Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019. It in this regard, it notes the joint observations of the National Chamber of Commerce and Services of Uruguay (CNCS), the Chamber of Industries of Uruguay (CIU) and the International Organisation of Employers (IOE), received on 1 September and 22 November 2019, which, like the observations of the ITUC, concern matters addressed by the Committee in this comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussions that took place in the Committee on the Application of Standards of the Conference (hereinafter: the Conference Committee), in June 2019, on Uruguay’s application of the Convention. The Committee notes that the Conference Committee urged the Government to: (i) initiate legislative measures by 1 November 2019, after full consultation with the most representative employers’ and workers’ organizations and taking into consideration the recommendation of the ILO supervisory bodies, in order to guarantee the full compliance of national law and practice with the Convention; and (ii) prepare, in consultation with the most representative employers’ and workers’ organizations, a report to be submitted to the Committee of Experts before 1 September 2019, providing detailed information on actions undertaken to make progress in the full application of the Convention in law and practice.

Article 4 of the Convention. Promotion of free and voluntary bargaining. For several years, the Committee, together with the Committee on Freedom of Association (Case No. 2699), has been requesting the Government to revise Act No. 18566 of 2009 (establishing the fundamental rights and principles of the collective bargaining system, hereinafter: Act No. 18566) with a view to ensuring the full compliance of the Act with the principles of collective bargaining and the Conventions ratified by Uruguay in this area. In its previous comment, the Committee noted that, in 2015, 2016 and 2017, the Government submitted to the social partners several proposals for legislative amendments, which the Government indicated had not achieved the necessary agreement between the parties. The Committee considered that, although the Government’s proposals did not include amendments or clarifications regarding the competences of the Wage Boards, in relation to adjustments to wages that are above the minimum in relation to the occupational category and working conditions, several of the amendments envisaged were in compliance with the obligations arising out of Article 4 of the Convention to promote free and voluntary collective bargaining. Underlining the contribution that such amendments could make in order to align Act No. 18566 to the Convention, the Committee requested the Government, after submitting the text for consultation with the social partners, to submit a bill to Parliament ensuring the full compliance of national law and practice with the Convention.

The Committee observes that the Government has provided a report in which it details the measures taken in order to advance with the application of the Convention in legislation and in practice. The Committee notes the Government’s indication that: (i) following the discussion that took place in the Conference Committee, five tripartite meetings were held and, in the course of these meetings, it submitted to the social partners two proposals for amendments to Act No. 18566; (ii) on 29 October 2019, the Government submitted to Parliament a bill amending some aspects of Act No. 18566 of 11 September 2009; and (iii) the bill combines the proposals the Government made from 2015 up to the present time. The Committee notes that the Government has provided a copy of the bill and that the preamble to the bill states that it incorporates some of the Committee’s main observations and that the Inter-Union Assembly of Workers – Workers’ National Convention (PIT-CNT), the CNCS and the CIU had been consulted, in various tripartite bodies, on the general subject matter addressed in the bill. The Committee observes that the bill proposes to:

• -include a final sentence in section 4 of Act No. 18566, requiring trade unions to have legal personality so that they can receive information from companies within the framework of the collective bargaining process, with a view to facilitating the possibility of bringing proceedings for liability in the event of a violation of the duty of confidentiality;
• -remove section 10(d) of the Act establishing the competence of the Tripartite High Council to define the level of bipartite or tripartite negotiations;
• -remove the final part of section 14 of the Act which, in the absence of a trade union represented in the company, confers bargaining power on higher-level trade unions;
• -amend section 17(2) of the Act so that, for each agreement, the issue of the continuing effect is subject to negotiation; and
• -clarify that the Wage Boards’ decisions and collective agreements do not require the executive authority’s authorization, approval or adoption in order to be recorded and published.

The Committee notes that, in their observations, the CNCS, CIU and IOE indicate that these proposed amendments are insufficient and that some of them should have been drafted differently. They also indicate that in the tripartite meetings that took place, the Government proposed to discuss a number of matters, and indicated that it would prepare a bill, so long as consensus was reached. In this regard, they affirm that, until the date on which the Government submitted its report, an agreement on the methodology had not been reached, making it practically unworkable to consult on a possible bill prescribed by the Conference Committee. The Committee also notes that, according to the Government's report, at the tripartite meetings that took place, the PIT-CNT indicated that, although it was willing to engage in dialogue, it thought that Act No. 18566 did not warrant amendment. For its part, in its observations, the ITUC indicates that more than 90 per cent of workers in Uruguay are protected by collective agreements and that care is required when taking measures that could destabilize this effective mechanism.

The Committee notes that the proposed amendments contained in the bill had already been submitted in the Government’s previous report. In its previous comments, the Committee considered that those amendments were in compliance with the requirement of Article 4 of the Convention to promote free and voluntary collective bargaining. The Committee recognizes the efforts made by the Government to comply with the Conference Committee’s request, since it initiated legislative measures before 1 November 2019 and submitted to Parliament a bill containing amendments addressing a range of observations that the Committee has been making over a number of years.

However, the Committee notes with regret that, despite its repeated comments and the recommendations of the Committee on Freedom of Association, the bill does not propose amendments or clarifications regarding the competence of the Wage Boards in relation to adjustments made to wages that are above the minimum for the occupational category and working conditions (section 12 of Act No. 18566). The Committee notes that, in the preamble to the bill, the Government explains that the article was not amended because in the Wage Boards the working conditions must be agreed by the workers’ and employers’ representatives and the executive authority’s activity is limited to the determination of wage content. The Committee also notes that, according to the Government, in the tripartite meetings that took place before the bill was submitted, the PIT-CNT had been opposed to the amendment to section 12 of Act No. 18566.

The Committee notes that, in their observations, the CNCS, CIU and IOE express concern that the bill omits any reference to the amendment of the competence of the Wage Boards (section 12 of Act 18566). In this respect, the CNCS, CIU and IOE emphasize that the intervention of the Ministry of Labour and Social Security (Ministry of Labour) in the Wage Boards in the setting of wage increases in the private sector constitutes genuine interference; that the final decision on the increase also lies with the Ministry of Labour since, so long as there is no tripartite agreement, this Ministry, together with the Ministry of Economic and Financial Affairs, establishes the increase by Decree and that, in practice, before each Wage Board is convened, the Ministry of Labour is involved in the negotiation of all the contents (including the working conditions), not only on wages.

In this regard, the Committee once again recalls that although the establishment of minimum wages may be subject to decisions by tripartite bodies, Article 4 of the Convention seeks to promote bipartite negotiation for the setting of working conditions, whereby all collective agreements establishing working conditions shall result from an agreement between employers or employers’ organizations and workers’ organizations. The Committee also emphasizes that mechanisms can be established that would guarantee both the free and voluntary nature of collective bargaining and the effective promotion thereof, while ensuring that the country’s existing collective agreements continue to offer a high level of coverage.

While it trusts that the advances contained in the bill submitted by the Government will be incorporated into the current legislation as soon as possible, the Committee requests the Government to take additional measures, in consultation with the social partners, to ensure both the free and voluntary nature of collective bargaining and the continued effective promotion thereof. The Committee requests the Government to provide information on all progress made in this respect and recalls that it may continue to avail itself of the technical assistance of the Office.