Rapport définitif - Rapport No. 7, 1954

Cas no 56 (Uruguay) - Date de la plainte: 30-SEPT.-52 - Clos

A. A. The complainants' allegations

• Analysis of the Complaint
  32. 32 By a communication dated 30 September 1952, with which the Uruguayan Federación ferroviaria y ramas anexas associates itself, the complainant makes the following allegations:
• Allegation concerning the Right to Strike
  33. 33 Workers in public transport undertakings in the City of Montevideo declared a strike in September 1952 in protest against the suspension of payments of wage increases legally awarded by the Wages Boards competent for the transport industry.
  34. 34 In the City of Montevideo passenger transport is provided by two undertakings: one a private undertaking, the C.U.T.C.S.A. (Uruguayan Collective Transport Co-operative Ltd.), and the other belonging to the municipality, the A.M.D.E.T. (Municipal Transport Administration). In the case of the former undertaking wages are determined by Wages Boards set up under Act No. 10449 of 1943. The Act of 6 December 1947 concerning the organisation of the A.M.D.E.T provides that the rights of the employees of this undertaking should be the same as those enjoyed by the employees of the private undertaking. Awards of the Wages Boards, therefore, apply also in the case of A.M.D.E.T employees. Conse-quently the strike was purely occupational in origin, that is to say, it was called in support of demands for payment of wages legally due and payable.
  35. 35 On 11 September 1952 the Government promulgated a decree to prohibit work stoppages in public services on the pretext that such stoppages constituted a " circumstance of internal disturbance " within the meaning of the Constitution. Under this decree all verbal or written propaganda in favour of the strike was prohibited. Under the same decree, it was decided to apply the provisions of article 168, paragraph 17 of the Constitution of the Republic authorising the Council of Ministers to make arrests, as an emergency security measure, and to apply article 5 of Act No. 9604 of 1936 respecting the expulsion of aliens.
• Dismissal of A.M.D.E.T. Staff
  36. 36 By virtue of the decree the whole staff of the municipal transport undertaking were dismissed and only those workers who personally requested reinstatement were taken back.
• Allegation concerning the Prohibition of Trade Union Meetings
  37. 37 All trade unions were refused by virtue of the same decree the right to hold meetings in order to consider the existing situation and the Government ordered the closing down of trade union premises in which meetings took place. The trade union to which the A.M.D.E.T staff belong was refused authorisation to hold a meeting for the purpose of terminating the strike.
• Allegation concerning the Suppression of the Guarantees respecting Personal Freedom
  38. 38 Numerous trade unionists were arrested and other leaders of workers' organisations placed under police surveillance. The imprisoned trade unionists were refused recourse to the habeas corpus procedure guaranteed under the Constitution.
• Analysis of the Government's Reply
  39. 39 In its reply dated 24 March 1953 the Uruguayan Government presents, in particular, the following arguments:
• Allegation concerning the Right to Strike
  40. 40 It is not true the payments of wage increases awarded to the employees of public transport undertakings were completely suspended. The Municipal Administration (A.M.D.E.T.) continued to pay the increases awarded. The only undertaking which ceased to pay the increases was the private undertaking.
  41. 41 Moreover it is also untrue to say that the two transport undertakings in Montevideo are governed by the Wages Boards Act of 1943. The A.M.D.E.T undertaking is a municipal organisation which is not covered by the Act of 1943, as this Act is applicable only to " privately run " public services. It was in the exercise of its own administrative powers that A.M.D.E.T made applicable to its personnel wages laid down by a Wages Board with respect to the other transport undertaking in the City of Montevideo. The strike would have had serious consequences to public order, particularly by reason of the fact that it followed immediately after other disputes of a very serious nature. In 1952 there had already been a general strike of public health officials and in August 1952 a work stoppage of employees of administrative services had been declared.
  42. 42 In August 1952 the Council of Ministers had warned those concerned that in future the Council would put down all stoppages of work in public administrations by exercising its disciplinary powers with respect to administrative matters and by having recourse to all public security measures provided for under the Constitution, in order to ensure the continuity of the public services and to guarantee the normal functioning of national life.
  43. 43 The strike of A.M.D.E.T workers was unlawful because they have the status of public employees. With regard to the workers in the private undertaking the strike was also unlawful, because it was called before the expiry of the period of notice prescribed by the Wages Boards Act.
  44. 44 The Government, finding itself faced by a situation dangerous to public order, had recourse to the emergency measures expressly authorised in the provisions of the Constitution of the Republic. And it was by virtue of these provisions that the Government issued the Decree of 11 September 1952 referred to in the complaint. The General Assembly of the Uruguayan Parliament approved this measure almost unanimously, on 13 September 1952, by 85 votes to seven. The Parliament of Uruguay, constituted on the basis of the proportional representation of all political parties, is for that reason a strictly democratic institution.
  45. 45 The emergency measures were applied in a moderate manner and the decree which brought them into force was abrogated on 30 September 1952, once the public employees of A.M.D.E.T and the employees of the private undertaking had voluntarily returned to work. The executive authorities have not thought it necessary to intervene in the case of strikes which have taken place since September 1952 except in the role of mediator and conciliator.
• Allegation concerning Dismissal of A.M.D.E.T Staff
  46. 46 The dismissal of the employees of the municipal transport undertaking was decided upon because of the unlawful attitude they adopted towards the Administration, which did no more than carry out its legal obligation to apply to public employees the disciplinary sanctions prescribed under their statutory conditions of employment. Moreover, the striking employees voluntarily terminated the strike and resumed work at the end of the month of September.
• Allegation concerning the Prohibition of Trade Union Meetings
  47. 47 With regard to the prohibition of meetings the Government claims that it confined itself to applying the Constitutional provisions relating to the restoration of order in the event of an internal disturbance. As the public transport strike could be regarded as a serious danger to public order the prohibition of trade union meetings was ordered for the sole purpose of preventing the situation spreading to other industries. The prohibition, therefore, was no more than a necessary corollary to the measures taken against the strike pursuant to the powers accorded by the Constitution to the Government for the purpose of maintaining public order and peace.
• Allegation concerning the Suppression of Guarantees respecting Personal Freedom
  48. 48 The measures concerning the personal freedom of trade union leaders were taken pursuant to article 168, paragraph 17, subparagraph 2 of the Constitution, which expressly accords to the Government the right to make arrests in the event of a crisis, subject to immediate control by the Legislature. The Government also points out that these emergency powers were applied in a moderate manner.

