Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Uruguay (Ratification: 1954)

The Committee notes the joint observations of 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 31 August 2016 and 31 August 2018 on issues dealt with in this observation. The Committee notes additional joint observations of the IOE, CIU and CNCS received on 28 November 2018. The Committee requests the Government to provide its comments thereon.

Article 3 of the Convention. Workplace occupation and the right of the management of the enterprise to enter the workplace in the context of a labour dispute. In its previous comments, the Committee welcomed the signing in March 2015 of a tripartite agreement in which the Government and the social partners undertook to engage in constructive dialogue on the issues raised in the Report of the Committee on Freedom of Association in Case No. 2699. The Committee expressed the firm hope that the agreement would mark the beginning of a fruitful tripartite dialogue process in which, taking into account the comments of the Committee on Freedom of Association and this Committee on the issue of workplace occupation, concrete measures would be taken to bring law and practice into full conformity with the Convention.

The Committee notes that, in their joint observations, the IOE, CIU and CNCS state that: (i) in the context of tripartite discussions following the 2015 agreement, the Government submitted in 2016 and 2017 to the tripartite discussion two legislative proposals, the content of which regarding occupation in the workplace does not comply with the comments and recommendations of the ILO supervisory bodies; (ii) the adoption in March 2017 of Decree No. 76/017 on the right to free movement on streets, roads and highways even further removes the Government from fulfilling its commitments, as strikes are excluded from the scope of application of the Decree; (iii) there are no pickets or workplace occupations that are carried out peacefully since the vast majority of these measures are carried out under threats and/or physical violence and that all these acts involve, at least, a level of psychological violence; (iv) all civil courts that have examined cases of amparo (protection of constitutional rights) brought by workers in defence of their right to work have decided in the workers’ favour; (v) whereas, under Decree No. 165/2006 regulating the steps that the trade unions must take to occupy a workplace, there has not been a case of an employer securing the withdrawal of the labour authority from his or her enterprise; and (vi) that Decree, under which enterprise occupation is considered a form of the right to strike, should be derogated. The Committee notes that the employers’ organizations lastly state that for over eight years, the Government has been failing to comply with its obligation to submit to Parliament a draft bill addressing the supervisory bodies’ comments on workplace occupation and that, given the impossibility of reaching a tripartite agreement in this respect, it is incumbent on the Government to take the necessary steps to end this situation of non-compliance. The Committee notes, however, the Government’s indication that, in cases of workplace occupation, the civil courts are competent to hear cases of amparo brought by workers who consider that their freedom to work is being violated and that, in this respect, there is clear jurisprudence safeguarding freedom to work.

The Committee also notes that, in the context of the tripartite discussions subsequent to the March 2015 agreement, the Government submitted two proposals on legislative amendments to the social partners in September 2016 and March 2017. The Committee notes in particular that the proposal made in March 2017 sets out a mechanism for dispute prevention and settlement procedures which specifically provides: (i) in cases where pickets or workplace occupations do not respect the prior process of dispute prevention and settlement, for the Ministry of Labour and Social Security and/or the Ministry of the Interior to order, within a required 24-hour time limit, the cessation of these actions, with the entitlement to use force; and (ii) for the obligation of pickets, as a union measure, to be carried out peacefully, without disturbing the public order and while enabling free movement and entry into the workplace; that the Ministry of the Interior may intervene and public force may be used if this obligation is not fulfilled. The Committee notes, however, that the Government’s March 2017 proposal: (i) does not appear to envisage amendments regarding enterprise occupations which may take place following the finalization of the proposed dispute prevention and settlement mechanism; and (ii) does not explicitly provide for the obligation of enterprise occupations to respect the freedom to work of non-striking workers. In this respect, the Committee reiterates “that insofar as the strike remains peaceful, strike pickets and workplace occupations should be allowed. Restrictions on strike pickets and workplace occupations can only be accepted where the action ceases to be peaceful. It is however necessary in all cases to guarantee respect for the freedom to work of non-striking workers and the right of the management to enter the premises” (see the 2012 General Survey on the fundamental Conventions, paragraph 149).

The Committee notes lastly that: (i) while the Inter-Union Assembly of Workers–Workers’ National Convention (PIT–CNT) supports the proposal on a generic process of dispute prevention for settings in which no process is in place, it does not support the legislative amendment on enterprise occupation proposed by the Government, deeming this to be a matter for collective bargaining; and (ii) as indicated in its observations addressed to the Committee, the employers’ organizations, which submitted an alternative proposal for legislative amendments, do not support the governmental proposal as they consider, in particular, that enterprise occupations are not a form of exercising the right the strike and that the Decree governing them should be derogated.

In the light of the above, the Committee notes that, under the tripartite agreement of March 2015, substantial consultations have been held on the legislative reform regarding labour relations, with criteria for various drafts being shared. The Committee notes, however, that those efforts have not led to a tripartite agreement on the specific issue of enterprise occupation and, to date, no draft law has been submitted that addresses all the Committee’s requests. Emphasizing, once again, the importance of the guidelines set out by national case law in this respect, the Committee requests the Government, after submitting the text for consultation with the social partners, to present to Parliament a draft regulating enterprise occupations, in full compliance with the Convention. Recalling that it can continue to rely on the Office’s technical assistance, the Committee firmly hopes that the Government will shortly be in a position to report the tangible progress made in this regard.