Informe definitivo - Informe núm. 259, Noviembre 1988

Caso núm. 1403 (Uruguay) - Fecha de presentación de la queja:: 25-MAR-87 - Cerrado

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INTRODUCTION
A. The complainants' allegations
C. The Committee's conclusions
The Committee's recommendations
Z. ANNEX I

44. At its meeting in February 1988 the Committee examined an aspect of this
- case concerning the exercise of the right to strike and the imposition of
- minimum services and presented an interim report to the Governing Body (see
254th Report, paragraphs 428 to 449, approved by the Governing Body at its
239th Session (February-March 1988)).
45. The remaining allegations are contained in communications from the
- Single National Trade Union of Workers in the Clothing Industry
  - (SUA-VESTIMENTA) dated 25 March, 21 April, 3 August and 2 and 9 September 1987
- and in a communication from the Inter-Union Workers' Assembly and the National
- Workers' Convention (PIT-CNT) dated 14 May 1987. The World Federation of Trade
- Unions, in a communication dated 9 September 1987, and the PIT-CNT supported
  - SUA-VESTIMENTA'S complaint. The Government replied in communications dated 8
- October 1987 and 5 June and 10 October 1988.
46. 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

47. The Single National Trade Union of Workers in the Clothing Industry
- (SUA-VESTIMENTA) makes a series of allegations concerning infringements of
  - freedom of association by the Chamber of Employers in the Clothing Industry
  - (CIV) during a long labour dispute which has been growing more acute since
- 1986. Although it recognises the democratic character of the Government and
  - points out that civil and political freedoms are recognised in the country and
  - that as a consequence the principles of freedom of association are respected,
- SUA-VESTIMENTA states that the competent authorities have not taken effective
  - measures to prevent, in the manner prescribed in Articles 3 and 5 of
  - Convention No. 98, the very serious infringements of trade union rights which
  - have occurred. Given the intransigence and anti-trade union attitude of
  - employers in negotiations in the wage councils of June 1986 (which fix minimum
  - wages) the Executive Power decreed a 17 per cent wage increase with the
  - support of the employers and which was rejected by SUA-VESTIMENTA on the basis
  - of the percentage of the increase and the failure to respect the legal
  - provision contained in section 9 of Act No. 10449 which prescribes that wages
  - should be fixed by categories of workers in such a way that they are
  - remunerated in accordance with the degree of specialisation required for their
  - job. In the same way the use of homeworkers and small-scale clothing workshops
  - results in over-exploitation which is compounded by the practice of employers
  - of placing their trade union staff on unemployment insurance or dismissing
  - workers on the pretext that there is a shortage of work when jobs are in fact
  - being carried out in the above-mentioned workshops. In an attempt to pressure
  - the CIV into respecting the legislation, work stoppages were organised within
  - workplaces extending throughout the working day. The CIV responded by:
- - establishing blacklists which make it impossible for trade union leaders
  - and militant members to obtain stable employment. This is the case of Ramón
  - Cáceres, Secretary-General of SUA-VESTIMENTA, Harlem Olivera, Deputy
  - Secretary-General, the union leader Hugo Bergalta (a victim of slander by the
  - employers who accused him of discriminatory attitude based on race) and of 50
  - per cent of the trade union leadership (the complainant organisation includes
  - in an annex a list of those persons appearing on the blacklists);
- - dismissing or placing on unemployment insurance during the July 1986
  - dispute or as a result of it more than half of the 60 members of the national
  - directorate of SUA-VESTIMENTA. Hundreds of workers were suspended and 46 were
  - dismissed for having participated actively in the trade union measures on the
  - pretext of alleged acts of misconduct committed during the strikes
- (SUA-VESTIMENTA encloses the list of persons dismissed);
- - assigning uniformed police to more than ten factories; when the public
  - clerks recruited by the employers interviewed workers to see whether they were
  - going to join the strike, those who answered affirmatively were prevented from
  - entering;
- - locking in more than six undertakings those workers who were peacefully
  - occupying factories without any measures being taken by the public
  - authorities;
- - using fixed-term recruitment as a means of anti-trade union discrimination
  - and preventing workers from joining the trade union;
- - misusing the unemployment insurance scheme as a means of discharging
  - unionised workers and subsequently recruiting other workers or giving out work
  - to small and often clandestine workshops;
- - carrying out a preliminary investigation of workers seeking employment in
  - the clothing industry by means of agencies or undertakings which interviewed
  - persons close to the applicants concerning their participation in strikes,
  - their political tendencies, etc. This occurs in several undertakings in the
  - sector and, in particular, in Milton S.A. and OROLON S.A.;
- - the establishment of collective agreements between undertakings and
  - workers behind the backs of the trade union organisation (in the Milton S.A.
  - undertaking a collective agreement was established which grants greater wage
  - benefits to workers on the condition that they do not participate in the
  - central wage negotiations carried out by the trade union). SUA-VESTIMENTA then
  - illustrates these allegations by referring to anti-trade union acts which have
  - occurred in the following undertakings: Milton, CIMPEX, EVERFIT, EL MAGO,
  - RELOS, RODOY, ROMINA, SIDEX, CUBACAN, MOISES FELD, PAUL SHARK, FARGO,
  - BERNALESA, RINSY, DYMAC, PRAKER, DAKAR and MANTEL.
- 48. In its communication of 14 May 1987, the Inter-Union Workers' Assembly
  - and the National Workers' Convention (PIT-CNT) point out that the return to
  - democracy in the country has led to a recognition of trade union organisations
  - which play a proper role in the life of the country. They allege, however,
  - that the provision contained in Article 3 of Convention No. 98 that "machinery
  - appropriate to national conditions shall be established ... for the purpose
  - of ensuring respect for the right to organise" has not been respected. In
  - Uruguay it is possible to keep active trade unionists out of employment by
  - dismissing them since all the employer has to do is to dismiss the worker
  - (without giving reasons) and pay the corresponding compensation. This
  - situation, which is known to and ignored by the Ministry of Labour, is giving
  - rise to a growing number of blatant acts of anti-trade union persecution.
