Informe definitivo - Informe núm. 331, Junio 2003

Caso núm. 2209 (Uruguay) - Fecha de presentación de la queja:: 30-JUN-02 - Cerrado

Allegations: The complainant organizations allege that in regulating conditions of employment by decree and in the absence of collective agreements in the central administration the Government is in breach of Conventions Nos. 151 and 154. In addition, the complainant organizations dispute the Government’s decision to declare an animal health division an essential service during an epidemic of foot-and-mouth disease.

1. 707. The complaints are set out in letters from the InterUnion Workers’ Assembly – National Confederation of Workers (PIT-CNT), the Confederation of Civil Service Unions (COFE), the Coordinating Congress of Enterprise Trade Unions and the Association of Livestock, Agriculture and Fisheries Officials (AFGAP) of June 2002. The Government sent its observations in a letter dated 7 January 2003.
2. 708. Uruguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 709. In its communication of June 2002, the Confederation of Civil Service Unions (COFE), the InterUnion Workers’ Assembly – National Confederation of Workers (PIT-CNT) and the Coordinating Congress of Enterprise Trade Unions alleged breach of Conventions Nos. 151 and 154 by the Government. Specifically, they allege that on 30 April 2002, the President of the Republic issued Decrees Nos. 158 and 159, published in the Official Journal (Diario Oficial) No. 26.001 of 7 May 2002, which directly affect the conditions of employment of public servants, without COFE’s participation in the changes.
2. 710. Under the first of these decrees, the central administration is totally prohibited from contracting any personnel under a contract for works, contract for services, casual, seasonal, temporary or of any other kind of contract which in any way involves a service of a personal nature, whether under an individual or collective contract, with a natural person, with or through de facto or commercial companies or any private entity whether or not it has legal personality either through provision of services or budgetary allocations administered by the State or through international organizations, and instructing the executive board or governing body of the organizations listed in article 221 of the Constitution of the Republic accordingly. The second decree suspends the payment of overtime in the central administration, and for officials in the organizations listed in article 221 of the Constitution of the Republic.
3. 711. The complainant organizations add that article 739 of Law No. 16736 of 5 January 1996 provides for the creation of the Permanent Commission on Labour Relations in the Central Administration and Organizations listed in article 220 of the Constitution of the Republic, under the Ministry of Labour and Social Security, with the specific assignment to advise on wages, conditions of employment and other matters regulated by international labour conventions. The law further provides that the Commission shall have five members: two representatives of the executive power through the Ministry of the Economy and Finance and the Planning and Budget Office, two nominated by the most representative organizations of public servants and the Minister of Labour and Social Security, or his representative, in the chair. The Commission may be convened by any of its members.
4. 712. The complainant organizations allege that the abovementioned Commission, which should have had a permanent organization to allow the public servants’ representatives to participate in determining conditions of employment, has not been established and does not function in any organized way.
5. 713. The complainants add that the Government’s practice of not having workers’ organizations participate in issues of interest to the workers was compounded by the Government’s decision that there would be no collective bargaining in the state public enterprise sector, which in practice means discarding agreements reached in the collective agreements concluded in the past with the Coordinating Committee of Enterprise Trade Unions on macro issues, and specifically in each of those state enterprises individually. The complainants state that there are no forums in the public administration for collective bargaining as envisaged in ILO Convention No. 151, and any that remain in effect under article 739 of Law No. 16736 do not function for lack of stimulus and promotion by the Government which is in breach of its obligation to promote collective bargaining on wages, conditions of work and employment levels in the sector.
