Informe provisional - Informe núm. 335, Noviembre 2004

Caso núm. 2270 (Uruguay) - Fecha de presentación de la queja:: 23-MAY-03 - Cerrado

Allegations: The complainant organizations allege that following the dockworkers’ participation in the labour day celebrations, as a reprisal, the PLANIR S.A. company ceased hiring workers. A blacklist was also drawn up to prevent those workers finding work

1. 1379. The complaint is set out in a letter from the Inter-Trade Union Assembly-Workers’ National Convention (PIT-CNT) and the National Ports Administration United Trade Union (SUANP) of 23 May 2003. The SUANP sent additional information in a letter of 30 June 2003. The Government sent partial observations in a letter of 30 December 2003. At its meeting in May-June 2004, the Committee addressed an urgent appeal to the Government to send complete observations [see 334th Report, para. 9].
2. 1380. Uruguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 1381. In their letter of 23 May 2003, the Inter-Trade Union Assembly-Workers’ National Convention (PIT-CNT) and the National Ports Administration United Trade Union (SUANP) report that, on 30 April 2002, the manager of the PLANIR. S.A. asked the workers whether they would be at work on 1 May 2002. The workers said that they would not be at work as they would be attending the labour day celebrations. The complainants add that, according to the operating companies roster, PLANIR S.A. was not scheduled to operate on that day.
2. 1382. The complainant organizations state that PLANIR S.A. belongs to a group of three port operators, together with ESTIBAMAR S.A. and PORTACOR S.A., which provide services for MONTECON S.A. They say that during the day of 1 May 2002 loading and unloading continued normally, with the other two operators, PORTACOR and ESTIBAMAR, working. In those companies, too, there were dockworkers not at work because they were attending the celebrations but they were not penalized by their companies. The complainants allege that, on 2 May 2002, on arriving for the call up for work, the PLANIR S.A. workers found that they were not allowed to enter the company’s premises, as the guards had an express order, with a list of their names, to refuse access. From that moment, a blacklist of dockworkers was drawn up and they were not allowed to return to work, without any explanation by PLANIR S.A.
3. 1383. The complainants point out that this situation was reported by the SUANP to the Ministry of Labour and Social Security which, through its Division of Collective Bargaining, called a tripartite meeting which met four times. The first meeting took place on 1 May 2002, when a lawyer representing PLANIR S.A. appeared. The company’s representative said he was unaware of the system of calling to work and the situation of the workers concerned. For this reason, the SUANP considered that the lawyer was not a valid interlocutor for negotiating with the company. A further meeting was therefore requested, in which someone with some knowledge of the subject would attend for PLANIR S.A. The second meeting was held the following day, when the same lawyer arrived accompanied by another person, likewise a lawyer who, in the opinion of the complainants, also had no knowledge of dock work. These representatives claimed that PLANIR S.A. was not calling for day workers because MONTECON S.A. was not requesting PLANIR S.A.’s services and also expressed readiness to call on the workers if they provided services to that company.
4. 1384. The complainants explain, and indicate that they also explained this during the meeting convened by the Ministry, that MONTECON S.A. is a group of companies consisting of CHRISTOPHERSEN S.A. and CARGAS Y SERVICIOS S.A. which participate represented by PLANIR S.A. and ESTIBAMAR S.A. respectively. The complainants indicate that all these companies have the same capital, directors and business interest, and freely organize the call for workers to work. That means that they direct work to one or other operating company as they see fit. There is a third operator introduced by MONTECON S.A., PORTACOR S.A., which expressly does not observe 1 May or recognize trade union actions of any kind, precisely to prevent membership by workers interfering with the continuity of dock work.
5. 1385. The complainants state that, in the light of the above, the SUANP requested that PLANIR S.A. and MONTECON S.A. should be invited together to a further meeting to resolve responsibility for calling to work, reminding the Ministry and the company that, on 9 May 2002, the union’s general meeting had decided unanimously to support the group of workers who had been harmed. The third meeting was attended by representatives of PLANIR S.A. and MONTECON S.A. as had been requested. MONTECON S.A. said that it awarded services to “the company it considered most reliable”, citing that PLANIR S.A. workers might take trade union action which would harm operations. Despite that, after an exchange of views, MONTECON S.A. undertook to maintain the order of call up for the three operating companies, which is what did indeed happened.
6. 1386. The complainants report that, with respect to the form of call up used by PLANIR S.A., there was a change in its behaviour, which the SUANP considers to be a sanction against the workers. Although PLANIR S.A. called the suspended workers, it did so without considering the order previously used and observed by both parties until then, citing the casual nature of the dockworkers’ employment and the company’s power to call up whoever they wished from the greater number of workers available. For this reason, each of them worked fewer days, thus turning it into an economic sanction. This situation has not changed since. A fourth and final meeting was held, without bringing the positions closer together. Against this background, the SUANP stated in the final report which was signed in the Ministry of Labour and Social Security that PLANIR S.A. had for several years been keeping a register of workers in all categories, a matter determined by company practice. Those workers, now sanctioned, had priority for dock work in the call up because of their length of service and qualifications. The workers always expressed their availability for work in the form requested by PLANIR S.A. The complainants allege that this form of hiring was suddenly changed after 1 May 2002, when the workers, when asked by their employers whether they would be attending the labour day celebrations, replied in the affirmative.
7. 1387. The complainants state that PLANIR S.A. has shown that it does not recognize the SUANP and is not prepared to engage in dialogue since its representatives denied the truth of the events which occurred citing operational and not trade union problems. No final solutions resulted from the contacts with the company and hiring continued with trade union members relegated to second place in the list, even though they were the most senior.
8. 1388. The complainant organizations allege that a new case of anti-trade union discrimination towards the same group of workers occurred on 24 May 2002 when the Inter-Trade Union Assembly-Workers’ National Convention (PIT-CNT) decided a general strike of three hours, which was observed by dockworkers belonging to the SUANP. Once again, following the strike, the dockworkers were not called up for work by the company, a situation that it was not possible to reverse in the negotiations conducted between the SUANP and the Ministry of Labour. Following that event, PLANIR S.A. informed the Ministry of Labour and the union at the bargaining table that it was ceasing its activity as container loading and unloading operator, which was where the dispute arose, and would continue its other operations on frozen goods and general cargo.
9. 1389. Lastly, the complainant organizations allege that there is a blacklist which has been in effect since the date of the events described (1 May 2002) and, until now, which prevents the workers on the list from obtaining new work, not only in PLANIR S.A. but also in the other port operating companies. The list includes the following stevedores: Washington Antelo, Fernando Martínez, Luis Pensado, Javier Martínez, Carlos Martínez, Daniel Duarte, Tomás Callero, Pablo Gordillo, Olinmpto Trivel, Alex Lemos, Ramón Corbalán, Miguel Da Luz, Julio Cabrera, Washington Guillenea, Daniel Pérez, Oscar Cardozo, Angel González, Eduardo Hernández, Pablo Occelli, Carlos Cabrera, Wilson López, Marcelo Melgar, Fabián Martínez, Yimy Hernández, Alfredo De Los Santos, Carlos Calvete; tally clerks: Ricardo Cornú, Eduardo Costa, Miguel Panizza, Oscar Quiroga, Carlos Traverso, Carlos Pérez, Jacinto Pérez, Juan Carlos González, Osvaldo Pérez; foremen: Julio Rico and Artigas Fernández.

