Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 348, Novembre 2007

1147. This complaint is contained in a communication from the National Federation of Secondary Education Teachers and the Association of Secondary Education Teachers – Montevideo branch (ADES) dated 16 June 2006. The complainant organizations sent additional information in a communication dated August 2006. The Government sent its observations in a communication dated 28 February 2007.

1. 1148. 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 complainants’ allegations

1. 1149. In its communications dated 16 June and August 2006, the National Federation of Secondary Education Teachers and the ADES state that the collective right to work in Uruguay constitutes a true structure, in both the doctrinal and the jurisprudential senses. Some very concrete and specific legal components have gone into creating this structure, which work together to support it normatively, programmatically and in principle. In this respect, the most important standards are article 57 of the Constitution of the Republic, which establishes that the law shall promote the organization of trade unions, granting them privileges and issuing standards to recognize their legal personality, and ILO Conventions Nos 87, 98, 151 and 154 on freedom of association, the right to organize and collective bargaining.
2. 1150. The complainants add that at the national level, the Parliament of the Republic recently approved the Freedom of Association Protection Act, No. 17940 of 2006, as a result of which actions or omissions that violate the provisions of the abovementioned standard are declared null, and concrete procedures are provided to protect the exercise of freedom of association. They allege that these very standards were violated through acts of an
3. anti-union nature that discriminated against some of the teachers belonging to the Secondary Education Council, a decentralized body reporting to the Central Executive Council of the National Public Education Administration, a public body governing public secondary education in Uruguay. These teachers have been prejudiced in their employment as a consequence of the normal exercise of trade union activities.
4. 1151. The complainants explain that everything began in August 2004 at Liceo No. 4 in Montevideo, an educational establishment providing secondary education. The head teacher had coordinated with the police force to detain a number of adolescents as a way of tackling the drug problem. In view of the detention, Dinorah Siniscalchi, a teacher who had learned what was happening and was alarmed at the severity of the action taken, contacted the parents to inform them that their children had been detained and were being questioned by narcotics experts. It should be noted that, at that time, this official was a distinguished trade union activist at the study centre, who had come from the executive committee of the Montevideo Teachers’ Association. The situation prompted consternation and alarm in the educational community, particularly at the centre itself and, obviously, the official concerned was identified and met with the disapproval of the head, who sanctioned her, a sanction that was subsequently officially approved by the Secondary Education Council.
5. 1152. The complainants indicate that the rest of the officials expressed considerable indignation following this event and it served as a catalyst for resistance and protests by all the centre’s trade union members, including the union core. From then on, the head also began to single out other teachers, those with trade union representative status and representatives of the trade union core at Liceo No. 4. In this context, four teachers – Fernando Moreno, Winston Mombrú, Pedro Balbi and the teacher mentioned above – were professionally prejudiced through the deliberate and brutish demolition of their annual assessments.
6. 1153. The complainants state that the head of the establishment has control over an instrument that is crucial for teachers’ professional status: the assessment or annual evaluation of performance, contained in the annual report. This assessment is exceedingly important for the position of teachers on the hierarchical scale and consequently for their chances of improving their conditions of work, including their salary. The assessment of the teacher basically constitutes what is called teacher aptitude. Teacher aptitude is the key to the hierarchical scale in teaching and, given its impact, is fundamental for teachers to be able to advance their careers in the ANEP system. Moreover, even the Teaching Staff Rules in Uruguay expressly establish (article 40) a minimum of 51 teacher aptitude points as a prerequisite for promotion. A teacher who does not achieve that score can be declared incompetent by a special board of inspectors.
7. 1154. The complainants allege that the head of Liceo No. 4 in Montevideo did not change his anti-union discriminatory attitude. From the time of the events prompted by the detention of the youths referred to above and the resulting trade union action, he began to use annual performance reports (assessment of teaching aptitude) to repress those with trade union representative status. These affiliates had previously had excellent assessments and had had a percentage of their classes assessed at almost 100 per cent for the year. Their assessments were undercut by 20 to 30 points. But the most striking aspect was the audacity with which the management introduced anti-union elements into the reports, in some cases even calling for criminal sanctions. According to the complainants, the fact that the students might learn of the trade union actions appeared to irritate management considerably. In 2005, it used the 2004 annual report to question the affiliates’ ethics, following their involvement in propaganda activities and meetings in connection with what happened with Dinorah Siniscalchi.
8. 1155. The complainants note that the situation became increasingly untenable by the month, with the mood of anti-union repression continuing to intensify, even today. They add that support for this situation from the highest authorities is a matter of concern. The assessments referred to were not amended by the corresponding appeals body: the assessment panel for physics (the subject applicable to the teachers in question) did not make the slightest reference to the impertinence or inadmissibility of introducing elements of anti-union discrimination into teacher assessments. The previous three years were simply averaged to assess the affiliates. This allowed them to remain in the “excellent” range owing to their previous assessments, but keeping the assessment awarded by the management. In other words, a manifestly anti-union act was not overridden.
