Informe provisional - Informe núm. 200, Marzo 1980

Caso núm. 763 (Uruguay) - Fecha de presentación de la queja:: 03-JUL-73 - Cerrado

COMPLAINT CONCERNING THE OBSERVANCE BY URUGUAY OF 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), PRESENTED BY A NUMBER OF DELEGATES TO THE 61st SESSION OF THE INTERNATIONAL LABOUR CONFERENCE (1976) UNDER ARTICLE 26 OF THE CONSTITUTION OF THE ILO

• COMPLAINT CONCERNING THE OBSERVANCE BY URUGUAY OF 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), PRESENTED BY A NUMBER OF DELEGATES TO THE 61st SESSION OF THE INTERNATIONAL LABOUR CONFERENCE (1976) UNDER ARTICLE 26 OF THE CONSTITUTION OF THE ILO
  5. 5 A number of trade union organisations, including the World Federation of Labour (WCL) and the World Confederation of Trade Unions (WFTU), have presented allegations of violations of freedom of association in Uruguay. In addition, three delegates to the 61st Session of the International Labour Conference (June 1976) presented a complaint under article 26 of the Constitution of the International Labour Organisation to the effect that the Government of Uruguay was not securing the effective observance of 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). Both of these instruments have been ratified by Uruguay.
  6. 6 The Committee has examined all aspects of this case on a number of occasions. It last submitted interim conclusions in its 198th Report, which was approved by the Governing Body in November 1979 (211th Session).
  7. 7 Since this last examination of the case, the Committee has received three new communications from complainant organisations, two from the World Federation of Trade Unions (18 December 1979 and 9 February 1980), and the other from the National Workers' Convention of Uruguay (CNT), sent from Zeist in the Netherlands (22 January 1980). The Government has sent information in communications of 21 January, 14 and 15 February 1980. In addition, the Government sent to the International Labour Office on 25 February 1980 a copy of a communication dated 18 January 1980.

