Report in which the committee requests to be kept informed of development - Report No 403, June 2023

Case No 3420 (Uruguay) - Complaint date: 09-FEB-22 - Follow-up

Allegations: The complainant organizations allege that since the change of government the public education authorities, through various decisions and actions, have violated the right to freedom of association at various secondary schools in the country, to the detriment of FENAPES and its activists

1. 598. The complaint is contained in a communication from the National Federation of Secondary School Teachers (FENAPES) and Education International (EI) dated 10 November 2021. The Inter-Union Assembly of Workers–Workers’ National Convention (PIT–CNT) sent a communication in November 2021 stating its support for the complaint. FENAPES sent additional information in communications dated 9 February, 6 April, 5 May and 21 September 2022.
2. 599. The Government sent its observations in communications dated 21 May, 16 August and 15 December 2022, as well as 26 April 2023.
3. 600. Uruguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 601. In their communications dated 10 November 2021, 9 February, 6 April, 5 May and 21 September 2022, the complainant organizations allege that as from 2020, following the change of government, the new education authorities began to limit various forms of trade union action. The complainants allege specifically that the Directorate-General for Secondary Education (DGES), a decentralized body of the National Public Education Administration (ANEP), has through various decisions and actions violated freedom of association in a number of secondary education establishments (liceos – high schools) in the country, to the detriment of the FENAPES, the most representative trade union in public secondary education, and its activists.
2. 602. The complainants allege that this anti-union policy has been manifested through the implementation of repressive disciplinary procedures with regard to the performance of union activities, namely: (i) anti-union repression with threats of dismissal against teachers at High School No. 1 in the department of San José on account of union activities; (ii) an investigation into the participation of FENAPES leaders in an activity with teachers from the high school in Canelones; (iii) an investigation into the use of the union noticeboard by teachers at High School No. 16 in Montevideo; (iv) anti-union acts aimed at limiting and suppressing the use of trade union leave; and (v) disregard for collective bargaining and interference by the DGES authorities in relation to the Association of Secondary Education Non-Teaching Staff (ATES).
3. 603. The complainants indicate that on 27 October 2019 a plebiscite on constitutional reform with respect to the subject of security in Uruguay was held at the same time as presidential elections. They indicate that, together with other organizations, including the PIT–CNT, they carried out various actions to contribute to the campaign against this constitutional reform, which was instigated by certain political sectors and in the end was not approved. The complainants indicate that the proposal for reform gave rise to intense public debate because it included aspects of major social interest, including the forming of a national guard trained by the military, the possibility of establishing reviewable penalties of permanent imprisonment, and the demarcation of alternative measures to prison. They also indicate that the debate on reform included various social organizations concerned with the defence of human rights, academic circles, the political parties and especially the trade union and student movements. The complainants indicate that those who opposed the constitutional reform adopted the motto that fear was not the way, advocating education as the way to tackle problems of insecurity and initiating a campaign against the proposal.
4. 604. The complainants indicate that as part of this campaign, which included publicity on the radio and television and through billboards, FENAPES activists and members went to take photos of each other with a banner proclaiming “No to the reform”, with a view to posting the images on social networks. The complainants allege that: (i) during the evening of 23 October 2019, activists from the Teachers’ Association of the department of San José, affiliated to FENAPES, assembled at High School No. 1; (ii) eight teachers took photos of each other on the public thoroughfare near the school and six teachers did so inside the school but in spaces for the use of teachers during breaks between classes; (iii) on 29 October 2019, the principal of the school reported this activity to the DGES, being of the view that secularism had been violated since the activity constituted propaganda, resulting in the establishment of an administrative file, which ended up being archived; (iv) in June 2020, with the change of government and new authorities at the DGES (formerly the Secondary Education Board (CES)), the school principal persisted with her previous complaint, the file was reopened, and an investigation was ordered into incidents that had occurred a year earlier, without the teachers being granted the right of defence; this culminated in a final report which contains errors, omitting to mention the trade union nature of the activity that took place on 23 October 2019, and condemning freedom of expression on a subject of public interest; (v) the intention to cause harm to the union was evident and a context of public censure of the activists was created (no measures were taken against teachers who influenced students in favour of the constitutional reform): (vi) even though the proceedings against those who took photos outside the school were concluded without any liability being established, the decision indicated that the activity constituted political propaganda, dismissing its union nature; and (vii) the legal advisers proposed that the teachers who took photos inside the school premises should be dismissed, with the exception of two cases in which it was agreed that such a sanction would be excessive.
5. 605. The complainants consider that the report produced by the attorney acting in the investigation committed an inexcusable error, in denying the union nature of the activity that took place on 23 October 2019, clearly indicating his malicious and repressive intent through the sentence: “The undersigned considers that, in a situation such as this, the reason ‘why’ no longer predominates and ‘where’ the activity takes place assumes vital importance.” The complainants indicate that the prohibition on propaganda or proselytism is established by article 58 of the Constitution of Uruguay, which provides that: “In workplaces and during working hours, any activity unrelated to official duties shall be prohibited and any activity for propaganda purposes of any kind shall be deemed unlawful.” In other words, the constitutional provision itself requires the intention or ultimate aim of the activity to be stated. The complainants consider that the omission of any mention of the union nature of the activity opened the way for censure of the exercise of freedom of expression on a subject of public interest, also ignoring the terms of article 57 of the Constitution, which promotes the right to organize. The complainants consider that a coherent interpretation of both articles would have enabled the investigator to conclude that article 58 actually bans political propaganda, while article 57 places all union activities under the protection of the ban established by article 58, and establishes an obligation to promote them.
6. 606. The complainants allege that on 7 September 2020 the CES decided to initiate an investigation into a suspected violation of the principle of secularism by FENAPES leaders for assembling at Empalme Olmos High School in October 2019 with the intention of establishing communication with the members of the union branch at that school, as part of a mobilization of students against the constitutional reform (the students had denounced limitations imposed by the school management on the right of assembly and expression by the students’ union).
