Informe definitivo - Informe núm. 360, Junio 2011

Caso núm. 2779 (Uruguay) - Fecha de presentación de la queja:: 27-MAY-10 - Cerrado

Allegations: The complainant organizations allege that three trade union leaders were suspended with loss of earnings for their action in the context of a dispute (publication of a press release)

1. 1103. The complaint is contained in a communication dated 24 May 2010 from the Inter-Trade Union Assembly–Workers’ National Convention (PIT–CNT), the Confederation of Civil Service Trade Unions (COFE) and the Association of Livestock, Agriculture and Fisheries Officials (AFGAP). These organizations sent further information in a communication dated 12 July 2010.
2. 1104. The Government sent its observations in communications dated 1 November 2010 and 2 March 2011.
3. 1105. 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 complainant’s allegations

1. 1106. In its communication dated 24 May 2010, the PIT–CNT, the COFE and the AFGAP indicate that they are formulating a complaint against the Government of Uruguay for violation of the principles contained in ILO Conventions Nos 87, 98 and 151. The complainants indicate that animal health officials belong to the livestock departments of the Ministry of Livestock, Agriculture and Fisheries and perform duties relating to supervision and control of the health status of livestock production in the country. Within the Association of Livestock, Agriculture and Fisheries Officials they comprise a core group whose representatives are elected by secret ballot. The animal health officials’ working hours are eight hours per day, Monday to Friday but, on account of the duties they perform, they work outside the regular timetable, practically “to order” and on a “full-time basis”, including Saturdays and Sundays.
2. 1107. Since March 2008 the animal health officials, in their core group within the AFGAP and in conjunction with the association’s representatives, began to hold talks with the authorities in the context of negotiations to deal with two basic elements which are problematic in the officials’ work: the lack of human resources and the salary payable for overtime worked, whether for working or non-working days, including rest days. Their complaint essentially called for compliance with the terms of the legislation in force in the country, in the form of “public order” regulations, inasmuch as the latter may not be disregarded, even if so agreed by the parties concerned (section 30 of Act No. 14189 and Regulatory Decree No. 472/976). The complainants point out that the Ministry of Livestock, Agriculture and Fisheries in general and the livestock departments in particular have a serious human resources problem. In the decade preceding the term of office of the current Government which began in 2005, the livestock departments lost almost 30 per cent of their officials and, in the last three years, they have seen a reduction of nearly 10 per cent in the numbers of officials. Moreover, in the livestock departments, according to a survey carried out by the Ministry itself, 214 officials comprising 20 per cent of the total staff are due to reach retirement age in 2011.
3. 1108. Even though systems were approved during this government term for the entry of new officials, the AFGAP claims that these were insufficient to ensure that the livestock departments are able to duly perform their assigned duties and in the course of time maintain the health status currently enjoyed by the country. In general terms of age, 65 per cent of officials are over 50 years of age and 20 per cent are over 60. In the livestock departments, the average age is around 55 years. Age becomes a key factor in the performance of the duties attached to posts in the Animal Health Department. This is illustrated by the job profile featuring in the call for applications to the department, which contains the following wording: “Physical effort – Duties involve intensive and sustained physical effort, often producing fatigue or tension owing to pressure of work”. With regard to working conditions, it states: “Duties are performed under conditions where there is a high risk of serious accidents or injury to physical and/or mental health”.
4. 1109. Maintenance of the health status, which implies constant inspection with regard to diseases such as foot-and-mouth disease, brucellosis and others, requires the maintenance of a system of constant epidemiological vigilance and the capacity for attending immediately or rapidly to any incident in the field of veterinary health. The system calls for adequate human resources with salaries that cover overtime worked outside the regular timetable and also on non-working or rest days.
5. 1110. From June 2008, in the context of the trade union to which these workers belong, it was decided, as a union measure, to “work to rule”, i.e. according to the standard timetable of eight hours per day, in view of the lack of response from the ministerial authorities to the demands described above.
6. 1111. The complainants indicate that on Sunday, 5 October 2008, in the city of Artigas, the Animal Health Department received a notification of a suspected outbreak of foot-and-mouth disease. The veterinary technician therefore implemented the contingency plan established by the Ministry to respond to notifications of foot-and-mouth disease. On the morning of Monday, 6 October, the preliminary conclusion reached was that it was not an outbreak of foot-and-mouth disease but of brucellosis, and this was subsequently confirmed by the results of the clinical analysis.
7. 1112. In the context of the union measures adopted by the union leaders of the committee representing the animal health officials, Mr Martín Altuna, Mr Carlos Fuellis and Mr Guillermo Strasser, decided to issue a press release, which read as follows:
