Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Uruguay (Ratification: 1954)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the Government’s reply to the joint observations of the International Employers’ Organisation, the National Chamber of Commerce and Services of Uruguay and the Chamber of Industries of Uruguay of 2018. The Committee also notes the observations of the Inter-Union Assembly of Workers – Workers’ National Convention received on 21 August 2022 mentioning two incidents in which the police used violence against protesters. The Committee notes the Government’s indication, in its reply, that protests were allowed within the boundaries of the law, that the police acted to clear the entrance to the port and bus terminal of Montevideo, which were blocked by protesters, that the workers who were detained were released immediately and that the Ministry of the Interior acknowledged that one police officer had acted excessively. The Committee requests the Government to ensure that the intervention of the police in trade union demonstrations is in due proportion to the danger to public order that the authorities are attempting to control.

Article 3 of the Convention. Workplace occupation and the right of management of the enterprise to enter the workplace in the context of a labour dispute. Recalling that the exercise of the right to strike and the occupation of the premises should respect the right to work of non-strikers, and the right of company management to enter its premises, both the Committee and the Committee on Freedom of Association (Case No. 2699) requested the Government to place a bill regulating workplace occupation before Parliament in full conformity with the Convention and to report on tangible developments in this regard. The Committee notes with interest the Government’s indication that on 9 July 2020, the Urgent Consideration Law No. 19.889 was promulgated, section 392 of which provides that “the State guarantees the peaceful exercise of the right to strike, the right of non-strikers to access and work in the establishments concerned and the right of the management to enter the premises freely.”

Bill on Legal Personality. The Committee notes that, in its report on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Government indicates that following discussions in a special tripartite committee, it drafted a Bill on the Legal Personality of Industrial Associations, which it introduced to Parliament on 2 August 2021 and which is currently under consideration in the Senate. The Committee refers to the aforementioned Bill in its comment concerning Convention No. 98.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the joint observations of the International Organisation of Employers (IOE), the Chamber of Industries of Uruguay (CIU) and the National Chamber of Commerce and Services of Uruguay (CNCS) received on 31 August 2016 and 31 August 2018 on issues dealt with in this observation. The Committee notes additional joint observations of the IOE, CIU and CNCS received on 28 November 2018. The Committee requests the Government to provide its comments thereon.

Article 3 of the Convention. Workplace occupation and the right of the management of the enterprise to enter the workplace in the context of a labour dispute. In its previous comments, the Committee welcomed the signing in March 2015 of a tripartite agreement in which the Government and the social partners undertook to engage in constructive dialogue on the issues raised in the Report of the Committee on Freedom of Association in Case No. 2699. The Committee expressed the firm hope that the agreement would mark the beginning of a fruitful tripartite dialogue process in which, taking into account the comments of the Committee on Freedom of Association and this Committee on the issue of workplace occupation, concrete measures would be taken to bring law and practice into full conformity with the Convention.

The Committee notes that, in their joint observations, the IOE, CIU and CNCS state that: (i) in the context of tripartite discussions following the 2015 agreement, the Government submitted in 2016 and 2017 to the tripartite discussion two legislative proposals, the content of which regarding occupation in the workplace does not comply with the comments and recommendations of the ILO supervisory bodies; (ii) the adoption in March 2017 of Decree No. 76/017 on the right to free movement on streets, roads and highways even further removes the Government from fulfilling its commitments, as strikes are excluded from the scope of application of the Decree; (iii) there are no pickets or workplace occupations that are carried out peacefully since the vast majority of these measures are carried out under threats and/or physical violence and that all these acts involve, at least, a level of psychological violence; (iv) all civil courts that have examined cases of amparo (protection of constitutional rights) brought by workers in defence of their right to work have decided in the workers’ favour; (v) whereas, under Decree No. 165/2006 regulating the steps that the trade unions must take to occupy a workplace, there has not been a case of an employer securing the withdrawal of the labour authority from his or her enterprise; and (vi) that Decree, under which enterprise occupation is considered a form of the right to strike, should be derogated. The Committee notes that the employers’ organizations lastly state that for over eight years, the Government has been failing to comply with its obligation to submit to Parliament a draft bill addressing the supervisory bodies’ comments on workplace occupation and that, given the impossibility of reaching a tripartite agreement in this respect, it is incumbent on the Government to take the necessary steps to end this situation of non-compliance. The Committee notes, however, the Government’s indication that, in cases of workplace occupation, the civil courts are competent to hear cases of amparo brought by workers who consider that their freedom to work is being violated and that, in this respect, there is clear jurisprudence safeguarding freedom to work.

