Rapport définitif - Rapport No. 353, Mars 2009

1. 1337. The complaint is contained in a communication from the Confederation of Civil Service Trade Unions (COFE) dated 28 January 2008. COFE sent further information in a communication dated June 2008.
2. 1338. The Government sent its observations in a communication dated 26 August 2008.
3. 1339. 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. 1340. In its communication dated 28 January 2008, COFE states that Uruguay is one of the few exceptions to the system of codification of labour law, both individually and collectively. Collective labour law in Uruguay constitutes a genuine edifice of both doctrine and case law. That edifice is based on a number of specific legislative components which provide foundations in terms of standards, programmes and principles. Thus, the most important legal standards are article 57 of the Constitution of the Republic, which provides that the law shall promote the organization of trade unions, granting them certain exemptions and establishing regulations for giving them legal personality, and ILO Conventions Nos 87, 98, 151 and 154 on freedom of association and on the right to organize and collective bargaining, ratified by Act No. 12030 of 27 November 1953 and Act No. 16039 of 8 May 1989, respectively.
2. 1341. With regard to freedom of association for public employees, reference should be made to the importance for Uruguayan law of the provisions of Convention No. 151, particularly Article 4 thereof, which states that they must enjoy protection against anti-union discrimination. At national level, the Parliament of the Republic recently approved Act No. 17940 of 2 January 2006 concerning protection of freedom of association, according to which actions or omissions that breach the terms of the abovementioned law are deemed null and void and specific procedures are laid down to safeguard the exercise of freedom of association. The complainant alleges that it is precisely these standards which have been violated by anti-union administrative acts issued by the Ministry of Labour and Social Security and the Ministry of National Defence.
3. 1342. COFE indicates that, on 28 April 2007, the Uruguayan Air Traffic Controllers’ Association (ACTAU) issued a statement concerning the resolution passed by the general assembly the previous day, whereby it decided “to endorse the measures adopted by COFE to carry out a work stoppage on 23 May 2007”. It also declared that “services will be provided for flights in the areas of health care, search and rescue operations and humanitarian assistance”. On 17 May ACTAU and COFE, the latter represented by its President Mr Pablo Cabrera and organizational secretary Mr Ricardo Barboza, participated in a meeting at the Labour and Social Security Ministry convened by the national labour director and attended by the Ministry’s Under-Secretary for Defence and its human resources director. An offer was made to ACTAU at the meeting to open negotiations relating to their set of demands in exchange for calling off the stoppage planned for 23 May. On 21 May the Government’s proposal was put to the ACTAU general assembly, which decided to go ahead with the stoppage as planned.
4. 1343. On 22 May 2007, the Labour and Social Security Ministry, with the signature of the labour and defence ministers, issued Resolution No. 70/007 declaring air traffic control to be an essential service. It also stated that it was for the National Defence Ministry to decide what services were to be provided during the strike period. The National Defence Ministry resolution declared the following to be essential services: air traffic control services, aeronautical operation and information services, aeronautical police services, and electrical/electronic system operation and maintenance services.
5. 1344. COFE asserts that such resolutions constitute an unlawful restriction of one of the fundamental rights of freedom of association, namely the right to strike, on the following grounds. Firstly, COFE members ACTAU (the Uruguayan Air Traffic Controllers’ Association) and AFAC (the Association of Civil Aviation Officials) made provision for the work stoppage called by the unions to include coverage of the services required for flights of a humanitarian nature (health care and technical emergencies). In other words, the confederation itself imposed limits on the exercise of its own right to strike, precisely by establishing minimum coverage of the essential needs of the service. COFE therefore considers it to be clear that the essential services imposed by law were absolutely unnecessary. Hence, and also because of the form in which the above resolutions were drafted, COFE considers that the Government’s objective was to limit exercise of the right to strike to a specific category of public servants.
6. 1345. ACTAU considers that analysis of the various elements involved can only lead to this conclusion. Indeed, a causal link can be seen between the Government’s objective and the methods and grounds invoked in the unlawful limitation of this fundamental right. If the workers themselves had guaranteed to provide specific emergency services to cover humanitarian flights, the authorities can have had no other objective than to impose limits on the right to strike of a particular category of public employees. According to COFE, all services were declared to be essential without distinguishing between categories of duties or officials, and the declaration of their essential nature was not made in conjunction with any specific dispute.
7. 1346. COFE points out that the resolution issued by the labour and defence ministers is based on Freedom of Association Committee principles which have been used to justify limitation of the strike by the Government but have been taken out of context without the analysis required under the fundamental principles on which all case law is based.
8. 1347. COFE asserts that the declaration of the essential nature of a service depends on the criteria used to define it, i.e. whether or not there is a danger to life, safety or health. Defining a service as essential cannot be done without an in-depth analysis of these determining factors. The cases referred to by the Government highlight precisely the need for a case-by-case analysis, since use of the term “may” indicates the existence of possibilities. In other words, it is on the basis of a case-by-case analysis using the criteria deriving from the principles of the Freedom of Association Committee that the services in question may or may not be declared essential. Analysis always leads to a specific, factual situation, and herein lies the violation of freedom of association by the Government. COFE asserts that the specific situation showed that the declaration of the services concerned as essential was not necessary and hence the Government’s declaration was aimed simply at limiting a fundamental right of all public or private sector workers.
9. 1348. In its communication of June 2008, COFE alleges that the defence minister, by means of a new resolution dated 24 December 2007, declared air traffic control, aeronautical operations and information, aeronautical police operations and electric/electronic systems operation and maintenance, to be essential services. COFE asserts that this resolution, which is identical in tone to the one which gave rise to the complaint, is proof of the fact that the Government is obstructing the exercise of the right to strike in air traffic control.