  - Decree No. 93/68 dated 3 February 1968 establishes regulations to prohibit and
  - impose sanctions on anti-trade union discrimination, but does so in a purely
  - formal manner since it fixes very low fines (up to 25 or 50 times the daily
    - wage) and the imposition of the fine is a matter for the discretion of the
  - administrative authority. It is not adequate machinery in the sense used in
  - Convention No. 98 but rather one which facilitates discrimination. The Chamber
  - of Deputies has approved a bill on the subject which does not satisfy the
  - aspirations of the trade union movement since it results in excessive
  - interference in the internal life of the trade union organisations by imposing
  - voting systems in the election of trade union officials. In addition to the
  - clothing industry, trade union rights are also violated in the leather
  - industry; the PIT-CNT makes the following allegations:
- - the dismissal of several dozen workers most of whom were works' council
  - delegates and several members of the trade union executive. These events have
  - been denounced to the Ministry of Labour without any solution being found or
  - any stop being put to repression by the employers. In the AZADIAN undertaking
  - an active trade unionist was dismissed for having gone to the Ministry of
  - Labour and Social Security to make a formal denunciation concerning trade
  - union repression by an employer. In the EXXON and SAN LUIS undertakings
  - workers have been dismissed for having demanded the implementation of specific
  - standards issued by the competent authority in this branch of activity. In
  - practice, in both the leather and the clothing industries, trade union
  - activity has become a secret or clandestine activity because the simple
  - knowledge by the undertaking that a worker is a trade unionist results in his
  - immediate dismissal or other kinds of discrimination;
- - in several undertakings workers are required to sign a form stating that
  - they have never been a member of the leather industry trade union and that
  - they will not become a member in the future. These documents must be signed
  - before the worker joins the undertaking;
- - the unlawful and abusive use of the unemployment insurance scheme. Thus in
  - undertakings such as OROCUER, because of an alleged shortage of work, all the
  - members of the works' council were placed on unemployment benefits at a time
  - when work was being sent out to small workshops. The purpose of placing
  - certain workers - all leaders of the works' council - on unemployment
  - insurance is to damage the trade union organisation and make it impossible for
  - militant leaders to establish contact with workers in the factory. In the same
  - way, in the MILENI undertaking, all the workers were placed on unemployment
  - benefits and then the same workers were offered work in another undertaking
  - which refused to grant them the more advantageous conditions which they had
  - acquired in the undertaking which had placed them on unemployment benefits. In
  - this case all the workers were accepted in the undertaking with the express
  - exception of all the members of the works' council who remained on
  - unemployment benefits awaiting the notification of their dismissal.
- 49. In a communication dated 28 July 1987, which was supported by the World
  - Federation of Trade Unions, SUA-VESTIMENTA alleges that during the wage
  - council negotiations of June 1987, employers continued to refuse to apply
  - different wage rates based on wage categories despite the fact that the
  - Executive Power had adopted, in principle, a positive attitude by accepting
  - the workers proposal to establish a preliminary categorisation which would
  - update the text of a 1968 arbitration award (the term "precategorisation" is
  - used because rates are based on minimum wages). The trade union proposal was
  - included on an open agenda proposing a 100 per cent increase in the holiday
  - wage, a 100 per cent increase in the Christmas bonus, the reinstatement of
  - dismissed workers and workers who had been excluded from the industry and the
  - establishment of crèches. The employers rejected the workers' proposal and
  - tried to recuperate some of the benefits which the workers had already
  - achieved such as 75 per cent of the holiday wage and the entire Christmas
  - bonus. After two months' negotiation the Executive Power said that it was
  - ready to vote with SUA-VESTIMENTA a higher percentage of wage increase than
  - that offered by the employers; the vote of the Executive Power referred only
  - to the wage percentage and "precategorisation" but excluded the vacation wage,
  - the Christmas bonus and other wage demands. SUA-VESTIMENTA decided not to
  - reject the percentage proposed by the Executive Power (17 and 18 per cent) but
  - said that it was not enough. The CIV voted against the wage increase. In the
  - same way SUA-VESTIMENTA refers to a series of acts of anti-trade union
  - discrimination (blacklists, dismissals by the following undertakings: EVERFIT,
  - DIRPLAIN (DALLAS), DEGANIA, ANTEX and EL MAGO).
  - B. The Government's reply
- 50. In its communication of 8 October 1987 the Government expresses its
  - basic agreement with the complainant organisations that the most important
  - point to be stressed is the recognition that "the return to democracy in the
  - country has led to a recognition of trade union organisations which play a
  - proper role in the life of the country" and that "civil and political freedoms
  - are recognised in the country and that as a consequence the principles of
  - freedom of association are respected".
- 51. A detailed examination of the complainants' allegations shows that the
  - complaint is motivated by facts which have been allegedly committed by
  - employers in the clothing and leather sectors and that the Government has
  - played no part in the acts which have been committed.
- 52. Since the complainant organisations make a generic charge concerning the
  - failure to observe the provisions of Articles 3 and 5 of Convention No. 98, a
  - review must be made of measures taken for the full restoration of trade union
  - rights. As the complainants point out, Uruguay has enjoyed a prestigious
  - tradition in the respect and promotion of trade union freedoms. However it
  - must be pointed out that this tradition has developed on the basis of a set of
  - minimum standards comprising only article 57 of the Constitution, which dates
  - from 1934 and the International Labour Conventions Nos. 87 and 98 ratified by
  - Act No. 12030 of 27 November 1953 and the application of which, consonant with
  - the monist conception, is predominant if not unanimous in law and
  - jurisprudence in the form of directly applicable principles. Indeed, as the
  - ILO itself has pointed out on more than one occasion, Uruguay was and is still
  - today a unique case as regards the abstention of the State in
  - standard-setting. This abstentionist policy, which has been defended and
  - championed by the most prestigious national doctrine, has its raison d'être in
  - the trade union resistance to all standard-setting by the State based on the
  - ideological origins of the movement and encouraged by the precocious
  - development of a modern society which reaped the benefit of periods of
  - prosperity and well-being, and which enabled a labour relations system to be
  - developed which was respectful of trade union rights. In this context, the
  - only State measure of a general nature to guarantee the free exercise of these
  - trade union rights was Decree No. 93/968 of 3 February 1968 to facilitate the
  - application of international standards in force and the sanctions established
  - by national legislation which were regulated collectively and which expressly
  - prohibited anti-trade union practices. This quasi abstentionist system which
  - as regards the coming into force of Conventions Nos. 87 and 98 lasted almost
- 20 years (November 1953 to June 1973) , has not been the subject of
  - substantial observations by the Governing Body of the ILO.
