Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 400, Octubre 2022

1. 689. The complaint is contained in a communication from the Surgical Anaesthesia Union of Uruguay (SAQ) dated 20 February 2020. The SAQ sent additional information in a communication dated 28 May 2021.
2. 690. The Government provided its observations in a communication dated 30 September 2021.
3. 691. Uruguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 692. In a communication dated 20 February 2020, the SAQ states that it was formed in 1993 when surgical anaesthetists decided to change their trade union representation, which to that point had been undertaken by the Medical Union of Uruguay (SMU), on the understanding that this union no longer represented or defended their interests. The complainant states that it is a category trade union, which represents more than 2,000 doctors and which, since its creation, has concluded countless collective agreements both in the public and private sectors. They also state that, in the country, there are three operational trade unions that represent doctors: the SMU (which represents doctors who are not surgical anaesthetists in Montevideo), the Medical Federation of the Interior (FEMI) (which organizes doctors outside Montevideo) and the SAQ (which represents surgical anaesthetists across the whole country). The complainant states that these organizations are not exclusive and that it is normal for some doctors to be members of two or three of those organizations.
2. 693. The complainant alleges that: (i) up until 2005, they participated actively in collective bargaining, concluding countless collective health sector agreements, both within the public and private sectors; (ii) following the rise to power of the Frente Amplio Government in 2005, there have been a series of changes in the relationship with the Government; (iii) there was a special relationship between those who had been leaders of the SMU and the new Government, to the extent that many of those in leadership positions in the SMU took up positions in the Government; and (iv) this special link has led to the fact that the Government has favoured the SMU above the other medical trade unions and has supported that union repeatedly in its intent to eliminate the existing trade union plurality in the sector.
3. 694. The complainant alleges that, since 2005, the Government began to systematically favour the SMU as the organization that should represent all doctors in all fields of practice, and that the SMU has managed to sign agreements in which surgical anaesthesia has been reformulated without the participation of the SAQ, and even going against the wishes of that organization. In addition, the complainant alleges that the Government of that era applied pressure on and harassed the directors of the complainant organization, making statements and accusations against its officials, which were submitted to the National Medical College.
4. 695. The complainant states that, in 2005, the Government convened the Health Advisory Councils and that, although more than 30 trade union and social organizations were invited with the aim of gathering their opinion regarding a reform of the national health system, the Government specifically excluded the complainant. The complainant alleges that, after presenting a grievance in that regard to the judiciary, it was finally invited to participate in those Councils. The complainant alleges that, although, during the period 2007–12 they managed to continue participating in collective bargaining in all areas, from 2012 a process began, under which they were systematically and conscientiously excluded by the Government from every collective bargaining process, with the clear complacency of the SMU. The complainant alleges that, in 2012, the Government and the SMU planned to reformulate doctors’ way of working and remuneration, with a view to fixing a single salary for all doctors, irrespective of their specialty and any associated risks, favouring those who practised general medicine and to the detriment of those practising medical specialties. The complainant alleges that the ulterior motive of that reform was to eliminate the agreement that related specifically to surgical anaesthetists, which had been negotiated by the SAQ more than two decades previously.
5. 696. The complainant notes that the Wage Councils, tripartite collective bargaining bodies in the private sector, were relaunched in the country in 2005, and that, although it is true that neither the SAQ nor the FEMI are formally a part of Group 15 (health and related services) under the Wage Councils, both were invited by the Ministry of Labour and Social Security (MTSS) to participate with the right to speak but without vote. The complainant demonstrates that, until 2012, the SAQ, the FEMI and the SMU participated in Group 15 and, although the vote for the workers in this group was held by the SMU, which was designated by the executive authorities as the most representative trade union because of the number of its members, the SMU participated together with the other trade unions, respecting the position of the FEMI and the SAQ.
6. 697. The complainant alleges that, although the Medical Labour Commission was created in 2010 and it was determined that a delegation designated by the SAQ was going to be able to participate when positions in the surgical anaesthesia specialty were being negotiated, in 2012 they were excluded from the invitation to participate in the Wage Council negotiations and that the name of the Medical Labour Commission was changed to the Multipartite Advisory Commission (CMA), excluding the SAQ from the Commission. Furthermore, they allege that, in 2015, high-availability positions (CAD) were negotiated in the specialty of general surgery, without the complainant ever being invited to participate in collective bargaining and, although at the end of 2015 they signed an agreement that enabled them to participate in meetings of the CAM when matters relating to surgical anaesthesia were to be dealt with, the SAQ was allowed to attend but was never given the option of taking the floor.
7. 698. The complainant alleges that the SMU and the Government planned and imposed the use of high-availability positions in the private sector, establishing a system of semi-exclusivity (or complete exclusivity) in which productivity (the fundamental mechanism of remuneration for surgical anaesthetists negotiated by the SAQ) became a completely residual aspect, and in which the thing that had been an incentive before became a punishment (under which, doctors that did not meet determined goals saw their base salary reduced by up to 25 per cent). The complainant alleges that these positions were designed without their participation and against their express will, despite the fact that they are specifically designed for surgical anaesthetists.
8. 699. The complainant demonstrates that, as its members were denied from putting themselves forward for high-availability positions, the executive authorities required enterprises to only hire workers using this type of contract under the penalty of fines and punishments. The complainant indicates that the high-availability positions could not be implemented because the collective of surgical anaesthetists and the SAQ had spoken out against these positions and had repeatedly condemned this situation by means of labour conflicts, and as a result few or no anaesthetists or surgeons responded to the recruitment call for these positions. Faced with this situation and as their actions had not yielded any fruit, the executive authorities, in agreement with the SMU, proceeded in the 2018 Wage Councils to take another step forward to attack the surgical anaesthetists and resolved to directly reduce their salaries through the shady and oblique method of recategorizing surgical procedures, decreasing the total salary that general surgeons received for performing surgery, that is to say, a direct wage reduction.
