Informe definitivo - Informe núm. 363, Marzo 2012

Caso núm. 2839 (Uruguay) - Fecha de presentación de la queja:: 23-FEB-11 - Cerrado

Allegations: The complainant organization alleges that the National Customs Directorate does not respect a collective agreement and has modified the workers’ conditions of employment unilaterally; it also objects to the decision to ask workers if they took part in a strike and alleges that their wages were docked arbitrarily for doing so

1. 1157. The complaint is contained in a communication of February 2011 from the Association of Customs Officials (AFA) of Uruguay.
2. 1158. The Government sent its observations in a communication dated 6 October 2011.
3. 1159. 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 complainant’s allegations

1. 1160. In its communication of February 2011, the AFA states that it is the only representative trade union organization for public servants employed by the Uruguay’s National Customs Directorate (DNA). It is a juridical entity recognized by the Ministry of Education and Culture and is governed by its own by-laws approved by the Ministry. The AFA adds that the DNA is a dependent body attached to the Ministry of the Economy and Finance and that its senior official is the National Customs Director.
2. 1161. The AFA is affiliated to Uruguay’s Single Workers’ Federation, the Workers’ Inter-Union Plenary–National Workers’ Convention (PIT–CNT), and, at the sectoral level, to the Confederation of Public Servants’ Organizations (COFE). It is also a member of the MERCOSUR Federation of State Customs and Tax Officials (FRASUR).
3. 1162. The AFA alleges that for several years it has been the victim of various forms of discrimination by the authorities, which have cancelled or reduced benefits that the AFA has acquired over its long history (almost invariably through trade union action that often involved union-led protests against such measures).
4. 1163. The AFA states that just recently, faced with a Budget Act that substantially modifies the system of sharing out among all DNA officials of the proceeds of customs fines and seizures, the Association was obliged to take union action; this mainly consisted of work stoppages none of which affected areas that can be deemed essential services – a standard practice of the Association in the exercise of its power of self-regulation. The AFA states that it was “forced” to take such steps because the National Director did not use the collective bargaining machinery which is provided for in Uruguay’s legal system for public servants (Act No. 18508 of 2009) and which was indispensable to resolve an issue as sensitive and negotiable as wages and salaries.
5. 1164. The AFA asserts that, previously, the Ministry of the Economy dealt through bodies that were nothing but a “sham” in terms of negotiations, since its representatives declared in advance as non-negotiable, immutable and irrelevant precisely those issues of salaries and income from customs fines and seizures that were of particular concern to the Association. The two or three meetings that were held at the Ministry by these bodies ended when the chairperson abruptly decided that they were over. Since the loss of these and other benefits was already included in the draft budget, the AFA’s assembly decided to take the action mentioned above.
6. 1165. According to the AFA, the National Director’s attitude towards the steps taken by the Association was decidedly anti-union from the start. In a press conference he publicly demonstrated a total disregard for national and international standards on freedom of association, the right to strike, collective bargaining and, specifically, the provisions of the Constitution (articles 53, 54 and 57), of the ILO’s Conventions (Nos 87 and 98) and of the Protection of Freedom of Association and Trade Union Rights Act No. 17940 and the Public Service Collective Bargaining Act No. 18508, among others.
7. 1166. The first anti-union measure the Director took was to send an internal mail to the customs officials demanding that they state and sign in writing whether or not they took part in the work stoppages, ostensibly so as to dock their wages accordingly. In the view of the AFA, this constitutes interference in its internal union affairs and an attack on collective and individual freedom of association, both directly and indirectly. To begin with, the measure undermines freedom of association because it seeks to weaken the Association’s action and to impose formal requirements that are not provided for in any national law; moreover, such a public and explicit declaration on the part of the workers is perceived as a threat and is therefore liable to discourage participation in the strike called by the Association for fear of reprisals. Directly, the measure inhibits the freedom of association of those who took part in the work stoppage by placing them in a moral dilemma; indirectly, it inhibits freedom of association inasmuch as non-participants in the work stoppage are likewise required to make a public and explicit declaration that they did not participate, which without any legal grounds whatsoever exposes them vis-à-vis their trade union.
