Rapport définitif - Rapport No. 320, Mars 2000

1. 818. The complaint is contained in a communication from the Inter-Trade Union Assembly - Workers' National Convention (PIT-CNT) dated 16 June 1999. The Government sent its observations in a communication dated 30 November 1999.
2. 819. Uruguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 820. In its communication dated 16 June 1999, the PIT-CNT explains that the company Gaseba Uruguay S.A. (of the Gas de France group) is a private company which has a public service licence to distribute mains gas. In March 1996, the Autonomous Union of Gas Workers and Employees (UAOEGAS), which represents employees of Gaseba Uruguay S.A., felt obliged to inform workers, government bodies and the general public that Gaseba Uruguay S.A. had begun using a substance known as amerzine in its industrial processes. The effects of that substance on workers' health were reported as well as appropriate preventive and safety procedures to be followed by persons handling it, but the company refused to implement them. The union's allegations were corroborated by the Labour Inspectorate of the Ministry of Labour and Social Security when it inspected the site on 9 May 1996. The inspection confirmed the use of amerzine, its toxicity and the failure to apply essential safety measures (a copy of the inspection report is attached). As a result of this, the Labour Inspectorate banned Gaseba Uruguay S.A. from using amerzine and gave the company ten days to put a new procedure in place.
2. 821. The PIT-CNT adds that Gaseba Uruguay S.A. reported union officials and activists who had obtained samples of the substance for the criminal justice authorities. The latter, by agreement with the Ministry of Public Affairs, ruled that no crime had been committed by the workers (the complainant supplies a copy of the ruling). On 15 March 1996, having failed to intimidate the trade unionists by reporting them to the criminal justice authorities, the company announced the dismissal of the following trade unionists who had been actively involved in reporting the company's use of amerzine: Pablo Fernández, Wilson Sequeira, Walter Suárez Pi and Alejandro Acosta.
3. 822. The PIT-CNT also alleges that on 7 December 1996 the company announced the dismissal of another 33 workers. All of them were union members and four of them were members of the union's executive committee. A number of these workers decided to accept compensation in return for leaving the company, while others did not. The employees who refused compensation included the following union officials: Luis Puig, who is currently President of UAOEGAS; Washington Beltrán, the union's General Secretary; and Angel García, a member of the union's executive committee since 1997 and former section delegate.
4. 823. Bearing in mind the needs of the population and given that an interruption in service when the gas mains network is obsolete and poorly maintained might have serious consequences, the union decided to pursue forceful measures while stopping short of strike action and to accept the mediation of the Ministry of Labour. Thus, in the course of a long consultation procedure in which the Ministry of Labour was actively involved, several of the dismissed workers decided to accept the solution proposed by the Ministry, which was to leave the company in return for compensation.
5. 824. As regards the workers who had suffered anti-union dismissal and did not accept financial compensation, two agreements were concluded with the assistance of the Ministry of Labour. The first, which was concluded on 4 May 1996 (the complainant supplies a copy), concerns the first group of workers dismissed. This agreement invalidated the illegal dismissals announced by the company on 15 March 1996 and in their place imposed a three-year suspension of the employment contract of each of the four employees concerned (Mr. Fernández, Mr. Sequeira, Mr. Suárez Pi and Mr. Acosta), all of whom were union officials. The agreement also stipulated that during the period of the suspension, the workers would continue to receive their wages but would be required to refrain from any activity in the company. Furthermore, the workers whose contracts were suspended undertook not to represent the union in its relations with the company during the suspension period. The union accepted these restrictions on the understanding that the anti-union dismissals were null and void and could be rectified only by the reinstatement of the dismissed workers.
6. 825. The second agreement was concluded on 12 March 1997, also with the participation of the Ministry of Labour. It concerns the workers whose dismissal was announced on 7 December 1996 (the complainant supplies a copy of the relevant document). Under the terms of this agreement, some of the workers accepted compensation; another group was reinstated; a third group registered for unemployment benefits, without terminating their contracts of employment with the company. Certain points of the agreement have yet to be implemented, since the period for which the workers were put on unemployment benefits has not yet expired.
7. 826. The PIT-CNT indicates that on 3 May 1999, the day on which the period of suspension of Pablo Fernández, Wilson Sequeira, Walter Suárez Pi and Alejandro Acosta expired, Gaseba Uruguay S.A. informed each of them that they were dismissed for flagrant misconduct, thus reverting to its practice of anti-union dismissals. The anti-union nature of the dismissals is clear from the following facts:
   • -- all the workers dismissed are trade union officials;
   • -- in March 1996 they had been actively involved in reporting the company for using dangerous substances without applying the necessary safety measures;
   • -- they had already been dismissed for anti-union reasons by the company which had agreed to take them back after a three year suspension; and
   • -- the grounds given for the dismissals, namely flagrant misconduct (which is required for dismissal under Uruguayan law) is absurd when one considers that the workers in question had kept away from their places of work for three years.