B. The Government’s reply

1. 1349. In its communication of 26 August 2008, the Government declares that, as regards the trade union’s self-regulation with respect to the right to strike, the argument used is unacceptable. The Government states that, with respect to essential services, there is a delicate balance between the rights of the workers concerned and the rights of the community as a whole. Under Uruguayan law, the Constitution of the Republic (article 65) imposes the principle of the continuity of public services and in a democratic State only the public authority can decide what constitutes essential services (in the present case, these were technically determined by the competent ministry, namely the National Defence Ministry). The case of the air traffic controllers is perhaps the most visible example of essential services, since human life is at stake in a stark and immediate form. In case of doubt, the right to life has to take priority.
2. 1350. The Government states that the complaint also argues that paragraph 587 of the Digest of decisions and principles of the Freedom of Association Committee indicates that various services, including “transport generally”, “do not constitute essential services in the strict sense of the term”. Even accepting the dubious inclusion of air traffic controllers under the heading of “transport generally”, the definition would be generic and hence the specific provision concerning air traffic controllers would prevail. The Government finds it strange that the complaint does not refer to “compensatory guarantees” or to the specific means of dispute resolution which have been established by the Freedom of Association Committee.
3. 1351. The Government points out in this case that it is well known that both the Labour Ministry and the National Defence Ministry have maintained, and still maintain, mechanisms for dialogue and bargaining at the highest political level. Under the labour relations system in Uruguay, it is difficult to resolve a dispute by arbitration where the latter has not been promoted by the trade union. Furthermore, dialogue is in progress regarding the possibility of concluding a bilateral agreement on minimum services, which, in the Government’s view, complies with the criteria of the Freedom of Association Committee. As regards COFE’s claim that the Government’s objective was simply to limit a fundamental right of all workers in the public and private sectors, the Government points out that it is necessary to define the legal and institutional parameters which determine its action in this matter. Three constitutional provisions lay down guidelines which must be considered together when resolving specific cases.
4. 1352. Article 57 of the Constitution of the Republic states: “Striking is a union right. The exercise and effectiveness thereof shall be regulated on this basis”. It should be understood here that the legislative provision, in recognizing a general legal principle, establishes a right which is not absolute. The legal system of a State specifies the legal entitlements which it wishes to safeguard. Government administration must be aligned to this and therefore it is not a question of protecting a solitary legal entitlement but of effectively safeguarding them all. The first paragraph of article 59 of the Constitution states that the law shall establish public service regulations on the basis that the public servant exists for the service and not vice versa. Article 65 of the Constitution states that the law may prescribe, inter alia, the means and procedures which the public authority may use for maintaining the continuity of services.
5. 1353. Specific facts must be analysed according to the contexts and processes of which they form a part. It should be emphasized that the Government has been scrupulous in its compliance with Article 4 of Convention No. 151 regarding freedom of association for public employees. The Government has also been one of the parties backing the adoption of Act No. 17940 of 2 January 2006 on the protection of freedom of association, referred to by the complainants in the present case. In Uruguay the regulations applicable to disputes in essential services have a legislative basis, Resolution No. 70/007 of 22 May 2007 declaring air traffic control to be an essential service having been adopted in accordance with section 4 of Act No. 13720 of 16 December 1968 and section 9(2) of Legislative Decree No. 14791 of 8 June 1978.
6. 1354. The decision made by the National Defence Ministry, in exercise of its powers, regarding the services to be provided was based on the definition of the duty of ensuring operational safety laid down in the bipartite agreement of 12 November 2007 negotiated between the National Defence Ministry (MDN), on the one hand, and the Confederation of Civil Service Trade Unions (COFE), the Uruguayan Air Traffic Controllers’ Association (ACTAU) and the Association of Civil Aviation Officials (AFAC), on the other. As regards the measures on strike limitation in the essential services, it should be noted that a meeting was convened by the national labour director on 17 May 2007 which was attended by the National Defence Ministry authorities and representatives of ACTAU and COFE and at which the former proposed the launch of negotiations to deal with the officials’ claims, in return for an undertaking to call off the stoppage announced for 23 May 2007. This proposal was rejected by the ACTAU general assembly. However, negotiations took place subsequently which resulted in agreements such as the MDN/COFE–ACTAU–AFAC bipartite bargaining agreement of 12 November 2007.

