Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Occupational Safety and Health Convention, 1981 (No. 155) - Uruguay (Ratification: 1988)

The Committee notes the joint observations from the International Organisation of Employers (IOE), the Chamber of Industries of Uruguay (CIU), and the National Chamber of Commerce and Services of Uruguay (CNCS) received on 1 September 2014. It also notes the Government’s reply, which was received on 31 October 2014.

Articles 4, 8 and 11(e) of the Convention. Legislation relating to the national occupational safety and health (OSH) policy, in consultation with the representative organizations of employers and workers concerned. The Committee notes that the IOE, the CIU and the CNCS refer to the adoption of Act No. 19196 of March 2014, establishing criminal liability for employers in the event of non-compliance with OSH standards, and Decree No. 120/2014, implementing Act No. 19172 of 7 January 2014 concerning the control and regulation of the importation, production, purchase, supply, marketing and distribution of marijuana and its derivatives. The employers’ organizations indicate that neither Act No. 19196 nor Decree No. 120/2014 were the subject of consultation in the National Occupational Safety and Health Board (CONASSAT) or in any other tripartite bodies. They state that even though the employers gave their opinion on Act No. 19196 in the parliamentary context, the Act was introduced with a total lack of statistics on occupational accidents and without forming part of a coherent national policy on OSH. As regards Decree No. 120/2014 concerning cannabis, the IOE, the CIU and the CNCS say that the Decree was adopted without consultation despite containing a labour-related component, and assert that the application of this legislative text in practice seriously obstructs the employer’s authority to manage a situation involving a worker under the influence of cannabis.

In its comments on the observations referred to above, the Government indicates that tripartism is part of OSH policies and practices, with more than 18 sectoral (branch) tripartite committees in operation, in accordance with the Convention. The Government adds that the recent decree on safety in the construction industry was the subject of in-depth tripartite negotiations and in the end the executive authority approved all agreements reached, except for two minor points. As regards the observations on the adoption of Act No. 19196 concerning criminal liability on the part of the employer, the Government declares that since the adoption involved the submission of draft legislation to Parliament, the employers and their organizations had various opportunities to be present at meetings of the Labour Affairs Committee and Social Security Committee of the Senate of the Republic and those of the Labour Legislation Committee of the Chamber of Representatives. Their views were also heard in the relevant circles of the Ministry of Labour and Social Security. To date, several months after the Act’s entry into force, there have been no court cases involving any employers, which shows clearly that the Act strikes a balance and that judges apply it according to rigorous criteria, without undermining the principles of personal freedom and safety. Regarding Decree No. 120/2014 concerning cannabis, the Government indicates that account must be taken of the key significance of drug addiction in Uruguay and the role played by the Government, which places it at the forefront of action against drug trafficking in alternative ways to those which had previously failed. The Government states that the communication from the employers’ organizations does not clearly identify the object of their criticism, merely stating that an employer’s disciplinary powers are limited, and that the employers are surely referring to a legal provision which allows the employer to remove the worker from the workplace if the latter is under the influence of cannabis, without the regulations inclining towards penalizing the worker. The Government affirms that this is because the worker, being considered to be in a state of addiction, does not have the free will that would be necessary to incur any penalties, and it is a matter of protecting the worker’s health and that of his/her work colleagues.

As regards Act No. 19196, the Committee notes that both the Government and the employers’ organizations agree that consultations were held in Parliament. The Committee also notes that Decree No. 120/2014 comprises 104 sections and just one of them (section 42) refers to labour matters. Under the aforementioned section, the use of cannabis is prohibited throughout the time that the worker is under the employer’s orders, and the worker is also prohibited from working after using cannabis; workplace controls are established which can be ordered by the employer with notification of the bipartite OSH board; and if a control establishes the presence of tetrahydrocannabinol (THC) in the worker’s body, the worker must stop work and, if ordered to do so by the employer, leave the workplace. Referring to Articles 4, 7 and 8 of the Convention, the Committee notes that, even though the Convention does not stipulate that the required consultations must be held in the context of a tripartite body, the fact of holding consultations in the context of any such existent bodies, for example CONASSAT, would facilitate social dialogue and contribute towards greater coherence in the national OSH policy. The Committee therefore considers that any problems arising from the application in practice of Act No. 19196 and Decree No. 120/2014 that relate to the national OSH policy should be examined in consultation with the most representative organizations of employers and workers concerned and, if possible, in the context of CONASSAT. The Committee requests the Government to provide information on any consultations held in this respect and the outcome thereof.

The Committee is raising other matters in a request addressed directly to the Government.