A. Draft trade union legislation

1. 8. In its previous examinations of the case, the Committee has stressed the abnormal character of the situation for the Uruguayan trade union movement as a whole since the change of regime which took place in June 1973. Uruguayan trade unions cannot carry out the activities proper to such unions because their recognition by the authorities and by the employers hinges upon their legal status - and that status has not yet been defined by law: they thus have an existence in fact but not legally.
2. 9. The Committee had examined the preliminary draft of the law on occupational associations, the text of which had been forwarded to it by the Government. It noted that this text contained some positive aspects, but it formulated observations concerning a number of other provisions of the draft which did not seem compatible with certain principles of freedom of association, On the recommendation of the Committee, the Governing Body, at its session of May-June 1979, took note of the Government's statement to the effect that these observations would be taken into consideration in the preparation of the final text of the draft to be submitted to the Council of State and that the Government was carrying out consultations on this draft with worker and employer organisations.
3. 10. At its November 1979 Session, the Committee noted, in particular, that the comments made by the ILO supervisory organs were being examined, that the final draft of the Act was due to be submitted to the Council of State by 15 December 1979 and that the Government would suggest that it be examined rapidly. The Committee reiterated that, after six years of serious restrictions upon trade union activities, there was a very urgent need to promulgate and implement legislation which recognises the right for all workers, without any distinction whatsoever, to set up occupational organisations and the right of these organisations to function and operate freely, in accordance with the various Conventions on freedom of association. In these circumstances, the Governing Body, on the Committee's recommendation:
   • - expressed the firm hope that this draft, in its final version, would be in full conformity with Conventions Nos. 87 and 98 which have been ratified by Uruguay, urged the Government to adopt it in the very near future and asked the Government to give the date on which it was envisaged that it would be promulgated;
   • - asked the Government to send the draft Act once it was submitted to the Council of State and to supply information on any developments which might take place.
4. 11. In its communication of 27 December 1979, the Government informed the International Labour Office of the publication on 17 December 1979 in the Official Journal, of the message by which the executive branch submitted the draft law on occupational associations to the Council of State. The Government draws attention to the importance attached, in its message to the Council of State, to the rapid examination of the draft so that the situation of occupational associations could be regularised as soon as possible. It attached to its communication the text of the message and of the draft.
5. 12. The CNT and the WFTU have made allegations concerning the draft in their communications of 22 January and 9 February 1980, respectively. They refer in particular to the provisions concerning the conditions of eligibility of trade union leaders, the by-laws of organisations and the grounds for refusal of registration. The CNT considers that, having compared this draft with the previous one, which the Committee has already examined, the present draft is even more negative for trade union organisations.
6. 13. In its communication of 14 February 1980, the Government states that the ILO's comments on the draft law were examined most attentively and as a matter of high priority. In this connection, the Government recalls that it included in the guidelines of the draft the right of organisations to establish federations and Confederations. It also notes that in the draft the absolute restriction upon the exercise of political activities has been weakened. The Government states that in relation to the Committee's suggestions which have not been incorporated into the draft, they only concerned different interpretations and not non-performance of Convention No.
7. 14. While examining the complainants' allegations, the Government states that the Ministry of Labour and Social Security is at present examining the draft law on the exercise of the right to strike. The Government also notes that even if they are not covered by the Legislative Decree, civil servants enjoy the right to form trade unions, particularly under the terms of the Public Service Act of 1943.
8. 15. Regarding the right to form organisations without previous authorisation, the Government notes that the International Court of Justice has given no interpretation on this point and therefore this question remains open to discussion. Referring to the principles already set out by the Committee, the Government states that it shares the opinion of the Committee on this point. According to the Government, the draft does not give discretionary power to public authorities regarding legislation of trade unions. The possible reasons for refusal of registration are defined in the draft, and, in addition, any decision by the administrative authority can be appealed before the courts.
9. 16. Finally, the Government states that its reply does not imply the "de jure" recognition of one of the complainants which holds itself out to be the spokesmen for the National Convention of Workers of Uruguay, an organisation which was declared illegal by the Government on 30 June 1973.
10. 17. As for the Committee, it has examined the draft law on occupational associations and notes that this draft is very similar to the previous draft, which the Committee examined at its February 1979 Session. In these circumstances, the Committee regrets that most of the comments which it made at that time have not been taken into consideration in preparing the present draft. The Committee considers it necessary to recall certain principles and considerations which it put forward when it examined the earlier draft, concerning the provisions which have been retained in the present draft.
11. 18. As regards the establishment of organisations, the Committee stressed that workers should be free to decide whether they prefer to establish, at the primary level, a works union. - the only possibility allowed under the draft, except for certain exceptions based on the number of workers - or another form of basic organisation, such as an industrial or craft union. In this connection, the Committee observes that section 6 of the draft always situates the officers of the primary trade union in the undertaking, and that in addition section 3 allows the organisation of occupational associations of workers, of office workers, of technicians or of executive personnel. It is not clear whether the latter provision, which was not included in the earlier draft, would allow the establishment of organisations according to occupational categories grouping several undertakings or whether it would otherwise be impossible to establish trade unions at the works level which would include all the workers belonging to different categories of wage-earners. Generally, the Committee considers that provisions limiting a trade union's possible sphere of activity may constitute a violation of the right of workers to establish organisations of their own choosing, as required by Article 2 of Convention No. 87.
12. 19. With regard to the conditions of eligibility of trade union leaders, the Committee recalls that the obligation laid on these leaders to make a declaration of "democratic faith" may give rise to abuses. The draft still does not state what specific acts are considered to constitute breaches of faith in democracy and thus renders effective legal supervision of the application of this provision impossible. In addition, under sections 4 and 5 of the draft read in conjunction, trade union officials must have belonged to the branch of activity represented by the union for at least two years, which, in the Committee's opinion, imposes restrictions on the right of workers freely to elect their trade union representatives.
13. 20. As did the earlier draft, this draft regulates in considerable detail the various aspects of the internal administration of trade unions obligatory voting in elections and plebiscites (sections 15(d) and 25); supply of reports on trade union activities whenever authorities so request (section 22(a)); maximum time limit for trade union assemblies (section 24); obligatory organisation of plebiscite to examine draft collective agreements and in other cases provided for by regulations (section 26); suspension of the membership of a member who has not taken part in a vote (section 27); lower-level trade unions are responsible for decisions taken by higher-level organisations to which they are affiliated, except in specific cases provided for in the draft (section 28); public votes in cases of associations of the second and third levels (section 32); at the time of elections and plebiscites various formalities must be complied with at the Ministry of Labour (section 34).
14. 21. The Committee has recalled, with regard to these provisions, that Convention No. 87 guarantees in particular the rights of workers' organisations to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. The Committee must emphasise once again the importance which it attaches to these standards and to the principle that the public authorities should refrain from any intervention which would limit these -rights or impede their legal exercise.
15. 22. The Committee notes with interest that the provision of the previous draft which forbade any reference to politics in the by-laws of the organisations has been modified. Under section 15 of the draft, only activities which have a preponderantly political character are forbidden. The Committee considers that the conformity of this provision with the principles of freedom of association will depend essentially on the practical application of this provision.