   • The representative committee of animal health officials hereby states that at 13.14 hours today, Sunday 5 October, an animal health veterinary technician received notification of a suspected outbreak of foot-and-mouth disease. The animal health officials will attend to this suspected outbreak during their normal working hours, namely tomorrow Monday 6 October, leaving the office at 08.00 hours.
   • This statement was published in various press outlets on the morning of Monday, 6 October.
8. 1113. On 8 October 2008, the Director-General of the Secretariat of the Ministry of Livestock, Agriculture and Fisheries, exercising the powers delegated by the Minister, an agronomic engineer, decided to order the opening of proceedings for an administrative investigation. Section (VI) of the decision states that “the Minister, agronomic engineer Mr Ernesto Agazzi, requests the implementation of an administrative investigation in order to determine whether the erroneous statement was published by officials of this State Secretariat, since there would appear to be a violation in this case of section 264 of Act No. 16736, as amended by section 197 of Act No. 17296, which obliges ministry officials to maintain confidentiality with regard to any information obtained in the performance of their inspection duties”, enquiries having been received from international organizations and communication media.
9. 1114. The administrative investigation concluded that there had been administrative misconduct on the part of the union leaders. The Ministry of Livestock, Agriculture and Fisheries therefore issued decisions dated 26 January 2009 ordering administrative proceedings with respect to the three union leaders who issued the press release, together with preventive suspension from duty and withholding of 50 per cent of earnings. The investigative proceedings concluded with the issuing of the decisions of 11 June 2009, which imposed a penalty on the union leaders “... for a period of 60 days with a corresponding loss of earnings, to be deducted from the period of preventive suspension served, on grounds of serious administrative misconduct”.
10. 1115. The union measure adopted by the officers of the representative committee of animal health officials, the core group within the AFGAP, and supported and upheld as legitimate by the association and by all unionized officials of the core group, constitutes a union measure adopted as part of the exercise of the fundamental human rights of freedom of association and freedom of expression, established in articles 57 and 29, respectively, of the Constitution of the Eastern Republic of Uruguay and in ILO Conventions Nos 87, 98 and 151.
11. 1116. It goes without saying that if fundamental rights are to be effective, they must be closely interlinked, and consequently none of these rights can be exercised fully if there is no mutual co-existence with the others. This interrelationship between freedom of association and civil and political liberties was highlighted in the resolution of the 54th Session (1970) of the International Labour Conference, concerning trade union rights and their relation to civil liberties.
12. 1117. The complainants state that in the present case the trade union leaders who were investigated and suspended from duty on a preventive basis, with the withholding of half their earnings, and subsequently penalized with a 60-day suspension with the corresponding loss of earnings, acted in the context of a dispute and in line with a union measure adopted by an assembly of the union, according to which the press was informed of the contradiction between the contractual conditions applying to officials of the Ministry of Livestock, Agriculture and Fisheries and the needs of the system. The decision of the assembly of 16 June 2008, which was endorsed by the national assembly of officials on 23 July 2008, held in the city of Durazno, consisted of not attending to suspected outbreaks of diseases outside the usual duty hours and informing the press of the contradiction between the contractual conditions of work and the needs of the system.
13. 1118. The decisions issued by the Ministry of Livestock, Agriculture and Fisheries, ordering disciplinary proceedings with suspension from duty of the union leaders concerned and concluding with decisions imposing a 60-day suspension with the corresponding loss of earnings, constitute a violation of ILO Conventions Nos 87, 98 and 151.
14. 1119. By a communication of 12 July 2010, the PIT–CNT, the COFE and the AFGAP state that the decisions imposing penalties on the union officers of the representative committee of animal health officials of the AFGAP, Mr Martín Altuna, Mr Carlos Fuellis and Mr Guillermo Strasser, were challenged through administrative appeals, submitted in due time and form, to have them overturned and referred to higher authority. The appeals were expressly rejected through the issuing of the respective decisions, and thus the administrative channels were exhausted, resulting in the judicial appeal for annulment being brought before the Administrative Disputes Tribunal.
15. 1120. Trade union representative Mr Carlos Fuellis filed an appeal for annulment before the Administrative Disputes Tribunal against the Executive Authority – Ministry of Livestock, Agriculture and Fisheries, submitting the application in due time and form on 26 March 2010, which was then classified as No. 156/2010. At present the case is at the evidentiary stage. In brief, the matter covered by the complaint was the subject of the abovementioned administrative appeals, filed by the three union representatives, and these were rejected. The appeal for annulment was filed only by union representative Mr Carlos Fuellis and is at present at the evidentiary stage.