- 53. The Government adds that shortly after the establishment of the
  - democratic Government, Act No. 15738 dated 13 March 1985 marked an innovation
  - in national practice when the so-called "Acts" Nos. 15137 (on occupational
  - associations), 15328 and 15385 (collective agreements), 15530 (strikes), 15587
  - (trade union rights) and the so-called "Basic Act" No. 3 (strikes by public
  - officials) - which had been brought into force by the de facto regime
- (1973-85) - were "cancelled" and not simply repealed. This presupposed that
  - there would be a restoration of the legal system which had been in force
  - before 1973 regarding trade union rights based exclusively on the Constitution
  - (article 57) and International Labour Conventions Nos. 87 and 98, as
  - regulated by Decree No. 93/968. As a result, the trade union system which
  - operates at present in Uruguay is characterised by State abstentionism and
  - collective autonomy, principles which have been systematically defended by the
  - trade union movement and the most characteristic labour doctrine which has
  - been radically opposed to standard-setting by the State in this sphere. Under
  - this system, trade unions are set up autonomously without any kind of State
  - intervention, with their legal personality being recognised de facto, and
  - which by the simple fact of existing and without any need for obligatory
  - registration may exercise any kind of trade union activity. In the same way
  - freedom of association is fully guaranteed in accordance with the provisions
  - of Convention No. 87, in particular as regards the positive and negative
  - aspects of trade union freedom, the freedom to establish trade unions,
  - internal autonomy, the freedom to associate at the international level and the
  - freedom of an organisation to dissolve itself both in the private sector and
  - as regards public officials.
- 54. However, it is obvious - as the ILO itself has pointed out - that
  - although the state legislative abstention has proved particularly beneficial
  - to trade union freedom, it does entail deficiencies resulting from the lack of
  - standards making express provision for adequate and effective machinery for
  - the special protection of trade union officials and activists against
  - dismissal and other acts of union discrimination. This lack of standards
  - expressly guaranteeing effective methods of protection, to which attention
  - could be drawn before the break-up of the country's institutions only at one's
  - own risk, posed a danger after the re-establishment of trade union freedoms
  - which, although not of a generalised nature, became a source of concern to the
  - Government.
- 55. Thus, after 12 years of trade union paralysis, it was feasible to assume
  - that the reconstruction of workers' organisations might be resisted by some
  - employers since it constituted a virtually unknown practice especially in the
  - most recently developed sectors of activity. This was particularly true when
  - the lack of experience in the subject coincided in many cases with that of a
  - new generation of trade union officials who had entered the sphere of trade
  - union action in the anomalous circumstances of resistance and clandestine
  - conflict with the regime in force. The Government was conscious of this risk
  - from the beginning and considered that for the moment, given the traditional
  - inadequacy of internal positive law, the labour courts would have to play a
  - fundamental role in a State of law such as that existing in Uruguay. Indeed,
  - the lack of express standards has not prevented the free evolution of national
  - jurisprudence as regards the protection of basic rights and freedoms with the
  - introduction, under section 332 of the Constitution, of jurisprudence which
  - provides adequate means of protection against acts of trade union
  - discrimination in so far as it has been established. In this connection
  - particular importance is to be attached to the jurisprudential adoption of the
  - concept of protection (amparo), judicial orders not to innovate and the
  - rulings which have been made for the reinstatement of workers and the
  - establishment of coercive sanctions for the failure to implement such rulings.
  - Meanwhile, the Supreme Court itself accepts the monist conception which
  - advocates the incorporation ipso jure within the internal juridical system of
  - the standards contained in International Labour Conventions following their
  - ratification. Decree No. 93/968 expressly precludes the acts of trade union
  - discrimination enumerated in Convention No. 98. Thus, it must be concluded
  - that the foundation has been laid for at least the effective provision of the
  - measures of protection enumerated in Paragraphs (c), (d) and e) of
  - Recommendation No. 143.
- 56. Notwithstanding the above, the Government adds that it is important to
  - emphasise that the autonomous tradition of the Uruguyan trade union movement,
  - which as a result of its classist self-definition embodies a certain degree of
  - mistrust vis-à-vis the State, has often led it to avoid taking cases to court
  - even in disputes of law and to prefer in most cases recourse to strikes. Aware
  - too that the habitual slowness of the legal machinery only encourages the
  - reticence of workers to resolve conflicts by recourse to such procedures, the
  - Executive Power on 28 March 1985 submitted to Parliament a bill which sought,
  - by means of the establishment of summary oral proceedings in labour matters to
  - facilitate the defence of workers.
- 57. The Government points out that even if in the final analysis the courts
  - are responsible for the effective remedy of infringements of trade union
  - rights, for its part the Ministry of Labour and Social Security has exercised
  - at the administrative level its supervisory powers in this respect in
  - accordance with the provisions of Decree No. 93/968. To this end, when
  - denunciations are made concerning infringements of trade union rights, an
  - inquiry is carried out to ascertain the truth of the allegations. If trade
  - union persecution is established, a resolution is issued stating that there
  - has been a violation of trade union rights and workers are reinstated when the
  - infringement is one of dismissal; fines are applied if the resolution is not
  - obeyed. It should be borne in mind in this connection that, although section 9
  - of Decree No. 93/968 prescribes that infractions shall be punished with fines,
  - the amount of which will depend on the number of workers affected, the General
  - Inspectorate of Labour and Social Security has interpreted it in the sense
  - that when anti-union measures are designed to prevent the growth and
  - development of trade union activity, it must be considered that all the
  - workers are in the end affected even though the measures may be specifically
  - directed against one or more workers. Thus the size of the nominal fines has
  - been increased.