B. Detention of trade unionists

1. 23. At various stages in the examination of this case, the Committee has examined allegations concerning the detention of trade unionists and former trade unionists (whose names, and in many cases their trade union functions, had been indicated in the complaints). On several occasions, in particular in May 1979, the Committee attached to its report the information furnished by the Government on the trade unionists concerned. At its sessions of May-June and November 1979, the Governing Body, on the Committee's recommendation noted the release of a certain number of trade unionists mentioned by the complainants.
2. 24. In a letter of May 1979, the WFTU referred to the precarious state of health of two detained trade unionists, Rosario Pietraroia and Gerardo Cuesta. The WFTU also stated that contrary to previous statements by the Government, Oscar Tassino Atzú (trade union leader of the AUTE) had disappeared after his arrest on 19 July 1977, and stated that members of his family witnessed the arrest. The CNT, in a letter of September 1979, stated its concern over the conditions of detention of several trade union leaders (under-nourishment, absence of medical care and inadequate sanitary arrangements, absence of medication, ill-treatment and repression). It cited in particular the case of Rosario Pietraroia who has lost one eye for lack of the necessary care.
3. 25. At the beginning of the Committee's November 1979 Session, the Government communicated a certain amount of information on the situation of trade unionists listed in the annex to the Committee's 195th Report. The Committee proposed to examine this information at its following session. The Governing Body also requested the Government to communicate its observations concerning the allegations relative to the conditions of detention and to the situation of a certain number of arrested trade unionists.
4. 26. In its communication of 18 December 1979, the WFTU again referred to the situation of the metal industry trade union leader, Gerardo Cuesta, detained since 1976, who was sentenced to 12 years' imprisonment and has been ill treated.
5. 27. Regarding Gerardo Cuesta, the Government recalls in its communication of 15 February 1980 that he was arrested and imprisoned under emergency security measures (section 168(17) of the Constitution). He was charged in August 1976 before the military investigating magistrate for subversive activity and violation of the Constitution with "conspiracy and preparatory action". Gerardo Cuesta was sentenced to 12 years' imprisonment in August 1978. The sentence was confirmed in October 1979. Regarding his state of health, the Government states that he suffers from chronic bronchial pneumonia which dates from before his arrest with periodical crises which are supervised and cared for. Nevertheless, his state of health is good. The Government states that Gerardo Cuesta was not sentenced because of his trade union activity.
6. 28. In its communication of 18 January 1980, the Government supplied certain information according to which several of the persons mentioned by the complainants have been released.
7. 29. The Committee notes that, according to the information communicated by the Government several trade unionists have been released. It also notes the information provided by the Government regarding Gerardo Cuesta. However, it must express its concern over the fact that several persons mentioned by the complainants are still waiting, and in several cases have been for a considerable time, to be tried by the courts. In this connection, the Committee stresses the importance which it attaches to the principle that any person arrested should be subject to normal judicial procedure and should be brought before the appropriate judge without delay, in accordance with the principles enshrined in the international Covenant on Civil and Political Rights. In the case of persons who carry out trade union activities, this is one of the civil liberties which must be assured by the authorities in order to guarantee the effective exercise of trade union rights. The Committee hopes that the Government will continue to supply information on the situation of the trade unionists mentioned by the complainants and that it will communicate its observations on the conditions of detention of trade union leaders.

