administration did not comply, however, with this decree through its decision No. 3866. Rather than trying to find a solution with the complainant organization by checking the agreement of the trade union members, the Administration issued administrative decisions that prevented the deduction of trade union dues. In this respect, the Committee has, on previous occasions, recalled that "the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 435].
  645. 645 In these circumstances, the Committee concludes that the Municipal Administration of Canelones behaved in an anti-union manner by unilaterally and arbitrarily ceasing to deduct the trade union dues of the complainant organization and it urges the Administration, as the judicial authorities have ruled, to deduct the trade union dues of the members who have stated their agreement in any form. The Committee requests the Government to keep it informed of any new ruling on this matter.
  646. 646 Regarding Service Order No. 007/2000, which allows trade union leave only for those members of the departmental committee of the complainant organization, or their deputies, the Committee notes the Government’s statement that it will provide information in this respect following the processing of the administrative proceedings and the measures that it may take. The Committee requests the Government to keep it informed in this respect.