9. 700. In a communication sent on 28 May 2021, the complainant indicates that, although it is true that the current Government, which came into power on 1 March 2020, responds to different power groups than those that occupied positions in the moment that the complaint was submitted and that the special relationship that existed between the authorities of the previous Government and the SMU and the particular favouritism of the State towards the SMU no longer exist, the SAQ continues to be invited to participate in collective bargaining only to the extent that the SMU considers it to be relevant. The complainant considers that, although it was surely as a result of the change in Government that it has begun to participate in collective bargaining in the Wage Councils, to all intents and purposes, their appearance at the Wage Councils continues at the mercy of the SMU; they are not invited to those Councils by the MTSS, rather it is the SMU that invites them (usually they are invited incorrectly and late) and they are only invited to participate with the right to speak but without the right to vote except through the SMU, which does not represent or defend their interests. The complainant alleges that they have always been told, despite their opposition, that the decisions taken by the SMU and the Government are final. The complainant also considers that there is no guarantee that the SMU would not decide from one day to the next to prevent them from participating in the Wage Councils.
10. 701. The complainant alleges that: (i) the state health enterprise known as the State Health Services Administration (ASSE), with which, historically, multiple agreements had been negotiated, excluded them from the negotiations in which high-availability roles (FAD) for surgical anaesthetists were approved; and (ii) in 2007, collective bargaining agreements were signed with the SMU through which those roles were implemented for general surgeons and surgical anaesthetists working in the ASSE, modifying agreements concluded between the ASSE and the SAQ in 2008, which is to say that a collective bargaining agreement that was in force was violated in a unilateral and illegal manner. The complainant alleges that the SMU acts primarily in the defence of doctors that are not surgical anaesthetists (and of those, not even in defence of doctors from the interior of the country), and does not act in defence of anaesthetists.
11. 702. The complainant states that they have presented requests for annulment to the Administrative Court (TCA) against the resolutions of the ASSE, which were used to approve the collective bargaining agreements with the SMU that implemented the high-availability positions in general surgery and surgical anaesthesia, since those agreements were to the detriment of the working conditions of those doctors and were approved without their participation. The complainant indicates that the TCA has not yet issued a judgment on those requests for annulment.
12. 703. The complainant states that the designation of the most representative organization is not determined by an independent body that guarantees the necessary impartiality, but rather that it is the executive authorities that designate the most representative organization for each sector in the groups identified by the Wage Councils. According to the information provided by the complainant, in the case of the Group 15 Wage Council, relating to the health sector, the SMU was designated as the most representative organization for doctors, despite the fact that it lacked the necessary independence from the Government.
13. 704. The complainant states that, given that they had been excluded from Group 15 and that the representation of medical workers in that group had been granted to the SMU as the most representative organization, they had posed the possibility of creating a surgical anaesthesia subgroup within Group 15 that would be made up of the same delegations of the main group, but would also include – given the existence of an additional place – a delegate of the SAQ, and it would be in that environment that any matter relating to the categories, salaries and working conditions of surgical anaesthetists and surgeons should be discussed and resolved. The complainant states that similar solutions have been implemented in other sectors of activity, in which, in the face of the existence of a trade union for a profession, subgroups or chapters have been favoured in which decisions can be negotiated that encompass all the enterprises of the sector covering specific jobs or tasks. That is the case, for example, in Group 13 (transport) where Subgroup 12 (air transport) was created, in which there are multiple chapters that deal with matters relating to national and foreign companies, but also the various professions involved (airline pilots, pilots of aerial application aircraft, ground staff, etc.), providing each group with their own environment in which negotiation can take place, in which the floor is given to specific trade unions that represent the workers. The complainant states that the executive authorities have refused to create a subgroup within Group 15 with an area of operation limited to surgical anaesthetists, which would have removed all of the problems relating to the representativeness of the SMU, as that subgroup would have enabled the SAQ to participate and represent its workers as the workers’ organization that is undeniably the most representative of surgical anaesthetists.
14. 705. The complainant states that: (i) the Wage Councils are tripartite and the majority of votes are cast by the executive authorities such that it can occur and it has occurred that workers or employers do not agree with a proposal, and in the end the proposal is approved against their will because of the votes cast by the Government; (ii) there is a type of compulsory arbitration which follows the best of hypotheses and guidance provided by the executive authorities in the most serious cases, but in addition to this general violation, which the law limits to minimum wage and categories of activity, this interference in the health sector has been great and exceeds even the scope of the law itself, as, in essence, collective bargaining has been brought under control, subjecting it to the health policy that the executive authorities intends to implement, and (iii) the Government has incessantly intervened and promoted aspects that go beyond minimum wages and categories, constantly getting involved in aspects that are set in accordance with national regulations resulting from bipartite collective bargaining, violating the principles of bilateralism and of free and voluntary negotiation.