B. The Government’s reply

1. 1390. In its communication of 30 December 2003, the Government reports that it has passed the complaint to the Chamber of Industry (the national business organization) asking it to send its observations and that it sent a note to the General Inspectorate of Labour to undertake an independent investigation. The Government indicates that it will send its observations once its has obtained the information in question.

C. The Committee’s conclusions

1. 1391. The Committee observes that the complainant organizations allege that, after participating in the 1 May celebrations 2002, several workers in the dock sector ceased to be hired by the PLANIR S.A. company and other companies belonging to a group, and that a blacklist was drawn up preventing the dockworkers on the list from obtaining work.
2. 1392. The Committee regrets that, after the complaints had been made in May 2003 and despite addressing an urgent appeal to the Government [see 334th Report, para. 9], the Government has confined itself to reporting that it requested the General Inspectorate of Labour to conduct an investigation into the allegations (which has not yet been concluded) and the Chamber of Industry to send its observations.
3. 1393. The Committee recalls that the right to organize public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 134], and considers that participation by workers in a meeting or activities of this type should not have the consequence of disadvantaging them in subsequent hiring by a company.
4. 1394. In addition, the Committee highlights the gravity of the allegation concerning the drawing up of a blacklist (the complainant organization provides the names of the persons included on it) which, according to the complainants, prevents the workers mentioned in it from obtaining work in the port companies. In this respect, the Committee recalls that “Workers face many practical difficulties in proving the real nature of their dismissal or denial of employment, especially when seen in the context of blacklisting, which is a practice whose very strength lies in its secrecy. While it is true that it is important for employers to obtain information about prospective employees, it is equally true that employees with past trade union membership or activities should be informed about the information held on them and given a chance to challenge it, especially if it is erroneous and obtained from an unreliable source. Moreover, in these conditions, the employees concerned would be more inclined to institute legal proceedings since they would be in a better position to prove the real nature of their dismissal or denial of employment and that the practice of blacklisting workers seriously undermines the exercise of trade union rights” [see Digest, op. cit., paras. 710 and 711].
5. 1395. In these circumstances, the Committee requests the Government to take measures to ensure that the investigation requested from the Inspectorate of Labour into the grave allegations submitted by the SUANP and the PIT-CNT is rapidly concluded and expresses the hope that the investigation will cover all the matters mentioned by the complainants. The Committee requests the Government to send the results of the investigation in question so that it can pronounce itself on the basis of all the elements.

The Committee's recommendations

1. 1396. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take measures to ensure that the investigation requested from the Inspectorate of Labour into the grave allegations submitted by the SUANP and the PIT-CNT is rapidly completed and expresses the hope that the investigation will cover all the matters mentioned by the complainants. The Committee requests the Government to send the results of the investigation in question so that it can pronounce itself on the basis of all the elements.