7. 607. The complainants allege that: (i) in April 2021, the principal of Montevideo High School No. 16 reported the fact that informative material on the referendum against a law entitled the “Urgent Consideration Act” (LUC) had appeared on the trade union noticeboard at the school, further to which the DGES ordered an investigation to be launched; and (ii) the existence of trade union material on the noticeboard is normal and so the investigation under way (of a disciplinary nature and without any guarantees) can only constitute harassment by the employer in reprisal for the kind of material displayed on the noticeboard, and is therefore a clear act of interference for the purposes of anti-union repression.
8. 608. The complainants allege that since the change of government a number of hostile actions were recorded calling into question the use of trade union leave by FENAPES and they allege that: (i) the principal of San José High School No. 1 reported the allegedly excessive use of paid hours for the purposes of trade union activity, pointing out that an inappropriate legal basis had been used to justify this (the complaint was directed against the teacher and FENAPES leader Mr Marcel Slamovitz); and (ii) the anti-union actions of the principal began to receive the backing of a parliamentarian belonging to one of the parties in the government coalition who accused the authorities of the previous government and FENAPES of having issued false certificates for trade union leave. The complainants indicate that on account of the above a commission was set up in the National Parliament with the mandate to investigate the granting and justification of irregular union leave to FENAPES members by the CES during the 2015–19 period.
9. 609. The complainants indicate that on account of the above-mentioned complaint an administrative investigation was launched at the DGES into the hours used by Mr Slamovitz for trade union purposes and that, although the investigating counsel suggested that the investigation should be archived since there did not appear to be any elements that called for action to be taken, the DGES ordered the suspension of the teacher from his post for 180 days with total deduction of pay for gross misconduct on account of using “trade union power” to mislead the school principal. The complainants indicate that as part of the investigation it was decided to file a criminal complaint against the teacher for allegedly excessive use of paid hours for trade union activity and also against other members of the FENAPES executive committee, seeking to classify the union leaders’ activity as a criminal offence for having issued and used false records of union activity in the context of agreements concluded with the authorities of that time. The complainants allege that the education authorities are calling for the imprisonment of the union leaders who argue that there are no formalities in the collective bargaining process, postulating formal bases over and above the basic elements that in themselves form the core of negotiations, as illustrated by Professor Barreto in a report attached to the complaint, who indicates that there are no formal requirements for registering agreements and that the lack of such requirements does not affect the validity of what is agreed upon. This report mentions that Resolution No 12 of Record No. 90 of 2006 features an agreement concluded in the context of collective bargaining in the “Working Group on trade union immunity” comprising the ANEP and the PIT–CNT and indicates that the said agreement also refers to other agreements that may be concluded, which would demonstrate the interplay of different existing bargaining processes.
10. 610. The complainants allege that the investigating commission set up in Parliament operated outside the legal framework, with the clear intent of persecution of the trade union, and indicate that what the commission was investigating was not the misuse of time for trade union activity but whether or not an appropriate legal basis had been used to justify such time, also launching a media campaign against FENAPES. The complainants indicate that the key issue was the unwritten agreement concluded at the time between FENAPES and the former authorities so that hours taken for union activities in excess of those fixed by the agreement signed in 2006 could be justified by invoking section 70.10 of the Teaching Staff Regulations (EFD). The complainants indicate that there are no formalities of any kind in Uruguayan law that require that an agreement must be in writing, whether in the public or private sphere, and that customary compliance with the terms of an agreement also contributes to the understanding that an agreement exists even if not in writing. The complainants indicate that the investigating commission concluded its activity with two final reports.
11. 611. The complainants allege that: (i) in 2007, the Coordinating Committee of Uruguayan Teaching Unions (CSEU), to which FENAPES belongs, signed a collective agreement with the ANEP regulating the use of trade union leave by the leaders of the ATES; (ii) in October 2021, the DGES issued Decision No. 4141 unilaterally regulating, in total disregard for the above-mentioned collective agreement, the allocation of trade union hours for the ATES, prescribing that only named officials on a staff list shall be authorized to be members of representative committees and shall not be replaced by other officials, thereby committing interference that violates trade union autonomy; and (iii) this decision also prescribes that the records of hours taken for trade union activity shall be signed by the DGES or the ATES president and, in the case of the latter’s trade union hours, by the secretary designated for such purposes; if established hours are exceeded, these shall be deducted, with retroactive effect, thereby constituting interference in trade union activity and restricting the free exercise thereof.
12. 612. The complainants indicate that the above-mentioned collective agreement had established the number of officials who were union members (whether or not they paid union dues) as a basis for calculating the number of free hours paid. The complainants allege that for the period from 1 March 2021 to 28 February 2022, the secondary education authorities changed the aforementioned criterion, excluding teachers who were union members but did not pay union dues, thereby reducing the number of units corresponding to union leave. It is alleged that this action has affected the exercise of freedom of association with a possible impact on the quality of collective bargaining.
13. 613. The complainants mention other facts in the complaint which, in their view, enable the context of anti-union repression which started in 2020 to be understood and indicate that: (i) on 20 May 2020, the ANEP issued a decision ordering the removal of all banners that might infringe upon the guiding principles of education (secularism and the ban on propaganda); and (ii) FENAPES filed a complaint in this respect with the National Human Rights Institution (INDDHH), an impartial body under the aegis of Parliament, which issued a decision recommending the deletion of the most controversial sections of the above-mentioned decision. The complainants indicate that they have brought another complaint before the INDDHH, in which various situations are described, including the ban on holding union meetings inside the school or at its entrance in the context of a stoppage held by a branch of FENAPES.