15. 706. The complainant alleges that the executive authorities have been making proposals that modify working conditions and remuneration for workers, an area which should be the sole responsibility of the workers’ and employers’ organizations involved and alleges that this has been particularly evident in two areas in which the executive authorities have intervened in collective bargaining:
16. 707. The complainant states that: (i) following intense efforts, they were finally permitted to attend the “Recategorization Committee” to “accompany” the SMU, but without the right to speak, that is to say, to attend as a simple observer; (ii) in the end, only two meetings of the Committee were held, in which it was clear that the recategorization had already been agreed between the State and the SMU; (iii) in the final meeting, and in spite of their negative opinion regarding signing the recategorization of surgical anaesthetic procedures, which would lead to a wage reduction, the SMU unilaterally approved the document; and (iv) the severity of the situation lies not only in the direct wage reduction, but also in the fact that the wage reduction was formally proposed (and to a certain extent, imposed) by the executive authorities, violating the principle of bilateral collective bargaining by the Government making a direct intervention to modify the form of remuneration of workers in the enterprises in question.
17. 708. The complainant states that in the last decade, various disputes have occurred, many of them related to the question of representativeness, and alleges that, in the disputes of 2007 and 2012 (among others), the work of surgical anaesthetists was declared to be essential, without the necessary budget being provided for that work. The complainant alleges that: (i) the essential nature of work did not only affect emergency services but also any surgery or other activity carried out at the polyclinic, such as the coordinated care provided in outpatient clinics, and considers that the way in which the designation was used was a way of removing the right to strike; and (ii) the declaration of essential work was used as a way of bringing an end to the dispute without proposing mechanisms for arbitration or alternative mediation, they simply prohibited strike action and prevented the trade union from being able to act to pursue its demands. The complainant indicates that, although the law provides for work to be declared essential, that covers essential (minimal) services and not all activity and that those services should be “maintained through emergency shifts”, the executive authorities disregarded this by declaring essential all work carried out by surgical anaesthetists (including, for example, normal polyclinics).
18. 709. In the light of the above, the complainant asks: (i) whether it is valid to declare work essential when there is continuity of care provided by the trade union presence in accordance with a duty roster, which is guaranteed by the trade union and regarding the existence of which there is no controversy; (ii) whether it is valid that the declaration of work as essential and the prohibition against taking trade union action should encompass surgery in all its forms, including care in polyclinics, coordinated care, etc., as it has been used and not only to encompass those services which are, owing to their nature, truly essential; and (iii) whether it is valid to prohibit the exercise of the right to strike without offering any other alternative method for solving the dispute or to discuss the set of demands issued by the trade union.
19. 710. The complainant states that, according to Decree No. 367/007 of 23 August 2007, the agreement was reached in the Group 15 Wage Council, Health Services, to create the Continuing Medical Education Fund, to which contributions would be made by enterprises, and they allege that the MTSS only transferred funds to the SMU and that the SAQ never received such funds. The complainant also states that in 2019, they initiated legal proceedings against the MTSS, reclaiming the payment of the amount that, in their understanding, should have been transferred by the institutions concerned, in compliance with the 2007 agreement, and that had never been paid to the complainant. According to the complainant’s statement, in the agreements reached under the framework of the Wage Councils, it had been agreed that those funds should have been transferred directly to the SAQ and not to the SMU. The legal proceedings are ongoing.

B. The Government’s reply

1. 711. In its communication dated 30 September 2021, the Government states that, in the country, there is complete trade union freedom and independence, which includes a system of collective bargaining with a long history and that Uruguay was one of the first countries to accept, promote and protect not only collective bargaining, but also the other two pillars of collective labour rights, the right to strike and freedom of association. In addition, it highlights that the legal system in Uruguay is characterized by trade union pluralism, and that, as a result, the collective rights to organize and to collective bargaining are granted to all established collective organizations.
2. 712. With regard to the alleged relationship between the Government authorities and the SMU leadership, and the resulting lack of independence of the latter, the Government highlights that, since 1 March 2020, the political leadership of the State has been in the hands of different political parties than those that had been leading the country during the facts that have been included in the complaint. The Government states, however, that the design of the representation of labour interests by the Wage Councils and the remuneration structure and working conditions agreed under those Councils have not been modified, and therefore the assertion of the supposed intention to favour the other trade union organization through a supposed preference towards that institution is unfounded. The Government states that, at the current time, the SAQ has been participating in collective bargaining that has been formally convened under the Wage Councils, participation which is not the result of an invitation issued by the MTSS but rather by the SMU, and that it participates with the right to speak but without vote. With regard to the assessments made by the SAQ regarding the State’s intention to reformulate the form of medical practice and its remuneration in order to favour those practising general medicine over those practising other specialties, as well as to generate a single agreement for the sector, the Government highlights that, unlike in other countries, in Uruguay, in addition to the coexistence of the private and public subsectors of health, the financing of comprehensive healthcare providers that provide health coverage for the population is almost entirely public, as there is a joint fund composed of contributions from workers, enterprises and the State, as well as a direct allocation from the national budget. For this reason, the way in which healthcare spending is implemented by healthcare providers is a relevant variable, both for the Ministry of Public Health (MSP) and for the Ministry of Economy and Finance (MEF), in order to guarantee the efficiency of the system and ensure quality universal health coverage for the population. In this regard, collective bargaining is a relevant space to establish public human resources policies, which, furthermore, are developed in agreement with the main actors in the sector. The Government states that neither the MEF nor the MSP formally participate in the Wage Councils, as, during the tripartite collective bargaining carried out under their framework, the executive authorities are represented by the MTSS, therefore, the invitation and participation of the MSP is to provide oversight and advice.