8. 1167. The AFA states that it rejected the measure and lodged an administrative appeal against it, based on national and international standards on freedom of association and the right to strike and on the irrefutable grounds that it is the senior management’s responsibility to carry out the necessary verifications itself or through the intermediate management, so as to determine which officials worked and which did not and to dock wages accordingly – in strict proportion to the time not worked because of the strike. The AFA adds that, as a corollary to this discriminatory measure, an equally serious measure was taken along the same lines. When the officials received their pay for the month concerned, they discovered that the wage cuts were completely arbitrary and bore no relation to the time people actually stopped working. Even some non-participants’ wages were docked and, worse still, the wages cuts were described as “fines”, whereas fines are purely and simply prohibited under the international standards that Uruguay has ratified.
9. 1168. According to the AFA, despite the administrative appeal lodged by the customs officials on the grounds mentioned above, two months later (in November 2010) the workers were informed in a similar communication from the Director that their wages were to be docked, again by amounts that were arbitrary and likewise described as “fines”, in clear proof of the Director’s systematically anti-union attitude. As the Director maintained his refusal to negotiate and the labour dispute grew, and since the date for Parliament to vote the budget was approaching, the work stoppages intensified and the anti-union atmosphere increased to an unprecedented degree. The customs officials were again sent communications inviting those who were prepared to take the place of striking workers to report to the areas or posts most severely affected. For this they were paid travel allowances to facilitate their movements from one part of the country to another, and were given the necessary codes and rank that had hitherto been assigned to the strikers. At the same time pressure was brought to bear by their superiors on trainees and temporary staff, who did not have the necessary training for the job and were prohibited by law from performing certain duties because of the shortness of their contracts, their young age and their inexperience – even though in several cases they actually took over from the striking workers.
10. 1169. Contrary to normal procedure, the measures were announced by the National Director at a press conference in the presence of several of the country’s leading economic figures, whom he assured that the customs services would be maintained at all costs. That constituted not just an infringement of freedom of association and the right to strike but a public and nationwide admission of his disregard for the AFA and for union action as well.
11. 1170. Finally, the complainant organization states that the dispute ended with the signing of a collective agreement on 26 November 2010 by the AFA and the Plenary of the Economy (a subsector of the State Workers’ Confederation comprising the trade unions at the Ministry of the Economy), on the one hand, and the Minister of the Economy, the Director-General of the Ministry’s secretariat and the National Director of Customs, on the other. The agreement contained a series of provisions that were contrary to the terms of the draft budget presented by the Executive on which the Senate was in the process of voting. At a meeting with the National Director on 30 November 2010, and to the AFA’s dismay, the Director informed it that the budget was not going to be “retouched”, that no such steps to do so were going to be taken by Parliament and that later, at the drafting stage of the relevant regulations, they would see how the terms of the agreement could be reconciled with the provisions of the budget.
12. 1171. According to the AFA, it was obvious from this that the negotiations that had ended in the signing of the collective agreement had not been conducted in good faith by the authorities as required by law, inasmuch as, since the Ministry of the Economy was part of the Executive, it was only to be expected that as a co-signatory it would take all the steps at its disposal to inform the members of Parliament of the terms of the agreement, of the Government’s change of heart and of the modification that this entailed of certain provisions of the earlier draft text, and that these would be submitted to them in due course so that the final text could be amended while there was still time prior to its adoption by Parliament.
13. 1172. The AFA adds that, immediately after the dispute, the DNA issued instructions for the application of an Executive Decree that unilaterally modified the working conditions of customs officials that had been in operation since 1994. The Decree increased hours of work without any increase in pay and once again disregarded the requirement that the issue be the subject of collective bargaining.

B. The Government’s reply

1. 1173. In its communication dated 6 October 2011, the Government states, at the outset, that in its view the complaint is out of all proportion to any disagreement and misunderstanding that may exist between the management of the DNA and the AFA. It further recalls that, according to the Committee on Freedom of Association itself, “customs officials are covered by Convention No. 87 and therefore have the right to organize”.