C. Other allegations

1. 30. In its letter of May 1979, the WFTU pointed out that the number of joint Committees actually functioning was far below that indicated by the Government in may 1978 and that the authorities were even trying to hinder their establishment. The complainant mentioned two specific instances (the "Aurora" textile factory and the "Banco Comercial") and added that in certain cases workers who requested the setting up of such Committees were being subjected to pressure and persecution.
2. 31. The WFTU further stated that trade union premises had been closed, thus depriving the trade unions and their leaders of their means of action, and that government bodies had occupied the premises in question. The WFTU mentioned the case of the National Trade Union of Construction Workers and Allied Trades (SUNCA), whose premises had apparently become the barracks of the grenadier guards, of the National Union of Workers in the Metal and Allied Trades (UNTMICA) whose premises had apparently become the headquarters of Police section 12, of the National Workers' Convention (CNT), whose premises had apparently become a centre for the women police of Montevideo (and whose equipment was being used by Department No. 6 of the police), the case of the Meat Workers' Federation, the use of whose premises had been requested by the Montevideo police commissioner of Section No. 24, the case of the Federation of Primary Schoolteachers' Unions and that of the secondary Schoolteachers' Trade Union, whose premises had also apparently become paramilitary installations.
3. 32. The WFTU emphasised that all trade union activities had been suppressed six years before, and that the experience with joint commissions had been negative. It drew particular attention to the numerous dismissals continuously, taking place on the basis of Institutional Act No. 7 (40 members of the staff of the Clínicas Hospital were thus dismissed in January 1979). The WFTU concluded that these dilatory tactics, used in expectation of the complete suppression of all attempts at free trade union activity, showed the illusory character of the promise of trade union freedom.
4. 33. For its part, the CRT alleged in a letter of September 1979, that the police headquarters of Montevideo had notified the Association of Bank Employees of Uruguay (AEBU) on 26 July 1979 that its legal personality was "without effect", in accordance with Decree No. 622/973 of 1 August 1973. The complainant added that the deduction from wages of the trade union dues of the AEBU members had been discontinued. It also quoted a decision of the Ministry of the Interior (dated 24 July 1978) ordering the president of AEBU to hand over within 30 days to the National Office of Information and Research a list of members of a new governing board consisting of persons having no "adverse past records", so that the authorities could, upon request, later allow artistic and cultural events to take place under the supervision of the above-mentioned National Office. The CRT further alleged that pressure was being exerted on the workers, even those who were under arrest, to make them join together in a nationalist trade union. At the time of the Committee's November 1979 Session, the Government had not yet replied to these new allegations. The Governing Body then requested the Government to transmit its observations on these points. The Government has still not replied to the allegations in question.
5. 34. In its communication of 18 January 1980, the Government supplies comments on these various allegations. The Committee intends to examine them at its next session.

D. D. The Committee's conclusions

1. 35. As regards the case as a whole, more generally, the Committee has empowered its chairman to examine with the representatives of the Government of Uruguay at the Governing Body the most appropriate means of arriving at a rapid and satisfactory solution of the questions raised.