3. 713. Notwithstanding the above, the Government highlights that the reform of medical practice was carried out through a long process of negotiation in which, at every opportunity, there was consensus between the parties that were participating in the collective bargaining, representatives that were not nominated arbitrarily, but rather in accordance with the criteria of representativeness established by legal regulations, over which the MSP does not have any influence. Furthermore, it emphasizes that all the reports that form part of the new medical agreement, which was agreed within the framework of the Wage Councils, were signed by all the delegations, thus indicating that there is consensus among all participants.
4. 714. The Government indicates that the SAQ has participated in discussions that took place in committees that operate under the framework of the MSP and that it was in those committees that the new medical practice regime was agreed, and highlights the following instances of collective bargaining: (i) from 2010 to 2012, the Medical Labour Commission was operational, which was part of the Group 15 Wage Council and in which it was established when matters relating to a specialty would be discussed, the representative of the SMU would attend with a representative of the Commission and in the case of the surgical anaesthesiology specialty, the representative should be appointed by the SAQ, and (ii) from 2012 to 2019 the Multipartite Advisory Commission (CAM) was operational, coordinated by the MSP, with the participation of the executive authorities and the SMU and the wide participation of institutions from within the sector, with the goal of monitoring changes that were established by the agreement signed by the Wage Councils that took place on 5 November 2012. The Commission drew up proposals that were subsequently the subject of discussion and approval by the Wage Councils and, in those meetings, proposals were agreed to reform all medical specialties, in particular those relating to surgical anaesthesia; in 2015 a proposal for high-availability positions in general surgery was drawn up, and the SAQ participated in various meetings during the preparation of that proposal, but the final wording was not shared. For that reason Report No. 16 of the CAM, which the rest of the parties had signed, included a clause that would allow the discussion to be continued for six months following the agreement. The Government states that the continuing discussion referred to above took place in the MTSS, and members of Group 15, the Uruguayan Society of Surgery and the SAQ participated therein. The Government therefore considers that it is not true that the SAQ was not allowed to participate in the process of determining the working conditions that could affect workers in the specialties that it represents.
5. 715. The Government states that during all these years, the State Health Services Administration (ASSE), a state enterprise, listened to the SAQ and that, in May 2008, the three medical trade unions signed a framework agreement with the ASSE that establishes the bases for the remuneration of medical positions within that enterprise. That agreement also established a monitoring committee, as a result of which multiple reports were issued that reflected bipartite agreements to implement what had been agreed in the framework agreement. The Government adds that, for the ASSE, it has been fundamental to try and retain and incentivize the professionals working in the enterprise, and, in that regard, the introduction of the high-availability positions (negotiated for the private sector by the Wage Councils) opened up the possibility for the ASSE to contract new members of staff in certain specialties, where the competence in some specialties that are considered to be critical was determined by the value that each institution was able to pay. The Government states that, in this way, it was understood that the environment for discussing the high-availability roles should be a mirror of the environment in which the high-availability positions were discussed by the Group 15 Wage Council, for which a CAM had been established in the public sector. The Government explains that the high-availability roles only changed the work model, they are not compulsory, they require a public call and that in recent years there have been many instances in which they were discussed with representatives of the SAQ, and several of the proposals made by SAQ representatives were included in the agreements that were signed. Furthermore, on 4 September 2017, when the MSP requested the MTSS to convene the public sector CAM to discuss the high-availability roles in anaesthesiology, the SMU noted on the record that it had invited the Society of Anaesthesiology and the SAQ, but that these associations had indicated in writing that they would not be attending the meeting.
6. 716. The Government states that, although the ASSE receives all trade unions that request meetings in order to enter into dialogue, receive proposals and provide information in accordance with current national and international regulations for the purposes of collective bargaining and signing agreements, it only holds meetings with the most representative trade union organization. The Government understands that the proposal of the SAQ refers to difficulties in the relationships between trade unions in which the ASSE cannot, and should not, interfere. The Government also states that, although the SAQ has initiated legal proceedings to annul agreements signed by the ASSE with the purpose of implementing the high-availability roles on the grounds of the harm that these types of roles cause for its workers, those roles do not harm any of the rights that surgical anaesthetists working in the ASSE currently hold. In all cases, there is an economic benefit for all those who put themselves forward for those positions. The high-availability roles only change the work model, they are not compulsory and they require a public call. The Government states in addition that according to a resolution issued by the SAQ assembly dated 30 November 2015, it instructed its members not to put themselves forward for high-availability roles made available by the ASSE and indicated that it would punish any members that did so; warning that the punishment could even lead to the suspension of membership, for those who took up the position for which they had put themselves forward.
7. 717. The Government states that through greater representativeness, it is possible to reconcile trade union plurality with the need to have single representation for certain actions, while highlighting that the determination of the most representative organization is only required when there is no agreement between the various trade union organizations that represent the workforce, thus making it possible that it is the organizations themselves that define the matter, consolidating their platforms and their demands, agreeing on strategies, etc. Where an agreement does not exist, once it has been determined which is the most representative organization on the basis of the objective criteria (independence, as proposed by the SAQ, but also the age of the union, continuity of operation and number of members) provided for in article 14 of Law No. 18566 (the law which establishes the fundamental principles and rights of the collective bargaining system), that determination confers a legal status on the union that benefits it to a certain extent, without that implying any denial of the rights possessed by the rest of the trade unions, which are inherent in the idea of freedom of association.
