Article by Enrique Radmilovich and Lucia Ottati
In this article we will analyze the evolution that our legal system and jurisprudence have had regarding a matter which is very much in vogue these days. We are talking about the “occupation” of the workplace and its premises by its employees as a union’s collective measure.
Since 1996, and until year 2005, Decree No. 512/66 (amended by Decree 286/000) was in force in our country. This Decree, which was issued by the Ministry of Domestic Affairs due to the need of regulating the intervention of public authorities in the case of occupation of the workplace by its employees, substantially stated that: i) According to the Constitution, public authorities are in charge of preserving the country’s internal order; ii) the same Constitution recognizes the right of workers to go on strike, but such right cannot imply neither an alteration of the public order nor a breach of private property which is also constitutionally guaranteed; iii) the State must guarantee the exercise of constitutional rights always that such exercise does not imply a breach of other rights which are equally considered.
Furthermore, the Decree adopted a clear position before the occupation of the workplace by its employees as a union’s collective measure, stating that the occupation of the workplace by its employees implies a breach of the right to private property, signifies a risk to internal order and surpasses the legitimate exercise of the right to go on strike.
Consequently, the Decree stated that the Ministry of Domestic Affairs, could authorize the entry of the public force (police) into workplaces, educational institutions, medical institutions or public offices, occupied by its employees, students or any other person, upon the request of the owner of the company or the competent authorities of the same. Such entry will be authorized with the sole purpose of re-establishing the public order, and of maintaining the right to private property. The public force should proceed to the dispossession of the workplace and then deliver it to its owner.
On March of year 2005, the new government – the first left wing party to reach the power- assumed its position before the Executive Power. Two months later, the Ministry of Domestic Affairs, issued a Decree which revoked Decree 512/66. This decision was adopted by the Ministry of Domestic Affairs, and according to the press information of those days, neither the Ministry of Labour nor the Workers’ Unions requested the Ministry of Domestic Affairs to adopt such decision.
The new Decree mainly stated that: i) the different situations that were regulated by Decree 512/66, referred to conflicts of rights that are recognized in the Constitution, ii) the disputes among individuals, and between them and the Administration, should be resolved by the Judicial Power (Courts), and iii) accordingly, Decree 512/66 and its amendment should be revoked, in order that the disputed rights should be preserved and guaranteed before the Courts of Law.
The decision to revoke Decree 512/66 raised a huge problem: the Unions -encouraged by the impossibility of employers to request the Ministry of Domestic Affairs the dispossession of the workplace- began to abuse of such situation and adopt as a first union measure, the occupation of the workplace.
Many differences that arose between employers and employees provoked the immediate occupation of workplaces, no matter if the differences among parties justified the adoption of an extreme union measure such as the occupation of workplaces or not. The leniency of the government before this measure, gave the Unions the impression that they could act as they desired.
Occupying workplaces granted the Unions an enormous handicap since, on the other hand, the employers, in the absence of a legal tool that could enable the rapid dispossession of the occupied workplace, had no other option but to yield to the employees claims, or on the contrary, they would have to face and suffer the damages that the occupation would cause to their business (loss of clients, economic looses, and eventually the bankruptcy of their business).
Moreover, an intense debate between the labour doctrine, the Unions and the employers arose regarding the legality of the occupation of workplaces. In such debate, the Unions and the majority of the labour doctrine defended the right of workers to occupy workplaces. They understood that the right to occupy workplaces was an “extension” of the right to go on “strike” (Constitutional right). On the other hand, employers organizations, political parties opposed to the government and the minority of the labour doctrine understood that the occupation of workplaces implied a breach of the Constitutional right to private property and a breach of the Constitutional right “to work” of those employees who were not occupying the workplace.
Approximately one year after the date when the Ministry of Domestic Affairs revoked Decree No. 512/66, the Ministry of Labour, in attention to the notorious increase in the number of occupations of workplaces, and the distortion that such collective measure was causing in the relationship between Unions and employers’ organizations, on May 30, 2006 issued Decree No. 165/006, with the intention of providing a legal framework to be followed by employers and employees in order to prevent and solve collective conflicts.
In Decree No. 165/006, it was substantially stated that i) employers or their representative organizations and the Unions may adopt measures for the prevention and solution of collective conflicts, ii) employers or their representative organizations and the Unions may request at any time the mediation or conciliation of the National Labour Department or the corresponding Wages Committee and iii) the request of conciliation or mediation must be performed with reasonable time prior to the adoption of conflict measures (except those conflict measures to be adopted in case of imminent closing of the company, abandonment, or when the employer has left the country without leaving any legal representative).
It must be highlighted, that section 4 of the Decree stated, for the first time in our legal system, that the occupation of the workplaces was a way of exercising the constitutional right to go on strike, establishing that the same should be adopted in a pacific manner and following certain steps.
