Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 302, Mars 1996

Cas no 1856 (Uruguay) - Date de la plainte: 25-SEPT.-95 - Clos

Allegations: Imposition of minimum services during a strike; anti-union dismissals

1. 415. The complaint appears in a joint communication from the Uruguayan Health Federation (FUS) and the Perses SA Staff Association (AFP) dated 25 September 1995. The Government replied in a communication dated 29 December 1995.
2. 416. Uruguay has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 417. In their joint communication of 25 September 1995 the Uruguayan Health Federation (FUS) and the Perses SA Staff Association (AFP) allege that a dispute arose in the middle of April 1995 over the unjustified dismissal of a union member working at Perses SA (he crashed into a vehicle, but his responsibility was not established). The dispute went through a number of stages and reached its height when the General Assembly of the health union decided on 1 August 1995 to call a general strike from 9 August. The Ministry of Labour and Social Security was given ten days' notice of the Assembly's decision so that all possible means of conciliation could be resorted to before it took effect. At the same Assembly it was decided who should be on emergency duty in order to guarantee a minimum service. It should be mentioned here that the enterprise uses colour codes (red, yellow, green) to reflect the seriousness of a situation, red being the most serious and indicating that a life is in danger. (It is assumed that 20 per cent of the daily phone calls received by the enterprise warrant the red code, the rest being described as banal.)
2. 418. The complainants add that the Ministry of Labour issued a ruling declaring that the services provided by the enterprise are essential (with a view to establishing minimum services), but the complainants object that this undermines one of the fundamental pillars of collective labour rights, namely self- defence, as it denies workers the possibility to defend their own interests - a principle that is embodied in the Constitution. There can be no functional collective right or effective freedom of association if one of its fundamental pillars (self-defence) is absent; without that, freedom of association is completely worthless.
3. 419. Moreover, the ruling referred to in the complaint is not objective, since it is excessively broad in its definition of the services considered to be essential. Specifically, the complainant organizations disagree entirely that first-aid services, polyclinic services, nursing auxiliaries, the maintenance workshop, the accounts department and the administrative department are essential services, as this list covers virtually the entire Perses SA staff.
4. 420. Although the complainants recognize that the right to self-defence, which is embodied in the Constitution, conflicts with other fundamental rights such as the right to health, they consider that the Ministry of Labour's ruling, which is based on an act of doubtful constitutionality, shows a bias on the part of the State in favour of the enterprise and thus undermines the constitutionally consecrated right to strike. The powers conferred on the State by section 4 of Act No. 13720 are of an exceptional nature and therefore cannot be used indiscriminately.
5. 421. The complainants add that, as a result of this ruling, the health union decided to suspend the measures adopted and also, ten days later, the dispute itself. In spite of this, four days after the dispute had been ended, the enterprise, which is not making a financial loss, decided to dismiss 39 workers citing financial reasons linked to the dispute.

