Rapport intérimaire - Rapport No. 236, Novembre 1984

Cas no 1254 (Uruguay) - Date de la plainte: 09-JANV.-84 - Clos

1. 362. The complaint is contained in a communication from the National Convention of Workers of Uruguay dated 9 January 1984. This organisation sent additional information in communications dated 26 January and 19 April 1984. The Government replied in communications dated 7 May and 6 August 1984.
2. 363. 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. 364. The complainant organisation alleges in its communications of 9 and 26 January 1984 that Mr. Daniel Martinez, a member of a workers' movement to obtain trade union rights in the state sector and, specifically, in the National Fuel, Alcohol and Portland Cement Administration (ANCAP), was notified at the end of October 1983 that he was being laid off in accordance with Institutional Act No. 7. According to the complainant, Institutional Act No. 7 was used in this case, as in others, to persecute public servants engaged in trade union activities and to prevent a revival of trade union activity.
2. 365. The complainant states that Mr. Daniel Martinez, an industrial mechanical engineer by profession, joined ANCAP as a trainee on 27 September 1979, continuing in this position until 1 December 1982. He then became part of the permanent staff of ANCAP as an engineer in the Maintenance Department. In August 1983 his supervisors proposed him for the post of Head of Workshops, but the proposal was vetoed by the senior management. Months later, as already mentioned, Institutional Act No. 7 was invoked for anti-union purposes.
3. 366. The complainant also alleges that workers' organisations in the teaching sector are intimidated and persecuted on account of their trade union activities; Ordinances Nos. 17 and 28 of the National Council of Education (parts of which the complainant cites) expressly prohibit union activities and provide for dismissal on trade union and ideological grounds.
4. 367. The complainant adds that in early January 1984 three teachers at the "Santa María" secondary school, José Pedro Rilla, Juan Carlos Ottavianelli and Hugo Nilo Pintos (the first two of whom were members of the Provisional Committee of the Association of Workers of the General Institute of Marist Schools and the third a member of the Association), were dismissed. The headmaster of the school provided written certificates of the teachers' technical and teaching ability, but contended that their activities under Act No. 15137 were against the school's educational policy.
5. 368. The complainant also mentions that in March 1984 six professors of the Labour University of Uruguay (UTU) were not assigned teaching hours for the current year. Although these professors had temporary status, they had many years of service and their technical and teaching ability was recognised and documented. Since there were no reasons connected with their work, the explanation for this can only be the activities of the Civil Association of UTU staff. The same month another teacher, who was a member of the Executive Committee of the Association of Secondary School Teachers, was notified that his teaching hours; which had already been assigned to him in a single school, would be spread over six different schools, thus making it impossible for him to teach properly. The complainant also states that, for reasons unconnected with her work a woman secondary school teacher was not assigned teaching hours. Lastly, the complainant alleges that on 3 February 1984 a mass meeting of teachers was held on the esplanade of the University of the Republic to demand respect for freedom of association and to protest against dismissals and trade union persecution. Members of the Coordinating Committee for the Teaching Profession were subsequently summoned to police headquarters to make statements.

B. The Government's reply

1. 369. In its communication dated 7 May 1984 the Government communicates a copy of the Resolution of the Board of ANCAP containing the decision to give notice to Mr. Daniel Martínez Villaamil, which reads as follows:
2. 27 October 1983.
   • CONSIDERING: That by Resolution (D) No. 1027/12/982 dated 1 December 1982 Mr. Daniel Carlos Martinez Villaamil (Registry No. 36073/5) was regularly appointed to participate in the running of the services of the Administration in the capacity of industrial Mechanical Engineer (Scale II, Grade 22, Step 1) in the Technical Management Unit of the Fuel Division;
   • SINCE: (I) Pursuant to article 4 of the Staff Rules of ANCAP (Decree No. 472/966) all appointments are of a provisional nature for a period of one year, during which time an employee may be discharged by resolution of the Board, without the latter being obliged to state its reasons, by four votes in favour or, if the Board is composed of three members, unanimously, in accordance with Act No. 14173;
   • (II) Section 15 of Constitutional Decree No. 7/977 stipulates that any appointments to the Public Administration which are made on or after the date of its entry into force shall be of a provisional nature for a period of one year, during which time the letter of appointment may be revoked without any reason being given;
   • CONSIDERING: (I) That the appointment of Mr. Daniel Carlos Martinez Villaamil has run for less than one year; and (II) That it is not deemed appropriate or necessary to, confirm the said official in the post to which he was appointed and that the Administration can dispense with his services without impairing the efficiency of his unit;
   • THE BOARD RESOLVES AS FOLLOWS:
3. (1) To revoke the regular appointment of Mr. Daniel Carlos Martínez Villaamil (Registry No. 29068/7) in the capacity. of Industrial Mechanical Engineer (Scale II, Grade 22, Step 1) in the Technical Management Unit of the Fuel Division, made by Resolution (D) No. 1027/12/982 of 1 December 1982, by virtue of article 4 of the Staff Rules of ANCAP (Decree No. 472/966) and section 15 of Constitutional Decree No. 7/977 and the foregoing considerations of the present Resolution.
4. (2) Calls upon the General Administration to take appropriate action."
5. 370. The Government adds that it is untrue that Mr. Martínez Villaamil was "laid off", as the complainant claims; the Resolution to revoke his appointment could have been taken even without reference to section 15 of Constitutional Decree No. 7/977, to which the complainant seems to attach such importance, since the principal legal basis for this decision was a frequently applied provision in the Staff Rules of ANCAP, namely article 4, which has been in force for ANCAP officials since 1966.
6. 371. Moreover, continues the Government, it has no knowledge of Mr. Martínez Villaamil having engaged in any trade union activities that might expose him to supposed reprisals, nor does the complainant organisation give details of any such activities.
7. 372. Regarding the alleged dismissal of members of the Provisional Committee of the Association of Workers of the General Institute of Marist Schools, the Government states in its communication of 6 August 1984 that, at the request of the interested parties, the Secretary of State for Labour investigated accusations of dismissals at the General Institute of Marist Schools and that the acting official conciliator formally established that compensation had been paid to the entire satisfaction of the workers involved. In none of the cases raised was there any infringement of trade union immunity inasmuch as the Association of Officials of the Santa Maria Secondary School had not been set up in accordance with Occupational Associations Act No. 15137. The only trace of the Association was a request that was submitted on 22 September 1982, since when, in spite of all the time that has passed, its bye-laws have not been submitted and no constituent assembly has been held. Consequently, there is not any provisional executive authority on whom the afore-mentioned Act and the decree made under it might have conferred the protection due to trade union leaders. Everything suggests that those who signed the request lost interest or were unable to obtain the support of the minimum number of 15 workers required by the law. Moreover, it would not seem reasonable to conclude that dismissals in 1984 are the result of a mere request submitted two years earlier.
8. 373. As to the teachers who allegedly were not assigned teaching hours or had them spread among classes in different schools, the Government states that the allegations are too vague for it to be able to reply as the complainants have not provided sufficient details for the situations to be properly identified.
9. 374. With respect to Ordinances Nos. 17 and 28 of the National Council of Education (CONAE), the Government states that it is not true that they prohibit union activities and provide for dismissal on trade union grounds, refers to a number of provisions which recognise the right of association of teachers and comments on various provisions of the said ordinances.