49. The Committee considers that it is not called upon to express any view on the measures in respect of public order adopted by the Uruguayan Government on the occasion of the transport strike, except in so far as those measures may have infringed freedom of association.

1. 50. The Committee is satisfied, on the basis of the information analysed below, that in the present case the measures taken by the Government of Uruguay against the transport strike as such did not constitute an infringement of freedom of association.
2. Allegation concerning the Right to Strike
3. 51. The complainant maintains that the prohibition of the transport strike could not be justified on the ground that the strike constituted " a circumstance of internal disturbance ". It is claimed that the measures taken to suppress the strike were arbitrary because the strike was of a strictly occupational character intended to enforce the payment of wage increases legally awarded by the competent Wages Board.
4. 52. The right to strike is expressly recognised in the Uruguayan Constitution, article 57 of which provides that " the strike is a right of trade unions ".
5. 53. The Government, for its part, maintains that, in its very origin, the strike was unlawful. The employees of A.M.D.E.T had in fact benefited from the legal wage increase and at the same time had the status of public employees, which is incompatible with recourse to strikes. With regard to the private transport undertaking the workers stopped work without observing the legal time-limits.
6. 54. The transport strike would have disturbed public order to such a considerable degree that the Government thought it necessary to act under the provisions of article 168, paragraphs 1 and 17 of the Uruguayan Constitution concerning emergency measures in the case of internal disturbance.
7. 55. The text of article 168 of the Constitution is as follows:
8. Article 168. It is the duty of the Council of Ministers, acting through the competent Minister or Ministers:
9. 1. To preserve order and internal tranquillity and external security;
10. ......................................................................................................................................................
11. 17. To take prompt security measures in the serious and unforeseen circumstance of foreign attack or internal disturbance, giving an account within 24 hours to the General Assembly, at a meeting of both Chambers or, in its recess, to the Permanent Committee, of the steps taken and the reasons for them, final decision resting with the General Assembly or the Permanent Committee.
12. With regard to persons, the prompt measures of security may only authorise their arrest or transfer from one point to another within the territory, provided they do not choose to leave it. This measure also, like the others, must be submitted, within 24 hours of its adoption, to the General Assembly or to the Permanent Committee, as the case may be, and its decision accepted.
13. 56. In the Executive's message of 15 March 1953 to the General Assembly, referred to in its reply, the Government explains as follows the reasons why it considered it necessary to have recourse to emergency measures as provided for in article 168 of the Constitution:
14. Reference must be made in this message to the measures which the Executive was compelled to adopt to meet the serious social conflicts which it had to face during the course of its first term of office, and which broke out shortly after the Council had been installed. Public health officials stopped work on 20 March 1952. The Council was of opinion that their attitude constituted a circumstance of internal disturbance and an attempt to overthrow established institutions, and was compelled to have recourse to prompt security measures, as provided for by the Constitution. These measures were adopted by a wide margin of votes in the General Assembly, and proved fully effective. Again on 28 August 1952, faced with the imminent likelihood of stoppages, the breakdown of services or mass defection from jobs serving the public in services run by the Central Administration, the Independent Corporations and the Decentralised Services, the Council declared that in general and for the future it would put down neglect, misconduct or offences by the use of its disciplinary powers in administrative matters, by requesting action by the courts when called for, and by adopting all the security measures permitted by the Constitution for safeguarding the continuity of the public services and the normal functioning of national life.
15. In spite of this warning the most important public services suffered organised and practically complete paralysis at the beginning of September 1952. The systematic repetition of such acts was evidence of a serious and widespread outbreak of indiscipline constituting a real threat to the stability of the country's institutions. The Council was of opinion that this situation was not compatible with the standards embodied in the Constitution and with social peace in the Republic and that it constituted a circumstance of internal disturbance, and was therefore compelled once more to adopt prompt security measures, which included the prohibition of all verbal or written propaganda calculated to paralyse the public services; the prohibition of meetings which might lead to the same result; the closing of premises in which such meetings