- 58. In the final analysis, it must be said that the most effective
  - protection of trade union rights is provided by legislation. In this
  - connection the Government draws the attention of the Committee to the fact
  - that a bill on trade union protection has been submitted to Parliament and has
  - already been approved by the Chamber of Deputies. It is designed to fill once
  - and for all the traditional lack of legislation in this field. While it is not
  - appropriate here to go into its contents in detail, the Government intends
  - that the measures should improve compliance with the obligations resulting
  - from the ratification of Convention No. 98. In fact, the provisions are based
  - on the statements of the Committee and will ensure the effective
  - implementation of Articles 1 and 2 of Convention No. 98 by means of the
  - explicit establishment of remedies and sanctions against acts of interference
  - by employers with regard to workers. Thus, provision is made for rapid
  - procedures and severe sanctions in the event of trade union discrimination as
  - defined in detail in Recommendation No. 143. In this connection mention should
  - also be made in the allegation of the PIT-CNT that this bill "does not satisfy
  - the aspirations of the trade union movement since it results in excessive
  - interference in the internal life of the trade union organisation by imposing
  - voting systems in the election of trade union officials". As regards this
  - categorical affirmation, it should be pointed out that it refers to the final
  - paragraph of section 6 which stipulates that the supplementary guarantees to
  - be provided to trade union officials are reserved to those who are elected by
  - secret, obligatory and direct vote, without any further restrictions. In
  - addition to the fact that this concept does not impose voting systems but
  - simply explains the granting of additional guarantees to a specific voting
  - system, the Government believes that the bill conforms to the statements of
  - the Committee by accepting provisions which make it mandatory for workers'
  - organisations to elect their leaders by means of a specific voting system as
  - long as such a system guarantees the right to free election, for example by a
  - secret vote. Thus even though the complainant organisations are demanding the
  - approval of a bill respecting trade union rights, their inconsiderate and
  - continued rejection of the most minimum standard-setting by the State
  - respecting their organisation, even in conditions which are completely in
  - accordance with Convention No. 87, makes such a task difficult. The Government
  - asks the Committee to decide whether the provisions of the proposed bill
  - conform or not to ILO standards.
- 59. As regards the events which occurred in the clothing and leather
  - industry, the Government points out that both sectors, which reflect the
  - growth in exports of non-traditional products, have developed basically over
  - the last 15 years, when trade union activity was for the most part prohibited
  - by the de facto regime. Furthermore, these two branches of activity are
  - characterised by their complex and dissimilar composition. In the clothing
  - industry in particular use is still made of home work, family-scale workshops
  - and medium-size establishments which supply most of the domestic market,
  - whereas production from export factories floods the domestic market out of
  - season. Following the re-establishment of freedom of association from 1 March
- 1985, it was clear from the beginning that both sectors were experiencing
  - serious difficulties in the creation of a fluid labour relations system. In
- 1985 confrontation did not go beyond the undertaking level, with the emergence
  - of a number of disputes; although they were settled by arbitration through the
  - Ministry of Labour and Social Security, they nevertheless left a trail of
  - intransigence. A general labour dispute broke out during the wage bargaining
  - of June 1986, although in fact it was limited to the larger undertakings.
  - During this dispute confrontation became unusually harsh when allegations were
  - made on both sides. The employers accused the trade union officials and
  - activists of an abusive use of the right to strike by recourse to go-slow
  - techniques and working to rule, a deliberate reduction in productivity, the
  - occupation of workplaces on the pretext of holding assemblies or stoppages as
  - well as by acts of intimidation and the introduction of electricity cuts. The
  - workers' organisations accused the employers of acts of indiscriminate
  - interference through restrictions on trade union activities, suspensions and
  - the dismissal of trade union officials and activists.
- 60. In this context, the Ministry of Labour and Social Security, faced with
  - a shortage of material means to carry out its task in the sphere of labour
  - administration, dedicated all its efforts to mediation. It proposed the
  - conclusion of a long-term agreement which, in addition to regulating working
  - conditions, would establish the bases of a labour relations system. Although
  - after many days of negotiation an agreement was reached which put an end to
  - the dispute, it did not prove possible to include the regulation of labour
  - relations.
- 61. At the end of the dispute, the workers' organisation alleged reprisals
  - which essentially concerned the acts of persecution and discredit which are
  - the subject of the complaint. In this respect it should be pointed out first
  - that, as noted above, although there is no legislation which makes express
  - provision for adequate and effective machinery to give special protection to
  - trade union officials and activists, this deficiency is not absolute since
  - case law has given rise to principles (by means of protection orders - amparo
  - in Spanish, orders not to innovate, the reinstatement of workers and the
  - provision of sanctions for non-compliance) which enable the courts to make
  - effective at least the protective measures contained in Paragraphs (c), (d)and
    - e)of Recommendation No. 143. Thus, although the judiciary is responsible for
  - remedying infringements of trade union rights, and although it enjoys full
  - independence in this respect, the Committee's attention is drawn to the fact
  - that the Government has no information, at least in most cases, that the
  - victims of the alleged acts have initiated legal proceedings.
- 62. The Committee's attention is also drawn to the difficulties which arise
  - in practice in determining the trade union status of workers whose rights have
  - allegedly been prejudiced. Indeed, given the absolute autonomy enjoyed by
  - workers as regards the organisation of their trade unions which, by the simple
  - fact of their existence, are authorised to carry out any kind of activity
  - without the need for obligatory registration and the refusal of the trade
  - union movement to carry out a voluntary registration of its officials, it has
  - been necessary to investigate in each case whether in fact the worker holds
  - the position of a trade union official. In most cases there is a lack of
  - conclusive evidence to establish such a status. These difficulties, which are
  - accentuated when it is a matter of deciding at the undertaking level about
  - suspensions or dismissals, are compounded by others which inevitably appear
  - when efforts are made to establish the real intentions of the employer who
  - cites as a cause for such measures either gross misconduct or lack of work, a
  - normal circumstance in export sectors which produce merchandise on a cyclical
  - production basis.
- 63. As regards the presence of policemen in the establishments on strike, it
  - should be pointed out that this occurred only in cases where workers had
  - occupied premises and the employer asked the Ministry of the Interior to
  - evacuate the premises in accordance with the provisions of Decree No. 512/966.
  - It should also be pointed out that these evacuations were in all cases of a
  - peaceful nature.
- 64. Although it is admitted by the complainant organisations, it should also
  - be emphasised that in cases in which it has been shown that recourse has been
  - had to fixed-term recruitment, the Ministry of Labour and Social Security has
  - clearly established the illicit nature of this form of recruitment and has
  - come out in favour of employment stability, as can be seen from the
  - documentation provided by the complainants.