B. The Government’s reply

1. 614. In its communications of 21 May, 16 August and 15 December 2022, as well as 26 April 2023, the Government indicates that the ANEP is an autonomous entity with legal personality which governs public education and comprises the following bodies: the Central Executive Board (CODICEN), the Directorate-General for Initial and Primary Education, the DGES (formerly the CES), the Directorate-General for Vocational and Technical Education and the Educational Training Board. The Government indicates that the ANEP has always been open to dialogue and to the negotiating bodies and that it respects and complies with all the laws and regulations in force, and so it is untrue that there have been violations of rights or of legal standards as invoked in the complaint. The Government affirms that the anti-union persecution denounced in the allegations does not exist, and that what is denounced as an attack on freedom of association is quite simply the need for the country’s legal system to be respected.
2. 615. The Government considers that the complaint does not reveal any elements that demonstrate action aimed at violating trade union autonomy or discriminatory anti-union conduct by the State and affirms that the DGES exercised the legitimate powers conferred on it by law, that its action arose on reasonable grounds that warranted investigation and that at no time was union activity investigated but the conduct of officials bound to the Administration by a set of regulations governing their behaviour.
3. 616. With regard to the incidents concerning San José High School No. 1, the Government indicates that: (i) the secondary education authorities which took office in May 2020 received an official letter from the principal of the school requesting information on a complaint made in 2019 to the CES concerning photos taken by a group of teachers inside the school with banners bearing the words “No to the constitutional reform” (which had nothing to do with the right to organize but related to issues of public safety); the principal had indicated that she had not been notified of any decision relating to the file which had been opened on account of her complaint; (ii) the CES of the time, having been apprised of the complaint, dealt with it in session, ordered it to be shelved, merely issuing an exhortation to be careful with attitudes (despite the fact that the Legal Division of the CES had suggested that an administrative investigation should be carried out), and did not notify the school principal of the action taken on her complaint; after a reasonable time, the principal asked for information in this regard; (iii) the CES authorities located the file and reopened it, as well as reopening five other files relating to similar situations on which no decision had been issued; and (iv) in August 2020, the CES Legal Division suggested that an administrative investigation should be ordered to determine whether or not administrative infringements had been committed violating the provisions of the EFD and the Management Staff Regulations, and in September 2020 the CES, on a unanimous vote of its three members (one of whom belonged to trade union circles), decided to order the opening of that investigation.
4. 617. The Government indicates that as a result of the administrative investigation (under section 179 of Ordinance No. 10), it was found that an administrative infringement had been committed and summary proceedings were ordered against a number of teaching officials. The Government emphasizes that what was investigated was not trade union activity but actions by public officials which contravened constitutional standards, that the officials concerned enjoyed guarantees of due process and that the proposed sanction of dismissal was rejected by the education authorities. The Government points out that the Administration has the duty to investigate any act that may constitute a violation of the regulations and for which professional liability can be incurred, and that having established the existence of an administrative infringement and having identified those responsible, the disciplinary powers of the Administration came into play. In this regard, the Government states that the action of the ANEP through the decentralized DGES did not involve any violation of freedom of association, or any restriction of freedom of expression, but was in line with the duties imposed by the Constitution and the law to avoid any kind of propaganda and to preserve secularism in education. The Government indicates that the proceedings were concluded with a decision issued by the DGES, whereby a sanction was imposed on the teachers of 180 days’ suspension with deduction of pay, the period of suspension already served during the proceedings being subtracted. The Government emphasizes that there was no anti-union persecution or any selective dismissal aimed at penalizing the union members, but that the stages of the proceedings were followed whose purpose is to provide guarantees, not to penalize or persecute, and are covered by the legal provisions in force. The Government informs that none of the sanctioned teachers appealed the sanctions. The Government also indicates that the files relating to the officials who took photos outside the school, on the public thoroughfare, were archived once it had been established that no administrative infringement had been committed.
5. 618. The Government indicates that although a trade union has the right to define measures that it will adopt with regard to any event or occurrence, whether political, cultural or otherwise, in this case the teachers took photos of each other inside the school, which is their workplace, and article 58 of the Constitution provides that: “In workplaces and during working hours, any activity unrelated to official duties shall be prohibited, and any kind of activity for propaganda purposes shall be deemed unlawful. Groups may not be formed for propaganda purposes by using the titles of public agencies or invoking any link with official duties in the context of membership of such groups”. Propaganda is strictly forbidden under article 58 of the Constitution and freedom of expression or trade union rights cannot be invoked in order to circumvent the prohibition. Any propaganda engaged in by teachers in public education constitutes a twofold infringement: of the legal provisions banning propaganda, and of the provision that orders teaching to be carried out in accordance with the principle of secularism (section 17 of the General Education Act and section 3 of the EFD). The Government stresses that this case involves public officials governed by a set of regulations; that it is not about teachers being denied the possibility of expressing themselves; the issue is that they did so inside the school in various offices and during working hours since evening classes were in progress at that time and that the constitutional reform in question. had no connection with trade union rights or with public education regulations but was related to the subject of public safety in Uruguay.
6. 619. The Government indicates that: (i) the Schools Inspectorate informed the CES that the students at the school had used scarves with the slogan “No to the constitutional reform” while participating in union meetings inside the school, and it noted a violation of the right of freedom and of the principle of secularism and indicated that the students did not have the authorization of the school management required under the terms of the Student Regulations (in force since 2005); (ii) the CES Legal Division agreed with the suggestion of the Schools Inspectorate that, in line with the regulations in force, an administrative investigation should be conducted in order to elucidate the facts, but no element emerged that amounted to anti-union persecution or reprisals of any sort with regard to FENAPES members, an organization which does not represent the students; and (iii) the administrative investigation was closed without any liability having been established on the part of any official (DGES decision of 21 February 2022).