2. 1174. Regarding the allegation concerning the requirement that the workers indicate in a written and signed declaration whether or not they took part in the work stoppage, the Government says that it naturally agrees that a statement of participation in a work stoppage is not a formal requirement for a strike to be lawful, inasmuch as Uruguay has absolute and unfettered freedom of association. Moreover, public servants enjoy total job stability and can only be dismissed on grounds that are set out explicitly in the Constitution; in addition, the law protects them from any discrimination on grounds of trade union activities. Since the system offers such extensive guarantees, it would seem disproportionate for the AFA to take offence only because the administration seeks to identify the workers who exercised their right to strike, simply for purposes of docking their wages for time not worked.
3. 1175. The DNA, in Communications Nos 52/2010 and 64/2010 from the Resources Division, called on customs officials to indicate whether or not they had participated in certain work stoppages so as to make the corresponding deductions from the wage bill. Such communications are nothing new in the customs service and had already been sent by previous national directors. Communication No. 16 of 2009 was couched in almost exactly the same words as Communication No. 52 of 2010, though it is unknown whether the AFA or any customs official lodged an appeal against the Director at the time for anti-union practices.
4. 1176. The Government asserts that what the current Director did was simply to continue an established practice, which is in fact based on Executive Decree No. 401/2008 of 18 August 2008, section 1 of which requires the wages of central administration officials to be docked “in proportion to the extent to which their union action entails a reduction in the performance of their duties during normal working hours; this includes union or similar action such as working to rule, slowdowns , sit-down strikes, etc”.
5. 1177. Preambular paragraph VII of Decree No. 401/2008 states: “Following the adoption of these measures, the wages of participation officials are to be docked in proportion to the reduction in the work carried out. In such cases, the executive directors are to communicate to the directors-generals of the secretariat the list of names of the officials concerned and the assessment of the reduction in work.” It is worth mentioning that no complaint was lodged with the ILO against this Executive Decree on anti-union grounds either. The DNA is an executive unit attached to the Ministry of Economy and Finance and, as such, is required to send the communication referred to in the previous paragraph, on pain of incurring administrative liability.
6. 1178. The Government states that the docking of wages required under the aforementioned Decree – which is the latest standard on the subject – is further based on article 20 of the Consolidated Financial Accounts and Administration Act, articles 280–282 of the Consolidated Public Servants Act (TOFUP), established national doctrine and Uruguay’s case law. It suffices in this respect to refer to Ruling No. 629 of 25 October 2004, handed down by the Administrative Disputes Tribunal, which declared that “any public servants who cease to carry out their duties for whatever reason (strike, working to rule, etc.) shall be guilty of a breach of contract and therefore liable to a management decision to dock their wages in proportion to the reduction in their output”.
7. 1179. The Government adds that, in order to dock officials’ wages, the employer has to know who participated in the union action and who did not. In the event of strikes, where no one is present at the workplace, it is easy to know who the participants were. To put it more graphically, workers who clocked in did not participate in the union action, while those who did not clock in did participate and should have their wages docked accordingly. But in strikes where some workers are in fact present and in sit-down strikes, it is not so simple, because the workers clock in as if they are present, and time sheets can no longer be relied on to prove participation in a strike. And there is the added complication that the DNA’s jurisdiction, being territorial, comprises a broad geographical area with 18 administrations covering the country as a whole – central headquarters, Montevideo airport, Carrasco airport, free zones, domestic airports and river ports, which in the interior of the country are very widespread. Consequently, the ability of the administration, of the administrators, of the department heads or division directors to verify workers’ participation in a work stoppage effectively is curtailed, to say the least. Moreover, where in the past it was the head of the department who decided who took part in the work stoppage, workers sometimes lodged appeals on the ground that they were not on strike. From 2009 onwards, therefore, the previous administration introduced the system whereby the workers themselves declared whether or not they participated in a strike.
8. 1180. This was the procedure that was followed to make the relevant deductions in compliance with the regulations in force, and no other proposal has come forward either from the Parliamentary Labour Legislation Committee, with which the AFA lodged its complaint, or even from the AFA in its various communications. If one accepts that when there is a work stoppage, wages have to be docked accordingly – which even the AFA recognizes – then there has to be some way of establishing who used the right to strike in the present instance, since the regulations in force have to be applied and the corresponding wage cuts applied, just as Director-General of the Secretariat of the Ministry of Economy and Finance has to be informed of the list of participating officials and of the volume of work not carried out.