6. 714. The complainants add that the practice current in state commercial and industrial enterprises, whereby collective agreements including internal dispute settlement mechanisms, provisions on determination of conditions of work and wage adjustments had been formalized, had been abandoned.
7. 715. Lastly, the complainants indicate that as well as not encouraging collective bargaining throughout the public sector and particularly state enterprises, wage reductions are being intensified, new conditions of work are being fixed which undermine the gains of collective bargaining, everyday measures to reduce employment levels are announced, mechanisms for adjusting wages and forms of contracting are being deregulated and there is growing evidence of disregard not only for agreements reached through collective bargaining, but also the very right to engage in trade union activity.
8. 716. In another letter dated June 2002, the Association of Livestock, Agriculture and Fisheries Officials (AFGAP) and InterUnion Workers’ Assembly – National Confederation of Workers (PIT-CNT) say that the officials of the Animal Health Division of the Uruguayan Ministry of Livestock, Agriculture and Fisheries, through the local branch of AFGAP, decided in June 2001 to engage in trade union action in the context of the trade union dispute with the authorities of that Ministry, because of non-payment of overtime actually performed. In that context, it was decided: (a) that each responsible official would not send zoo sanitary information relating to the service’s activity to the Ministry’s central office; (b) to work to rule; and (c) to strike on 26 June 2001.
9. 717. The complainants report that after notifying the officials in dispute, the Ministry of Labour and Social Security decided, on 5 July 2001, to declare the services and functions of various offices of the Animal Health Division in the Directorate-General of Livestock Services to be essential services, and ordered that the decision would remain in force for the duration of the trade union action described above, and for a period of 60 days.
10. 718. The complainant organizations add that the administrative authority stated that “… the trade union actions seriously affected sanitary control throughout the Republic, compromising the proper guarantees of public health and harmed production, marketing, imports and exports, causing a serious obstacle to the normal functioning of national production”. The authority further failed to send the information described as “… an attack on the fulfilment of the international obligations assumed by the country … and various bilateral treaties and agreements … which resulted in serious harm to the national economy …”. The complainant organizations consider that this specific case is not one where it is possible to limit the exercise of trade union activity.
11. 719. The complainants add that although it is true that the obligations of the Animal Health Division of the Directorate-General of Livestock Services in the Ministry are to prevent, control and eradicate serious animal diseases, and in that respect to register and monitor commercial animal producers, as well as taking health certification measures, it is also obvious that, although at the time of the dispute in question a state of health emergency for foot-and-mouth disease had been declared, the trade union actions taken did not endanger the life, health or security of any part of the population, as can be seen from the relevant technical reports. The measures adopted did not mean abandoning the tasks of prevention, control, certification and actions to eradicate the epidemic, but consisted of not submitting the information gathered to the central Ministry, and in taking strike action on 26 June 2001, in a context of planned mobilization. The attitude of the officials of the Animal Health Division involved in the dispute, far from straying outside their responsibility to combat the foot-and-mouth epidemic, let alone endanger the life and health of the population as a whole, was about defending the right to receive compensation or remuneration for overtime actually worked, before, during and after the period of health emergency.