- 65. Likewise, the Ministry of Labour and Social Security has pointed out
  - that although the individual agreements concluded by employers with a large
  - number of workers may well be considered valid as regards the greater benefits
  - which are provided for each of the signatory workers, such agreements are not
  - valid as collective agreements and thus do not exclude workers who sign them
  - from the working conditions established by collective bargaining.
- 66. As regards the cases in which the workers' organisation denounced the
  - existence of clandestine workshops to which production from the establishments
  - in dispute was transferred, the relevant inspections were carried out on more
  - than 30 occasions without it being possible to establish the alleged
  - clandestine character of these establishments, although on several occasions
  - other infringements were recorded and duly punished.
- 67. Finally, the Government would like to inform the Committee that
  - discussions with the presidents of the Chambers of Industry and Clothing, the
- PIT-CNT and the workers' organisations concerned have been initiated with a
  - view to reaching an agreement by consensus on the establishment of an
  - appropriate labour relations system.
- 68. The Government points out that, notwithstanding the above, the Ministry
  - of Labour and Social Security has decided to appoint a committee of inquiry to
  - determine the truth of the allegations made to the Committee concerning
- anti-trade union practices in the clothing and leather industries. The
  - committee will comprise persons of recognised expertise and independence. The
  - committee, the establishment of which has been communicated to the complainant
  - organisations, will be assisted by the National Directorate of Labour and
  - Social Security and will be required to issue within a period of 90 days a
  - report on all those cases which have not been the subject of a judicial
  - inquiry. Once the committee's report is issued the Government will inform the
  - Committee on its conclusions and, where applicable, the measures adopted as a
  - result.
- 69. In a communication of 5 June 1988, the Government sends the texts of the
  - conclusions of the above-mentioned committee of inquiry (see Annex I of the
  - present report) and of a resolution of the Ministry of Labour and Social
  - Security to implement the recommendations of the committee (see Annex II of
  - the present report), in particular concerning the establishment of a permanent
  - arbitration committee in the clothing and leather industries. In the same way,
  - in its communication of 10 October 1988, in reply to the request by the Office
  - dated 23 June 1988 for information and comments from the committee of inquiry,
  - set up by the resolution dated 14 October 1987 to examine the various specific
  - allegations made in the present case, the Government points out that the said
  - committee has reported. According to the Government, the committee established
  - its conclusions on the basis of the results of an examination of the documents
  - available in the National Directorate of Labour (Division of Labour
  - Relations), on court proceedings following disputes in the clothing industry,
  - as well as on inspections carried out at its request by the General
  - Inspectorate of Labour and Social Security and, in particular, information
  - obtained from the parties on an individual and collective basis, during the
  - six months of work it required to fulfil its mandate. The conclusions of the
  - above-mentioned committee of inquiry were accepted as substantially correct by
  - the parties as can be seen from the document dated 12 September 1988, to which
  - reference is made below, in which both the representatives of the Chamber of
  - Employers in the Clothing Industry and the representatives of the Single
  - National Trade Union of Workers in the Clothing Industry and the PIT-CNT
  - agreed "that the situation in the clothing industry has been one of gradual
  - deterioration which has made it impossible to engage in flexible dialogue
  - which is an indispensible means of collective bargaining" and confirmed "their
  - firm intention to correct such a situation on the basis of mutual respect and
  - consideration". The Government goes on to say that the Ministry of Labour and
  - Social Security lacks the powers to order the reinstatement of workers who may
  - have been suspended or dismissed in violation of their trade union rights and
  - that, in Uruguay, the remedy of such violations is the responsibility of the
  - jurisdictional bodies. The Government states that it has no information that
  - the injured parties in the present case have filed judicial proceedings to
  - obtain such redress. Furthermore, the Government points out that the
  - arbitration committee established by a resolution dated 3 June 1988 has been
  - making relentless efforts to reverse the blatant decline in labour relations
  - in the clothing industry and has even obtained the formal agreement of the
  - parties to negotiate the establishment of "a collective agreement to establish
  - minimum rules of conduct by the parties on the basis of points which include
  - the recognition and representativity of the parties, the obligation to
  - negotiate in good faith, the abstention from unfair practices, the fixing of
  - time limits and places for discussions and co-ordination in the negotiation
  - levels". The Government encloses a photocopy of the document signed on 12
  - September 1988 at the headquarters of the Ministry by the members of the
  - Arbitration Committee for the Clothing Industry, representatives of the
  - Chamber of Employers in the Clothing Industry, SUA-VESTIMENTA and PIT-CNT. The
  - collective agreement which was then concluded by the arbitration committee
  - appointed by this Ministry incorporates the conclusions and suggestions of the
  - study carried out by the mission appointed by the ILO in 1986 and without
  - doubt constitutes a step forward in national practice.

C. The Committee's conclusions

70. The Committee observes that in the present case the complainant
organisations have alleged in general the absence of effective measures by the
authorities to prevent, as provided for by Article 3 of Convention No. 98, the
very serious violations of trade union rights which have occurred in the
clothing industry since 1986. More specifically, they allege the intransigence
and anti-trade union attitude of the Chamber of Employers in the Clothing
Industry in negotiations in the wage councils and the subsequent occurence of
numerous acts of discrimination against trade union officials and members, as
detailed by the complainant organisations. The PIT-CNT has made similar
allegations of anti-trade union discrimination of the clothing industry.
71. As regards the application of Article 3 of Convention No. 98 ("machinery
appropriate to national conditions shall be established, where necessary, for
the purpose of ensuring respect for the right to organise as defined in the
preceding articles"), the Committee notes that according to the complainant
organisations all an employer has to do to remove active trade unionists from
workplaces is to dismiss them "without giving reasons" and pay the
corresponding compensation. In the same way, according to the trade union
organisations, the fines established by Decree No. 93/68 in the event of
discrimination are so low that it is not possible to speak of "adequate
machinery" as used in Convention No. 98, in addition to the fact that the
decision to impose a sanction is a matter of discretion for the
administration. The Committee also notes that the complainant organisations
point out that the bill respecting trade union rights approved by the Chamber
of Deputies does not meet the aspirations of the trade union movement which
believes that the imposition of voting systems governing the election of trade
union officials presupposes interference in the internal life of trade union
organisations.