The Committee also notes that, in the context of the tripartite discussions subsequent to the March 2015 agreement, the Government submitted two proposals on legislative amendments to the social partners in September 2016 and March 2017. The Committee notes in particular that the proposal made in March 2017 sets out a mechanism for dispute prevention and settlement procedures which specifically provides: (i) in cases where pickets or workplace occupations do not respect the prior process of dispute prevention and settlement, for the Ministry of Labour and Social Security and/or the Ministry of the Interior to order, within a required 24-hour time limit, the cessation of these actions, with the entitlement to use force; and (ii) for the obligation of pickets, as a union measure, to be carried out peacefully, without disturbing the public order and while enabling free movement and entry into the workplace; that the Ministry of the Interior may intervene and public force may be used if this obligation is not fulfilled. The Committee notes, however, that the Government’s March 2017 proposal: (i) does not appear to envisage amendments regarding enterprise occupations which may take place following the finalization of the proposed dispute prevention and settlement mechanism; and (ii) does not explicitly provide for the obligation of enterprise occupations to respect the freedom to work of non-striking workers. In this respect, the Committee reiterates “that insofar as the strike remains peaceful, strike pickets and workplace occupations should be allowed. Restrictions on strike pickets and workplace occupations can only be accepted where the action ceases to be peaceful. It is however necessary in all cases to guarantee respect for the freedom to work of non-striking workers and the right of the management to enter the premises” (see the 2012 General Survey on the fundamental Conventions, paragraph 149).

The Committee notes lastly that: (i) while the Inter-Union Assembly of Workers–Workers’ National Convention (PIT–CNT) supports the proposal on a generic process of dispute prevention for settings in which no process is in place, it does not support the legislative amendment on enterprise occupation proposed by the Government, deeming this to be a matter for collective bargaining; and (ii) as indicated in its observations addressed to the Committee, the employers’ organizations, which submitted an alternative proposal for legislative amendments, do not support the governmental proposal as they consider, in particular, that enterprise occupations are not a form of exercising the right the strike and that the Decree governing them should be derogated.

In the light of the above, the Committee notes that, under the tripartite agreement of March 2015, substantial consultations have been held on the legislative reform regarding labour relations, with criteria for various drafts being shared. The Committee notes, however, that those efforts have not led to a tripartite agreement on the specific issue of enterprise occupation and, to date, no draft law has been submitted that addresses all the Committee’s requests. Emphasizing, once again, the importance of the guidelines set out by national case law in this respect, the Committee requests the Government, after submitting the text for consultation with the social partners, to present to Parliament a draft regulating enterprise occupations, in full compliance with the Convention. Recalling that it can continue to rely on the Office’s technical assistance, the Committee firmly hopes that the Government will shortly be in a position to report the tangible progress made in this regard.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations of the International Organisation of Employers (IOE), the Chamber of Industries of Uruguay (CIU) and the National Chamber of Commerce and Services of Uruguay (CNCS) received on 1 September and 1 December 2015 on issues dealt with in this observation.

The Committee also notes the observations of the IOE received on 1 September 2015, which are of a general nature.

Article 3 of the Convention. Occupation of the workplace and the right of the management of the enterprise to enter the workplace in the context of a labour dispute. In its report, the Government indicates that occupation of the workplace, in accordance with the views of the Committee on Freedom of Association and the Committee, is an element of the right to strike, in so far as it is carried out peacefully. The Government emphasizes that, in the event of a conflict with the rights of the non-striking workers or the management of the enterprise, the judiciary operates under the residual jurisdiction of the civil courts, which have developed majority case law establishing prompt protection of the right to work by means of amparo procedures, which go beyond the views of the ILO supervisory bodies, and authorize not only entry into the workplace, but also its evacuation. The Government indicates that in March 2015, shortly after having taken up office, it concluded an agreement with the representatives of the workers (Inter-Trade Union Assembly – Workers’ National Convention (PIT–CNT)) and of the employers (the CNCS and the CIU) with the objective of engaging in constructive dialogue on the issues raised in the report of the Committee on Freedom of Association in Case No. 2699, particularly regarding Act No. 18566 on collective bargaining. The Government indicates that, at the proposal of the employers’ organizations, the issue of the occupation of workplaces will also be discussed. The Committee notes with interest this tripartite agreement and the dialogue process initiated on that occasion. The Committee notes that in their observations the IOE, CIU and CNCS indicate that, even though two meetings have been held as follow-up to this tripartite agreement, and they are awaiting the outcome of these negotiations, no progress was made and the violation of fundamental labour standards continues. The Committee also notes the Government’s request to the ILO for the assistance of an expert in the work planned in tripartite settings over the coming months.