8. 827. The PIT-CNT emphasizes that, when these facts were brought to the attention of the Ministry of Labour and Social Security, the latter made no move to order the reinstatement of the dismissed union members, nor did it attempt to prevent the illegal dismissals being carried out; this constitutes non-compliance with Convention No. 98. The Government's attitude of refusing to order reinstatement in cases of anti-union dismissals and favouring agreements under which workers who have been the victims of anti-union dismissal are paid compensation is publicly acknowledged by government spokespersons and well known to employers, and is becoming counter-productive. A bad employer inclined to acts of anti-union discrimination, when calculating costs and benefits, will regard compensation and fines, even large ones, as a relatively insignificant "cost" by comparison with the "benefits" of bringing about the destruction of a trade union organization.

B. The Government's reply

1. 828. In its communication dated 30 November 1999, the Government indicates that the allegations of the PIT-CNT in essence relate to a presumed failure on the part of the Government to meet its obligation to provide protection against violations of freedom of association in the form of the dismissals of two separate groups of workers employed by Gaseba Uruguay S.A, in that the company announced the dismissal of four employees on one occasion (Pablo Fernández, Wilson Sequeira, Walter Suárez Pi and Alejandro Acosta) and dismissed three others (Luis Puig, Washington Beltrán and Angel García) on a subsequent occasion. These dismissals occurred within a period of three years and, in the Government's view, did not call for sanctions against Gaseba Uruguay S.A. on grounds of violation of freedom of association.
2. 829. The Government indicates that, according to the company, Pablo Fernández, Wilson Sequeira, Walter Suárez Pi and Alejandro Acosta had been dismissed as a result of acts which it described as "flagrant misconduct". These dismissals were subsequently suspended by an agreement of 4 May 1996 under the terms of which the company would continue to pay the workers' wages and other benefits for a period of three years, while the workers would be prevented from working in the company and from entering premises owned or used by the company during that period. The company provided the judicial authorities with an account of the actions of the four workers which led to the decision to dismiss them on grounds of "flagrant misconduct": it is especially important to bear in mind here that under Uruguayan law, criminal law is not binding on labour law or vice versa. The Government indicates that when the three-year period specified in the agreement of 4 May 1996 elapsed, Gaseba Uruguay S.A. confirmed its previous decision to dismiss these four workers who, it is claimed, had assaulted security staff when removing photos and property from company premises. It is important to note in this regard that employees of Gaseba Uruguay S.A. or of any other company who have any concerns concerning the type and characteristics of products used by the employer or concerning the state of facilities may report them anonymously to the General Labour and Social Security Inspectorate, an executive body of directorate status subordinate to the Ministry of Labour and Social Security. Legislation gives inspectors the power "to enter by day or night any premises on which workers are employed; ... to take or remove for the purpose of analysis samples of materials and substances used or handled at the establishment and subject to expert technical examination, on condition that the employer or his representative are notified of any samples or substances taken or removed for such purposes". Act No. 15903 of 10 November 1997 provides for sanctions for non-compliance with labour laws and regulations in the form of warnings, fines (equivalent to between 1 and 50 times the daily wages of the workers affected by the offence) or closure of the establishment for up to six days with full continued payment of wages (section 289). These sanctions are applicable without delay and, in the case of a fine, it is possible, as an exception to the general principle of banking confidentiality, to block the employer's bank accounts in consultation with the country's central bank, the Banco Central de Uruguay (section 290).
3. 830. Consequently, there is no legal lacuna which could justify independent action by the workers and there is no evidence that the employees concerned have ever denied the company's allegations. Since there has been no ruling by the administrative authorities or the courts dismissing the accusations of "flagrant misconduct", the Government, through its labour administration system, has not deemed it appropriate to impose sanctions for violation of freedom of association.