7. 620. The Government indicates that: (i) the school management reported to the DGES that on 8 March 2021 material was found referring to the Urgent Consideration Act (LUC) (promulgated on 9 July 2020) inside the registration office on the upper floor of the school (leaflets concerning a political campaign for the collection of signatures aimed at the repeal of the Act, which has nothing to do with union rights); (ii) the DGES, following the suggestion of the Legal Division, ordered the opening of an investigation to determine the facts and apportion responsibility; (iii) the action of the DGES was in line with the law and upheld all the principles that govern public education; and (iv) a number of teachers, regardless of whether they were union members, featured in the investigation, which was closed without any liability having been established on the part of any official (DGES decision of 16 December 2021).
8. 621. The Government also mentions that banners referring to the campaign against the LUC were placed on the facade of the school and an order was given to remove the banners from the facade but not to remove the banners located in the vicinity of this or any other school, this being done to defend the principle of secularism, the preservation of which does not affect freedom of expression or freedom of association. The Government indicates that recital (VI) of CODICEN decision states as follows: “There is no intention to violate or restrict the legitimate right to use trade union noticeboards, nor to limit, restrict, violate or interfere with the exercise of freedom”. The Government has annexed a copy of an amparo [protection of constitutional rights] judgment handed down in 2019 (the Government points out that at that time the authorities of the ANEP were different, appointed by the Government prior to the one that took office in March 2020) and which obliges the ANEP to remove proselytising/propaganda banners from the facades of its premises. In this judgment, the Administrative Court of First Instance indicated that the banners had a clear political message that undoubtedly constituted proselytising activity and that the banners violated neutrality. Based on the above, the Court ordered the ANEP to prohibit the placement of banners (on that occasion put up by the students) relating to the constitutional reform or with similar content on the facade of any other of its buildings.
9. 622. With regard to the complaint filed with the National Human Rights Institution and Ombuds Office (INDDHH), the Government recalls that neither the ANEP nor any other public entity has any dependent link with the aforementioned institution and that it has no obligation to comply with any instruction issued by it, and so it stated that it did not accept its opinion. The ANEP brought invalidation proceedings in the Court for Administrative Disputes (TCA) and this case is currently being examined by the Supreme Court of Justice. What was prescribed by CODICEN (part of the ANEP) does not constitute any element of anti-union repression since it was addressed to its own offices and the order was issued for the purpose of upholding constitutional principles.
10. 623. The Government refers to the complaint made by the principal of San José High School No. 1 in 2021 for “allegedly excessive use of paid hours for the purpose of trade union activity and the use of an inappropriate legal basis to justify them”, which was backed by a parliamentarian from one of the political parties comprising the government coalition. In this regard, the Government indicates above all that at no time was action taken by the ANEP, through the DGES, that could constitute anti-union persecution. The Government points out that the existence of provisions regulating the use of trade union leave in the sphere of the ANEP cannot be ignored and that if faced with alleged irregularities the Administration has the power and the duty to review its own acts. The Government emphasizes that this cannot be regarded as anti-union action but action directly and solely related to compliance with legal standards.
11. 624. With regard to the teacher Mr Slamovitz, the Government indicates that: (i) after analysing the findings of the investigation, the head of the DGES Legal Division suggested that administrative proceedings should be opened in relation to the teacher; the Government explains that the head of the DGES Legal Division is not bound by the statements of the investigator and may or may not concur with the preliminary report and, if appropriate, may issue a different opinion; (ii) accordingly, administrative proceedings were ordered in the present case, with the application of precautionary measures (suspension from duties and a 50 per cent pay deduction), within the scope of the regulations in force (Ordinance No. 10 of 2004); (iii) this was not about anti-union persecution or discrimination but solely involved the exercise of the disciplinary power of the Administration, in that summary proceedings (that is, proceedings for determining or proving the liability of the official against whom charges have been brought) are ordered for alleged gross misconduct on account of misusing hours for trade union purposes; (iv) the summary proceedings were conducted with the guarantees of due process and were not ordered for the purpose of investigating or calling into question the teacher’s trade union activity but rather his action as an official in breach of the regulations in force; (v) although the official, as a trade union leader, can exercise his right to paid time off for the exercise of union activity, such exercise is regulated by the Wages Board or through collective agreements; and (vi) various accords or agreements (all in writing) have been concluded and the hours allocated for union leave have been specified in each case but at no time do the agreements or other decisions cited by the complainants refer to the use of section 70.10 of the EFD in order to justify hours for union purposes.
12. 625. The Government indicates that the head of the Legal Division indicated in his report that he disagreed with the investigator’s conclusions and that in his view it was not legally possible that the former CES authorities could have concluded an agreement with FENAPES in a valid manner (accepting the applicability of section 70.10 of the EFD to justify excessive use of hours for union purposes) since that would have violated the provisions of the teaching regulations and would have exceeded the scope of its competencies and hierarchical powers. The report of the Legal Division also indicates that nobody was able to substantiate the existence of the alleged agreement and that under no circumstances can trade union leave be made up for by the application of section 70.10 of the EFD (reference is made in section 70 to special leave for teaching officials which shall be granted for special tasks or services assigned by CODICEN, by the respective individual boards or as required by other state bodies, in accordance with explicit legal provisions). According to the Government, the aforementioned section is clear and under no circumstances can it be used to justify trade union leave. The Government points out that although the complainants based their position on an alleged “verbal agreement” with the former CES authorities, an agreement of that nature is inconceivable where one of the parties is the State, in this case the ANEP. Furthermore, although the complainants maintain that there are no formalities for collective agreements, the actual facts show that those concluded between CODICEN and the CSEU were in written form. The Government emphasizes that the regulation of trade union leave arises from the agreement signed between CODICEN and the CSEU, embodied in Resolution No 12 of Record No. 90 dated 29 December 2006, which establishes year by year the ceiling on the number of hours corresponding to trade union leave. The Government has attached a copy of this Resolution. The Government indicates that the above-mentioned agreement of 2006 makes no reference to the use of section 70.10 of the EFD. The Government states that there was no agreement containing justification of union leave based on section 70.10 of the EFD and that Resolution No 12 of Record No. 90 of 29 December 2006, to which the complainant organizations refer, does not mention anything in this regard either. The Government attaches a press release in which the former CODICEN president, Mr Wilson Netto, reportedly pointed out the “illegality” of applying the above-mentioned section to justify union leave.