The Committee welcomes the tripartite agreement signed between the Government and the social partners in March 2015 and firmly hopes that it marks the beginning of a fruitful tripartite dialogue process in which, taking into account the comments made by the Committee on Freedom of Association and this Committee on the issue of occupation of the workplace, concrete measures are taken to bring law and practice into full conformity with the Convention. Noting with concern that the employers’ organizations indicate that no progress was made since the signature of the tripartite agreement, the Committee requests the Government to provide detailed information on the development of the social dialogue and its results.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 3 of the Convention. Occupation of the workplace and the right of the management of the enterprise to enter the workplace in the context of a labour dispute. The Committee notes that, by a communication of 31 August 2012, the International Organisation of Employers (IOE), the Chamber of Industries of Uruguay (CIU) and the National Chamber of Commerce and Services of Uruguay (CNCS) sent comments on the application of the Convention, in which they refer to the recommendations of the Committee on Freedom of Association in Case No. 2699 and state that: (1) contrary to that Committee’s findings regarding occupation of the workplace and in flat contradiction of its request, the Government has in practice done nothing and existing standards do not comply with the above principles; (2) the observance in practice of certain principles cannot be secured by mediation and efforts to contain a dispute; (3) it is the Government’s duty to protect the freedom of work, as mediation will not protect it; (4) the argument that because there has been recourse to justice the decisions of the supervisory bodies have been implemented does not withstand analysis, and the need to resort to justice in order to protect the rights of employers is a consequence of the Government’s failure to comply either with the law or with the demands of the ILO; (5) article 57 of the National Constitution guarantees the right to strike but requires it to be regulated by law, which is what the employers seek; (6) the complainant organizations in the abovementioned case before the Committee on Freedom of Association endorse the IOE’s position regarding the right to strike; (7) occupations of workplaces continue to occur and employers have to turn to the courts in the absence of any protection of their rights by the Government; in view of the Government’s deliberate inaction and omission in complying with the supervisory bodies’ decisions, the justice system is the employer’s only refuge; (8) decision No. 184/12 of the Civil Appeals Court, handed down on 15 August 2012, referring to the occupation of an enterprise, ruled that: (a) section 6 of Decree No. 165/06 – to which objections were raised in the complaint before the Committee on Freedom of Association – on no account affords a means of obtaining the same results as are achieved through proceedings brought under the Constitution (amparo), let alone a suitable means or safeguarding the rights in question; (b) human rights recognized in articles 7, 28, 32 and 36 of the Constitution have been breached; (c) de facto situations (such as occupation of the workplace) are an impediment to the enjoyment of freedom, safety, work and property, the availability of personal documents and to freedom in work, agriculture, industry, commerce, occupation and any other lawful activity; (d) in this case, the human rights were violated because the Ministry of Labour and Social Security (MTSS) failed to act on learning of the occupation, and it is not for the MTSS to act as counsel or prosecutor of workers or employers, usurpers or owners, creditors or debtors; it must act spontaneously without having to be asked and without the need for victims or injured parties to demand action; and (9) the Court’s decision is accurate in its judgement of the Ministry of Labour’s conduct and shows that protection for employers is totally lacking in fact and in law, and the argument that the Government has never refused to comply with a court order carries no weight, is without merit, since failure to obey such an order would indicate an absence of democratic government.