4. 831. As regards the dismissals of Luis Puig, Washington Beltrán and Angel García, the Government states that on 7 December 1996, Gaseba Uruguay S.A. announced the dismissal of 33 employees on the grounds of operational and administrative restructuring. This led to a dispute between the trade union and the company in which the Ministry of Labour and Social Security acted as mediator and secured an agreement between the parties on 12 March 1997 (a copy has been supplied by the Government). The Ministry of Labour and Social Security, acting de oficio, also conducted an inquiry into possible anti-union motives for the dismissals. At the hearing on 20 July 1998, the agreement with which the parties had ended the dispute was taken into consideration as evidence. This agreement involved the reinstatement of four union representatives including the union president Mr. Miguel Vela and a 12-month suspension of the contracts of employment of the remaining 14 employees, who registered for unemployment benefits; the company undertook to rehire 11 of them at the end of the suspension period and to pay compensation to the three who were not rehired. The Ministry of Labour inquiry into the possible existence of anti-union practices by Gaseba Uruguay S.A. resulted in a ruling of 20 July 1998 that the anti-union character of the dismissals of 7 December 1996 was not proven and that the legal proceedings should be stopped (the Government attaches a copy of the ruling). This conclusion would appear to be supported by the joint statement by the company and the union in point 7 of the agreement of 12 March 1997: "The parties confirm the applicability of Conventions Nos. 87, 98 and 154, without prejudice to the fulfilment of any obligations under the terms of the contracts of employment." This means that the parties, in ending the dispute which led to the agreement under which three workers would not be rehired, understood that there was no failure to comply with international Conventions Nos. 87, 98 and 154. Fifteen months later, the Ministry of Labour and Social Security considered the matter and came to the same conclusion as the parties themselves, namely that there had been no infringement of international labour standards. The Government states that the fact that Gaseba Uruguay S.A. would not rehire three of the workers at the end of the three-year suspension period had been accepted by the company trade union UAOEGAS and the PIT-CNT, a fact which is clear from the agreement of 12 March 1997.
5. 832. In summary, the Government states that in the case of the first four dismissals on grounds of flagrant misconduct, it is clear that it was not the intention of the parties in the agreement of 4 May 1996 to specify what would happen after three years, and the company's final decision to dismiss the workers is consistent with its initial position. The labour administration has means of enforcing compliance with health and safety laws and regulations and the workers' independent action is therefore not acceptable. Nor is there any record of the workers concerned denying the company's allegations; consequently the labour administration authorities cannot adopt a position which might be at variance with that of the labour courts. The three dismissals which occurred at the end of the 12-month period specified in the agreement of 12 March 1997 were obviously not based on anti-union discrimination by the company, since they were allowed under the terms of the very document in which the parties acknowledge the applicability of ILO Conventions Nos. 87, 98 and 154. The Government therefore requests that the complainant's allegations be dismissed.

C. The Committee's conclusions

1. 833. The Committee notes that in the present case the complainant alleges anti-union dismissal of seven trade union officials by the company Gaseba Uruguay S.A. As regards the dismissal of the trade union officials Pablo Fernández, Wilson Sequeira, Walter Suárez Pi and Alejandro Acosta, the Committee notes that, according to the complainant, they were dismissed on grounds of "flagrant misconduct", although the real motive was their active involvement in bringing to public notice the fact that Gaseba Uruguay S.A. has begun using the hazardous substance amerzine in its processes; the criminal justice authorities, in agreement with the Ministry of Public Affairs, stated that no offence had been committed by the workers concerned. The Committee notes the Government's statement to the effect that the "flagrant misconduct" involved assaults by the four union officials in question against security staff when they had taken photos and property from company premises (these allegations are not denied by the workers concerned) and that, given that the officials could have applied to the labour inspection authorities and invoked existing regulations which provide for sanctions in the event of failure to comply with health and safety regulations in the form of warnings, fines or closure with maintenance of workers' wages, there was no legal lacuna which could justify autonomous action by the union officials. The Committee also notes that according to the agreement of 4 May 1996, the parties agreed that the dismissal of the four union officials should be suspended and that the company should continue to pay their wages and other benefits for a period of three years during which time they would be barred from working in the company or entering company premises. The Government states that on that occasion it was not the intention of the parties to specify what should happen at the end of the three-year period and that the company's final decision in favour of dismissal when that period elapsed is consistent with its original position.
2. 834. The Committee notes that the agreement of 4 May 1996 contains the following provisions:
   • -- The contracts of employment of Pablo Fernández, Wilson Sequeira, Walter Suárez Pi and Alejandro Acosta are suspended for a period of three years, as of the present date (of the agreement).
   • -- As a result of the aforementioned suspension, the employees in question are forbidden to perform any task or carry out any function in the company, whilst the company will nevertheless pay the wages and other benefits owed to the employees. Payment will be made in the Ministry of Labour before the fifth working day of each month.
   • -- Messrs. Pablo Fernández, Wilson Sequeira, Walter Suárez Pi and Alejandro Acosta are not allowed to enter company premises or any site where the company carries on operations. To that end and during the period of the suspension, the PIT-CNT and UAOEGAS are responsible for ensuring that these officials will not take part in any measures implemented by the trade union with the company Gaseba Uruguay S.A., under any circumstances.