were held or arranged to be held; and, finally, the application of internment or deportation measures where indicated. These measures were immediately brought to the attention of Parliament, and assented to on 13 September 1952 by 85 votes to 7. In the days which followed, in the face of the firmness shown by the authorities, and in view of the unanimous support of public opinion in the country for the position adopted by the Government, the public officials, and the salaried employees and wage earners in the public services who had left their jobs, gave up their attitude and returned to work under the conditions prescribed by existing legislation and regulations. Thus on 30 September 1952, seeing that the essential public services had continued to return to normal in a stable fashion, the Council abrogated the measures which had been taken. With regard to this episode it should be repeated here, as was stated in the message to the General Assembly on that occasion, that the measures in question were applied with moderation, every effort being made to lessen possible inconvenience...Finally, stress should be laid on the great significance attaching to the support of public opinion throughout the country for the measures adopted, manifested by the unprecedented number of expressions of devotion and solidarity received by the National Government Council from all sections of the population.
16. 57. It would appear from these details that it was because of the repetition and systematic nature of the strikes in the public services, which were evidence " of a serious and widespread outbreak of indiscipline constituting a real threat to the stability of the country's institutions ", that the Government felt obliged to have recourse, in the case of the Montevideo transport strike, to the public security measures provided for by article 168 of the Constitution.
17. 58. In accordance with the provisions of the Constitution the Government submitted the decree embodying these public security measures for the immediate approval of Parliament, which approved the decree almost unanimously by 85 votes to seven.
18. Allegation concerning the Dismissal of A.M.D.E.T Staff
19. 59. The complainant declares that the Government arbitrarily dismissed the employees of A.M.D.E.T after they bad called a strike of a purely occupational nature.
20. 60. The Government, on the other hand, argues that the dismissal of the employees of the public transport undertaking resulted from the application of disciplinary measures prescribed by the regulations governing their service. Further, the sanctions were raised on 30 September 1952, when the workers had voluntarily resumed work.
21. 61. The Committee, while reaffirming on this occasion the principle that no measure of discrimination should be exercised against leaders or members of trade unions solely because they have undertaken legitimate trade union activities, takes note of the fact that, in the present case, the dismissal of A.M.D.E.T employees took place solely for disciplinary reasons related to their status as public employees, and, moreover, was revoked after the termination of the dispute. In any event, by reason of this fact, the allegation has become purposeless.
22. 62. In these circumstances the Committee considers that this part of the complaint does not call for further examination.
23. Allegation concerning the Prohibition of Trade Union Meetings
24. 63. The complainant maintains that the emergency measures taken by the Government were not confined to prohibiting the strike but entailed infringements of other fundamental trade union freedoms. Trade union meetings, he contends, were entirely prohibited-even meetings held in trade union premises-this prohibition applying not only to the trade unions concerned in the dispute but to the entire trade union movement throughout the country.
25. 64. The Decree of 11 September 1952, issued pursuant to the declaration of a circumstance of internal disturbance and which the complainant cites in his communication, provided as follows:
26. Whereas the present situation embodying the collective abandonment of work in the public services, stoppages of work and strikes constitutes a circumstance of internal disturbance within the meaning of article 168, paragraph 17 of the Constitution of the Republic, the Council of Ministers, by an emergency security measure as provided for in that article, decides:
27. (1) To prohibit all verbal or written propaganda calculated to paralyse the operation of the public services and to provoke stoppages of work or strikes which might, either directly or indirectly, contribute to the prolongation or aggravation of the situation giving rise to this decree. This prohibition applies also to the issue of opinions, announcements or convocations of a similar character. Violations of this provision may, according to the case, entail confiscation of property or the closing down of the agencies of publicity used in the case in question.
28. (2) To prohibit meetings when, in the opinion of the authorities, it is to be assumed that they might serve the purposes mentioned in the foregoing article; to close premises in which such meetings are held or arranged to be held...
29. 65. The complainant alleges that, pursuant to this enactment, the trade union premises in which trade union meetings were held were actually closed.