B. The Government’s reply

1. 1121. In its communication dated 1 November 2010, the Government declares that, in the context of union measures implemented by officials of the Animal Health Division (DSA) of the Ministry of Livestock, Agriculture and Fisheries, a notification was received on 5 October 2008 at the Animal Health Department in the Department of Artigas concerning a suspected outbreak of foot-and-mouth disease. Accordingly, in the context of the union measure being implemented, it was decided to issue a press release, which read as follows: “The representative committee of animal health officials hereby states that at 13.14 hours today, Sunday 5 October, an animal health veterinary technician received notification of a suspected outbreak of foot-and-mouth disease. The animal health officials will attend to this suspected outbreak during their normal working hours, namely tomorrow Monday 6 October, leaving the office at 08.00 hours”.
2. 1122. The Government points out that the above statement was published in various press outlets on the morning of Monday, 6 October 2008. During the morning of the same day, the preliminary conclusion reached was that it was not an outbreak of foot-and-mouth disease but of brucellosis, and this was subsequently confirmed by the clinical analysis.
3. 1123. On 8 October 2008 the Director-General of the Secretariat of the Ministry of Livestock, Agriculture and Fisheries, exercising the powers delegated by the Minister, decided to order the opening of proceedings for an administrative investigation, with section (VI) of the decision stating as follows: “The Minister, agronomic engineer Mr Ernesto Agazzi, requests the implementation of an administrative investigation in order to determine whether the erroneous statement was published by officials of this State Secretariat, since there would appear to be a violation in this case of section 264 of Act No. 16736, as amended by section 197 of Act No. 17296, which obliges ministry officials to maintain confidentiality with regard to any information obtained in the performance of their inspection duties”, enquiries having been received from international organizations and communication media.
4. 1124. The Government indicates that its primary considerations are set out below, with further comments to follow shortly. In examining the proceedings conducted by the Ministry of Livestock, Agriculture and Fisheries, the aspects mentioned by the PIT–CNT, the COFE and the AFGAP were borne in mind and it was only after it was concluded that the actions deemed to be administrative misconduct were not covered by trade union immunity that the conditions were met for imposing the administrative penalty.
5. 1125. The professional who conducted the administrative investigation stated clearly in her conclusions that she had investigated various aspects, including: “The existence of a suspected outbreak of foot-and-mouth disease”, “delay in attending to a suspected case of foot-and-mouth disease”, and “finally, publication of the statement in public communication media”. The first two aspects, which were obviously very serious, were deemed not to constitute administrative misconduct that could be ascribed to the officials, but the third aspect was considered to fulfil the conditions for misconduct that could incur a penalty.
6. 1126. Secondly, it should be pointed out that the conduct displayed by the officials was in clear violation of the terms of section 264 of Act No. 16736 of 5 January 1996, as amended by section 197 of Act No. 17296 of 21 January 2001, which states as follows: “Unless otherwise authorized explicitly in writing by the directors of the executive unit, officials of the Ministry of Livestock, Agriculture and Fisheries shall be obliged to maintain confidentiality with regard to any information obtained in the performance of their inspection duties. Furthermore, they shall maintain secrecy with regard to any administrative or judicial actions of which they have knowledge.” The aforementioned legal provision clearly prohibits officials from acting in the manner of the officials involved in the case in question, and this does not cease to apply despite claims of trade union immunity.
7. 1127. The officials were informed of the report of the suspected outbreak of foot-and-mouth disease in the performance of their inspection duties and therefore had no authority to divulge the news in the way they did. In similar situations, the Administrative Disputes Tribunal has evaluated the legality of the steps taken by the Administration, declaring explicitly that penalties imposed in accordance with the aforementioned legal provision do not conflict with the terms of ILO Conventions Nos 87, 98 and 154. The Tribunal has maintained that the legal prohibition (section 264 of Act No. 16736) is very specific and legitimately limits rights which generally apply to every inhabitant of the country (articles 7, 29, 53 and 54 of the Constitution of the Republic and provisions of the ILO Conventions having force of law).
