Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Uruguay (Ratification: 1954)

Article 3 of the Convention. Occupation of the workplace and the right of the management of the enterprise to enter the workplace in the context of a labour dispute. The Committee notes that, by a communication of 31 August 2012, the International Organisation of Employers (IOE), the Chamber of Industries of Uruguay (CIU) and the National Chamber of Commerce and Services of Uruguay (CNCS) sent comments on the application of the Convention, in which they refer to the recommendations of the Committee on Freedom of Association in Case No. 2699 and state that: (1) contrary to that Committee’s findings regarding occupation of the workplace and in flat contradiction of its request, the Government has in practice done nothing and existing standards do not comply with the above principles; (2) the observance in practice of certain principles cannot be secured by mediation and efforts to contain a dispute; (3) it is the Government’s duty to protect the freedom of work, as mediation will not protect it; (4) the argument that because there has been recourse to justice the decisions of the supervisory bodies have been implemented does not withstand analysis, and the need to resort to justice in order to protect the rights of employers is a consequence of the Government’s failure to comply either with the law or with the demands of the ILO; (5) article 57 of the National Constitution guarantees the right to strike but requires it to be regulated by law, which is what the employers seek; (6) the complainant organizations in the abovementioned case before the Committee on Freedom of Association endorse the IOE’s position regarding the right to strike; (7) occupations of workplaces continue to occur and employers have to turn to the courts in the absence of any protection of their rights by the Government; in view of the Government’s deliberate inaction and omission in complying with the supervisory bodies’ decisions, the justice system is the employer’s only refuge; (8) decision No. 184/12 of the Civil Appeals Court, handed down on 15 August 2012, referring to the occupation of an enterprise, ruled that: (a) section 6 of Decree No. 165/06 – to which objections were raised in the complaint before the Committee on Freedom of Association – on no account affords a means of obtaining the same results as are achieved through proceedings brought under the Constitution (amparo), let alone a suitable means or safeguarding the rights in question; (b) human rights recognized in articles 7, 28, 32 and 36 of the Constitution have been breached; (c) de facto situations (such as occupation of the workplace) are an impediment to the enjoyment of freedom, safety, work and property, the availability of personal documents and to freedom in work, agriculture, industry, commerce, occupation and any other lawful activity; (d) in this case, the human rights were violated because the Ministry of Labour and Social Security (MTSS) failed to act on learning of the occupation, and it is not for the MTSS to act as counsel or prosecutor of workers or employers, usurpers or owners, creditors or debtors; it must act spontaneously without having to be asked and without the need for victims or injured parties to demand action; and (9) the Court’s decision is accurate in its judgement of the Ministry of Labour’s conduct and shows that protection for employers is totally lacking in fact and in law, and the argument that the Government has never refused to comply with a court order carries no weight, is without merit, since failure to obey such an order would indicate an absence of democratic government.

