Effect given to the recommendations of the committee and the Governing Body - Report No 407, June 2024

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

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

1. 43. The Committee last examined this case at its June 2023 session [see 403rd Report, paras 598–653]. On that occasion, the Committee requested the Government to: (a) 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 requested 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 National Federation of Secondary School Teachers (FENAPES) with the National Human Rights Institution (INDDHH); (b) to keep it informed, together with the complainants, 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 National Public Education Administration (ANEP), the Transparency and Public Ethics Board, and the Public Prosecutor’s Office, to which the parliamentary commission referred the activities in question; and (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 Association of Secondary Education Non-Teaching Staff (ATES), the Committee expressed 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.
2. 44. The Committee takes note of the additional information sent by FENAPES in its communications of 18 September and 19 December 2023 in which the complainant organization alleges the Government’s failure to comply with the Committee’s recommendations and the persistence of a policy of anti-union repression. The Committee also takes note of the observations submitted by the Government in its communication of 20 December 2023.
3. 45. In relation to the status of the actions undertaken in relation to alleged restrictions to the freedom of expression of FENAPES, the Government informs that, due to a matter of a formal nature, the TCA was inhibited from ruling on the merits of the annulment action presented by the ANEP against the INDDHH resolution that recommended repealing the most controversial articles of the 2020 resolution by which the ANEP had demanded that FENAPES remove the posters related to a legislative referendum from the facade of different high schools. The Committee takes due note of this information and notes that the parties concerned in the present complaint have not submitted information on other judicial or administrative proceedings initiated at the national level in relation to the situation referred to. Noting the absence of information in this respect, the Committee again requests the Government to keep it informed of the status of the complaint lodged by FENAPES with the INDDHH, inter alia, the prohibition of trade union meetings inside the school.
4. 46. On the other hand, FENAPES alleges that the Government is disregarding the Committee’s recommeandation (a) requesting it to take any necessary actions to ensure a reasonable balance between the political neutrality of public teachers and the freedom of expression of teachers’ organizations. In this regard, FENAPES states that: (i) the summary proceedings that culminated in the punishment of unionized teachers for having taken and then disseminated photographs inside a high school to express their opposition to a constitutional reform project have not been re-examined in the light of the aforementioned reasonable balance; and (ii) in 2023, the Central Board of Directors of the ANEP issued a legal report questioning the Committee’s request referred to above as well as other aspects of its examination of the case. For its part, the Government refers that this legal report responded to a request from FENAPES, rules out any intention on the part of the report or ANEP to breach or disregard the Committee’s recommendations and points out that, in its view, the aforementioned reasonable balance is achieved through dialogue and compliance with the constitutional, legal and regulatory norms inherent to the public function, as well as the principles governing public education. The Committee takes due note of the elements submitted by FENAPES and the Government and their divergent positions. Recalling the tradition of social dialogue that characterizes Uruguay and noting that, according to the information available on the Government’s website, in 2022 ANEP had concluded collective agreements with FENAPES and other trade union organizations, the Committee invites the Government to promote dialogue between FENAPES and ANEP with respect to the subjects addressed in recommendation (a) as mentioned above. The Committee requests the Government to keep it informed in this respect.
5. 47. With regard to recommendation (b) concerning the actions carried out following the investigation by a parliamentary committee on the use of trade union leave in the period 2015–19 by certain members of FENAPES, this organization points out that: (i) the Parliament filed a criminal complaint for the alleged existence of irregularities, omissions and unlawfulness in the use of the referred leaves ; and (ii) based on the conclusions of the investigation, the General Directorate of Secondary Education (DGES), a decentralized body of ANEP, ordered, through resolution No. 4251 of 2023, to carry out a new investigation into the possible irregular use of the aforementioned licenses by other FENAPES leaders, which could include Mr Mario Bango and Mr Raúl May.
6. 48. With regard to the status of the criminal complaints under way concerning the alleged irregular use of trade union leave, FENAPES and the Government inform that both the above-mentioned complaint by Parliament and the complaint filed by ANEP against the teacher and leader Mr Marcel Slamovitz, for having submitted allegedly false documents for the use of trade union leave, are currently being investigated by the Office of the Public Prosecutor for the 15th shift. The Committee takes due note of the information provided by FENAPES and the Government and requests them to keep it informed of the developments and outcome of the two ongoing criminal complaints concerning the use of trade union leave by certain FENAPES leaders in the period 2015–19, as well as of the new administrative investigation into the possible irregular use of such leave by other FENAPES members.
7. 49. With regard to recommendation (c) concerning the alleged modification by resolution No. 4141 of 2021 of the Directorate-General for External Security (DGSE) on the conditions for the use of trade union leave by the leaders of the ATES and the collective bargaining that would address this situation, the Government indicates that: (i) this resolution has lost its validity due to the passage of time; (ii) there was a refusal (by administrative silence) of the request submitted by FENAPES to revoke the aforementioned resolution; (iii) this refusal became final as it was not challenged before the CCA; (iii) no other claims have arisen with respect to the aforementioned resolution; and (iv) collective bargaining with the ATES has continued normally. The Committee takes due note of the information provided by the Government. The Committee expresses once again the firm hope that, if deemed necessary, the issues relating to union leave for secondary school teachers can be addressed and reviewed in the future through dialogue and bipartite collective bargaining.