13. 626. The Government indicates that FENAPES issued countless “records” of trade union activity to present to the school principals, requesting “justification of the absence” of the official in question “in accordance with section 70.10 of the EFD in line with the agreement signed between CODICEN and the CSEU”. Although the school principals accepted the excess hours taken by delegates as free time for union activity, they did so on the basis of a misleading record issued by the union authorities, which prompted the justification of absences by referring to a “signed” agreement (which, it has been accepted, was non-existent, as was any verbal “signature”), and with the indication (supposedly backed up by the non-existent agreement) that the absence was covered by section 70.10 of the EFD (a legal provision which has nothing to do with union leave). The Government explains that it was the large number of absences that Mr Slamovitz attempted to justify on the basis of such records that caused the principal of High School No. 1 to contact the CES in 2019 to find out what was the “agreement signed between CODICEN and the CSEU” to which FENAPES referred, given that the lost classroom hours were causing major disruption to the work of education.
14. 627. The Government indicates that with over 240 absences in two years on the part of Mr Slamovitz having been established, the proceedings concluded that there had been gross administrative misconduct and a sanction of 180 days’ suspension with deduction of pay was imposed on him, the period of suspension already served during the proceedings being subtracted. The Government emphasizes that this lawful decision does not constitute anti-union persecution or discrimination by the State but solely amounts to the exercise of the Administration’s disciplinary power. On the basis of the above, the Government emphasizes that the ANEP, through the DGES, acted within the scope of its competencies and never committed any violation of freedom of association or engaged in any sort of anti-union persecution.
15. 628. With regard to the filing of the criminal complaint against Mr Slamovitz and other members of the FENAPES executive committee, the Government indicates that all public officials have the duty to report the existence of circumstances that appear to be criminal and to bring them to the attention of the justice system so that they can be investigated and resolved. The Government explains that nothing has been “classified” as a crime and emphasizes that the terms of the DGES decision are not a consequence of exercising the right to take union leave or of performing “an activity inherent in the collective right to work”, as claimed by the complainants.
16. 629. With regard to the parliamentary commission, the Government indicates that this body did not assume any power that it does not possess, that it did not violate the regulations governing the operation of parliamentary commissions, that it did not act unlawfully, that it had no intention of interfering in trade union autonomy or in the collective bargaining process, nor was there any attempt at criminalization, but that it fulfilled its purpose, which was to conduct the investigation. The Government asserts that what was undertaken was an investigation into the activity of public officials, who beyond the weekly hours of union leave made use of leave on the basis of a formula which stated that the absence was justified under section 70.10 of the EFD, in accordance with an agreement which was never presented despite being asked for by various bodies. All this activity, related to the granting and justification of leave taken during the 2015–19 period, which was the subject of investigation by the parliamentary commission, caused enormous damage to the students since those hours, unlike the hours for union activity, did not give grounds for the provision of a replacement teacher, as stated in the previous reply.
17. 630. The commission which had the task of investigating the granting and justification of irregular leave to FENAPES members by the CES during the 2015–19 period ended its activity by concluding that there had been negligence on the part of the comptroller of authorities during that period (2015–19), resulting in omissions, administrative irregularities and apparently criminal conduct by public officials who were members of FENAPES and of the CES in the 2015–19 period, and for this reason it referred the investigated activities to the ANEP Central Executive Board, the Transparency and Public Ethics Board and the Public Prosecutor’s Office.
18. 631. The Government indicates that the alleged interference by the DGES in the sphere of union leave is untrue, given that the latter was bound to carry out a study and analysis of union leave, since there were no administrative acts which properly regulated the use of union leave by the ATES and the corresponding control mechanisms had not been established. The Government points out that the reasoning behind Decision No. 4141 was to bring order into what had occurred until then, with the aim of ensuring that all officials would make use of the hours actually allocated to them for the purposes of union leave. The decision approved the lists presented by the ATES with the corresponding number of hours that formed the basis for union leave and the number of hours for each official, and setting the maximum number of hours that could be justified for union leave. The motive for the DGES decision was the improper justification of union leave, grossly exceeding the hours allocated to the union for each official on the basis of the number of union members. The Government indicates that FENAPES applied to the Court for Administrative Disputes (TCA) for the act to be revoked and possibly declared null and void, and so no final ruling has yet been issued and the DGES may revoke it wholly or partially.
19. 632. The Government adds that this situation is also being dealt with in a tripartite collective bargaining body. The Government explains that in the complaint FENAPES does not allege non-compliance on the part of these bodies towards itself but only refers to those relating to the ATES, citing the refusal of the Director-General for Secondary Education, but omitting to mention that it was the verbal aggression against the Director-General committed by the ATES president in a tripartite body which caused the temporary suspension of the negotiations. The Government indicates that the union did not request bipartite or tripartite meetings until March 2022, when the negotiations were launched.
20. 633. In general terms, the Government affirms that, far from finding the actions of the public education authorities to be a violation of the international and national standards which protect freedom of association, these authorities have properly discharged their powers and duties, both in investigating the liability that might have been incurred by the union or any of its members in violating the “law of the land” which Convention No. 87 requires to be respected, and in putting into practice common-sense rules for the use of trade union leave. The Government emphasizes that the administrative proceedings which were initiated (administrative investigations and summary proceedings) were based on actual proven facts and are regulated by the standards and principles of the rule of law itself, and that all decisions can be challenged through administrative appeals, and that there is judicial control of all such administrative activity.