9. 1181. Far from engaging in anti-union discrimination, the National Director in fact applied the regulations in force and gave the workers the possibility, in exercise of their unrestricted right to strike under article 57 of the Constitution and under international treaties, to declare whether or not they took part in the work stoppage. Otherwise, it would have been impossible to know who was on strike and who was not, since in this kind of work stoppage the officials clock in as if they are present. However, following the complaint of union repression that the AFA lodged with the General Labour and Social Security Inspectorate of the Ministry of Labour against the DNA, the Inspectorate issued a ruling calling on the DNA to change its method of verifying officials’ participation in union action while present at their work stations, in keeping with Decree No. 401/008 and with the requirements of the DNA, and requesting that the Inspectorate be informed of the new arrangements.
10. 1182. Regarding the allegation that the deductions from wages for exercising the right to strike were arbitrary, the National Director of Customs, as the highest authority in the country’s customs service, is obliged to apply the regulations in force concerning the docking of wages. The AFA, for its part, claims that workers who did not participate in the strike had their wages docked, though without presenting any evidence – and in circumstances where there was obviously a possibility of error quite independent of any infringement of the freedom of association of the workers who did not exercise their right to strike. The AFA further claims that the deductions were described as “fines”, and that is true. But “fines” is the term used in the computer programme for paying the salaries of the entire Uruguayan central administration – and not just the DNA – under the Integrated Financial Data System (SIIF) and derives from the Classification of Items of Expenditure used by the General Accounts Department of Uruguay (which the Government attached). But of course it is just a word, and docked wages do not in fact correspond to fines but are simply deductions for days on strike.
11. 1183. The Government stresses that the AFA does not say what exactly it considers to be arbitrary. It obviously cannot be the docking of wages from officials who were on strike; nor can the AFA be referring to the use of a term that is not the responsibility or invention of the National Director of Customs. The Government adds that, when dealing with people’s assets, there is bound to be a possibility of human error, in one direction or the other. However, if there genuinely is a documented mistake, a solution can always be found that is in keeping with the law. The Government affirms that it is perfectly willing to review any material error that the administration may have committed.
12. 1184. The Government states that the so-called communication about replacing officials on strike with officials not involved in the work stoppage, which the AFA sees as an anti-union measure, never existed. What is true is that officials not on strike did work in the National Customs Administration, as is their inalienable right and which ensured the functioning of an essential service – which is the case of foreign trade. Quite apart from customs officers’ tax collection work, one only has to think of their role in maintaining public safety and health to illustrate that it cannot come to a stop simply because a group of workers decide, as is their right, to go on strike.
13. 1185. Moreover, the Government does not at all share the complainant’s belief that striking officials were replaced by “trainees and temporary staff who did not have the necessary training for the job and were prohibited by law from performing certain duties”, since the officials concerned were for the most part workers employed on the regular budget, and of course trainees who for the most part are university and tertiary-level students who are both young and eager to get ahead with their job. For the Government, filling posts by reorganizing assignments is not discriminatory, so long as it is not a question of employing strike-breakers but simply of an administrator exercising his legal and constitutional prerogatives.
14. 1186. The Government also denies the AFA’s contention that “at a press conference in the presence of several of the country’s leading economic figures”, the National Director of Customs admitted “publicly” to anti-union measures. If there had been no union action, it would have been ridiculous for the Director to make any such admission. What he did say to the press on several occasions was that essential customs services would be maintained by officials who were not on strike.
15. 1187. Regarding the alleged non-respect of a collective agreement, the Government states, first of all, that non-respect of a collective agreement does not per se constitute anti-unionism. Moreover, it was not in fact a case of non-compliance but rather of strict compliance with the agreement. As to the AFA’s allegation of so-called “non-respect” itself, the agreement in point of fact stipulates that the Merit Fund to be provided for in the budget will be for all customs officials and will be shared out notably in recognition of their direct participation in the verification of infringements of the law and in the attainment of other personal and group targets. This undertaking was inserted in the budget at the express insistence of the National Director of Customs, and so it is hard to see how there can be any suggestion of non-compliance.