8. 1128. Finally, the Government points out that in the case in question the officials could have perfectly well asserted their rights and made a public statement, saying that a report had been received which would be attended to during their normal working hours, namely on Monday, 6 October 2008. In this way their rights would not have been affected at all, particularly that of freedom of association, as highlighted by the resolution of the 54th Session (1970) of the International Labour Conference, concerning trade union rights and their relation to civil liberties, including in particular those of freedom of opinion and expression and the right to hold opinions without being harassed and to investigate and receive information and disseminate it without any limitation on boundaries and by any means of expression. In the present case compatibility could very well have been established between trade union freedoms and compliance with national law, inasmuch as mentioning the type of suspected outbreak which had been reported did nothing to enhance the defence of union rights. It would have been perfectly possible to comply with the obligation to maintain confidentiality with regard to the information received in the course of duty and at the same time defend trade union rights.
9. 1129. In its communication of 2 March 2011 the Government reiterates that the Ministry of Livestock, Agriculture and Fisheries, before investigating the administrative proceedings, bore in mind the aspects relating to freedom of association and only after concluding that the actions deemed to be administrative misconduct were not covered by trade union immunity did it proceed accordingly.
10. 1130. The Government adds that as regards the claims which lay behind the union measure adopted by the workers, of which inaccurate versions ended up in the public domain, it should be noted that the definition of the work regime in the DSA are the subject of analysis in the restructuring of the Directorate-General for Livestock Services (DGSG) of the Ministry of Livestock, Agriculture and Fisheries, as are the scope of any agreements reached with the roundtable for dialogue held with the association of DGSG officials and the subsequent validation thereof. When the five-year budget for the DGSG was being drawn up, a proposal was made for a new work regime, in which the pay claims put forward by the officials of the DSA would be taken into consideration.
11. 1131. As regards the pay structure, in the previous five-year period the following considerations were put forward: (a) to promote fair pay on the basis of guidelines laid down by the Ministerial Cabinet; (b) to increase the minimum pay levels for the lowest categories on the pay scale for officials; and (c) to improve pay for the categories carrying the greatest levels of responsibility in the department. Even though the DGSG has a problem in relation to pay inequalities between its divisions, the Administration intends to reduce differences during the five-year period on the basis of the concept of equal pay for equal work. As regards biosecurity and personal protective equipment (PPE), major investments have been made in equipment for the protection of staff and biosecurity equipment has been distributed for use in health emergencies in all DSA areas and premises throughout the country. Training courses in various subjects for DGSG staff have been conducted, in which DSA officials have participated, on an exclusive basis in some and together with DGSG officials in others. Work is thus in progress and will continue in the future to take into consideration the demands of the officials of the State Secretariat referred to above.
12. 1132. In view of the above, the Government reiterates that in the case in question the penalty imposed by the Administration did not violate trade union rights inasmuch as the legal provisions in force and especially those allegedly violated in the case in question did not harm basic guarantees in the area of freedom of association. Moreover, as regards the rights which deal with adequate protection against acts of anti-union discrimination in relation to employment, it should be pointed out that in the present case there have been no acts of anti-union discrimination.
13. 1133. Consequently, the Government declares that there has been no violation of ILO Conventions Nos 87, 98 and 151, inasmuch as the penalties imposed on the officials of the Ministry of Livestock, Agriculture and Fisheries relate not to the trade union measures established but to failure to comply with a provision of national law (section 264 of Act No. 16736 of 5 January 1996, as amended by section 197 of Act No. 17296 of 21 January 2001), and this in no way harmed trade union rights or civil liberties.