The Committee's recommendations

1. 36. In these circumstances, the Committee recommends the Governing Body:
   • (a) as regards the draft Act on occupational associations:
   • (i) to note with concern that the draft differs only slightly from the earlier draft which the Committee examined at its May 1979 Session;
   • (ii) to draw the Government's attention yet again to the principles and considerations set out in paragraphs 17 to 22 above regarding provisions on the free establishment of trade unions, the conditions of eligibility of trade union leaders and the regulation of various aspects of the internal administration of trade unions;
   • (iii) to express the firm hope that these principles and considerations will be taken into account in the final text of the Act;
   • (iv) to request the Government to keep the Committee informed of any development in the matter;
   • (b) regarding the detention of trade unionists:
   • (i) to note with interest that certain trade unionists have been released;
   • (ii) nevertheless to express its concern over the fact that certain persons are waiting, in some cases for a considerable time, to be tried by the courts and to call the attention of the Government to the principles set out in paragraph 29, in particular the principle according to which all persons arrested should be subject to normal judicial procedure and should be brought before the appropriate judge without delay;
   • (iii) to request the Government to continue to supply information on the situation of the trade unionists mentioned by the complainants;
   • (c) to note that the Government has just supplied certain comments regarding the other allegations and that the Committee intends to examine them at its next session;
   • (d) to take note of this interim report.
     • Geneva, 29 February 1980. (Signed) Roberto AGO, Chairman.