72. The Committee observes that in its reply to these allegations the
Government insists on a series of points: the existence of minimum standards
regarding trade union freedom as a result of the special tradition of
collective autonomy in Uruguay and the resistance of the trade union movement
to any State regulation; the prohibition of the anti-trade union practices
enumerated in Convention No. 98 by the provisions of Decree No. 93/68 which
empowers the Ministry of Labour to impose fines when such practices are
corroborated; and the fundamental role to be played by the courts as a result
of the above-mentioned autonomous tradition. In this respect the Government
emphasises the jurisprudential adoption of the concept of protection (amparo
in Spanish), the judicial orders to refrain from innovations and, in
particular, the reinstatement of workers and the provision for sanctions in
cases of non-compliance. The courts are thus empowered to give effect at least
to the protective measures enumerated in (c), d) and e) of Recommendation No.
143. However, the Government also draws attention to the customary slowness of
the legal process (which it hopes to alleviate by a bill respecting summary
oral proceedings in labour disputes) and the widespread mistrust of the State
as a result of the tradition of independence which has led the Uruguayan trade
union movement, in most cases, to avoid recourse to the courts.
73. The Committee observes that both the complainant organisations and the
Government agree that there is a lack of adequate and effective machinery for
providing special protection to trade union officials and activists against
dismissal and other acts of anti-trade union discrimination. The Committee
observes, however, that the bill respecting trade union rights, approved by
the Chamber of Deputies, which in the view of the Government conforms to the
recommendations of the Committee, does not meet the aspirations of the trade
union movement for the above-mentioned reasons.
74. The Committee observes that the proposed bill respecting trade union
rights is opposed by the complainant organisations because of the final
paragraph of section 6 which stipulates:
The following persons shall enjoy additional guarantees (inter alia, prior
authorisation by the labour authorities regarding dismissals, transfers or
downgrading in working conditions) within the limits established by sections
12 and 13:
a) members of the executive committees of trade unions, federations,
confederations or trade union organisations;
b) substitute members of the executive committees when acting as full
members;
c) staff delegates on joint or tripartite committees when proposed by the
trade union organisation or elected by all the staff;
d) members of internal committees, works councils or similar bodies;
e) applicants for executive posts in the trade union, staff delegates,
internal committees, works councils or similar bodies.
The election of the persons mentioned above shall be by secret, obligatory
and direct vote. The Committee would like to point out that in accordance of
Article 3 of Convention No. 87, workers' organisations "shall have the right
to draw up their constitutions and rules, to elect their representatives in
full freedom ... . The public authorities shall refrain from any interference
which would restrict this right or impede the lawful exercise thereof". There
is thus no doubt that within the meaning of the Convention, the regulation of
procedures and methods for the election of trade union officials is primarily
to be governed by the trade union's rules themselves. Indeed the fundamental
idea of Article 3 of Convention No. 87 is that workers and employers may
decide for themselves the rules which should govern the administration of
their organisations and the elections which are held therein (see 191st
Report, Case No. 763, para. 29). That being said, the Committee has considered
acceptable legislation which is designed to promote democratic principles
within trade union organisations. Certainly secret and direct voting is one of
the democratic methods, and in this respect there would be no objection from
the point of view of the principles of freedom of association for legislation
to contain provisions in this respect. On the other hand, this is not the case
as regards obligatory voting (see 191st Report, Case No. 763, paras. 28 and
29). In the same way, the Committee has pointed out, for example, that
legislation imposing penalties on workers who do not participate in elections
is not in harmony with the provisions of Convention No. 87 (see 191st Report,
Case No. 763, para. 29). Thus, the Committee asks the Government, in the event
that the bill respecting trade union rights should be adopted, to take the
necessary measures with a view to suppressing the requirement respecting
obligatory voting in the elections of trade union officials as a condition for
entitlement to the special trade union protection. However, the Committee
would like to point out that this does not in any way mean that the Committee
is giving its support to the said bill - or is rejecting it - in as far as the
trade union organisations have made reservations in this respect. The level of
protection for the exercise of trade union rights which results from the
provisions and principles of Conventions Nos. 87 and 98 constitutes a minimum
standard which may be complemented and it is desirable that other
supplementary guarantees should be added resulting from the constitutional and
legal system of any given country, its traditions as regards labour relations,
trade union action or bargaining between the parties. At all events, and
bearing in mind the numerous allegations of anti-union discrimination in the
clothing and leather industry, the Committee emphasises the need to establish
adequate, impartial and rapid procedures to ensure respect of the right to
organise which avoids any kind of anti-trade union discrimination.
75. As regards the specific cases of anti-trade union discrimination in the
clothing and leather industries mentioned in the complaints, the Committee
observes that the complainant organisations have alleged the existence of
blacklists which make it impossible for trade union leaders and militants to
obtain stable employment; the dismissal or placing on unemployment benefits of
a large number of officials as a result of the dispute; the dismissal or
suspension of hundreds of workers who had actively participated in the trade
union actions; the presence of police in plants; the locking of workers inside
plants occupied peacefully by workers; the anti-union use of fixed-term
recruitment and of the unemployment benefit scheme; the carrying out of
pre-employment inquiries into workers who apply for work in the clothing
undertakings; the signing of collective agreements behind the back of the
trade union organisation; the subjecting of contracts to non-union membership.
76. Firstly, the Committee notes that the Government has not referred
specifically to each of the allegations but rather has limited itself to
making general statements and references to the committee of inquiry set up by
the Ministry of Labour following the filing of the complaints before the
Committee on Freedom of Association. The Committee takes note of the
explanations of the Government in this respect.
77. The Comittee notes that the committee of inquiry set up by the Ministry
of Labour has established the following facts:
- the refusal of undertakings to engage in discussions with trade union
officials, preferring direct negotiation with the workers;
- the absence in all cases of a criterion which may be said to be objective
in the selection of workers to be dismissed or to be placed on benefits. Those
involved generally include a high percentage of trade union delegates or
unionised workers;
- preventive suspension as a preliminary step towards dismissal is carried
out after trade union stoppages or measures;
- a frequent number of dismissals before the end of the unemployment
insurance period. This hastiness suggests in some cases that there is an
intention to end the contract of certain workers, generally trade union
officials;
- although this cannot be considered a completely objective element, the
lack of opportunities available to dismissed trade union leaders to find
employment in other undertakings involved in the same activity is suggestive;
- the use of overtime even when there are workers available who are on
unemployment benefits, although this does not conclusively show that there is
any discriminatory attitude since there can be a significant reduction in
production during a specific period when workers are placed on unemployment
benefits, and during this period circumstances may arise which justify the use
of overtime without there being any need to re-engage workers who are on
unemployment insurance benefits;
- the presence of policemen on the premises of certain undertakings in
situations which do not conform strictly to the conditions established by
Decree No. 512/966. The presence of such officials is usually requested by the
undertakings which allege that the measure is to protect workers from being
harassed by other workers following their refusal to participate in work
stoppages. Unionised workers interpret these measures as a form of
intimidation.