9. 1156. However, the situation of repression did not end and instead continued to intensify with the passage of time. More seriously still, the Secondary Education Council’s own authorities lent their support to the practices of the management of Liceo No. 4, which lodged a complaint against one of the teachers involved – Pedro Balbi – who, without any reliable evidence had administrative proceedings (a disciplinary procedure to apply sanctions that can culminate in the removal – dismissal – of the official) instituted against him. The form in which these proceedings were conducted was unusual; on the basis of a gross manipulation of the evidence, the teacher ended up being suspended for 15 days. Even more seriously, a climate of persecution and anti-union discrimination clearly emerged from statements made by the head himself. In a statement more than 20 pages long, he refers to all the trade union activity conducted, to the meetings held and to the propaganda activities under way, making it abundantly clear that the reasons underlying the friction between the teacher under investigation and himself relate to issues of a trade union nature.
10. 1157. The complainants indicate that in its various reports the Secondary Education Legal Division did not make a single reference to the anti-union climate surrounding the pre-trial proceedings instituted against Pedro Balbi. On top of that, the Council’s own authorities chose to remain silent on those matters, and despite the sloppy way the “evidence” was dealt with and assessed, it was decided to sanction the teacher. Then, to add insult to injury, the authorities of the Association of Secondary Education Teachers lodged an administrative complaint against the head of Liceo No. 4 regarding the whole situation (Case No. 3/82/06), yet none of these complaints was responded to or ruled on by the Secondary Education Council. The complainants add that the management of Liceo No. 4 remains hostile. It resumed its persistent anti-union stance following a propaganda campaign involving the distribution of information outside Liceo No. 4 and following a teacher–student meeting in which ADES leaders participated in the framework of a stoppage arranged by the Inter-Trade Union Assembly–Workers’ National Convention (PIT–CNT) in defence of the Freedom of Association Protection Act.
11. 1158. They allege that a teacher who also participated in that event, Adriana Romano, was included in the group of workers being discriminated against for their trade union beliefs. The management of the Liceo again intensified its attacks, further reducing the points scores of the workers in question, now accusing them in the annual report of committing grave disciplinary offences, including “violation of the principle of laicism” and “of the moral and civic independence of the pupil”, etc., all grounds for dismissal, and even requesting administrative investigations into the same. Management’s persistence in continuing to reduce the points scores (now with those of 2005) seems to be without bounds and, if this attitude continues, the desired result will obviously be achieved as, by taking the average of the last three years for the final assessment, reports will ultimately be taken into account in which assessments in the “excellent” range will be reduced to points scores dangerously close to the “incompetent” range. If this situation of discrimination is not stopped it will endanger the labour stability of the trade union representatives at Liceo No. 4 and the current members of the executive bodies at the various trade union levels. And, of course, it also endangers the existence of the trade union core of the ADES in that education centre.
12. B. The Government’s reply
13. 1159. In its communication dated 28 February 2007, the Government states that proceedings conducted by the Ministry of Education and Culture and by the General Labour and Social Security Inspectorate of the Ministry of Labour are still pending. Once finalized, the Government will be in a position to present its observations. As to the proceedings before the General Labour Inspectorate of the Ministry of Labour and Social Security, it provides the following information:
14. – to find out about the complaint made jointly by the National Federation of Secondary Education Teachers and the ADES, the Government began to process the administrative proceedings to determine the existence or otherwise of acts in violation of the Labour Relations (Public Service) Convention, 1978 (No. 151), in respect of the facts set forth in the complaint. In this connection, it was decided by administrative decision to transfer the file to the trade union and the accused party; FENAPES–ADES was notified on 2 August 2006 and ANEP–CES on 15 August 2006;
15. – once notified of the administrative decision, the parties took note of the transfer and, in accordance with the provisions of Decree No. 500/991 relating to the administrative procedure, a decision dated 11 September 2006 called for evidence to be presented;
16. – both parties offered documentary and oral evidence and requested official written evidence and reports;
17. – a decision dated 10 October 2006 ordered that the evidence offered be processed and hearings were scheduled to receive witnesses, the first hearing being scheduled on
18. 15 November 2006;
19. – in this connection, on 26 February 2007, the last of the witnesses was received, thus completing all the evidence;
20. – on 27 February 2007, the proceedings were transferred to the parties, in keeping with the administrative decision.
21. 1160. The Government adds that, in accordance with the above, it should be noted that, as soon as the General Labour and Social Security Inspectorate of the Ministry of Labour was informed of the accusations, it acted as quickly as possible within the time frames established by Decree No. 500/991 which regulates administrative procedures. It should also be noted that the trade union did not file the complaint before the Ministry of Labour, but instead chose to go directly to the ILO, which explains the inappropriate timing of the administrative proceedings with respect to when the reported events took place.
22. 1161. Lastly, the Government reiterates that other proceedings are pending with the Ministry of Education and Culture and that the accused ANEP–CES instituted proceedings immediately, resulting in administrative proceedings to clarify and rule on the accusations. Consequently, the Government states that it did not remain uninvolved in the subjects raised by the complainant organization, but rather acted immediately within the framework in which the events occurred and conducted the corresponding procedures within that same framework with the guarantee of due process.