The Committee notes that in its report the Government states that: (1) contrary to the submission of the IOE, the CIU and the CNCS, Uruguay has the lowest conflict rate of recent years according to independent records such as the conflict index compiled by the Labour Relations Programme of the Catholic University of Uruguay; (2) on the protection of freedom to work and the right of employers to enter occupied premises, it should be noted that, although the labour courts do not hear collective labour disputes, the civil courts – by reason of their residual jurisdiction – have authority to hear claims from non-occupying workers who, in general and in accordance with consistent precedent, have seen their claims satisfied once a court order to vacate the workplace takes effect; (3) the fact that non-strikers file claims to the vacation of premises indicates that there are some sound guarantees of the freedom to work, which has been protected through summary proceedings under the amparo procedure (the assumption of jurisdiction by the judicial authority entails the subsumption of claims to vacate workplaces by a body that is clearly independent and suited to the settlement of disputes about the law); (4) decisions have been handed down as a result of claims to the vacation of workplaces; (5) in order to safeguard the rights of non-strikers and the rights of employers, the National Labour Directorate, through the Collective Labour Disputes Unit, devotes thousands of working hours every year to collective bargaining in order to prevent and resolve disputes of this kind (it is a specialized body of mediators to which parties can apply voluntarily, seeking intervention by the executive in settling collective disputes; where the procedure has been exhausted and the dispute persists or takes the form of occupation or picketing, the parties may apply to the courts for amparo proceedings); (6) the judicial authorities have regularly found in favour of the right to work of non-strikers and the rights of employers, in very brief proceedings (three days in the lower courts), and handed down decisions, and in the event of non-compliance by the occupiers, the executive enforces the vacation order through the services of the Ministry of the Interior (police), and there have been no instances of failure to comply with such an order since this would constitute an offence against the Constitution and the principle of the separation of powers; (7) this demonstrates that the constitutional rights of the employers to which the latter refer are guaranteed by the State; according to the Government, the unstated objective of the employers’ complaint is to have the right to strike regulated and to reiterate their assertion that “there is no right to strike in the texts of the ILO international Conventions”; (8) this is the very same argument they submitted at the last session of the International Labour Conference, which prompted the situation that arose in the Conference Committee on the Application of Standards; (9) the Government fully shares the Committee’s position that, in light of the scope and significance of the Convention, it is understood that, in accordance with Articles 3 and 10 of the Convention, industrial action is fully recognized by international standards; (10) the Government reiterates its unqualified respect for human rights, and the employers start off from a wrong premise in that strikes, as a right, are recognized in many international instruments as a human right; (11) the national legislation recognizes the right to strike through the National Constitution (article 57), a fact that the employers appear to overlook in adopting a position that is clearly unconstitutional, and in view of the nature of this right (unquestionably a human right) and its enshrinement in the National Constitution, the State declines to discuss the matter; (12) the employers’ theoretical conceptualization is plainly regressive and disregards findings of the Committee on Freedom of Association; what is more, the Committee on Freedom of Association itself acknowledges that the occupation of enterprises or workplaces is a way or form of exercising the right to strike; (13) the advisers of the employers’ associations resort to “second-hand” quotations used out of context and their findings about occupation are quite alien to the concept traditionally and customarily adopted by the Committee on Freedom of Association, which regards occupation as a legitimate practice as long as it is peaceful; and (14) the National Constitution protects the right to freedom of work and the right to exercise freedom of enterprise (articles 7, 10, 36 and 53), the right to property (articles 7 and 32), the right to equality before the law (article 8), the right to certainty in law and the right to freedom of movement (article 7).

The Committee notes all this information and recalls that, on analysing the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) by Uruguay, it noted that, in the context of an ILO mission that visited the country in August 2011, a tripartite agreement was concluded between the MTSS and representatives of the workers (Inter-Trade Union Assembly – Workers’ National Convention (PIT–CNT)) and of the employers (the CNCS and the CIU), thanks to which a new phase was opened in the dialogue on comments made by the Committee on Freedom of Association in Case No. 2699, the Committee and the Conference Committee on the Application of Standards. The Committee also notes that, further to this agreement, tripartite meetings are being held on these matters.

The Committee recalls that, in examining Case No. 2699, the Committee on Freedom of Association considered that exercise of the right to strike and the occupation of work premises should respect the right to work of non-strikers, and the right of the management of the enterprise to enter the premises, and asked the Government to secure observance of these principles in legal provisions adopted and in practice.

The Committee also recalls that on numerous occasions it has emphasized that “in so far as the strike remains peaceful, strike pickets and workplace occupations should be allowed. Restrictions on strike pickets and workplace occupations can be accepted only where the action ceases to be peaceful. It is, however, necessary in all cases to guarantee respect for the freedom to work of non-striking workers and the right of the management to enter the premises” (see General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2012, paragraph 149). In these circumstances, the Committee expresses the firm hope that, in the context of the tripartite dialogue under way, the necessary measures will be taken to ensure that, taking into account the comments of the Committee on Freedom of Association and this Committee, observance of this principle is fully guaranteed in law and in practice and in consultation with the most representative organizations of workers and employers. The Committee hopes that during the ongoing consultation process, the decisions of the national tribunals will be taken into consideration.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee observes that, in their comments on the application of Convention No. 98, the International Organisation of Employers (IOE), the Uruguayan Chamber of Industries (CIU) and the National Chamber of Commerce and Services of Uruguay (CNCS) recalled that the Committee on Freedom of Association, in its examination of Case No. 2699, considered that the exercise of the right to strike and the occupation of the premises should respect the right to work of non-strikers, and the right of the company management to enter its premises, and asked the Government to ensure respect for these principles in regulatory legislation and practice. According to the IOE, CIU and CNCS, the Government has not enacted any legislation relating to the abovementioned principles and in practice the company premises continue to be occupied by the workers, the right to work of non-strikers is obstructed, and in some cases the company management has been prevented from entering the premises. The Committee requests the Government to supply information in its next report on the measures which it has taken in relation to this matter.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes that in the court ruling covering freedom of association attached by the Government to its report, it is stated that, in relation to a work stoppage, the employer made use of a notarial act with a view to allowing a worker to fulfil his right to work. Although the Committee takes into consideration the principle of the right to work, it expresses concern that the action of the employer in question may in practice exert undue pressure on strikers. In this respect, the Committee requests the Government to inform it whether there is any provision in the legislation which permits the employer to take such action in the event of a strike and how this is applied in practice in such a manner that it does not prejudice the exercise of the right to strike.