The Committee notes that in its report the Government states that: (1) contrary to the submission of the IOE, the CIU and the CNCS, Uruguay has the lowest conflict rate of recent years according to independent records such as the conflict index compiled by the Labour Relations Programme of the Catholic University of Uruguay; (2) on the protection of freedom to work and the right of employers to enter occupied premises, it should be noted that, although the labour courts do not hear collective labour disputes, the civil courts – by reason of their residual jurisdiction – have authority to hear claims from non-occupying workers who, in general and in accordance with consistent precedent, have seen their claims satisfied once a court order to vacate the workplace takes effect; (3) the fact that non-strikers file claims to the vacation of premises indicates that there are some sound guarantees of the freedom to work, which has been protected through summary proceedings under the amparo procedure (the assumption of jurisdiction by the judicial authority entails the subsumption of claims to vacate workplaces by a body that is clearly independent and suited to the settlement of disputes about the law); (4) decisions have been handed down as a result of claims to the vacation of workplaces; (5) in order to safeguard the rights of non-strikers and the rights of employers, the National Labour Directorate, through the Collective Labour Disputes Unit, devotes thousands of working hours every year to collective bargaining in order to prevent and resolve disputes of this kind (it is a specialized body of mediators to which parties can apply voluntarily, seeking intervention by the executive in settling collective disputes; where the procedure has been exhausted and the dispute persists or takes the form of occupation or picketing, the parties may apply to the courts for amparo proceedings); (6) the judicial authorities have regularly found in favour of the right to work of non-strikers and the rights of employers, in very brief proceedings (three days in the lower courts), and handed down decisions, and in the event of non-compliance by the occupiers, the executive enforces the vacation order through the services of the Ministry of the Interior (police), and there have been no instances of failure to comply with such an order since this would constitute an offence against the Constitution and the principle of the separation of powers; (7) this demonstrates that the constitutional rights of the employers to which the latter refer are guaranteed by the State; according to the Government, the unstated objective of the employers’ complaint is to have the right to strike regulated and to reiterate their assertion that “there is no right to strike in the texts of the ILO international Conventions”; (8) this is the very same argument they submitted at the last session of the International Labour Conference, which prompted the situation that arose in the Conference Committee on the Application of Standards; (9) the Government fully shares the Committee’s position that, in light of the scope and significance of the Convention, it is understood that, in accordance with Articles 3 and 10 of the Convention, industrial action is fully recognized by international standards; (10) the Government reiterates its unqualified respect for human rights, and the employers start off from a wrong premise in that strikes, as a right, are recognized in many international instruments as a human right; (11) the national legislation recognizes the right to strike through the National Constitution (article 57), a fact that the employers appear to overlook in adopting a position that is clearly unconstitutional, and in view of the nature of this right (unquestionably a human right) and its enshrinement in the National Constitution, the State declines to discuss the matter; (12) the employers’ theoretical conceptualization is plainly regressive and disregards findings of the Committee on Freedom of Association; what is more, the Committee on Freedom of Association itself acknowledges that the occupation of enterprises or workplaces is a way or form of exercising the right to strike; (13) the advisers of the employers’ associations resort to “second-hand” quotations used out of context and their findings about occupation are quite alien to the concept traditionally and customarily adopted by the Committee on Freedom of Association, which regards occupation as a legitimate practice as long as it is peaceful; and (14) the National Constitution protects the right to freedom of work and the right to exercise freedom of enterprise (articles 7, 10, 36 and 53), the right to property (articles 7 and 32), the right to equality before the law (article 8), the right to certainty in law and the right to freedom of movement (article 7).

The Committee notes all this information and recalls that, on analysing the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) by Uruguay, it noted that, in the context of an ILO mission that visited the country in August 2011, a tripartite agreement was concluded between the MTSS and representatives of the workers (Inter-Trade Union Assembly – Workers’ National Convention (PIT–CNT)) and of the employers (the CNCS and the CIU), thanks to which a new phase was opened in the dialogue on comments made by the Committee on Freedom of Association in Case No. 2699, the Committee and the Conference Committee on the Application of Standards. The Committee also notes that, further to this agreement, tripartite meetings are being held on these matters.

The Committee recalls that, in examining Case No. 2699, the Committee on Freedom of Association considered that exercise of the right to strike and the occupation of work premises should respect the right to work of non-strikers, and the right of the management of the enterprise to enter the premises, and asked the Government to secure observance of these principles in legal provisions adopted and in practice.

The Committee also recalls that on numerous occasions it has emphasized that “in so far as the strike remains peaceful, strike pickets and workplace occupations should be allowed. Restrictions on strike pickets and workplace occupations can be accepted only where the action ceases to be peaceful. It is, however, necessary in all cases to guarantee respect for the freedom to work of non-striking workers and the right of the management to enter the premises” (see General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2012, paragraph 149). In these circumstances, the Committee expresses the firm hope that, in the context of the tripartite dialogue under way, the necessary measures will be taken to ensure that, taking into account the comments of the Committee on Freedom of Association and this Committee, observance of this principle is fully guaranteed in law and in practice and in consultation with the most representative organizations of workers and employers. The Committee hopes that during the ongoing consultation process, the decisions of the national tribunals will be taken into consideration.