Such steps are the following: i) immediately after the occupation occurs, the condition of the assets and the real estate involved should be duly documented, ii) the most representative Union of the employees which are occupying the workplace, should adopt all the necessary measures in order to avoid damages to the property, perishable goods and to guard the continuity of production processes that cannot be interrupted, iii) occupying employees cannot take charge of the production or commercial activities of the company, except in those cases in which the employer has abandoned the company or has not left a legal representative in the country.
Notwithstanding the foregoing, the Decree enabled the Ministry of Labour and the competent Ministry (according to the activity of the company), to demand the occupants to leave the workplace in a 24 hours period when the measures adopted to solve the conflict have failed and the continuity of the occupancy implies a serious risk to the lives, security, and health of all or part of the population, or seriously affects the public order. If the occupants do not leave the workplace, the Ministry of Domestic Affairs will be able to proceed to the dispossession of the workplace.
This Decree was very criticized by the employers organizations, political parties opposed to the government, and the minority of the labour doctrine, mainly because the Ministry of Labour legitimated the occupancy or the workplaces –moreover it was expressly understood that the occupancy was a way of exercising the right to go on strike- and only in a few and extreme cases the dispossession could take place.
The result of this Decree was that occupancies of workplaces did not decrease, even with the effort of the government trying to dissuade the occupancies by means of the above-referred Decree.
Therefore, employers and employees suffering damages due to occupancies were forced to look for other legal alternatives in order to obtain the due respect to their Constitutional rights being affected by such measures (right to private property, right to work) in a prompt and efficient manner.
In the end, the Civil Courts were the ones who played the main role in the reestablishment of the lost balance between the different rights in conflict.
Court’s Role In Re-Establishing The Lost Balance
The ground breaking case in this regard was that of the company “Coltirey” in which employees of the company who were being affected by the occupancy of the premises -that was being carried out by other employees of the company- requested a Civil Court to order the dispossession of the workplace. The chosen legal procedure was a summary proceeding (“acción de amparo”) destined to promptly protect rights being violated, in this case, the constitutional right to work.
Plaintiffs requested the Civil Court (competent Court to understand in the referred summary proceeding) the dispossession because: i) the occupants had not followed the steps indicated in Decree No. 165/2006 before proceeding to the occupation; ii) the occupancy of the workplace breached the right to work of plaintiffs as well as their individual right to decide if they want to go on strike or not.
The Civil Court ruled in favour of Plaintiffs’ request under the following basis: i) the occupancy breached two Constitutional rights, a) private property, b) the right to work of those workers who were not occupying the workplace (it was understood by the Judge that the occupancy of workplaces limited in an indirect manner the right of plaintiffs to freely decide it they want to stop working), and ii) occupants did not followed the steps indicated in Decree No. 165/2006 before proceeding to the occupation.
The Court ordered the dispossession of the workplace in a 24 hours period and in case that the order was not voluntarily obeyed by defendants, the Public Force was authorized to act in order to make effective the dispossession.
Defendants appealed the Court’s decision, but the Appeal Court maintained the decision, understanding that the occupancy measure was notoriously illegitimate.
After the conclusion of the abovementioned case, four different resolutions were issued by Civil Courts and Appeal Civil Courts in cases were plaintiffs requested the dispossession of the workplace.
The last of the referred decisions, issued by an Appeal Civil Court, understood that the occupation of the workplace by defendants, implied a serious and blatant breach to the plurality of human rights (right to individual freedom, to work, to private property and to develop a licit activity) all of them expressly recognized in the Uruguayan Constitution, Universal Declaration of Human Rights, American Declaration of Rights and Duties of Individuals and Protocol of the American Convention of Human Rights, among others.
Until now the Civil Courts have unanimously understood that the occupancy of workplaces is an illegitimate measure and breaches the Constitution.
Such decisions contained arguments opposed to those sustained by the majority of the labour doctrine -which considered the occupation of the workplace to be a licit measure- and also, resulted opposed to the position shown at the beginning by the government when it revoked Decree No. 512/66.
Notwithstanding the government’s subsequent efforts to obtain a reduction in the number of occupations through Decree No. 165/2006 by means of establishing certain steps to be complied before the adoption of collective conflicts measures, Civil Courts resolutions have turned out to be the main reason in the substantial decrease of the number of occupations.
We believe that such decisions have resulted of vital importance because; i) the balance that was lost as a consequence of the occupancy of the workplaces, was re-established; ii) employers have found a legal tool to obtain a prompt and efficient dispossession of the workplaces; iii) they have demonstrated that the Courts do not share the position of the majority of the labour doctrine in respect with legality of the occupation of workplaces; iv) it has been ratified that the Judicial Power effectively works as an independent power in our country, and adopts its decisions without considering the opinion the government may have regarding the issues to be resolved.
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