Z. ANNEX

• Latest information communicated by the Government on the trade unionists referred to by the complainants
  1. 1 Released
• Acosta Arotxarena, Néstor Raúl (sentence completed during preventive detention)
• Balbiani Saavedra, Harryo
• Carrasco de Armas, Juan Rosa (no grounds for detention by Decree of 13 June 1979)
• Figueredo Mandado, Carlos Milton (sentence completed during preventive detention)
• García Alvarez, Manuel Santiago
• Gómez Duarte, Juan Bautista (set free by Decree of 27 November 1978)
• Piñeiro Pena, Manuel
• Puchet Castellano, Santiago (sentence completed during preventive detention)
• Ruiz Lavin, Oscar Dulcineo (set free by Decree of 5 December 1979)
• Silva Sánchez, Telmo (idem on 18 December 1979)
• Suárez Turcati, Alicia Dinorah
  2. 2 Provisionally or conditionally released
• Carballo da Costa, Felipe
• Deus Martínez, Miriam
• Diaz Cairello, Heber Máximo
• Perdomo Garat, Morgan
  3. 3 Judgement pending
• Giacobone Marrero, Héctor Agustín
• Gómez Mello, César Clelio
• Méndez Gattan, Mauricio Roque
• Vilaro Nieto, Gustavo Leopoldo
  4. 4 Sentenced
• Abero Costa, Roque
• Acasuso Latorre, Rubén (4 years' imprisonment)
• Acosta Pereira, Mario (before the Military Judge at first instance so as to execute the final sentence handed down on appeal)
• Altuna Fernández, Elsa Zulma
• Aristondo Pereira, Carlos Maria (8 years' imprisonment)
• Bardacosta Etcheverría, Néstor Hugo (6 years' imprisonment)
• Barrios Villaverde, Gerardo (4 years' imprisonment)
• Beron Crolli, Isidro (4 1/2 years' imprisonment)
• Berro Berro, Fernando Luis (7 years' imprisonment)
• Betbeder Egaña, Fulvia Susana (5 years' imprisonment)
• Bidarte Chaparro, Manuel Enrique (4 1/2 years' imprisonment)
• Borges Aemorad, Edgar Thelman (8 years' imprisonment)
• Bottaro Giordano, José Rubén (10 years' imprisonment)
• Botti Baez, Ricardo (5 years' imprisonment)
• Bouzas Marchese, Miguel Angel (4 years' imprisonment)
• Braselli Dominguez, Maria Selva
• Caballero Fierro, Carlos Dante (6 years' imprisonment)
• Carranza Vigano, Jorge Eduardo
• Carissini Pino, Miguel Angel (sentence confirmed at second instance, appeal pending before the Military Tribunal)
• Carrio Elcarte, Pablo Emilio
• Cuesta Villa, Gerardo (before the Military Tribunal at first instance so as to execute the final sentence handed down on appeal)
• Cureo Betossini, José Angel (5 years' imprisonment)
• Chagas Dutra, Washington (6 years' imprisonment)
• Diaz, Mario Oscar
• Diaz Baubet, Juan Alberto
• Dresder Caldas, Adolfo (9 years' imprisonment)
• Esponda Apecechea, Dardo Antonio (on appeal before the Supreme Military Tribunal for final sentence)
• Fernández López, Niurka (3 years' imprisonment)
• Fernández Rodriguez, Alberto Leonardo
• Garcia Passegui, Silvia
• García Souza, Luis Doroteo (4 years' imprisonment; on appeal before the Supreme Military Tribunal)
• Gómez, Juan Felipe (6 1/2 years' imprisonment)
• González Pérez, Guillermo
• Guridi Rodriguez, Sigifredo (10 years' imprisonment)
• Huertas Melgar, Jorge Julián (4 years' imprisonment)
• Ibarburu Podestá, Ricardo (5 1/2 years' imprisonment)
• Lignelli Sorrentino, Graciela Beatriz (provisionally released, was sentenced by the court at first instance; now being searched for)
• Louis Elazaurdia, Julio Alcides (before the Supreme Military Court for final sentence at second instance)
• Marrero Fuentes, Hernando José
• Martinez Iglesias, Maria Cristina (4 years' imprisonment; case before the Military Judge at first instance so as to execute the sentence)
• Michelini Delle Piare, Margarita Maria (before the Military Judge at first instance so as to executive the final sentence handed down at second instance)
• Muela Muela, Maria Pura Concepción (5 years' imprisonment)
• Noqueira López, Mario César (8 years' imprisonment)
• Passarini Suárez, Pedro Abel
• Pereira Viera, Maria del Carmen (before the military Judge at first instance so as to execute the final sentence handed down at second instance)
• Pietraroia Zapula, Rosario (idem)
• Pittaretti Landinelli, Ricardo Oscar (5 1/2 years' imprisonment; an appeal before the Supreme Military Tribunal)
• Planells Milans, Edison
• Platero Roballo, Eduardo (4 years' imprisonment)
• Possamay Claro, José Santiago (20 years' imprisonment)
• Rodriguez Aldabalde, Hugo (8 years' imprisonment)
• Rodriguez Larreta Martínez, Enrique Carlos (before the Military Judge at first instance so as to execute the final sentence handed down at second instance)
• Rodriguez Ledesma, Juan Carlos (18 years' imprisonment)
• Saldombide Dominguez, Héctor Mario (24 months' imprisonment)
• Sánchez Soca, Juan Carlos
• Scarpa Bruxco, Luis Angel
• Sena Alamo, Ismael (9 years' imprisonment; on appeal before the Supreme Military Tribunal)
• Sosa Zerpa, Gustavo Gabriel (5 1/2 years' imprisonment)
• Spinetti Iturralde, Julio César (3 1/2 years' imprisonment)
• Trelles Merino, Gualberto (5 years' imprisonment)
• Varela Castro, Juan José (5 years' imprisonment)
• Vega Verez, Carlos Dario (4 years' imprisonment; appeal before the Supreme Military Tribunal)
• Viera Alvez de Curutchet, Miriam (5 1/2 years' imprisonment; appeal before the Supreme Military Tribunal)
• Villamil de Bouzas, Maria Otilia (5 years' imprisonment)
• Viñas Cotrofe, Luis Enrique (3 years' and 3 months' imprisonment)
• Zapico Burcio, Ricardo (4 years' imprisonment)
• Zarauza Suárez, Enrique
  5. 5 Persons in respect of whom the Government states that it has no information
• Arigón, Eduardo
• Gómez, Carlos
• Tassino Atzú, Oscar (according to the complainants, who base their allegation on statements by the relations of the person concerned, he is said to have been arrested on 19 July 1978 at a certain address in Montevideo and to have since disappeared).