Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Uruguay (Ratification: 1954)

The Committee takes note of the Government’s detailed reply to the comments of 2008 by the International Trade Union Confederation (ITUC). It also notes the comments of 30 August 2010 by the International Organization of Employers (IOE), the Uruguayan Chamber of Industries (CIU) and the National Chamber of Commerce and Services of Uruguay (CNCS), objecting in particular to certain provisions of Act No. 18566 on collective bargaining.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2699, in which the complainants alleged that the abovementioned Act was inconsistent with the Convention.

Article 4 of the Convention. In its previous comments the Committee noted that, according to the Government, the national legislation lacks a single comprehensive text regulating collective bargaining and, consequently, part of the doctrine holds that there are two models of collective bargaining in the country: the typical model and the model that has grown out of the convening of wages councils. The Committee pointed out in this connection that decisions fixing minimum wages may be taken by tripartite bodies, but emphasized that according to the principles of free and voluntary collective bargaining between parties, laid down in Article 4 of the Convention, other conditions of work should be set by workers’ and employers’ organizations without interference from public authorities.

The Committee notes that in its report the Government states that with the adoption of Act No. 18566 of September 2009, the limitation mentioned in its last report has been resolved and the promotion requirement set in the Convention has now been met.

The Committee notes in this connection that the Committee on Freedom of Association drew up the following conclusions regarding Act No. 18566 [see 356th Report, Case No. 2699, para. 1389]:

I.      with respect to the exchange of information necessary to allow the normal conduct of the process of collective bargaining and that in the case of confidential information, its communication carries the implicit obligation of secrecy, and breach thereof would give rise to civil liability of those who are in breach (article 4), the Committee considers that all the parties to the negotiation, whether or not they have legal personality, must be liable for any breaches of the right to secrecy of the information which they receive in the framework of collective bargaining. The Committee requests the Government to ensure that this principle is respected;

II.    as regards the composition of the Higher Tripartite Council (article 8), the Committee considers that an equal number of members could be taken into account for each of the three sectors, and also the appointment of an independent chairperson, preferably nominated by the workers’ and employers’ organizations jointly, who could break the deadlock in the event of a vote. The Committee requests the Government to hold discussions with the social partners on the modification of the law so as to arrive at a negotiated solution to the number of members of the Council;

III.   with respect to the powers of the Higher Tripartite Council and in particular considering and pronouncing on questions related to the tripartite and bipartite bargaining levels (article 10, paragraph (d)), the Committee has emphasized on many occasions that “the determination of the bargaining level is essentially a matter to be left to the discretion of the parties”. [See Digest of the decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 989.] The Committee requests the Government to take the necessary measures including the amendment of existing legislation to ensure that the bargaining level is established by the parties and is not subject to voting in a tripartite body;

IV.   as regards the possibility of wages councils establishing conditions of work for each case to be agreed by the employers’ and workers’ delegates in the respective wage group (article 12), the Committee recalls, firstly, that under ILO standards, the fixing of minimum wages may be subject to decisions by tripartite bodies. On the other hand, recalling that it is up to the legislative authority to determine the legal minimum standards for conditions of work and that Article 4 of Convention No. 98 seeks to promote bipartite bargaining to fix conditions of work, the Committee hopes that in application of those principles, any collective agreement on fixing of conditions of employment will be the result of an agreement between the parties, as the article in question appears to envisage;

The Committee notes in this connection the Government’s statement in its report that the competence of the wages councils is aligned with the provisions of section 83 of Act No. 16002 of 25 November 1988, covering conditions of work, but extends to the latter only where there is agreement between the social partners, which means that a tripartite body may not vote on matters pertaining to conditions of work, but does have a vote when it comes to determining minimum wages by category.

The conclusions of the committee continue as follows:

V.    with respect to the subject of bipartite collective bargaining and, in particular, that in company collective bargaining where there is no workers’ organization, bargaining authority should pass to the representative higher level organization (article 14, last sentence), the Committee observes that the complainant organizations consider that the absence of a trade union does not mean the absence of collective relations in the company. The Committee considers, on the one hand, that bargaining with the most representative higher trade union level organization should only take place if it had a number of members in the company in accordance with the national legislation of each country. The Committee recalls, on the other hand, that the Collective Agreements Recommendation, 1951 (No. 91), gives pre-eminence to workers’ organizations as one of the parties to collective bargaining, and refers to representatives of non-organized workers only in the case of absence of such organizations. In these circumstances, the Committee requests the Government to take the necessary measures to ensure that future legislation takes these principles fully into account;

VI.   as regards the effects of the collective agreement and, in particular, that the collective agreement by sector of activity concluded by the most representative organizations is of mandatory application to all employers and workers at the respective bargaining level once it has been registered and published by the Executive Power (article 16), the Committee, taking into account the concern expressed by the complainant organizations, requests the Government to ensure that the process of registration and publication of the collective agreement only involves checks on compliance with the legal minima and questions of form, such as, for example, the determination of the parties and the beneficiaries of the agreement with sufficient precision and the duration of the agreement;

VII.  as regards the duration of collective agreements and, in particular, the maintenance in force of all the clauses of the agreement which has expired until a new agreement replaces it, unless the parties have agreed otherwise (article 17, second paragraph), the Committee recalls that the duration of collective agreements is primarily a matter for the parties involved, but if government action is being considered any legislation should reflect tripartite agreement [see Digest, op.cit., para. 1047]. In these circumstances, taking into account that the complainant organizations have expressed disagreement with the whole idea of automatic continuing effect of collective agreements, the Committee invites the Government to discuss with the social partners on amendments to the legislation in order to find a solution acceptable to both parties.

The Committee notes the Government’s statement that contacts and consultations are being sought with workers’ and employers’ organizations with a view to examining the recommendations made by the Committee on Freedom of Association regarding the law and that a tripartite body is to meet shortly to deal with the recommendations in depth. The Committee expresses the firm hope that, in consultation with the social partners, the legislation will be brought fully into conformity with the Convention, and requests the Government to provide any information on this matter in its next report. The Committee underlines in this regard, the information provided by the Government regarding the beginning of the tripartite discussions.

Public sector. In its previous observation the Committee took note of the information supplied by the Government on the preparation of a bill on collective bargaining in the public sector and asked the Government to report on progress towards its enactment. The Committee notes with satisfaction that, according to the Government, Act No. 18508 on collective bargaining in the context of industrial relations in the public sector has been adopted and is in keeping with the Framework Agreement on collective bargaining in the public sector concluded on 22 July 2005 by the Executive and the Inter-Union Assembly of Workers – National Convention of Workers (PIT–CNT).