78. The Committee notes the Government's statement that it has no
information, at least as regards most of the cases, that those persons who
were the victims of the alleged acts have filed legal proceedings. It also
notes that the Government reiterates the powers which have been granted to the
courts to ensure effective implementation of the protection measures
prescribed by Paragraphs (c), (d) and (e) of Recommendation No. 143 (recourse
procedure open to workers' representatives in the event of unjustifiable
termination, provision of effective remedies including reinstatement with
payment of unpaid wages and the obligation of the employer to prove that the
action was justified).
79. The Committee also notes that, according to the Government, there are
practical difficulties in verifying the trade union official status of trade
union official workers who claim to have been affected and in determining the
intentions of employers who, on their side, allege misconduct or lack of work.
The Committee also takes note of the Government's statements concerning the
presence of police in the establishments on strike and on the peaceful
character of the evacuations, the attitude of the Ministry regarding instances
where fixed-term contracts have been used and its explanations on the
agreements signed by the employer with a large number of individual workers.
80. The Committee notes that it appears from the conclusions of the
committee of inquiry set up by the Ministry of Labour to examine the
allegations made to the Committee on Freedom of Association that there have
been acts of anti-trade union discrimination and anti-union measures and
practices contrary to collective bargaining in the clothing and leather
industries. In the circumstances, although it regrets that in most cases the
trade union organisations and the persons concerned have not made use of the
legal methods of redress, the Committee emphasises, on the basis of the
observations of the above-mentioned committee of inquiry, the need to remedy
the acts and anti-trade union practices which have been carried out since
1986, contrary to the provisions of Convention No. 98.
81. Finally, as regards the alleged intransigence of the Chamber of
Employers in the Clothing Industry in the negotiations in 1986 and 1987, the
Committee regrets that there was a lack of flexibility. The Committee notes
that in the conclusions of the committee of inquiry set up by the Ministry of
Labour, attention is drawn to the need to promote methods of negotiation and
dialogue between the parties. It observes in this respect that a tripartite
arbitration commission has been set up which would become a permanent
negotiation body and that the parties have been invited to adopt, in a spirit
of responsibility, a commitment to engage in dialogue, to resolve differences
of opinion and to establish communication on a permanent basis. In this
respect, the Committee notes with interest that at the request of the
arbitration commission a formal agreement has been concluded between the
parties to negotiate a collective agreement which will determine the relations
between the parties, in particular as regards the obligation to negotiate in
good faith and to refrain from unfair labour practices. The Committee
expresses the hope that the activities of the arbitration commission and the
application of the future collective agreement will make it possible to
achieve the set objectives and results. The Committee would generally recall
the principle that although the question as to whether one of the parties
adopts a conciliatory or intransigent attitude to the claims of the other is a
matter for negotiation, both employers and unions should bargain in good faith
making every effort to arrive at an agreement. (See, for example, 139th
Report, Case No. 725, para. 279 and 236th Report, Case No. 1275, para. 457,
Case No. 1206, para. 493 and Case No. 1291, para. 695.)

The Committee's recommendations

82. In the light of its foregoing conclusions, the Committee invites the
- Governing Body to approve the following recommendations:
  - a) The Committee requests the Government, in the event that the proposed
- bill on trade union rights should be approved, to take the necessary measures
- with a view to suppressing the requirement of obligatory voting in the
- elections of trade union officials as a condition of entitlement to the
- special trade union protection; the Committee emphasises the need to establish
- adequate, impartial and rapid procedures to ensure respect of the right to
- organise which avoids any kind of anti-union discrimination.
  - b) On the basis of the conclusions reached by the committee of inquiry set
- up by the Ministry of Labour, the Committee emphasises the need to remedy the
  - anti-union acts and practices which have been occurring since 1986, contrary
- to the provisions of Convention No. 98, and notes with interest that the
- tripartite arbitration commission set up to facilitate dialogue, negotiation
- and the self-regulation of conflicts in the clothing and leather industries
- has reached an agreement between the parties to negotiate a collective
- agreement to regulate relations, in particular as regards collective
- bargaining. The Committee expresses the hope that this will lead in future to
- negotiations carried out in good faith in which both the employers and the
- trade unions will be able, in a climate of mutual confidence, to make the
- necessary efforts to reach periodic collective agreements.

Z. ANNEX I

Conclusions of the committee set up by ministerial resolution dated 14
October 1987 to examine the complaints made by workers in the clothing
industry
I. Introduction
During its investigations, the committee examined public and private
documentation which the parties presented to it or which it procured itself.
In addition, it met with representatives of the workers' organisations,
officials of the Ministry of Labour and Social Security and with the
administrator of the Chamber of Employers in the Clothing Industry.
Further to the conclusions reached by this committee as regards the concrete
complaints lodged, we consider it necessary to point out that it is clear from
the investigations carried out that there has been an absolute deterioration
in labour relations in the clothing industry.
Our country - as noted by a recent ILO mission (see Report on labour
relations in Uruguay, first edition) - is characterised by a system of labour
relations with a high level of conflictuality and independence of both
employers' and workers' organisations. However, in this conflictual framework
bipartite and tripartite negotiations, promoted by this very Ministry, have
constituted a method of permanent regulation of disputes. That is why we can
say that at present, in our country, there is a system of labour relations in
which disputes are regulated by the parties themselves (self-regulation)
having, at times, state intervention together with the social partners.
The committee has noted with concern that this characteristic of the system
has not been strong in the clothing industry where, when faced with a high
level of disputes, the methods of self-regulation by the parties have been
weak and ineffectual. The committee observed that the opportunities for
dialogue made available to the parties through the sessions of the wages
councils or ad hoc meetings encouraged by this very Ministry only resulted in
strengthening the distance separating the parties.