C. The Committee’s conclusions

1. 1162. The Committee observes that, in this case, the complainant organizations allege that as from August 2004, when a trade unionist teacher affiliated to the Montevideo Teachers’ Association convened parents of pupils at the educational establishment Liceo No. 4 in Montevideo to tell them that their children were being detained by the police narcotics squad, the authorities of the establishment sanctioned the trade unionist in question (Dinorah Siniscalchi) and, following a related protest by the trade union, they began to take anti-union measures (low assessments in annual reports, suspensions and the institution of proceedings that can culminate in dismissal) prejudicial to other teachers affiliated to the trade union who had trade union representative status (Fernando Moreno, Winston Mombrú, Pedro Balbi and Adriana Romano).
2. 1163. The Committee notes the Government’s statement that: (1) proceedings (investigations) are being conducted by the Ministry of Education and Culture and by the General Labour Inspectorate of the Ministry of Labour and Social Security in respect to the allegations in this case; (2) in relation to the investigation pending before the General Labour Inspectorate, on 27 February 2007, the proceedings were transferred to the parties, in keeping with the administrative decision; and (3) as soon as the General Labour Inspectorate was informed of the accusations (the trade union did not file the complaint with the Ministry of Labour, but rather directly with the ILO and this explains the inappropriate timing of the administrative proceedings with respect to when the events took place) it acted as quickly as possible.
3. 1164. This being the case, the Committee expects that the investigations under way will determine why sanctions were imposed and various measures were taken against the members of the Montevideo Teachers’ Association in question and requests the Government, if this is found to have occurred for anti-union reasons, to take measures to lift them immediately. Furthermore, the Committee hopes that the proceedings will be concluded very soon and asks the Government to keep it informed of the final result of the investigations under way and of any related appeals lodged.