Rapport intérimaire - Rapport No. 329, Novembre 2002

1. 779. The complaint is contained in a communication from the Staff Association of the CASMU (AFCASMU) dated 21 January 2002. The AFCASMU sent further allegations in a communication dated 11 June 2002. The Government sent its observations in a communication dated 22 May 2002.
2. 780. 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. 781. In its communication of 21 January 2002, the Staff Association of the CASMU (Assistance Centre of the Medical Trade Union of Uruguay) – AFCASMU – alleges that it was the target of a clear measure of trade union repression following direct action decided on by the sovereign general assembly of the association on 10 January 2002.
2. 782. The AFCASMU explains that for over three years the CASMU, a mutual institution, has been paying its workers’ salaries late, sometimes with delays extending up to three months (the salaries are paid in instalments), and more recently it has stopped providing holiday pay. This situation deteriorated further during the last few months of 2001. As a result, during an assembly meeting on 10 January 2002 the workers decided on a series of trade union measures to address the matter, and also on corrective measures to improve the operation of the health-care system. These measures included the following: “that either on 14 January all wages are paid or on 15 January the operating-room staff and the equipment centre staff of Sanatorium 2 will not attend work; that the entire executive committee of AFCASMU, advised and supported by the first-level committee of this sanatorium and colleagues from other places who wish to provide their support, will be at the door; that the following month, if all non-medical wages have not yet been paid, there will be a 24?hour strike in all the surgical blocks and equipment centres”. This measure was decided by a majority and communicated in due time and form on 11 January to the institutional authorities. It should be pointed out that whenever measures are taken in any of the areas of assistance, a trade union presence is maintained to man the emergency rooms and this is what happened on the occasion in question. Given that the salaries were not paid on 14 January (with November and December being owed), the measure was carried out in the surgical block and equipment centre of Sanatorium 2 with members of the trade union remaining on duty from midnight to midnight on 15 January according to a roster established by the union. For the record, all the staff were located in the dining room of Sanatorium 2 in case it was necessary to replace those on duty. The duty roster mentioned was coordinated with the official in charge of the surgical block. Also present was the director of the sanatorium, who did not report any irregularities in respect of emergencies.
3. 783. The AFCASMU alleges that the technical/administrative management of the CASMU decided the same day to send a memo to 46 of the 78 workers who participated in the action to inform them of their preventive suspension from duties without pay and of the decision to institute proceedings against them. It should be noted that this decision was endorsed by the board of directors of the CASMU, a political body of institutional management, following a meeting held with the trade union during which it explained the circumstances in which the measure decided by the assembly was implemented. The CASMU decision was communicated to the AFCASMU in a fax on 16 January.
4. 784. The AFCASMU adds that on 17 January the trade union met in a mass general assembly and decided, inter alia, to submit an appeal for the protection of its constitutional rights to the judiciary requesting that the suspension of the 46 workers and the withholding of wages as a result of their participation in trade union activities be declared null and void. It also decided to file a complaint with the Ministry of Labour and the ILO (Committee on Freedom of Association).
5. 785. In a communication dated 11 June 2002, the complainant organization alleges that as a result of a protest conducted outside the workplace in response to economic measures adopted by the Government, the authorities of this body decided to institute proceedings against five workers who participated in the protest (Ms. Sadi, Mr. Daniel Fernández, Mr. Julio César Ximens, Mr. Héctor Pereira and Mr. Cyro Simoes).