21. 634. The Government emphasizes that the Constitution does not exempt unions of officials (established under article 57 of the Constitution) from the restriction established in article 58 stating that: “In workplaces and during working hours, any activity unrelated to official duties shall be prohibited, and any activity for propaganda purposes of any kind shall be deemed unlawful.” It also indicates that although the complainants refer to a “public media campaign against FENAPES”, there has not been a single press release aimed at undermining the trade union or encouraging public rejection of it. The Government affirms that FENAPES continues to fully exercise freedom of association, freely organizing its union activity, and all that is required of it is full respect for the provisions of applicable law and agreements.

C. The Committee’s conclusions

1. 635. The Committee notes the allegation of the complainant organizations in the present complaint that since the change of government in March 2020 the education authorities, in particular the Directorate-General for Secondary Education (DGES) (formerly the Secondary Education Board (CES)) at the National Public Education Administration (ANEP) placed various limitations on the trade union activities of the National Federation of Secondary School Teachers (FENAPES), the most representative organization in the sphere of public secondary education, and its activists. The Committee notes that the Government denies that there has been any anti-union persecution, asserts that the ANEP has always been open to dialogue, and that what is being denounced as an attack on freedom of association is merely the requirement for the country’s legal order to be respected. The Government indicates that the DGES exercised the legitimate powers conferred on it by law and that at no time was trade union activity investigated but the conduct of officials bound to the Administration by a set of regulations governing their conduct.
2. 636. The Committee notes the complainants’ allegation that the anti-union policy expressed itself through a series of incidents that took place in different parts of the country and are described below:
3. 637. The Committee notes the complainants’ allegation that as a result of complaints made by the principals of the high schools to the DGES between late 2019 and early 2021 for alleged violations of the guiding principles of education (secularism and prohibition of propaganda), the DGES conducted a series of disciplinary investigations without safeguards involving trade union leaders, who were penalized for their views, resulting in an environment of public censure of the activists. The Committee notes that the investigations involving the three high schools were concerned with the participation of FENAPES leaders in activities of an allegedly union nature and were related to a plebiscite on constitutional reform relating to issues of public safety and a referendum on a law entitled the Urgent Consideration Act (LUC).
4. 638. The Committee notes the Government’s indication that the investigations relating to activities carried out in the high schools in Canelones and Montevideo (in the latter case, a number of teachers featured in the investigations, regardless of whether or not they were union members) were closed since no liability on the part of any official was established.
5. 639. With regard to San José High School No. 1, the Committee observes that the investigation by the DGES focused on teachers and trade union leaders who took photos of each other inside and outside the school, during the evening, with banners indicating their rejection of the constitutional reform related to public safety. The Committee notes that while the complainants indicate that the union activists took care to exercise their right of expression outside the school premises and without the presence of students, the Government indicates that the photos were taken when evening classes were in progress. The Committee observes that the complainants emphasize, among other things, that the DGES conducted the investigation without granting the teachers the right of defence and that it culminated with a report which omits to mention the union nature of the activity and condemns the exercise of free speech with respect to a topic which had generated intense public debate since it included aspects of major social interest. In this regard, the Committee notes the Government’s indication that the constitutional reform had nothing to do with trade union rights or public education but was related to issues of public safety, it affirms that the public servants enjoyed the guarantees of due process and that there was no anti-union persecution, and it emphasizes that what was investigated was not union activity but actions by teachers as public servants in breach of constitutional standards, in particular article 58, which bans propaganda/proselytism.
6. 640. The Committee notes the complainants’ and the Government’s indications that: (i) the investigations of the persons who took photos of each other on the public thoroughfare near the school were concluded without establishing any liability (since it was demonstrated that no administrative infringement had been committed); (ii) the proposal to dismiss the teachers who had taken photos inside the school was dropped; and (iii) a sanction of 180 days’ suspension with deduction of pay was imposed. The Committee notes that, according to the Government’s information, none of the sanctioned teachers appealed the sanctions.
7. 641. The Committee notes that the complainants also allege that in 2020 the ANEP issued a decision demanding that FENAPES remove banners relating to the campaign against the LUC which were on the facade of different high schools. The Committee notes that although the complainants indicate that they reported this incident to an impartial parliamentary body (INDDHH), which recommended that the most controversial sections of the decision should be removed, the Government indicates that the decision was based on defence of the principle of secularism and explains that it did not order the removal of the banners located “in the vicinity” of the high schools but only those that were on the facades. It also indicates that the ANEP is not dependent on the INDDHH and that it brought invalidation proceedings in the Court for Administrative Disputes (TCA) but these have not yet been settled. The Committee notes that the Government has annexed a copy of a judgement issued in June 2019 concerning an amparo action that ordered the ANEP to prohibit the placement of posters (on that occasion put up by students) relating to the constitutional reform on public safety issues or with similar content on the facade of any other of its buildings. The Committee also notes FENAPES’ indication that it brought another complaint before the INDDHH relating to other situations such as the ban on holding union meetings on school premises. The Committee has no further information regarding this other complaint.
8. 642. The Committee observes that article 57 of the Constitution of Uruguay promotes the organization of trade unions and article 58 provides that public officials are in the service of the nation and not of any political faction, and that in workplaces and during working hours any activity unrelated to official duties shall be prohibited, and any kind of activity for propaganda purposes shall be deemed unlawful. The Committee notes that while the complainants consider that a coherent interpretation of articles 57 and 58 of the Constitution suggests that article 58 bans political propaganda while article 57 places trade union activities under the protection of that ban, the Government emphasizes that propaganda of any kind is prohibited by article 58 and the prohibition cannot be circumvented by invoking freedom of expression or trade union rights. The Government also indicates that when a teacher in public education engages in propaganda, this entails a twofold infringement: of the legal provision that bans propaganda, and of the provision prescribing that teaching shall be carried out in accordance with the principle of secularism (section 17 of the General Education Act and section 3 of the EFD Teaching Staff Regulations).
