Effect given to the recommendations of the committee and the Governing Body - Report No 368, June 2013

Case No 2699 (Uruguay) - Complaint date: 10-FEB-09 - Follow-up

Effect given to the recommendations of the Committee and the Governing Body

1. 146. At its March 2010 meeting, the Committee made the following recommendations [see 356th Report, para. 1391]:
   • (a) With regard to the abovementioned Decree No. 145 of 2005, which revoked two decrees, one which had been in force for over 40 years, which allowed the Ministry of the Interior to clear company premises which had been occupied by the workers, the Committee is of the view that the exercise of the right to strike and the occupation of the premises should respect the right to work of non-strikers, and the right of the management to enter its premises. In these circumstances, the Committee requests the Government to ensure respect for these principles in regulatory legislation and practice.
   • (b) The Committee requests the Government, in consultation with the most representative workers’ and employers’ organizations, to take measures to amend Act No. 18566, in order to give effect to the conclusions formulated in the foregoing paragraphs and to ensure full conformity with the principles of collective bargaining and the Conventions ratified by Uruguay on the subject.
2. In March 2011, when the Committee next examined this case [see 359th Report, paras 206–210] it noted that the Government had convened a tripartite meeting on 7 February 2011, where the parties discussed Act No. 18566 and agreed to create a tripartite commission that would prepare a report on the issues mentioned in the report of the Committee.
3. 147. In a communication dated 9 February 2012, the International Organisation of Employers (IOE), the Uruguayan Chamber of Industries (CIU) and the National Chamber of Commerce and Services of Uruguay (CNCS) state that, as regards the occupation of the premises, the Government failed to give effect to the Committee’s recommendation, that this gave impetus to this type of practice and that the occupied companies had to turn to the judiciary in search of protection for the fundamental human rights denied to them by the Government. The complainants also indicate that, as regards Act No. 18566 concerning collective bargaining, the delay in amending the law has the immediate consequence of creating legal uncertainty over any agreement concluded under the protection of a law that is being questioned by the employer sector as a whole, and they reiterate their position in the sense that the Government is required to amend the law in keeping with the Committee’s observations.
4. 148. In its communications of 12 April and 14 November 2012, the Government indicates that, in keeping with its practice of respecting the decisions of supervisory bodies, for more than two-and-a-half years it strove to find a consensus-based solution with the professional sectors in view of the comments made about different aspects of Act No. 18566, that, cognizant of its obligations and responsibilities, it considers the prior consultation process with the social partners to have ended, and that it plans to send a bill aimed at settling this dispute to Parliament for consideration. As regards the occupation of the premises, the Government indicated that: (1) the rate of conflict in Uruguay is currently the lowest it has been over the last few years; (2) the referral to the courts of cases related to requests to clear the premises by non-strikers is indicative of the great importance attached to guaranteeing the freedom to work; (3) the judicial authorities have often ruled in favour of protecting the right to work of non-strikers and employers’ rights by means of very short trials; and (4) it is clear that employers’ constitutional rights are guaranteed by the State.
5. 149. In this regard, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations (CEACR), when examining the application of Conventions Nos 87 and 98 by Uruguay at its November–December 2012 meeting, referred to the issues being examined by the Committee relating to Act No. 18566 concerning collective bargaining and to the occupation of company premises (the complainant organizations and the Government sent the same communications to the CEACR and to the Committee). The CEACR stated the following:
   • The Committee notes with interest the decision to send a bill addressing the issues pending to Parliament with a view to overcoming the problems identified, and is pleased to learn that the bill will be sent to Parliament in November. The Committee hopes that the new law adopted will take full account of the principles and comments made. The Committee requests the Government to inform it of any developments in that regard in its next report.
   • The Committee also recalls that, on numerous occasions, it has underlined 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 only be accepted 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, para. 149). Under these circumstances, the Committee firmly hopes that in the course of the tripartite dialogue initiated, the necessary measures will be taken, taking into account the comments of the Committee on Freedom of Association and of this Committee, to ensure full respect for this principle in law and in practice, in consultation the most representative workers’ and employers’ organizations. The Committee suggests that the rulings of the national courts be taken into account during the consultation process already initiated.
6. 150. The Committee notes with satisfaction that, in a communication dated 26 December 2012, the Government states that, in keeping with the Committee’s recommendations [see 356th Report, para. 1391] and following several consultations with the social partners, it promulgated Act No. 19027, which, in its single article, provides for the replacement of article 8 of Act No. 18566. Consequently, the Higher Tripartite Council will be composed of six delegates from the Executive, six delegates from the most representative employers’ organizations, six delegates from the most representative workers’ organizations and an equal number of substitutes from each party.
7. 151. Furthermore, the Committee notes that, in a communication dated 5 March 2013, the Government states that for more than two years it has been proposing to introduce a consensus-based reform of the Act concerning collective bargaining objected to by the complainant organizations, and that, given the lack of tangible results and in the interest of honouring the international obligations arising from the ILO Constitution, on 4 March 2013, the Executive sent a bill amending Act No. 18566 of 11 September 2009 to Parliament. The Government adds that the provisions of the bill give effect to the recommendations made by the supervisory bodies.
8. 152. Lastly, in a communication dated 7 March 2013, the IOE, CIU and CNCS allege that: (1) the consultations on the aforementioned bill sent to Parliament were ineffective and totally insufficient; (2) the aforementioned bill does not take account of the observations made by the Committee on Freedom of Association in their totality, for which reason it is only a partial solution; and (3) the occupation of companies, which is never peaceful, is the main problem facing the employer sector in Uruguay and that the Government has yet to provide a solution to that problem (the complainants emphasize that, there is no right to strike in the ILO Conventions, and therefore such occupations must be considered illegitimate, if not illegal).
9. 153. The Committee takes note of this information. The Committee requests the Government to send its observations in relation to the allegations made by the complainant organizations on 7 March 2013.
10. 154. Furthermore, the Committee requests the Government to keep it informed of any developments concerning the bill sent to Parliament, which seeks to amend Act No. 18566 concerning collective bargaining, and to intensify social dialogue on the subject of the occupation of company premises.