8. 718. The Government states that, in the current legal framework, the most representative organization has the following prerogatives: (i) to appoint non-governmental representatives to the ILO; (ii) to form part of the Superior Council for Collective Bargaining in the Public Sector and the Superior Tripartite Council (the body that coordinates and governs the system of labour relations and which comprises six delegates from the executive authorities, six delegates from the most representative employers’ organizations and six delegates from the most representative workers’ organizations, and which is responsible for classifying tripartite groups for collective bargaining by branch of activity or production chain and designates the negotiating organizations in each area); (iii) to form part of the Wage Councils and negotiation at the branch level in the public sector, because it is the most representative organizations in each sector that form part of the Wage Council for that sector, and the topics to be discussed in those Councils, such as, among others, the creation of subgroups, trade union licences, categories, wages, etc., should be proposed by those organizations; and (iv) to negotiate and conclude general collective agreements at the branch or enterprise level or with a public or private sector body. The Government states that, on the basis of the provisions set out in article 14 of Law No. 18566, the privilege of the most representative organization refers both to the signing of the agreement as well as to the exclusive representation of workers in the collective bargaining process, and as such does not infringe upon the right to trade union plurality.
9. 719. The Government states that on 3 October 2018, the SAQ presented a statement requesting that Group 15 should vote on the formation of a subgroup to cover the activities carried out by surgical anaesthetists and that that statement gave rise to MTSS File No. 2081-13-2-0002313, as a result of which, the Group 15 Wage Council met on 7 November 2018, stating among other things that, in accordance with applicable regulations, all groups of activity, as well as subgroups, should refer to a branch of activity or production chain, and for that reason it did not consider it to be appropriate to create subgroups for professions or roles. The Government has attached a copy of the report produced by the delegates appointed by the executive authorities to the Group 15 Wage Council, which indicates, among other things, that the classification of the various Wage Councils is carried out on the basis of a branch of activity or production chain; in the case of Group 15 the branch of activity covers: “Health and related services. Hospitals, sanatoriums. Collective medical care institutions (mutual societies, medical cooperatives, trade union care centres). Private medical care institutions with full or partial coverage, clinical analysis laboratories, medical clinics, dialysis. Mobile emergency services. Rehabilitation centres. Care services, health centres, homes for the elderly, fitness clinics that provide medical services and services for doctors. Dental services (including dental products, prosthesis and dental clinics). Clinics and laboratories that provide veterinary analysis services”. In that report, it states that, although Law No. 10449 provides for the creation by the Wage Councils of “special or expert subcouncils” in order to facilitate the study of or research into a particular problem, the subgroups should correspond to one of the areas indicated, or if that is not the case, should be related to a production chain.
10. 720. The Government considers that the existence of a subgroup related to the work of surgical anaesthetists would not on its own resolve the dispute concerning representation that exists in the sector, given that it is the delegation of the group that designates the representatives for the subgroups. The Government states that the way in which the delegates are elected to the Wage Councils is explicitly provided for in article 10 of Law No. 18566 and in article 6 of Law No. 10449 and that it is the Superior Tripartite Council that designates the employers’ and workers’ organizations that will participate in each area; these organizations communicate the appointed delegates to the executive authorities. The Government explains that the delegates for subgroups are appointed by the representatives of the main group and that they act as advisers to the main delegation. The Superior Tripartite Council does not appoint the negotiating organizations for the subgroups, rather, it only refers to the most representative organizations of each group of activity.
11. 721. The Government mentions that, in general, it has understood that, where there is more than one professional organization in a given area, the first alternative is an inter-union agreement between the various organizations, which allows for their joint attendance at the negotiations. The Government states that there is no unanimous agreement concerning which should be the competent body to determine the most representative organization at the enterprise or institutional level in cases where that is under debate, and that there are various positions that could be taken in that regard:
12. 722. As the Government states, the National Labour Directorate would have indicated that the fact that a determination made by the MTSS constituted an act of interference in the trade union organizations, contrary to the provisions of Convention No. 87, and for that reason, disputes related to representativeness should, in the first instance, be dealt with through dialogue and the trade unions themselves reaching an agreement on the composition of representation, emphasizing that the delegation from the executive authorities has always collaborated in that regard, always in its role of providing mediation and conciliation, as it has done on several occasions.
13. 723. The Government highlights that: (i) negotiation has always been carried out together with all the trade union organizations that have representation at the Council level throughout the whole process, and that this arises from a single agreement, signed on 9 October 2018, which contains aspects relating to general salaries for medical and non-medical workers and in which it was agreed that a committee should be created to update the categories for the classification of surgical interventions, with the participation of SMU delegates, accompanied by the FEMI and a delegate of the SAQ; (ii) this negotiation provided for the participation of the SAQ and was created with the aim of “reviewing the classification of surgical anaesthesia interventions in the current categories, as well as the eventual creation of new categories, including the review of the current table and the incorporation of interventions that are not included in the table”; and (iii) another of the objectives of this negotiation was to define the modifications to be made as of January 2019 to the surgical anaesthesia variable according to the general adjustment chart provided for in the general agreement, (fourth clause of the Agreement of 9 October 2018 (general part)); this negotiation was responsible for covering “the activities carried out by doctors trained in surgical anaesthesia specialties” as proposed by the SAQ.
14. 724. The Government states that: (i) according to the information provided by the delegates of Group 15, between 2015 and 2019 the SAQ continued to participate, without signature, in various negotiations (the Government mentions these negotiations in its reply); (ii) since 2020, there were new avenues for the SAQ to participate in tripartite collective bargaining and in the Wage Councils; and (iii) meetings have been held under the auspices of the Collective Bargaining Division with various enterprises in the health sector.