9. 643. The Committee notes that it is clear from the above-mentioned details that: (i) six members or trade union leaders of FENAPES were sanctioned with six months’ suspension with deduction of pay for having taken and then disseminated photos in a high school to express their opposition to a constitutional reform concerning public safety issues; and (ii) the public administration had ordered the removal banners put up in various high schools in relation to a referendum on a law, which contained, inter alia, provisions relating to the exercise of the right to strike. The Committee notes that, in both cases, the Government considers that the duty of neutrality and impartiality of teachers vis-à-vis students was violated and that, in the first case, the referendum in question concerned a constitutional reform totally unrelated to the interests of the trade union and its members. The Committee notes that FENAPES, for its part, considers that the activities in question were fully within the scope of trade union activity and should have therefore been protected.
10. 644. The Committee recalls that freedom of opinion and expression constitutes one of the basic civil liberties essential for the normal expression of trade union rights and that in a previous case it requested a government to ensure that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 233 and 246]. The Committee takes note of the substantial nature of the sanctions imposed on the members or trade union leaders of FENAPES for having taken and then disseminated photos in a high school to express their opposition to a constitutional reform, and stresses the importance that they be effectively proportional to the offences committed so that in the future they do not have a deterrent effect on the action of trade union organizations in situations that involve the defence of their members’ interests. Likewise, in relation to the two cases referred to above, the Committee considers that a reasonable balance should be established between the obligation of political neutrality of public teachers in the educational field established by the Constitution of Uruguay and the right of teachers’ organizations to express their opinions on economic and social policy questions that may affect their members and to be able to disseminate them in the workplace, bearing in mind the need not to impair the education of the children. The Committee requests the Government to ensure the existence of such a balance and to take any necessary action in this regard. The Committee also requests the Government to keep it informed of the outcome of the invalidation proceedings brought in the Court for Administrative Disputes (TCA) relating to the removal of banners from the schools’ facades, and also of the status of the other complaint filed by FENAPES with the INDDHH relating to the ban on holding union meetings on school premises.
11. 645. The Committee notes the complainants’ allegation that since the change of government a number of hostile actions were recorded calling into question the use of trade union leave by FENAPES, referring to two specific incidents: (i) a complaint made by the principal of High School No. 1 to the DGES concerning the excessive use of hours for union activity, which resulted in the DGES conducting an investigation into the hours used by the teacher and FENAPES leader Mr Marcel Slamovitz for union activity; and (ii) the setting up of a parliamentary commission to investigate the granting and justification of irregular leave for FENAPES members by the CES during the 2015–19 period (in order to establish whether or not an appropriate legal basis had been used to justify the hours for union activity – in particular, the use of section 70.10 of the Teaching Staff Regulations (EFD) to justify hours of union leave).
12. 646. With regard to Mr Slamovitz, the Committee notes the allegations that: (i) the DGES ordered the suspension of this teacher from his post for 180 days with total deduction of pay for gross misconduct on account of the use of “trade union power” to mislead the school principal; and (ii) in the context of the investigation it was decided to file a criminal complaint against this teacher and other FENAPES leaders, seeking possible criminalization of the union leaders’ conduct for issuing and using false records of union activity in the context of agreements concluded with the authorities at that time. In this regard, the Committee notes the Government’s indication that: (i) the more than 240 absences in two years led the school principal to contact the CES to obtain more details of the certificates used to justify such absences; (ii) the investigation was conducted under the guarantees of due process and determined the existence of gross administrative misconduct for using “trade union power” to mislead the school principal; and (iii) every public official has the duty to report the existence of circumstances that appear to be criminal and to bring them to the attention of the justice system so that the latter can investigate and resolve them.
13. 647. The Committee observes that, according to the complaint and the Government’s reply, FENAPES issued “records” of trade union activity to present to the school principals, requesting “justification of the absence” of the official in accordance with section 70.10 of the Teaching Staff Regulations (EFD). The Committee observes that said section refers to extraordinary leave of teaching staff that “is granted for special tasks or services entrusted by the Central Board of Directors, by the respective Boards or required by other state agencies, in compliance with express legal provisions”. The Committee observes that the complainants affirm that: (i) a non-written agreement had been duly concluded between FENAPES and the previous authorities to justify any hours for union activity in excess of those specified by agreement by invoking section 70.10 of the EFD; (ii) there are no formalities of any kind in Uruguayan law that require that an agreement must be in writing, whether in the public or private sphere, and (iii) customary compliance with the terms of an agreement also contributes to the understanding that an agreement exists even if not in writing. The Committee observes that, for its part, the Government indicates that: (i) when the school principals accepted the excess hours taken by the delegates as free time for union activity, they did so on the basis of a misleading record issued by the union, which induced justification of the absences through reference to an agreement (whose existence could not be proven) with the indication (supposedly backed up by the non-existent agreement) that the absence was covered by section 70.10 of the EFD (which has nothing to do with union leave); (ii) the DGES considered that it was not legally possible that the former authorities could have agreed that section 70.10 of the EFD was applicable to justify the excessive use of hours for union activity, since that would have violated the statutory regulations and exceeded the scope of their competencies; (iii) it is inconceivable that there could have been a verbal agreement on this matter since one of the parties was the State; and (iv) the regulation of trade union leave arises from the agreement signed between CODICEN and the Coordinating Committee of Uruguayan Teaching Unions (CSEU), embodied in Resolution No. 12 of Record No. 90 dated 29 December 2006, which establishes year by year the ceiling on the number of hours corresponding to trade union leave and this agreement makes no reference to the use of section 70.10 of the EFD to justify trade union leave.