B. The Government’s reply

1. 720. In its letter dated 7 January 2003, the Government states that with respect to the alleged non-compliance with Convention No. 151, there is total freedom to form trade unions in the public sector, and, indeed, that collective agreements have been concluded in many state enterprises on conditions of employment in general. The Government points out that both the Committee of Experts on the Application of Conventions and Recommendations and the Committee of Freedom of Association are aware that there are no legal restrictions whatsoever in Uruguay on the formation of trade unions or collective bargaining. Furthermore, both private and public sector trade unions are recognized as having de facto legal personality to engage in collective bargaining and indeed the trade union representatives of public officials have concluded many collective agreements, especially in commercial and industrial enterprises, the banking sector and departmental governments.
2. 721. As regards the alleged failure by the Government to convene the Permanent Commission on Labour Relations for the Central Administration and other Organizations, created by article 739 of Law No. 16736, the Government indicates that the Commission was extremely active in the period following its creation, but recently no joint meetings had been convened, and highlights that the law expressly provides that any of the interested parties may convene a meeting in relation to their own interests. The fact is that none of the organizations has done so and the reason for this is quite apart from the Commission, public sector employment relations have functioned quite normally and state officials have the highest rates of trade union membership.
3. 722. With respect to the alleged failure to promote collective bargaining, the Government which took office on the restoration of democracy (March 1985) implemented a system whereby it was mandatory to convene employers and workers to wage bargaining every four months. That was a stage in promoting collective bargaining, necessary following a period when it had been absent and when high inflation needed to be offset by frequent wage adjustments. This stage was considered to end with the full re-establishment of individual and collective liberties and the decline in inflation rates from 130 per cent annually to less than 5 per cent in 1999.
4. 723. Although the Government considers that mandatory convening of wage bargaining can be dispensed with, that does not mean that it is restricted in any way in any sector. On the contrary, as already stated, there are no requirements either for recognition of the capacity of the negotiating parties or the practical arrangements. It should be noted in particular that the Ministry of Labour and Social Security maintains a permanent team of experts who collaborate in any bargaining in which the parties may wish to engage. In this respect, we can say that, during the period 1995-99, there was free and open collective bargaining with state enterprises and government departments, and although it is true that there are no collective agreements in the central administration, the fact remains that various central government bodies set up bargaining forums which allowed trade unions to submit claims included by the administration in its corresponding budgetary allocations. An example of this is the Uruguayan Teachers’ Federation (FUM) which undertook an energetic strategy of mobilization and participation in bodies responsible for transforming the sector. At the same time, we can mention the case of the Federation of Public Health Workers (FFSP) which during the period concerned participated in decisions on wage issues for the sector affecting the five-year budget and the law on submission of accounts. In state enterprises between 1995 and 1999, there were two areas of bargaining: a centralized one of a general character in the Planning and Budget Office and individual company-level bargaining.
5. 724. The Government reports that there was no break in centralized bargaining, and successive agreements were concluded in the National Ports Administration (ANP), the telecommunications sector (ANTEL), state factories (UTE), the National Postal Administration and the Social Security Bank (BPS), among others. During 2000 and 2001, the same pattern was maintained in the public sector. There were no collective agreements in the central administration and there was free bargaining in state enterprises and the state bank. At this level, it is interesting to note that the agreement signed by the National Fuel, Alcohol and Cement Company (ACAP) in March 2000, which constitutes a new framework which will then be taken up in section agreements adapted to their goals and objectives. In the light of the foregoing, the Government states that there has been no failure to comply with the Labour Relations (Public Service) Convention, 1978 (No. 151).
6. 725. As regards the allegations submitted by the Association of Livestock, Agriculture and Fisheries Officials (AFGAP) on the declaration of essential service which affected some offices of the Animal Health Division of the Directorate-General of Livestock Services, the Government states that prior to its designation as an essential service, there were several meetings between workers’ representatives and various authorities of the Ministry of Livestock, Agriculture and Fisheries, as well as Ministry of Labour and Social Security officials in order to reconcile the parties to the dispute.
7. 726. The Government points out that the declaration of essential service in Uruguayan law does not mean that strikes are prohibited, but solely that there is a need to establish emergency shifts, such that the strike will only be illegal if it causes a total breakdown of the service. Article 4 of Law No. 13720 does not prohibit strikes in essential services, but merely lays down restrictions.
8. 727. The Government adds that obviously the delicate situation faced by the country during the health alert caused by the appearance of foot-and-mouth disease led to a national emergency which justified the declaration of an essential service in the terms adopted, which in no way prevented the right to strike of the officials involved but merely restricted it to a requirement to provide minimum services, which does not impair enjoyment of that right. Moreover, the Government states that the possibility allowed in article 4 of Law No. 13720 is considered as an exceptional power bearing in mind that the mechanism has rarely been invoked.
9. 728. With respect to the allegations by the Confederation of Civil Service Unions (COFE) on the non-convening of the Permanent Commission on Labour Relations in the Central Administration and Organizations listed in article 220 of the Constitution of the Republic, the Government points out that article 739 of Law No. 16736 allows any of the parties to convene it.
10. 729. The Government indicates that the allegations against Decrees Nos. 158 and 159 of 7 May 2002 issued by the executive power on reduction in public expenditure do not deserve further comment. According to the Government, it is sufficient to read the international legislation to realize that in no case have international standards ratified by the country been infringed. The Government considers that the prohibition on the central administration of generating overtime or recruiting people under a contract for works, contract for services, casual, seasonal, temporary or of any other kind of contract is nothing more than the State controlling its own public spending and does not require prior authorization or consultation.