C. The Committee’s conclusions

1. 1134. The Committee observes that the complainant organizations allege that in the context of a dispute at the Animal Health Department of the Ministry of Livestock, Agriculture and Fisheries three trade union leaders of the representative committee of animal health officials in the AFGAP decided to issue a press release (mentioning that a notification had been received of a suspected outbreak of foot-and-mouth disease which would be attended to during normal working hours) and that as a result the administrative authority imposed a penalty on them of a 60-day suspension with loss of earnings.
2. 1135. The Committee notes the Government’s statements to the effect that: (1) the press release in question was published in various media outlets on 6 October 2008 and the same day it was concluded that it was not a case of foot-and-mouth disease but of brucellosis; (2) on 8 October it was decided to order the opening of administrative investigation proceedings to determine whether the erroneous news was published by officials of the Secretariat of the Ministry of Livestock, Agriculture and Fisheries since, if that was the case, there would be a violation of the provisions of section 264 of Act No. 16736, which obliges Ministry officials to maintain confidentiality with regard to any information obtained in the performance of their inspection duties; (3) the professional who conducted the administrative investigation stated in her conclusions that she had investigated various aspects, including the publication of the news in the public communication media, and considered that the conditions had been fulfilled for misconduct liable to incur a penalty; (4) Act No. 16736 prohibits officials from acting in the manner of the officials involved in the case, and those provisions do not cease to apply in spite of claims of trade union immunity, and only after it was concluded that the actions deemed to be administrative misconduct were not covered by trade union immunity were the conditions fulfilled for imposing the administrative penalty; (5) the officials noted the report of the suspected outbreak of foot-and-mouth disease in the performance of their inspection duties and were therefore not authorized to divulge the news in the manner they did; (6) the Administrative Disputes Tribunal has evaluated the legality of the proceedings of the Administration, explicitly declaring that penalties imposed in conformity with the abovementioned legal provisions do not conflict with ILO Conventions Nos 87, 98 and 154 and that the prohibition set out in section 264 is very specific and legitimately limits rights generally enjoyed by all inhabitants of the country; (7) the officials could very well have asserted their rights and issued a communication to the public, explaining that a report had been received which would be attended to during normal working hours, given that mentioning the type of suspected outbreak that had been reported did nothing to enhance the defence of trade union rights; and (8) the penalties imposed on the officials have nothing to do with the adopted trade union measures.
3. 1136. The Committee notes all this information and in particular the Government’s claim that the trade union leaders violated the provisions of the legislation relating to professional secrecy and the officials’ duty of confidentiality. Moreover, the Committee observes the statement from the complainants that the three union leaders in question (Mr Martín Altuna, Mr Carlos Fuellis and Mr Guillermo Strasser) filed administrative appeals to have the decisions overturned and referred to higher authority which were expressly rejected and that only Mr Carlos Fuellis filed an appeal for annulment before the Administrative Disputes Tribunal against the Executive Authority (Ministry of Livestock, Agriculture and Fisheries) on 26 March 2010, which is currently at the evidentiary stage.
4. 1137. In view of the above, the Committee considers that the substance of the allegations in the present case is not related to the exercise of trade union rights, and it will therefore not pursue the examination of these allegations.

The Committee's recommendations

1. 1138. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.