C. The Committee's conclusions

1. 375. The Committee notes that the allegations and the Government's reply respecting the termination of the employment relationship of Mr. Daniel Martínez Villaamil in the state undertaking ANCAP are contradictory. The complainant considers that it was an act of persecution in pursuance of Institutional Act No. 7, on account of trade union activities aimed at securing the exercise of trade union rights in the state sector. The Government states that it has no knowledge of Mr. Martínez Villaamil having engaged in any trade union activities that might expose him to supposed reprisals and points out that the complainant organisation has not given details of any such activities. The Government has transmitted the text of the decision of the Board of ANCAP to discharge Mr. Martínez Villaamil and has indicated that the principal legal basis for revoking his appointment was article 4 of the Staff Rules of ANCAP and that his dismissal could have been effected without reference to Institutional Act No. 7.
2. 376. The Committee also notes that the preamble to the Resolution of the Board of ANCAP pronouncing the dismissal of Mr. Martinez Villaamil states "that it is not deemed appropriate or necessary to confirm the said official in the post to which he was appointed and that the Administration can dispense with his services without impairing the efficiency of his unit".
3. 377. The Committee observes that both the Staff Rules of ANCAP and Institutional Act No. 7 (now repealed) contain provisions to the effect that all appointments of officials or employees are of a provisional nature for a period of one year, during which time the official or employee may be discharged without any reason being given. In this connection the Committee wishes to stress the importance it attaches to the need for legislation to provide for appropriate guarantees in order to ensure that the services of a public employee or official are not terminated on the grounds of his trade union office or activities.
4. 378. Regarding the dismissal of three members of the Association of Workers of the General Institute of Marist Schools - Mr. Rills, Mr. Ottavianelli and Mr. Nilo Pintos - the Committee notes the Government's statement and, in particular, its view that there has been no infringement of trade union immunity inasmuch as the Association has failed since 1982 to fulfil the legal formalities required for its official constitution. The Committee requests the Government to indicate the precise grounds for the dismissal of the teachers so that it can reach its conclusions in full possession of the facts.
5. 379. As to the alleged acts of discrimination against certain teachers in the assignment of teaching hours, the Committee observes that the complainant has not supplied the names of the persons concerned and that the Government states that the allegations are too vague for it to be able to reply.
6. 380. With respect to the allegations concerning ordinances Nos. 17 and 28 of the National Council of Education, the Committee observes that the Government has replied on the subject. The Committee requests the Government to communicate the text of the said ordinances so that it can examine the allegations in full knowledge of the facts.
7. 381. Lastly, the Committee observes that the Government has not answered the allegation that police headquarters summoned members of the Coordinating Committee for the Teaching Profession to make statements in connection with the mass meeting of teachers held on the esplanade of the University of the Republic on 3 February 1984. The Committee requests the Government to send its observations on the matter.

The Committee's recommendations

1. 382. In these circumstances the Committee recommends the Governing Body to approve the present interim report and, in particular, the following conclusions.
   • (a) the Committee notes that both the Staff Rules of ANCAP and Institutional Act No. 7 (now repealed) contain provisions to the effect that all appointments of officials or employees are of a provisional nature for a period of one year, during which time the official or employee may be discharged without any reason being given. In this connection the Committee wishes to stress the importance it attaches to the need for legislation to provide for appropriate guarantees in order to ensure that the services of a public employee or official are not terminated on account of his trade union office or activities;
   • (b) the Committee requests the Government to indicate the precise grounds for the dismissal of Mr. Rills, Mr. Ottavianelli and Mr. Nilo Pintos so that it can reach its conclusions in full possession of the facts;
   • (c) the Committee requests the Government to communicate the text of Ordinances Nos. 17 and 28 of the National Council of Education so that it can examine the relevant allegations in full possession of the facts;
   • (d) the Committee observes that the Government has not replied to the allegation that police headquarters summoned members of the Coordinating Committee for the Teaching Profession to make statements in connection with the mass meeting of teachers held on the esplanade of the University of the Republic on 3 February 1984 and requests the Government to send its observations on the matter.