C. The Committee’s conclusions

1. 730. The Committee observes that in this case: (1) the Government is alleged to have violated Conventions Nos. 151 and 154 in having issued decrees which affect conditions of employment of public officials, without consulting their representative organizations and because there are no forums in the public administration to allow collective bargaining; and (2) it is alleged that the Ministry of Labour and Social Security decided in the context of a strike to declare as essential services the services and functions of various offices of the Animal Health Division of the Directorate-General of Livestock Services in the Ministry of Livestock, Agriculture and Fisheries.
2. 731. As regards the allegations of violation by the Government of Conventions Nos. 151 and 154 by virtue of: (i) the issue of Decrees Nos. 158 and 159 (whereby according to the complainants contracting any personnel under a contract for works, contract for services, casual, seasonal, temporary or of any other kind of contract which in any way involves a service of a personal nature is prohibited and suspension of payment of overtime in the central administration); (ii) the failure to convene the Permanent Commission on Employment Relations in the Central Administration and listed Organizations – consisting of members of the executive power and members of the most representative officials’ organizations – whose purpose is to advise on wages issues, conditions of employment and other matters regulated by international labour conventions; and (iii) abandonment of the practice of negotiating collective agreements in state enterprises. In this respect, the Committee notes that the Government stated the following: (1) Decrees Nos. 158 and 159 of 2002 refer to reduction of public expenditure and control by the State of its public spending which does not require prior authorization or consultation; (2) the law allows any of the members to convene the Permanent Commission on Labour Relations in the central administration and listed organizations; (3) since 1995, there has been free and open collective bargaining with state enterprises and government departments, and although there were no collective agreements in the central administration, various central government bodies set up bargaining forums which allowed trade unions to submit claims included by the administration in its corresponding budgetary allocations.
3. 732. In the first place, in relation to the Decrees to which the complainants object (Nos. 158 and 159) the Committee considers that, although the measures adopted with the objective of reducing public expenditure are essentially within the purview of the executive power, to the extent that such measures may affect the conditions of employment of public sector officials or workers (as in the case of these Decrees), their organizations should be consulted prior to their adoption. The Committee requests the Government in future to consult the interested organizations prior to cases of this kind.
4. 733. In addition, as to the non-existence of collective bargaining in the central administration (according to the Government, collective bargaining is free in other areas of the public sector), the Committee recalls that Article 1 of the Collective Bargaining Convention, 1981 (No. 154), ratified by Uruguay in 1989 provides that it “applies to all branches of economic activity” and that “as regards the public service, special modalities of application of this Convention may be fixed by national laws or regulations or national practice” and Article 2 provides that “the term collective bargaining extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more workers’ organizations, on the other, for determining working conditions and terms of employment”. In these circumstances, the Committee requests the Government to take the necessary measures to ensure full application of Convention No. 154 and promote collective bargaining also in the central public administration through appropriate mechanisms, in consultation with the trade union organizations concerned.
5. 734. As regards the complainants’ objections to the decision adopted by the Ministry of Labour and Social Security to declare as essential services the services and functions of various offices of the Animal Health Division of the Directorate-General of Livestock Services in the Ministry of Livestock, Agriculture and Fisheries in the context of a strike in June 2001, the Committee observes that the Government states that: (1) prior to the declaration as an essential service, the Ministry held several meetings between workers’ representatives and authorities of the Ministry of Livestock, Agriculture and Fisheries with a view to reconciling the parties to the dispute; (2) the declaration of an essential service in Uruguayan law does not mean a prohibition of the strike but only the need to establish emergency shifts; (3) Law No. 13720 does not prohibit strikes in essential services, but merely lays down restrictions; and (4) the delicate situation faced by the country during the health alert caused by the appearance of foot-and-mouth disease led to a national emergency which justified the declaration of an essential service in the terms adopted, which in no way prevented the right to strike of the officials involved but merely restricted it to a requirement to provide minimum services. In this respect, although the complainant organization alleges that the measures adopted did not mean abandoning the tasks of prevention, control, certification and actions to eradicate the epidemic, it also recognizes that a state of health emergency was in effect in the country. In this context, the Committee considers that the decision adopted by the Government to declare the Animal Health Division an essential service, for the purpose of requiring a minimum service, in the face of an outbreak of a highly contagious disease (foot and mouth) does not violate the principles of freedom of association.

The Committee's recommendations

1. 735. In the light of the above conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government in the future, when it envisages adopting measures to reduce public expenditure which may affect the conditions of employment of public sector officials or employees, to consult the organizations concerned prior to their adoption.
   • (b) With respect to the right of collective bargaining of officials of the central administration, the Committee requests the Government to take the necessary measures to ensure the full application of Convention No. 154 and promote collective bargaining in the central public administration through appropriate mechanisms, in consultation with the trade union organizations concerned.