30. 66. The Government declares that the prohibition of trade union meetings was simply the direct consequence of emergency measures taken pursuant to the Constitution in order to safeguard public order and with the sole purpose of putting an end to the illegal transport strike.
31. 67. The Committee, on several occasions, has emphasised that the freedom of trade union meetings constitutes one of the fundamental elements of trade union rights. In Case No. 21, in which the situation was in every way comparable with that which it is called upon to examine in the present case, the Committee noted that, while the Government of New Zealand, in order to deal with a very serious situation created by the cessation of work in the ports of the country, had been obliged to have recourse to emergency measures also entailing the prohibition of public trade union meetings, it was nevertheless made clear by the details furnished by the Government that no restriction had been placed on meetings of members of the striking trade unions in normal trade union premises. In Case No. 40 concerning France (Tunisia), the complainant alleged that a number of public meetings of a purely trade union nature had been prohibited by the Government. In its reply the French Government indicated that, by virtue of the state of siege, certain public meetings had been prohibited but that such prohibition constituted a measure dictated by the circumstances and did not restrict the right of trade union organisations to hold within their own premises any meetings for the purpose of defending their occupational interests. In view of the fact that the general but temporary prohibition of public meetings was ordered solely for reasons of public order and did not apply to trade union meetings in trade union premises, the Committee concluded that, in the circumstances in question, the allegation did not call for further examination. In the present case the Uruguayan Government emphasises that trade union meetings were prohibited only in so far as they related to an illegal strike. The Government adds that this measure issued subject to Parliamentary control was of a purely temporary nature and was revoked as soon as the situation again became normal. The Committee, while reaffirming the principle enumerated m the cases referred to above that the right of members of trade unions to meet in their own premises for the discussion of trade union matters constitutes a fundamental trade union right, nevertheless considers that, since in the present case full freedom of trade union meeting is now restored, this part of the complaint has now become purposeless.
32. Allegation concerning the Suppression of Guarantees respecting Personal Freedom
33. 68. According to the complainant many trade unionists were arrested or placed under police surveillance and they were refused the right to have recourse to the habeas corpus procedure laid down in the Constitution. Article 3 of the Decree of 11 September 1952 provided for the application of the provisions of article 168, paragraph 17, subparagraph 2 of the Constitution (see above, paragraph 55 of the present report) and of article 5 of Act 9604 of 1936 respecting the expulsion of aliens. The Government states that, here again, it confined itself to applying the formal Constitutional provisions, and that the measures taken were subject to control by Parliament, were applied in a moderate manner and were revoked after a very short period of time. The Committee has pointed out in several earlier cases " that a free trade union movement can develop only under a régime which guarantees fundamental human rights ", and has recommended the Governing Body to suggest to the governments that they might examine the possibility of restoring these guarantees in their entirety. In the present case the Committee, while reaffirming its conviction that freedom of association is conceivable only under a régime which fully guarantees fundamental rights, considers that this part of the complaint has become purposeless by reason of the fact that fundamental freedoms, including personal freedoms, have been entirely restored.

The Committee's recommendations

1. 69. It would appear from the analysis of the case as a whole that the emergency measures taken by the Government, pursuant to article 168 of the Constitution, were submitted without delay for approval by Parliament and were revoked as soon as the situation returned to normal. It would also appear that certain fundamental rights of the workers, for example the right of free trade union meeting and the right of habeas corpus, had also been temporarily restricted in consequence. While expressing the hope that governments, desiring to see labour relations develop in an atmosphere of mutual confidence, will have recourse, when dealing with situations resulting from strikes and lockouts, to measures provided for under common law rather than to emergency measures, which, even though taken in accordance with the national Constitution and applied subject to Parliamentary control, involve a danger, by reason of their very nature, of certain restrictions being placed on fundamental rights, the Committee observes that freedom of association, traditionally guaranteed in Uruguay, appears now to be re-established.
2. 70. In these circumstances, the Committee, subject to the observations made in paragraph 69 above, recommends the Governing Body to decide that the case as a whole does not call for further examination.