The more important risk, not only for the clothing sector but for the
national system as a whole, is that a dispute in the clothing industry becomes
a "chronic dispute", where instead of seeking solutions through consensus, one
party or the other - according to the circumstances prevailing - imposes a
decision through its greatest strength.
It is well known that our labour relations system has evolved without
practically any normative framework. It is a system - in modern terms -
involving "self-regulation": to try to resolve disputes in the clothing
industry through coercive measures by the State would mean a departure from
this type of system which has been supported especially by the workers.
Nevertheless, we consider that in view of the gravity of the facts, neither
the State, nor the occupational organisations can remain inactive when faced
with the deepening and worsening of the dispute. We wish to emphasise the need
to promote bargaining instruments and dialogue to bring the parties closer
together.
It is necessary that the workers and employers of the clothing industry
understand that our labour relations system involves not only "disputes", but
also a "disputes culture" (see ILO Report, op. cit., p. 29).
II. Established facts
In this context, the committee has noted the following facts:
1. 1 There is no advance or spontaneous bargaining between undertakings and
unions. There is sporadic dialogue in the Ministry of Labour and Social
Security, but even there only in cases of a very general nature and where
inflexible positions are assumed beforehand.
1. 2 It occurs frequently that certain undertakings do not respect the first
summonses or attend the meetings in the Ministry of Labour, and if they do so,
they send persons who are not representative and who limit themselves to
taking note of the suggestions and to requesting time extensions.
1. 3 The undertakings refuse to engage in dialogue with trade union leaders,
preferring direct negotiation with the workers.
1. 4 It has been noted that there is not in all cases a criterion which could be
described as objective in the manner of choosing which workers are to be
dismissed or put on unemployment benefits. Among those chosen there is
generally a high percentage of trade union delegates or unionised workers.
1. 5 Preventive suspensions as a prelimary step towards dismissal are carried
out after trade union stoppages or measures.
1. 6 Frequently, a number of dismissals take place before the end of the
unemployment insurance period. This hastiness suggests in some cases that
there is an intention to end the contract of certain workers, generally trade
union officials.
1. 7 Although this cannot be considered a completely objective element, the
lack of opportunities available to dismissed trade union leaders to find
employment in other undertakings involved in the same activity is suggestive.
1. 8 Overtime is used even when there are workers available who are on
unemployment benefits - although this does not conclusively show that there is
any discriminatory attitude since there can be a significant reduction in
production during a specific period when workers are placed on benefits and
during this period circumstances may arise which justify the use of overtime
without there being any need to re-engage those workers on benefits.
1. 9 The presence of policemen on the premises of certain undertakings in
situations which do not conform strictly to the conditions established by
Decree No. 512/966. The presence of such officials is usually requested by the
undertakings which allege that the measure is to protect workers from being
harassed by other workers following their refusal to participate in work
stoppages. Unionised workers interpret these measures as a form of
intimidation.
1. 10 Workers hold meeting during working hours without the permission of the
undertaking.
1. 11 The workers use atypical forms of strikes, such as intermitant strikes
and work-to-rule.
III. Certain final considerations
The present situation appears to have originated in the excessive resentment
and tendency to confrontation between the parties which has made harmonious
relations impossible.
The deteriorating situation might also be due to the lack of interlocutors
better disposed to bargaining.
An example of this lack of ability to negotiate is the attitude of one
representative of the Chamber of Employers in the Clothing Industry who told
this committee that the employers have taken the decision not to engage in
dialogue with any trade union leader who, in their opinion, has made
discriminatory statements on the basis of the race of some employers.
This shows the ardour of the parties towards what they consider to be the
defence of their interests.
Be that as it may, we must exhort the PIT-CNT and the Chambers of Employers to
bring the parties closer together in accordance with the usual lines of our
industrial relations system noted by the ILO.
We think that the time is right for the establishment of an arbitration
commission which would become a permanent negotiation body and we invite the
parties to assume a responsible attitude towards dialogue, to self-regulation
of disputes, and to establish communication on a permanent basis, as occurs in
the other occupational sectors of our nation.
Yours faithfully,
Juan Raso Delgue Santiago Pérez del Castillo Hernán Navascués Montevideo, 12
April 1988.
ANNEX
ANNEX II
Resolution of the Ministry of Labour and Social Security Montevideo, 3 June
1. 1988
IN VIEW OF: the report made by the committee set up by the resolution of 14
October 1987 to examine the complaints made by workers in the clothing
industry;
GIVEN THAT: (I) this committee, in its conclusions, advised that the PIT-CNT
and the Chambers of Employers be exhorted to bring the parties closer together
in accordance with the usual lines of our labour relations system; and (II)
that this committee considered the time right for the creation of an
arbitration commission which would become a permanent negotiating body and
invited the parties to assume a responsible attitude towards dialogue, to
- self-regulation of disputes, and to establish communication on a permanent
basis, as occurs in the other occupational sectors of our nation;
CONSIDERING: that provisions should be made to implement that committee's
recommendations,
The Minister of Labour and Social Security
RESOLVES
1. 1 To summon the representatives of the PIT-CNT, of the Single National
Trade Union of Workers in the Clothing Industry (SUA-VESTIMENTA) of the
Chamber of Commerce of Uruguay and of the Chamber of Employers in the Clothing
Industry so as to inform them of the report of the committee set up by the
resolution of 14 October 1987, and to exhort them to work towards
reconciliation in accor dance with the usual lines of our industrial relations
system.
1. 2 To set up an arbitration commission, to be made up of Dr. Hernán
Navascués representing this Ministry, Mr. Carlos Rafaeli, representing the
Chamber of Commerce of Uruguay and Mr. Thelman Borges, representing PIT-CNT,
so as to act as a permanent negotiating body for the clothing industry.
1. 3 To inform the National Labour Directorate of the creation of the
commission referred to in the previous paragraph.
1. 4 To transmit a copy of the present resolution to the General Inspectorate
of Labour and Social Security.
1. 5 To transmit to the Committee on Freedom of Association of the Governing
Body of the ILO a copy of the report of the committee set up by the resolution
1. of 14 October 1987, as well as of this resolution.