   • -- The parties agree to establish talks immediately with a view to reaching a collective agreement on wages and other conditions.
   • -- UAOEGAS undertakes to suspend all the union's actions currently under way.
   • -- If any of the parties fails to fulfil the obligations accepted under the terms of the present agreement, with the exception of payment of wages and other benefits, the agreement shall automatically be null and void.
     • The Committee concludes that the agreement of 4 May 1996 says nothing about what was to happen at the end of the three-year (paid) suspension of the officials' contracts of employment. However, the Committee shares the view of the Government that the trade union and the four officials in question could and should have informed the labour inspection authorities of the presence of the hazardous substance amerzine so that it could take appropriate protective measures, rather than taking the law into their own hands by assaulting security staff when removing photos and company property from company premises, an action which went beyond the legitimate exercise of trade union rights. Nevertheless, bearing in mind that the aim of the officials' actions was to protect the health of staff, the Committee takes the view that, while these actions could have justified disciplinary sanctions, it could not justify the most serious sanction of dismissal, given that there were extenuating circumstances and the agreement between the parties could be interpreted as ruling out any subsequent confirmation of the dismissals. Under these circumstances, taking into account the particular circumstances of the case, the Committee urges the Government to take measures to bring the parties together with a view to finding a solution for the situation of the four union officials which will be satisfactory to both parties.
   • 835. As regards the dismissals of Luis Puig, Washington Beltrán and Angel García, who were dismissed on 7 December 1996 together with 30 other workers, the Committee notes that according to the complainant, the parties signed an agreement on 12 March 1997 in which the Ministry of Labour was also involved; according to that agreement, a number of the dismissed workers have accepted their situation in return for compensation, others have been reinstated and a third group (including the three officials referred to here) refuses to accept compensation and is registered for unemployment benefits without terminating their contracts of employment. The Committee notes that, according to the Government, the Ministry of Labour's inquiry has not shown that the dismissals of the three trade union officials were based on anti-union discrimination and that the company's decision at the end of the 12-month period (of unemployment benefits) not to rehire the three workers in question had already been accepted by the trade union UAOEGAS, a fact that is made clear by the agreement of 12 March 1997, according to which: "The parties confirm the applicability of Conventions Nos. 87, 98 and 154, without prejudice to the implementation of any obligations under the terms of the contracts of employment." In the investigation undertaken by the Ministry of Labour, the company pointed out that: (1) financial problems made it necessary to carry out restructuring and staff cuts, and the subsequent decision to dismiss 33 employees was taken for purely economic reasons; (2) most of the employees affected were not trade union officials, only four holding union posts; (3) the company based its decision as to which employees should be laid off on employees' particulars and seniority. The agreement of 12 March 1997 indicate that the dispute ended with the reinstatement of most of the workers, including the president of UAOEGAS. With regard to the three union officials and the other group of dismissed workers, point 4 of the agreement states that:
     • The remaining workers affected by the decision of 7 December 1996 will be registered for unemployment benefits, during which time they will receive from the National Employment Board and/or other competent public bodies appropriate retraining. On expiry of the period of entitlement to unemployment benefits and any extensions thereof requested by the Ministry of Labour and Social Security, the company undertakes to reinstate 11 persons of its choosing, unless that number have left the company voluntarily, in which case there shall be no obligation of reinstatement. The total number of reinstatements or voluntary redundancies shall not exceed 11. The rest shall be assessed by a tripartite commission set up for that purpose and consisting of a representative of the workers, a representative of the company and the National Director of Labour or his designated representative ... If the tripartite commission decides against the workers, the employment of the latter shall be terminated and they shall receive compensation equivalent to two-and-a-half times the statutory amount. If the commission decides in their favour, and they have not in the meantime been reinstated by the company, these workers shall be entitled to special leave unless they have entered into a new employment relationship with a third party, and shall during that leave, for a period of up to twelve months, be paid the full wages which they would have received had they been working. Payment for the period of leave shall be effected in the Ministry of Labour and Social Security and the company shall deposit the necessary money for that purpose. At the end of the leave period, if the company has not rehired the workers in question, their employment shall be terminated and they shall be entitled to compensation for dismissal equivalent to double the amount specified in point 2. Once the assessment has been made, and provided that it is favourable, the tripartite commission shall meet after another six months and at that time shall review the assessment, which, if favourable, shall give rise to a continuation of the special leave. If on the other hand it is not favourable, the employment of the workers in question shall be terminated and they shall be paid the compensation provided for in point 2.
   • 836. Under these circumstances, the Committee concludes that there is not sufficient evidence to state with certainty that the dismissal of the trade union officials is linked to their trade union functions or activities, given that they took place under the terms of the agreement of 12 March 1997.