C. The Committee’s conclusions

1. 1355. The Committee observes that in the present case the complainant organization objects to Ministry of Labour and Social Security Resolution No. 70/007 of 22 May 2007 declaring air traffic control to be an essential service and that the Ministry of Defence had to decide which services were to be provided during the strike period (the complainant alleges that the Defence Ministry again declared air traffic control an essential service in December 2007). The Committee also observes that the complainant states that the Government’s objective was to limit the right to strike of a specific category of public servants and that declaring air traffic control services essential was not necessary in view of the fact that COFE, AFAC stated that the stoppage would include coverage of services of a humanitarian nature (health care and technical emergencies).
2. 1356. The Committee notes the Government’s statement to the effect that: (1) as far as essential services are concerned, there is a delicate balance between the rights of the workers and the rights of the community; (2) article 65 of the Constitution of Uruguay imposes the principle of the continuity of public services and only the public authority can decide what those services are; (3) the case of the air traffic controllers is possibly the most visible example of essential services since human life may be at stake; (4) the Constitution of Uruguay establishes the right to strike but this is not absolute; (5) the determination by the National Defence Ministry of the services to be provided was based on the definition of the duty of ensuring operational safety; (6) on 17 May 2007 a meeting convened by the national labour director took place between the authorities, the National Defence Ministry and representatives of ACTAU and COFE, at which it was proposed to launch negotiations to deal with the officials’ claims, in return for an undertaking to call off the stoppage announced for 23 May 2007, but this proposal was rejected by ACTAU, and (7) since then negotiations took place, however, which resulted in agreements such as the bipartite bargaining agreement of 12 November 2007 between the National Defence Ministry, COFE, ACTAU and AFAC.
3. 1357. The Committee recalls that “the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) 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)”, and includes “air traffic control” in the list of services that “may be considered to be essential” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 576 and 585]. The Committee also recalls that, as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., para. 596].
4. 1358. Accordingly, the Committee considers that the challenged resolution (Ministry of Labour and Social Security Resolution No. 70/007 of 22 May 2007) declaring air traffic control to be an essential service does not violate the principles of freedom of association as regards the right to strike. Furthermore, the Committee notes with interest that workers in the sector enjoy the right to collective bargaining and that they have reached an agreement with the Defence Ministry. Under these circumstances, the Committee considers that this case does not call for further examination.