15. 725. The Government states that Law No. 10449 created the tripartite Wage Councils with the fundamental goal of establishing a minimum wage for each category in each branch or sector of activity and that, in this regard, it is logical that the sectoral wage policy is aligned with the goals of the National Integrated Health System, the implementation of which is the responsibility of the MSP. The Government states that it does not share the statement made by the complainant that the design of the high-availability positions prevents a worker from holding more than one job, reduce incentives to work and to specialize and affect their technical independence. In addition, they state that compulsory exclusivity was not stipulated in any case and that these positions were designed from the perspective of healthcare services in order to improve the quality of care and patient safety. The Government highlights the fact that the high-availability positions, agreed by the Wage Councils, do not affect the rights acquired by health professionals who had other wage agreements that they could consider more beneficial and that they only apply to contracts that had already been signed, in cases where there was an agreement between the worker and the employer. In addition, it highlights that there is no legal restriction preventing a private health services provider from agreeing, individually or through bilateral negotiation at the lower level of negotiation, wage conditions that are more beneficial than those agreed by the Wage Councils; therefore, the Government denies the existence of coercive activity on the part of the State towards private service providers to prevent them from negotiating the above-mentioned conditions with the SAQ. The Government states that the criminal justice system has not processed any complaint that involves threats or violence by members of the executive authorities towards healthcare providers.
16. 726. With regard to the recategorization of surgical procedures, the Government states that the discussion regarding the review of the categories for the classification of surgical interventions took place in the Wage Councils, which agreed to create a working committee for the recategorization of surgical procedures, which would be attended by the MSP, the MEF and the SMU (which would be accompanied by a representative of the FEMI and a delegate of the SAQ). The Government states that, in the report dated 22 March 2019 of that committee, the new categories of surgical interventions were defined for general surgery, which required a change in the structure such that some interventions increased in value and others decreased. It also states that the goal of the recategorization was to incorporate procedures that were not provided for in the previous agreement, recognizing the changes that have occurred, as a result of technological advancements, in the various procedures that had already been agreed. The Government highlights that the Society of Surgery of Uruguay, which is part of the SAQ, actively participated in the whole negotiation process and attaches a copy of the note issued by that Society analysing the recategorization proposal.
17. 727. The Government states that traditionally, as there is no legal definition in the legal system of the concept of essential service, the MTSS has a certain amount of discretion when establishing the essential nature of work, with the resulting need to maintain services through emergency shifts, the interruption of which determines that a strike or lock-out is illegal, according to the provisions of article 4 of Law No. 13720. The Government considers, in this regard, that the innate essential nature of medical activity in certain cases is not debatable, and therefore, it is necessary to maintain, as close to normal as possible, hospital care in in-patient, urgent and emergency services, highlighting that the Administrative Court (TAC) has not declared the annulment of any other rulings of the executive authorities that have declared medical services to be essential.
18. 728. The Government states that: (i) in 2019, the SAQ initiated legal proceedings against the MTSS, in which they requested the payment of the amount that, in their understanding, should have been paid to them in compliance with an agreement concluded in 2007, in which the Continuing Medical Education Fund was created; and (ii) on 9 September 2021, ruling No. 51/2021 was issued, which dismissed all the terms of the proceedings, since the SAQ had recognized that the funds were in the possession of the SMU, which is the organization that had represented them in the signing of the agreement, and that the MTSS had complied with the assumed commitment and that it did not possess any amount of the money that belonged to the SAQ.

C. The Committee’s conclusions

1. 729. The Committee observes that, in the current complaint, the complainant, which represents surgical anaesthetists, alleges favouritism on the part of the Government towards another trade union, exclusion from instances of collective bargaining, interference of the Government in instances of bipartite collective bargaining, as well as aspects relating to the declaration of essential services. The Committee takes note of the fact that the Government provides replies to these allegations and that it states that, in the country, there is complete trade union freedom and independence and that it has a system of collective bargaining with a long history.
2. 730. The Committee takes note that, although in its complaint the complainant alleges that since 2005, and in particular since 2012, the Government exerted pressure and harassed the union and excluded it and marginalized it in every instance of collective bargaining, favouring the SMU, with whom it had a special relationship, in a later communication it indicates that the current Government, in power since 1 March 2020, responds to other groups of power that are different from those that were occupying positions in the moment in which the complaint was submitted, and that the special favouritism towards the SMU no longer exists. The Committee takes note that, in that regard, the Government states that, although, since 1 March 2020, the political leadership of the State has been in the hands of different political parties than those that had been leading the country during the facts that formed the basis of the complaint, the design of the representation in the Wage Councils and what was agreed by those Councils has not been changed, leaving the allegation of favouritism towards the SMU unfounded. The Committee takes due note of the information provided by the Government. While recalling that any favourable or unfavourable treatment by the public authorities of a particular trade union as compared with others, if it is not based on objective pre-established criteria of representativeness and goes beyond certain preferential rights related to collective bargaining and consultation, would constitute an act of discrimination which might jeopardize the right of workers to establish and join organizations of their own choosing [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 515], the Committee notes that the complainant states that at the current time, the alleged anti-union discrimination against the SAQ and the favouritism towards the SMU no longer exists and will therefore not pursue its examination of this aspect of the complaint.