14. 648. With regard to the parliamentary commission, the Committee notes that while the complainants indicate that there was unlawful conduct with the clear intention of persecution and condemnation of freedom of association, the collective bargaining process between FENAPES and the CES of that time having been called into question, the Government indicates that the commission neither acted illegally nor sought to interfere in trade union autonomy or in the collective bargaining process, nor was there any attempt at criminalization, but that it investigated the actions of public officials who, beyond the hours of leave for trade union activity, made use of leave based on a formula indicating that the justification of absence was covered by section 70.10 of the EFD, in line with an agreement which was never presented despite this having been requested by various bodies.
15. 649. The Committee notes that the commission concluded its activity with two reports: (i) a majority report, drawn up by the government coalition, which concludes that there was negligence on the part of the comptroller of authorities at that time (2015–19), resulting in administrative irregularities and conduct that appeared to be of a criminal nature by public officials belonging to FENAPES and members of the CES, and so the activity of the commission was referred to the ANEP, the Transparency and Public Ethics Board and the Public Prosecutor’s Office; and (ii) a minority report, voted on by members of the outgoing government party, which highlighted the violation of the right of defence of the FENAPES leaders and concluded that no criminal acts had been established and hence it should be for the administrative authorities to conduct an investigation and impose sanctions.
16. 650. The Committee notes the above-mentioned elements relating to the investigation undertaken by the DGES (a state authority) and the parliamentary commission. The Committee observes that in this case the parties concerned disagree with regard to the existence of an unwritten agreement between CODICEN and FENAPES under which trade union leave was reportedly justified for a number of years, beyond what was agreed in a collective agreement signed in 2006. The Committee notes that this difference of views relates to the formalities which, according to the Government’s indication, must form the basis for agreements made by the public administration, in particular the need for such agreements to be recorded in writing. The Committee also notes that the dispute concerning the existence of the agreement concerned, in which the State is one of the interested parties, was ultimately adjudicated by the authority of the sector concerned. In this regard, while taking note that the Government only recognizes the existence of the collective agreement signed in 2006 between the CSEU and CODICEN, the Committee recalls that it has considered that in the event of conflicting interpretations of a collective agreement in the public sector, the definitive interpretation should not be that of the public administration, which would be acting as judge as well as party in the case, but rather that of an independent authority [see Compilation, para. 1476]. The Committee, also recalling that it has drawn attention to the importance of promoting collective bargaining, as set out in Article 4 of Convention No. 98, in the education sector [see Compilation, para. 1265], expresses the firm hope that in future, and in line with Uruguay’s tradition of social dialogue and its recognized commitment to collective bargaining, it is precisely through dialogue and bipartite collective bargaining that issues relating to trade union leave taken by secondary education teachers will be addressed and reviewed, if deemed necessary, in a climate of confidence, respect and good faith.
17. 651. Moreover, though recalling that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the arrest of, and criminal charges brought against, trade unionists may only be based on legal requirements that in themselves do not infringe the principles of freedom of association [see Compilation, para. 133], the Committee requests the Government and the complainants to keep it informed of the status of the criminal complaint filed against the teacher and union leader Mr Slamovitz and other union leaders, and to provide information on the action taken by the ANEP, the Transparency and Public Ethics Board, and the Public Prosecutor’s Office, to which the parliamentary commission referred the activities in question.
18. 652. The Committee notes the complainants’ allegation that in 2021 the DGES issued Decision No. 4141, which amended the terms of a collective agreement of 2007 between the ANEP and the Coordinating Committee of Uruguayan Teaching Unions (CSEU) regarding the use of trade union leave by the ATES by modifying the formula used to determine the number of free hours that were paid. The Committee notes the Government’s indication in this regard that: (i) there were no administrative acts that properly regulated the use of union leave by the ATES and otherwise the decision merely approved the lists presented by the ATES with the maximum number of hours that could be justified for union leave; (ii) FENAPES requested the Court for Administrative Disputes (TCA) to revoke the decision and declare it null and void, and so a final ruling is still pending; and (iii) this situation is also being addressed in a tripartite collective bargaining body. Recalling that agreements should be binding on the parties [see Compilation, para. 1334], the Committee requests the Government to keep it informed of any decision issued by the TCA and of any developments in the above-mentioned tripartite negotiations.

The Committee’s recommendations

1. 653. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure a reasonable balance between the obligation of political neutrality of public teachers in the educational field established by the Constitution of Uruguay and the right of teacher organizations to express their opinions on economic and social policy issues that may affect its members and to be able to disseminate them in the workplace bearing in mind the need not to impair the education of the children, and to take any necessary actions in this regard. The Committee also requests the Government to keep it informed of the outcome of the invalidation proceedings brought in the Court for Administrative Disputes (TCA) relating to banners on the schools’ facades, and also of the status of the other complaint filed by FENAPES with the INDDHH.
   • (b) The Committee requests the Government and the complainants to keep it informed of the status of the criminal complaint filed against the teacher and union leader Mr Slamovitz and other FENAPES leaders, and to provide information on the action taken by the ANEP, the Transparency and Public Ethics Board, and the Public Prosecutor’s Office, to which the parliamentary commission referred the activities in question.
   • (c) While requesting the Government to keep it informed of any decision issued by the TCA and of any developments in the above-mentioned tripartite negotiations mentioned by the Government in relation to the ATES, the Committee expresses the firm hope that in future, in line with Uruguay’s tradition of social dialogue and its recognized commitment to collective bargaining, it is precisely through dialogue and bipartite collective bargaining that issues relating to trade union leave taken by secondary education teachers will be addressed and reviewed, if deemed necessary, in a climate of confidence, respect and good faith.