B. The Government’s reply

1. 786. In its communication of 22 May 2002, the Government states that it has consulted both the General Labour Inspectorate and the National Labour Directorate concerning the complaint in question and has found no reference whatsoever to the dispute.
2. 787. The Government adds that the Staff Association of the CASMU (AFCASMU), in accordance with trade union action approved by the general assembly of the AFCASMU, decided on Thursday, 10 January 2002 that if after 14 January the CASMU had not paid the wages owed to the staff, it would conduct a partial sector-specific strike in the department of the surgical block and the equipment centre of Sanatorium 2. As the wages owed had not been paid by 15 January, a strike was conducted from midnight to midnight with a trade union presence in place according to a duty roster.
3. 788. On 16 January, in accordance with a resolution handed down by its board of directors, the CASMU decided on the examination proceedings (which were to finish by 23 January) concerning the workers involved in the trade union action and the suspension from duties with full retention of pay during the period of the examination proceedings. The workers considered that this decision infringed on the following fundamental rights: freedom of association and the right to strike, which in this case consisted of an atypical form of sector-level strike.
4. 789. On 17 January the trade union decided to lodge an appeal for the protection of its constitutional rights to the judiciary requesting that the suspension of the 46 workers and the withholding of wages owing to their involvement in trade union action be declared null and void.
5. 790. The examination proceedings were completed on 21 January, the preventive suspension was lifted and a call was made for a return to usual duties. Consequently, the workers returned to work.
6. 791. A trade union hearing was held, for which provision is made in appeals for the protection of constitutional rights. The judicial authority, following the witnesses’ statements and considering the fact that the CASMU had reinstated its workers, declared that “there is no sign of a potential infringement of a right, nor of irreparable damage and, in addition, an ordinary procedure is in place whereby possible disciplinary sanctions that the defendant might have imposed on the plaintiffs can be reviewed”, and dismissed the appeal for protection.
7. 792. Consequently, in principle the Ministry of Labour would not have any objections to make to the result of the appeal for the protection of constitutional rights and would like to be informed of any information the workers might provide concerning the result of the proceedings.

C. The Committee’s conclusions

1. 793. The Committee observes that in this case the complainant organization alleges that on 16 January 2002 the Assistance Centre of the Medical Trade Union of Uruguay preventively suspended from duties, without pay, and ordered that proceedings be instituted against, 46 workers as a means of trade union repression following direct trade union action (more specifically, the failure of the operating-room and equipment centre staff to attend work on 15 January 2002, although emergency rooms were kept in service by means of trade union duty rosters and all the staff were present in the dining room in case it was necessary to replace those on duty). The complainant organization explains that 78 workers participated in this action and that the action was taken because for over three years the CASMU has been behind by up to three months in its payment of wages to its workers and that more recently it had also failed to pay for holidays.
2. 794. The Committee notes the Government’s statement that this constituted a partial sector-level strike and that it confirmed the failure to pay the wages owed as well as the suspension from duties without pay during the examination proceedings ordered by the institution. The Committee notes that once the examination proceedings had been completed the preventive suspension was lifted and that on 21 January 2002 the workers were invited to return to their duties, and all the workers who had been suspended from their duties were reinstated. The Government sends a copy of the judgement on the appeal for the protection of constitutional rights dated 28 January 2002 where this appeal is dismissed “without any special convictions”, in particular given the nature of the appeal (which takes place “when there is an infringement or imminent threat of an infringement to a right or freedom which causes or will bring about irreparable damage if the formalities corresponding to the usual instruments are adhered to”) and taking into account that the officials in question were reinstated and that “an ordinary procedure is in place whereby possible disciplinary sanctions that the defendant might have imposed on the plaintiffs can be reviewed”.
3. 795. The Committee has considered that the right to strike may be restricted or prohibited in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 526] and has deemed the hospital sector to be an essential service [see Digest, op. cit., para. 544]. The Committee has considered possible the establishment of minimum services in the case of strike action in essential services in the strict sense of the term [see Digest, op. cit., para. 556]. The Committee observes that in Uruguay strikes are not prohibited in the hospital sector and that in this case minimum services were maintained.
4. 796. In the circumstances of this case, the Committee requests the Government to indicate why the CASMU preventively suspended 46 workers from their duties without pay and instituted proceedings against them. Also, given that they were reinstated five days after the day of the partial strike, the Committee requests the Government to indicate whether these workers were paid the wages withheld during the five days that the examination proceedings lasted, and also whether these workers still run the risk of being punished or whether the disciplinary proceedings have been filed. The Committee requests the Government to keep it informed in this respect.
5. 797. Lastly, the Committee notes with concern the allegation relating to the proceedings instituted against five workers of the CASMU for having participated in a protest organized by the trade union outside the workplace in response to economic measures adopted by the Government, and requests the Government to communicate its observations in this respect without delay and in particular to inform it about the result of the proceedings in question.