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

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

The Committee notes the Government’s reply to the observations dated 4 August 2011 from the International Trade Union Confederation (ITUC), alleging acts of anti-union discrimination and obstacles to collective bargaining. The Committee notes in particular the Government’s statement that: (1) the occasional disputes relating to allegations of obstacles to collective bargaining were settled through collective agreements which strengthened social dialogue and maintained the validity of the agreements on minimum wages which had been concluded in the wages councils; and (2) as regards one of the allegations concerning anti-union discrimination, the administrative authority is already taking action and the file is now with the Legal Division for examination and, as regards the allegations relating to the UPM cellulose plant, the Government indicates that to be able to make any response it needs to know the name of the subcontracting company where the anti-union acts are alleged to have occurred. Finally, the Committee notes the ITUC comments dated 31 July 2012 concerning obstacles to collective bargaining and non-compliance with collective agreements in the health sector. The Committee requests the Government to send its observations in this respect.

The Committee also notes the comments from the International Organisation of Employers (IOE), the Chamber of Industry of Uruguay (CIU) and the National Chamber of Commerce and Services of Uruguay (CNCS), mainly relating to Act No. 18566 of September 2009 concerning collective bargaining. The employers’ organizations recall in particular that the Committee on Freedom of Association asked the Government to take steps, in consultation with the most representative workers’ and employers’ organizations, to amend the aforementioned Act in order to implement the conclusions formulated and ensure full conformity with the principles of collective bargaining and the Conventions ratified by Uruguay in this field. They add that: (1) consultation of the organizations cannot be an obstacle to compliance with international labour standards since this would make it easier for a government to avoid having to take action in response to observations by the supervisory bodies; (2) in reply to draft amendments to the Act proposed by the Government, the employers submitted another draft which expresses the content of the seven points covered by the observations of the supervisory bodies; (3) they observe with concern that the position adopted by a single sector cannot act as a veto on the strict fulfilment of the obligations assumed by the Government as a result of ratifying an international labour Convention, and affirm that the holding of consultations with a view to amending the Act requires achieving a consensus among the parties but can never entail sine die (indefinite) negotiations and, if agreement proves impossible, the Government must comply with the instructions of the ILO; (4) the time that has passed without achieving any progress cannot act as legitimation for violation of a Convention, and negotiations cannot be either fruitless or endless; agreements are signed in order to be fulfilled, and the same applies to the recommendations of the supervisory bodies; (5) the principles of the ILO must be applied immediately and any delay in bringing a law into line with an international Convention owing to the search for consensus cannot be allowed to turn into legitimation with regard to fulfilling them, and any other achievements that a government may cite in the sphere of macroeconomic policy or the exercise of full democracy are worthless if the price to be paid for them is the violation of international Conventions; and (6) the Government has had many possibilities throughout this period for amending the Act so as to bring it into conformity as directed by the supervisory bodies but, at its own discretion and in an arbitrary manner, it has decided not to do so; it is the Government’s responsibility to comply with the instructions of the ILO. The Committee notes the information provided by the Government in reply to these matters.

Article 4 of the Convention. Collective bargaining. In its previous comments, the Committee noted the adoption of Act No. 18566 of September 2009 concerning collective bargaining, and the conclusions and recommendations of the Committee on Freedom of Association (CFA) in Case No. 2699, which raised problems of conformity of the abovementioned Act with the Convention (see 356th Report, paragraph 1389). These were referred to in the following conclusions:

• -I. With respect to the exchange of information necessary to allow the normal conduct of the process of collective bargaining and the fact 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 (section 4), the CFA noted that, according to the complainant organizations, this provision did not guarantee penalties for any excesses on the part of trade union representatives, and 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 CFA requests the Government to ensure that this principle is respected.
• -II. As regards the composition of the Higher Tripartite Council (section 8), the CFA considers account could be taken of an equal number of members for each of the three sectors, and also the appointment of an independent chairperson, preferably nominated jointly by the workers’ and employers’ organizations, who could break the deadlock in the event of a vote. The CFA 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, particularly the power to consider and decide on questions related to the tripartite and bipartite bargaining levels (section 10(d)), the CFA 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”. The CFA 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 (section 12), the CFA 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 the Convention seeks to promote bipartite bargaining to fix conditions of work, the CFA 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 section in question appears to envisage.

The Committee noted in this connection the Government’s statement in its report that the competence of the wages councils was aligned with the provisions of section 83 of Act No. 16002 of 25 November 1988, covering conditions of work, but extended to the latter only when there was agreement between the social partners, which meant 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 Committee understands that these matters have been cleared up between the parties.)

• -V. With respect to the subject of bipartite collective bargaining and in particular the fact that, in company collective bargaining where there is no workers’ organization, bargaining authorities should pass to the representative higher-level organization (section 14, last sentence), the CFA observes that the complainant employers’ organizations consider that the absence of a trade union does not mean the absence of collective relations in the company. The CFA considers, on the one hand, that bargaining with the most representative higher-level trade union organization should only take place if it has a number of members in the company in accordance with the national legislation. The CFA 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 CFA 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 sectoral collective agreement (which is binding once it has been registered and published by the Executive Power (section 16)), the CFA 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.
• -VII. As regards the duration of collective agreements and, in particular, the maintenance in force of all the clauses of the agreement which have expired until a new agreement replaces it, unless the parties have agreed otherwise (section 17, second paragraph), the CFA 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. 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 CFA invites the Government to hold discussions with the social partners on amendments to the legislation in order to find a solution acceptable to both parties.

The Committee recalled in its previous observation that, in the framework of the ILO’s mission to the country in August 2011, a tripartite agreement was drawn up between the Ministry of Labour and Social Security and representatives of the workers’ sector (Inter-Union Assembly of Workers–Workers’ National Convention (PIT–CNT)) and the employers’ sector (National Chamber of Commerce and Services of Uruguay and Chamber of Industry of Uruguay), thereby setting in motion a new dialogue on the comments made by the Committee on Freedom of Association, the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards.

The Committee notes the Government’s statement that: (1) maintaining its practice of respecting the decisions of the supervisory bodies, it has worked tirelessly for more than two years to reach a consensual solution with the occupational sectors in relation to the comments made on various aspects of Act No. 18566; (2) countless formal and informal meetings were held to discuss different conciliation techniques and an ILO mission was received; (3) in view of the fruitless efforts made and the ongoing refusal to find a solution based on social dialogue, the Government considers that it has been patient and proactive enough in this situation, exhausting all the mechanisms at its disposal to reach an agreement; (4) hence, aware of its obligations and responsibilities, it considers the process of prior consultation of the social partners to be concluded and proposes to send a Bill for consideration by the National Parliament to seek a definitive solution to this dispute; and (5) this information and the Bill in question were sent to the social partners in communications dated 8 November 2012. The Committee notes with interest the decision to bring a Bill before Parliament relating to the pending issues with a view to overcoming the problems identified and welcomes the indication that the Bill will be submitted to Parliament in November.

The Committee expresses the hope that the new Act to be adopted will take full account of the aforementioned principles and the comments previously made by the Committee. The Committee requests the Government to provide information in its next report on all further developments in this regard.