16. 1188. Section 311 of National Budget Act No. 18719 reads:
    • The proceeds of fines for the commission of all infringements of customs regulations shall be shared out as follows: Seventy per cent for the constitution of a Merit Fund destined especially to compensate the DNA officials. In sharing out the proceeds of the Fund, account will be taken of the attainment of personal, group and institutional targets and of the participation of officials in the detection of infringements of customs regulations. The scope of this provision shall be regulated by the Executive.
17. It can be seen from this that the provisions of the collective agreement with the AFA coincide exactly with the provisions that were embodied in the Budget at the insistence of the National Director, and there can therefore be no question of anti-unionism. Furthermore, the Government recalls that the system for sharing out the proceeds of fines is quite separate from the remuneration of customs officials; it is a bonus accorded to all those who detect customs violations, whether or not they are custom officers. Under the proposed amendment, which is covered by the collective agreement concluded with the AFA, the fines are to be shared out among all customs officials, due allowance being made for their participation and performance.
18. 1189. The Government adds that it is altogether unacceptable to claim moreover that, by not going against the wishes of a state institution such as the Parliament to ensure that the AFA’s demands are inserted into a law, the National Director of Customs was somehow engaging in a form of anti-unionism. The AFA even accuses the Director of not taking “all the steps at his disposal to inform the members of Parliament of the terms of the agreement”, when in fact he went so far as to publish the collective agreement on his website. It was quite clearly the Director who took the initiative in advocating the standard that was included in the agreement; in any case the AFA could just as easily have informed everybody who was interested of the terms of the agreement it had signed.
19. 1190. Regarding the alleged modification of the conditions of employment by increasing the hours of work, the Government states that the working day in the DNA used to be based on two official schedules dating back to 1994, which stipulated a minimum number of hours rather than a maximum. Then, on 26 October 2010, the Executive issued Decree No. 319/2010, section 1 of which stipulates that “normal working hours shall in no case be less than six hours per day or 30 hours per week” and that “all legal provisions regarding working hours that entail more hours of work than the minimum shall remain in force”. Article 23 goes on to state: “No regulation issued by the Ministry or by the senior management that conflicts with the provisions of this Decree shall be applicable.” In other words, the section revoked the DNA’s internal regulations providing for shorter minimum working hours. Furthermore, the Decree stressed that legal provisions entailing more hours of work than the minimum were still valid. This was precisely the situation in the DNA, for which section 247 of Act No. 15809 stipulated longer working hours: “For public officials employed under Programme 007 – Collection of Customs Duties and Comptroller of Goods in Transit – the normal working week shall be 48 hours. Any official wishing to do so may opt for this schedule within 60 days of the publication of this Act.” According to the Government, all the regular budget customs officials on the DNA’s payroll opted for the new schedule, except for one official who is therefore not bound by the longer working week.
20. 1191. The Government points out that it is obvious that the Director simply did his duty and applied the regulations in force, without engaging in any form of anti-unionism. As far as the six-hour day being fixed by decree and without any consultation is concerned, the fact is that six hours a day is less than the official working week of 48 hours for customs officials (section 247 of Act No. 15809).
21. 1192. According to the Government, the complainant presupposes that all administrative decisions are necessarily subject to negotiation and, moreover, that all negotiations must end in an agreement that is close to the AFA’s position; but that is not what national and international standards on the subject say. Section 4 of Collective Bargaining (Public Sector) Act No. 18508 does not require that there be agreement but rather establishes the reasonable principle that “the parties are obliged to negotiate, which does not mean that they are bound to reach agreement”. To sum up, the complainant organization is being altogether excessive when it denounces a situation that appears to be entirely within the law, inasmuch as the administration has exercised its powers reasonably, has negotiated without reaching agreement on certain points and, finally, has simply asked the officials on strike to identify themselves so that their wages can be docked accordingly. Far from being a form of anti-unionism, this practice recognizes the legitimacy of the union’s action and merely serves to draw attention to the obvious consequences from the standpoint of the employer.