3. 731. The Committee takes note that the complainant alleges that: (i) to date, it continues at the mercy of the SMU with regard to its participation in the Wage Councils; (ii) participates with the right to speak but without vote through the SMU, which does not represent nor defend its interests; and (iii) there is no guarantee that, tomorrow, the SMU will not stop allowing its participation in the Councils. In addition, it alleges that the executive authorities designate which is the most representative organization in the Wage Council groups when an independent third party should do that, and that the authorities have refused to create a subgroup within Council Group 15 (Health and related services) for surgical anaesthetists, which would eliminate the problems of representation, despite the fact that there are subgroups in other branches of activity.
4. 732. The Committee takes note that, in that regard, the Government states that: (i) since 2020, the SAQ has been invited to the Councils by the SMU and has participated with the right to speak but without vote; (ii) the Wage Councils are made up of the most representative organizations, which negotiate and sign collective agreements erga omnes; (iii) there is no legal restriction preventing private healthcare providers from agreeing, individually or through bilateral negotiation at the lower level of negotiation, wage conditions that are more beneficial than those agreed by the Wage Councils; (iv) the Superior Tripartite Council, composed of the executive authorities and the most representative organizations, is the body that designates the organizations that participate in the Wage Councils; (v) the privilege of the most representative organization refers to the signature of agreements as well as representation in the negotiation, not violating trade union plurality; (vi) the determination of the most representative trade union is only required when there is no agreement between trade union organizations, making it possible for the organizations themselves to determine the matter; (vii) where there is no agreement, the legitimacy to negotiate is granted to the most representative organization in accordance with the criteria provided for in article 14 of Law No. 18566 (age of union, number of members …); (viii) there is no unanimous agreement with regard to which body should be the competent body to determine which is the most representative organization at the enterprise or institutional level in cases where that is under debate and that the disputes relating to representativeness should first be addressed by means of dialogue, and that the executive authorities have always collaborated by providing mediation; (ix) the SAQ has taken the floor in various meetings of Group 15 and in some of those meetings decided not to sign the records of those meetings; and (x) in 2018, Group 15 considered the possibility of creating subgroups and concluded that it was not appropriate to open subgroups for professions or roles.
5. 733. The Committee observes that: (i) article 11 of the Law on Collective Bargaining in the Private Sector, No. 18566, establishes that collective bargaining at the level of branch of activity or production chain can be carried out either through the Wage Councils or through bipartite collective bargaining; (ii) the negotiation of working conditions for surgical anaesthetists by the Wage Councils forms part of a wider negotiation environment, which encompasses all medical specialties and for which the negotiating agent is, currently, the SMU; and (iii) according to the Government, there would be no legal restriction preventing the complainant from agreeing, through bilateral collective bargaining with private healthcare providers, working conditions that are more beneficial than the conditions agreed by the Wage Councils. The Committee also observes that, although the Government assures that, since 2020, the SAQ has been invited by the SMU and has participated in the Group 15 Wage Council with the right to speak but without vote, the complainant alleges that the SMU does not represent nor defend its interests and that there is no guarantee that it will allow them to continue to participate in the Councils.
6. 734. The Committee recalls, in this regard, that systems based on a sole bargaining agent (the most representative) and those which include all organizations or the most representative organizations in accordance with clear pre-established criteria for the determination of the organizations entitled to negotiate are both compatible with Convention No. 98. It also recalls that the granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited; in addition, minority organizations should be permitted to carry out their activities and at least to have the right to speak on behalf of their members and to represent them. On the other hand, the Committee has considered that in order to determine whether an organization has the capacity to be the sole signatory to collective agreements, two criteria should be applied: representativeness and independence. According to the Committee, the determination of which organizations meet these criteria should be carried out by a body offering every guarantee of independence and objectivity [see Compilation paras 1360, 1388 and 1374].
7. 735. Taking into account that Law No. 18566 establishes that the collaboration and consultation are fundamental principles and rights of the collective bargaining system and emphasizes the promotion of mutual understanding and good relations between the organizations themselves, the Committee trusts that, within the framework of the collective bargaining system currently in operation in the country, the SAQ will continue having the opportunity to express its opinions in the meetings that concern it. In addition, recognizing the independence that workers’ and employers’ organizations enjoy in the country to define their representatives in collective bargaining processes, the Committee requests that the Government should take the necessary measures, in full consultation with the social partners, to ensure that, if there is no agreement between the parties concerned, the determination of the most representative employers’ or workers’ organization is not left to the discretion of the Government, but rather to a body that offers every guarantee of independence and objectivity. The Committee requests the Government to keep it informed in this regard.
8. 736. The Committee takes note that the complainant alleges that in 2017, the ASSE signed collective agreements with the SMU, through which the high-availability roles were implemented in surgical anaesthesia specialties and that those roles modified agreements that the SAQ had concluded with the ASSE in 2008, violating in a unilateral and illegal manner a collective bargaining agreement that had been in force. The SAQ has introduced actions before the TCA to annul the ASSE resolutions, through which collective agreements were approved between the ASSE and the SMU in general surgery and surgical anaesthesia which harmed their working conditions and were approved without its participation.
9. 737. The Committee takes note that, in that regard, the Government states that: (i) although the ASSE receives all trade unions that request meetings in order to enter into dialogue and conduct collective bargaining and sign agreements, it holds some meetings only with the most representative trade union; (ii) in May 2008, the three medical trade unions signed a framework agreement with the ASSE, which establishes the bases for the remuneration of medical positions in the ASSE and that agreement established a monitoring committee, as a result of which, multiple reports were issued that reflected bipartite agreements to implement what had been agreed in the framework agreement; and (iii) there are difficulties in the relationship between trade unions in which the ASSE cannot, nor should not interfere.