B. The Government's reply

1. 422. In its communication of 29 December 1995 the Government states that Perses SA, the enterprise where the dispute referred to by the complainants arose, operates in the field of medical assistance, providing mobile medical emergency services in the form of first aid at home, at the enterprise or on the road, transport by ambulance and medical care in its polyclinic. These services are provided to members of the Mobile Coronary Unit, which intervenes in cases of emergency, respiratory arrest, cardiac arrest, heart attack, road accidents, etc. The Unit has a membership of 340,000, which is over 30 per cent of the population of the country's capital, and the medical personnel providing the service directly are highly qualified. If the measure adopted by the AFP union had been implemented, a large percentage of the population of the capital would have had no coverage in the event of emergencies endangering their life, health, etc.
2. 423. The Government explains that, on 27 April 1995, the Ministry of Labour and Social Security embarked upon tripartite negotiations with representatives of Perses SA and of the Perses SA Staff Association and Uruguay Health Federation over complaints relating to the dismissal of a staff member six months before, sanctions, the staff rules and working conditions. After a number of tripartite meetings at which records were kept (a copy of which was sent by the Government), the enterprise agreed to discuss all the points raised except for the dismissal of a single staff member. The trade union rejected this proposal and, though negotiations continued to take place, began to take measures against the enterprise (its members refused to answer phone calls during their half-hour break, which is in violation of the collective agreement that they have signed). As a result, the enterprise refused to deduct union dues from the payroll, which is also a violation of the same agreement on its part.
3. 424. A number of possible solutions were proposed, always with the mediation of technical officials of the Ministry, including special salary increments, but the trade union rejected these and decided to call a general strike as from 9 August 1995, which meant that it would provide no medical assistance (including emergency care).
4. 425. It is apparent from the record of the meeting on 3 August 1995, which was attended by representatives of the AFP, FUS, the enterprise and the Ministry of Labour, that various draft agreements presented by the Ministry of Labour were accepted by the representatives of the enterprise but not by the representatives of the workers, who stated officially that the general strike would begin on 9 August 1995, as decided by the workers' assembly.
5. 426. During the ensuing days the Ministry of Labour and Social Security made various approaches to the two parties separately in an attempt to reach an agreement and avoid the implementation of the measures decided by the trade union.
6. 427. According to the record of the 8 August 1995 meeting, the AFP was called in on 7 August to receive a proposal for negotiations aimed at ending the dispute; the workers' representatives stated that the proposal would be submitted to the workers' assembly to be held on 8 August 1995. The record goes on to state that the Ministry of Labour was informed by telephone of the assembly's decision to maintain the general strike as from 9 August, three-and-a-half hours before the measure was actually implemented.
7. 428. With the strike, which would deprive 310,000 associate members of health coverage, about to begin imminently, the Ministry of Labour called together both parties in order to decide what minimum emergency services should be covered. The meeting was attended by representatives of the enterprise but not of the union. In the absence of any union representatives, the Ministry of Labour asked Perses SA to state what services in its opinion needed to be maintained in order to protect the life and health of members of the Mobile Coronary Unit (record of the meeting of 8 August 1995). Given the nature of the services provided by the enterprise (medical attention in critical situations such as emergencies, heart attacks, respiratory arrest, road accidents, etc.), it proved difficult to determine which services a priori were not really essential, though this would have been easier if representatives of the union involved had been there to give their opinion.
8. 429. Finally, in the light of the foregoing, the Minister of Labour and Social Security proceeded to issue a ruling on 8 August 1995 that declared the services provided by the Mobile Coronary Unit to be essential and arranged for a small group of people to be on duty in order to provide a minimum emergency service, in accordance with information supplied by the enterprise and criteria determined by the Ministry of Labour, and for a fixed period. This decision complies with the principles and criteria of the supervisory bodies of the ILO with respect to essential services.
9. 430. In line with the precepts of the Committee on Freedom of Association, negotiating arrangements and conciliation procedures were organized in the Ministry of Labour and Social Security in order to resolve the dispute, all of which ended with the withdrawal of the representatives of the workers simultaneously with their call for a strike.
10. 431. The preambular part of the ministerial ruling of 8 August 1995, a copy of which was attached by the Government, shows that it was handed down only after various attempts at conciliation had failed, as provided for in the Constitution which requires the State to protect the health and safety of its inhabitants and in accordance with the international undertakings Uruguay has entered into as a Member of the ILO and with the declarations of the ILO's supervisory bodies regarding restrictions on the right to strike. The substantive part of the ministerial ruling, having declared the essential nature of the services provided by the Mobile Coronary Unit, refrained from extending the measure to the entire staff but required only that a minimum service be provided as indicated under paragraph 2 and for a fixed period of time.
11. 432. Moreover, in this instance the AFP's decision to call a general strike is obviously out of all proportion with the dismissal of a single worker who it felt had been unjustly dismissed, especially since procedures exist to contest such cases which in the last resort may be settled in court. In such an important area as health, and ultimately human life, the State cannot, as do the complainants, describe the implications of most of the requests for medical attention received by the Mobile Coronary Unit as "banal". Only after a medical diagnosis, which obviously requires the presence of a doctor, can the nature or gravity of an ailment, which in all events merits proper attention, be evaluated.
12. 433. The Government also disagrees with the complainants' argument that "there can be no functional collective right or effective freedom of association if one of its fundamental pillars (self-defence) is absent". The Government observes that a survey conducted by the ILO in 1986 on the system of labour relations in Uruguay concluded that "self-regulation has already been tried by several trade unions but, to our knowledge, it has never yet resulted in a set of self-regulation standards designed specifically for - and acceptable to - all the interested parties. We consider it advisable that the attempt at self-regulation be undertaken in the first place by the PIT-CNT, for example in the form of a trade union's code of conduct for essential strikes that could contain instructions on prior notice, the use of all possible means of peaceful resolution of the conflict, informing the public of the reasons for the strike, the holding of votes by those concerned, proposals with respect to the minimum services to be maintained, etc.".
13. 434. In conclusion, the Government states that it has acted throughout in accordance with the principles defended by the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations of the ILO, by initiating negotiation and conciliation procedures in order to resolve the dispute, encouraging the workers to participate in determining which services should be maintained during the general strike, and finally, once the services provided by the Mobile Coronary Unit were declared to be essential, insisting only on a small number of people being on duty in certain sectors and for a specific period of time. The Ministry of Labour and Social Security has in this instance complied with clear constitutional precepts (Carga Magna, article 7) which require it to protect the health and life of the population. In the light of the foregoing, the Government requests the Committee on Freedom of Association to reject the complaint.