22. 1193. In conclusion, the Government considers that it is clear from its reply that the so-called anti-union actions of the DNA never existed, but that what actually happened – and what remains the case – is that the DNA abided strictly by the law and demonstrated at all times its determination as effectively and efficiently as possible to maintain a service that is essential both for foreign trade and for the population as a whole. The DNA’s dialogue and good relations with the AFA is a priority for the customs administration, which has been negotiating a comprehensive collective agreement with the AFA on various aspects of trade union activities that should benefit both parties.

C. The Committee’s conclusions

1. 1194. The Committee observes that the complainant organization alleges that the Budget Act modified the system for sharing out the proceeds of customs fines and seizures among DNA officials and failed to take into account the provisions of a collective agreement concluded on 26 November 2010, and that it unilaterally modified their conditions of employment by increasing the hours of work without first engaging in collective bargaining. The Committee observes also that the complainant contests: (1) the DNA’s decision to demand that officials declare whether or not they took part in a work stoppage, supposedly so that their wages could be docked; (2) the arbitrary nature of reductions in pay that had nothing to do with the work stoppages, and their description as fines; and (3) the pressure that was brought to bear on officials to take the place of workers on strike.
2. 1195. With regard to the allegation that the Budget Act modified the system for distributing the proceeds of customs fines and seizures among DNA officials without taking into account the provisions of a collective agreement concluded on 26 November 2010, the Committee notes that the Government states that: (1) it was not a case of non-compliance but rather of strict compliance; (2) it was at the insistence of the National Director of Customs that the undertaking concerning the sharing out of the proceeds of fines was included in the Budget Act; (3) the provisions of the collective agreement with the AFA coincide exactly with the provisions that were embodied in the Budget Act and there is therefore no question of anti-unionism; and (4) the fines are to be shared out among all customs officials, albeit with allowance for their participation and performance. Taking into account this information and the Government’s assurances, the Committee will not pursue its examination of these allegations.
3. 1196. Regarding the allegations that, disregarding the collective bargaining requirement, the DNA modified conditions of employment unilaterally by increasing the number of working hours, the Committee notes the Government’s statement that: (1) the working day in the DNA used to be governed by two instructions issued in 1994 that set a minimum rather than a maximum number of hours; (2) on 26 October 2010, the Executive issued Decree No. 319/2010, section 1 of which stipulates that “normal working hours shall in no case be less than six hours per day or 30 hours per week” and that “all legal provisions regarding working hours that call for more hours of work than the minimum shall remain in force”; (3) section 23 went on to state that “no provisions issued by the Ministry or by the senior management that conflict with the provisions of this Decree shall be applicable”; (4) consequently, internal decisions of the DNA providing for shorter minimum working hours were accordingly annulled by section 23 but, as stressed in the Decree, legal requirements entailing longer working hours than the minimum remained applicable, as was the case in the DNA under section 247 of Act No. 15809 which provided for longer working hours that any official could sign up to within 60 days of the publication of the Act; and (5) all the regular budget customs officials who are currently on the DNA payroll opted for the new schedule, except for one official who is therefore not bound by the longer working week. The Committee points out in this respect that, though it must be made clear that higher-level administrative regulations take precedence over lower-level regulations, it would be desirable if the workers’ organizations could be consulted on measures such as these that entail changes in practical matters. However, mindful of the information communicated by the Government, and notably of the fact that all the officials except one opted freely for the new work schedule, the Committee will not pursue its examination of these allegations.