10. 738. The Committee observes that, according to publicly available information, in December 2021 and April 2022 the TCA handed down rulings relating to the demands submitted by the SAQ which ruled in favour of that union, annulling the ASSE resolutions that standardized agreements signed between the ASSE and the SMU in 2017 and 2018 in which the high-availability positions were implemented for general surgeons, anaesthetists and gynaecologists who worked in the ASSE. The Committee observes that, in those rulings, the TCA indicated that the agreements between the ASSE and the SMU had changed the working conditions decided upon in previous agreements between the ASSE and the SAQ, disregarding the salary increases agreed therein.
11. 739. The Committee recalls, as mentioned before, that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. The Committee also recalls that mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Compilation, paras 1351 and 1336]. Observing that the rulings of the TCA return the situation to its previous state and stipulate that, in order to comply with the rulings, they should establish the bases for a negotiation between the ASSE and the SAQ, the Committee trusts that the negotiations will be conducted in a harmonious manner.
12. 740. The Committee takes note that the complainant alleges that the executive authorities have violated the principle of bilateral collective bargaining and the principle of free and voluntary negotiation, because it has made proposals that modify the working and wage conditions of the workers, an area that, in its opinion, should be exclusively the responsibility of workers’ and employers’ organizations. The Committee takes note that the complainant alleges that: (i) the high-availability positions, designed by the executive authorities and the SMU against its will, reformulated the work of surgical anaesthetists, getting involved in aspects that go beyond minimum wage and wage categories and economically punishing the health institutions that do not contract doctors using that mode of employment; and (ii) the executive authorities have interfered in the recategorization of surgical procedures, which is nothing more than a hidden wage decrease, because it has an impact on the remuneration of surgical anaesthetists; and although, following intensive negotiations, the complainant was allowed to attend the recategorization committee accompanied by the SMU, they did not have the right to speak.
13. 741. In that regard, the Committee takes note that the Government states that: (i) the financing of comprehensive healthcare providers that provide health coverage for the population is almost entirely public and therefore the way in which spending in healthcare is implemented by healthcare providers is a relevant variable for the purposes of guaranteeing the efficiency of the system and ensuring quality universal health coverage; and (ii) collective bargaining is a relevant environment to establish public human resources policies that are developed in agreement with the main actors in the sector. It also states that: (i) private healthcare providers can agree, individually or through bilateral negotiation, on more beneficial wage conditions than those agreed by the Wage Councils, therefore, the Government denies the existence of coercive activity on the part of the State towards private service providers to prevent them from negotiating the above-mentioned conditions with the SAQ; (ii) the SAQ participated in discussions in which proposals were drawn up for the high-availability positions, designed from the perspective of healthcare services in order to improve the quality of care and patient safety and which do not affect the rights acquired through more beneficial wage agreements; and (iii) the recategorization of surgical procedures took place in the Wage Councils in the framework of a committee in which the SMU was accompanied by a delegate from the SAQ.
14. 742. The Committee recalls that, in a previous case relating to Uruguay, it indicated that, although the fixing of minimum wages can be the object of tripartite decisions, Article 4 of Convention No. 98 encourages the promotion of bipartite negotiation to fix working conditions, for which any collective agreement on fixing employment conditions should be the result of an agreement between employers or employers’ organizations on the one hand and workers’ organizations on the other hand [see 356th Report, Case No. 2699, para. 1389]. The Committee recalls that the monitoring of legislative aspects in that case was referred to the Committee of Experts on the Application of Conventions and Recommendations and that, since then, this question has been being examined by the Committee of Experts on the Application of Conventions and Recommendations within the framework of the application of Convention No. 98.
15. 743. The Committee takes note that the complainant alleges that in the last decade various disputes have occurred and that there has been an irregular and abusive use of the mechanism for declaring an essential service given that, in the disputes of 2007 and 2012 (among others), the work of surgical anaesthetists was declared to be essential in its totality (including, for example, normal polyclinics), without having proposed alternative mechanisms for solving the disputes. In that regard, the Committee takes note that the Government states that, as there is no legal definition in the legal system of the concept of essential service, the MTSS enjoys a certain amount of discretion when establishing the essential nature of work, with the resulting need to maintain services through emergency shifts, the interruption of which determines that a strike or lock-out is illegal. It also indicates that the TCA has not annulled any ruling relating to the declaration of the essential nature of medical service. Recalling that the hospital sector can be considered to be an essential service and that the Committee has acknowledged that the right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees [see Compilation, paras 840 and 827], the Committee trusts that the Government will ensure that these workers are provided the necessary compensatory guarantees.
16. 744. The Committee takes note that, according to the information provided by the Government, on 9 September 2021 ruling No. 51/2021 was issued which dismissed the claim presented by the SAQ against the MTSS in relation to the funds that, according to the allegations, had been deposited with the SMU but not the SAQ. The Committee takes note that, in that ruling, it indicated that the SAQ had confirmed that the MTSS had transferred the entirety of the funds deposited by the enterprises to the SMU; as a result it concluded that the MTSS did not possess the quantity of money that belonged to the SAQ. The Committee takes due note of the ruling and recalls that a situation that does not involve any dispute between the Government and the trade union organizations, but rather involves a conflict within the trade union movement itself, is the sole responsibility of the interested parties themselves [see Compilation, para. 1610].
17. 745. Lastly, and in general terms, trusting that the adoption of the above-mentioned measures, in consultation with the social partners, will contribute to maintaining the efficient promotion of collective bargaining in the country, the Committee reminds the Government that the technical support of the Office is at its disposal.