C. The Committee's conclusions

1. 435. The Committee observes that in this case the complainant organizations claim that, on the occasion of a general strike in the health sector, the Ministry of Labour did not accept the emergency standby services decided on by the FUS and declared the services provided by the Perses SA Mobile Coronary Unit to be essential, while the minimum services to be maintained - and which from its point of view are too extensive - were determined by ministerial ruling. The complainant organizations also allege that, four days after the dispute ended, the enterprise, which is not operating at a loss, decided to dismiss 39 workers citing financial reasons linked to the dispute.
2. 436. Regarding the fact that the minimum services to be maintained in the Mobile Coronary Unit were determined by ministerial ruling (and that the standby services decided on by the AFP were not accepted), the Committee has stated on previous occasions that the "determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers' and workers' organizations" (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 560). In the present case, the Committee notes the Government's statement - confirmed in the text of the ministerial ruling of 8 August 1995 - that the Ministry of Labour invited the union side to determine the minimum emergency services that should be covered and that the union representatives did not attend the meeting. Consequently, the Committee will not pursue its examination of this allegation any further.
3. 437. Regarding the allegation that the minimum services established for the Perses SA Mobile Coronary Unit were too extensive, the Committee notes the Government's statement that the services provided by the enterprise include response to critical situations (emergencies, heart attacks, respiratory arrest, accidents, etc.) and that only after a medical diagnosis (which obviously requires the presence of a doctor) is it possible to determine the gravity of an ailment. The Committee further notes that, according to the ministerial ruling, the following areas required a minimum service:
   • Emergency and first-aid service
   • Polyclinic service - minimum service
   • Operations centre
   • Nursing auxiliaries - minimum service
   • Maintenance workshop - minimum service
   • Accounts department - minimum service
   • Administration - minimum service
   • Pharmacy - minimum service
   • Control centre and supplies
   • In this connection, the Committee has considered on previous occasions that "definitive ruling on whether the level of minimum services was indispensable or not - made in full knowledge of the facts - can be pronounced only by the judicial authorities, in so far as it depends, in particular, upon a thorough knowledge of the structure and functioning of the enterprises and establishments concerned and of the real impact of the strike action". (See Digest, op. cit., para. 562.) That said, it would not appear at first sight that the list of minimum services laid down in the ministerial ruling is excessive, especially considering that the enterprise is providing an essential service in the strict sense of the term.
4. 438. Finally, regarding the dismissal allegedly on financial grounds of 39 workers four days after the end of the dispute in the Perses SA enterprise, the Committee regrets that the Government has sent no observations on the subject. The Committee therefore requests the Government to conduct an inquiry into the reasons for the dismissals and, if it finds that they were ordered on anti-union grounds, to take steps to have the persons concerned reinstated in their jobs. The Committee requests the Government to keep it informed on the subject.

The Committee's recommendations

1. 439. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Regarding the dismissal allegedly on financial grounds of 39 workers four days after the end of the dispute in the Perses SA enterprise, the Committee requests the Government to conduct an inquiry into the reasons for the dismissals and, should it find that they were ordered on anti-union grounds, to take steps to have the persons concerned reinstated in their jobs. The Committee requests the Government to keep it informed on the subject.