4. 1197. Regarding the AFA’s objections to the DNA’s decision to demand that customs officials state and sign in writing whether or not they took part in the work stoppage, under the pretext of having to dock their wages accordingly, the Committee notes the Government’s statement that: (1) it agrees that a declaration of participation in a work stoppage is not a formal requirement for a strike to be lawful, inasmuch as Uruguay enjoys absolute and unfettered freedom of association; (2) public servants enjoy total job stability, and it would seem out of proportion for the organization to take offence simply because the administration sought to identify the workers who exercised their right to strike, merely for purposes of docking wages for time not worked; (3) the DNA’s Resources Division, in Communications Nos 52/2010 and 64/2010, called on customs officials to indicate whether or not they had participated in certain work stoppages, so as to make the corresponding deductions from the wage bill; (4) such communications are nothing new in the customs service and have in the past been issued by previous national directors; (5) in strikes where no one is present at the workplace it is easy to know who the participants are, but in strikes where some workers are present or in sit-down strikes it is not so simple, because workers clock in as if they are present and time sheets can no longer serve to verify participation in a strike; (6) there is the added complication that the DNA’s jurisdiction, being territorial, comprises a broad geographical area, with 18 administrations covering the country as a whole; (7) far from engaging in anti-union discrimination, the National Director in fact applied the regulations in force and gave the workers the possibility, in exercise of their unrestricted right to strike, to declare whether or not they took part in the work stoppage, since otherwise it would have been impossible to know who was on strike and who was not; and (8) nonetheless, following the complaint of trade union rights violations that the AFA lodged against the DNA with the General Labour and Social Security Inspectorate of the Ministry of Labour, the Inspectorate issued a ruling calling on the DNA to change its method of verifying workers’ participation in union action while on the job, in keeping with Decree No. 401/008 and with the requirements of the DNA’s executive branch. The Committee considers in this respect that the decision to request workers to declare whether or not they took part in the strike so as to be able to dock their wages accordingly does not in itself violate the principles of freedom of association. That being so, and bearing in mind that according to the Government the General Labour Inspectorate intervened and recommended a change in the manner of verifying workers’ presence on the job but did not conclude that trade union rights had been infringed, the Committee will not pursue its examination of these allegations.
5. 1198. Regarding the allegation that the reductions in wages were completely arbitrary and bore no relation to the actual work stoppage, the Committee notes the Government’s statement that: (1) the complainant organizations does not say what exactly it claims was arbitrary; (2) when dealing with people’s assets, there is bound to be a possibility of human error, in one direction or the other, but if it is a genuine, documented mistake a solution can always be found that is in keeping with the law; and (3) it is perfectly willing to review any material error that the administration may have committed. Noting the Government’s willingness to reconsider any deductions that may by error have been more or less than they should have been, the Committee invites the complainant organization, should it detect any irregularity in deductions from pay, to pass on the information to the administration so that the officials can be adequately compensated.
6. 1199. Regarding the allegations that deductions from pay for days on strike were described as “fines”, the Committee notes the Government’s statement that “fines” is the term used in the computer programme for paying the salaries of the entire Uruguayan central administration – and not just the DNA – under the SIIF and derives from the Classification of Items of Expenditure used by the General Accounts Department of Uruguay, and that docked wages do not in fact correspond to fines but are simply deductions for days on strike. Taking this information into account, the Committee will not pursue its examination of these allegations.
7. 1200. Finally, regarding the allegation that pressure was brought to bear on workers to replace the striking officials, the Committee notes the Government’s statement that: (1) the so called communication about replacing officials on strike with officials not involved in the work stoppage never existed; (2) what is true is that officials not on strike did work in the National Customs Administration, as is their inalienable right; (3) it does not at all share the complainant’s belief that striking officials were replaced by “trainees and temporary staff who did not have the necessary training for the job and were prohibited by law from performing certain duties”, since the officials concerned were for the most part workers employed on the regular budget, and of course also trainees who are mainly university and tertiary-level students; and (4) filling posts by reorganizing assignments is not discriminatory, so long as it is not a question of employing strike-breakers but simply of an administrator exercising his legal and constitutional prerogatives. Bearing in mind this information, and specifically that no workers were recruited to replace those on strike, the Committee will not pursue its examination of these allegations.

The Committee’s recommendation

1. 1201. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • With regard to the allegation that the deductions for days on strike in the National Customs Directorate were arbitrary and bore no relationship to the actual work stoppage, the Committee notes the Government’s willingness to review any deductions that may by mistake have been more or less than they should have been and invites the complainant organization, should it detect any irregularity in deductions from pay, to pass on the information to the administration so that the officials can be adequately compensated.