Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Paraguay (Ratification: 1962)

The Committee notes the Government's report and Act No. 496 of 25 August 1995 which amends, extends and repeals various provisions of the existing Labour Code (Act No. 213/93) and recalls that its previous comments referred to:

-- the exclusion from the scope of the new Labour Code, 1993, of public servants, be they from the central administration or from decentralized units (section 2 of the Code);

-- the requirement of 300 workers as the minimum number to form a trade union (section 292);

-- the requirement of being an active worker in the enterprise and an active worker of the trade union in order to be eligible for trade union office (sections 298(a) and 293(d), respectively);

-- the restriction on the free election of trade union representatives (Decree No. 16769, which contains detailed and meticulous regulation of the trade union electoral process);

-- the referral of collective disputes to compulsory arbitration and the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted (sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure).

With regard to the exclusion from the scope of the Labour Code, 1993, of public servants, the Committee notes with interest that section 412 (transitional provision) of Act No. 496 of 25 August 1995 extends application of the Labour Code provisions relating to the right to form trade unions and to strike to workers in the public sector until such time as a special law governs the subject. Similarly it notes with interest that the Bill on the Status of Civil Servants and Public Employees, section 44(m) and (n), allows civil servants and public employees to form trade unions and to participate in strikes with the restrictions laid down in the Constitution and by the law, respectively, in accordance with article 45(d), (e) and (f), and that the National Constitution and the Labour Code will regulate matters pertaining to the right to form trade unions, to conclude collective labour agreements and to the right to strike and that section of the Labour Code amended in 1995 abrogates Act No. 200 on the status of public officials, sections 31 and 36 of which allowed public servants to form associations only for cultural and social purposes.

The Committee expresses the firm hope that in the near future the Act on the Status of Civil Servants and Public Employees will be approved allowing public servants to form associations for the promotion and defence of their professional interests in accordance with Article 2 of the Convention.

With regard to Decree No. 16769 which restricts free election of trade union representatives and was declared unconstitutional by the Supreme Court, as it is contrary to article 96 of the National Constitution and is therefore null and void, the Committee again asks the Government to inform it on the adoption of any text expressly repealing this instrument.

In regard to sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure which refers collective disputes to compulsory arbitration and provides for the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted, the Committee also notes with interest that, according to information from the Government, first, sections 284 and 291 are no longer applicable since they are contrary to article 97 of the National Constitution which lays down arbitration as optional. Secondly, it also notes with interest that according to the Government's report, sections 293, 302 and 308 of the Code, relating to conciliation and arbitration procedures, apply only when the parties have opted for arbitration; otherwise they are not valid since their application would be unconstitutional as arbitration is voluntary. The Committee requests the Government to inform it also on the adoption of any text repealing or amending these provisions.

The Committee regrets to note that the Government has not replied to its comments on section 292 of the Code relating to the requirement of 300 workers as the minimum number to form a trade union, nor on articles 298(a) and 293(d) of the Code on the requirement of being an active worker in the enterprise and an active member of the trade union in order to be eligible for trade union office, respectively, and it therefore once again asks the Government, in consultation with workers and management, to take measures to amend legislation in order to reduce to a reasonable level the excessive number of workers required to form a trade union and to allow workers to elect their leaders freely. On this matter, the Committee reminds the Government that provisions which require all candidates for trade union office to belong to the occupation, enterprise, or production unit represented by the organization or to be actually employed in this occupation at the time of their candidature are contrary to the guarantees laid down in the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 117).

The Committee again asks the Government to inform it in its next report of the measures adopted to bring legislation into conformity with the Convention and of progress in the approval of the Act on the Status of Civil Servants and Public Employees mentioned by the Government and to send it a copy of the new law once it is approved.

The Committee is also addressing a direct request on certain points to the Government.