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

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

The Committee notes the observations of the Central Confederation of Workers–Authentic (CUT–A) dated 27 May 2016 and 26 July 2018, the content of which is examined by the Committee in this comment. The Committee also observes that the Government has not responded to the 2010 observations of the International Trade Union Confederation (ITUC), which referred to the arrest of trade union members, or the ITUC observations received on 1 September 2015, which referred to anti-union dismissals and transfers and the Government’s refusal to register some trade union organizations. The Committee once again requests the Government to send detailed information with respect to the abovementioned observations.

Articles 2 and 3 of the Convention. Pending legislative issues. In its previous comments, the Committee recalled that for many years it has been highlighting the inconsistency of certain legislative provisions with the Convention and requested the Government to take the necessary measures to amend the legislation with respect to the following issues:

• -the requirement of an unduly large number of workers (300) to establish a branch trade union (section 292 of the Labour Code);
• -the prohibition on joining more than one union even if the worker has more than one part-time employment contract, whether at the level of the enterprise or industry, occupation or trade, or institution (section 293(c) of the Labour Code);
• -the imposition of unduly demanding conditions of eligibility for office on the executive committee of a trade union, namely the requirement to be an employee in the enterprise, industry, occupation or institution, whether active or on leave (section 298(a) of the Labour Code), to have reached the age of majority and to be an active member of the union (section 293(d) of the Labour Code);
• -the requirement for trade unions to respond to all requests from the labour authorities for consultations or reports (sections 290(f) and 304(c) of the Labour Code);
• -the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code); and
• -the obligation to provide a minimum service in the event of a strike in public services that are essential to the community without any requirement to consult the employers’ and workers’ organizations concerned (section 362 of the Labour Code).

Observing that the Government does not report specific progress on the steps taken to align the Labour Code with the Convention, the Committee requests that the necessary measures be taken in the near future to amend these provisions.

Compulsory arbitration. In its previous comments, the Committee also requested the Government, with respect to the referral of collective disputes to compulsory arbitration, to take steps to amend or repeal sections 284–320 of the Code of Labour Procedure in order to avoid all possible ambiguity, despite the fact that article 97 of the Constitution of the Republic of Paraguay tacitly repealed those provisions by establishing that arbitration shall be optional. In the absence of new information in this regard, the Committee once again requests the Government, in the light of the provisions of the Constitution of Paraguay and in order to avoid all possible ambiguity in interpretation, to take the necessary measures to amend or repeal expressly sections 284–320 on compulsory arbitration.

The Committee also observes that the Committee on Freedom of Association, in Case No. 3019 (see the 381st Report of the Committee on Freedom of Association, March 2017, paragraph 535), drew the Government’s attention to section 292 of the Labour Code, which subjects the establishment of trade unions in public sector institutions to the affiliation of set percentages of workers that vary according to the size of the institution (20 per cent of workers in institutions of up to 500 employees; 10 per cent for institutions that employ up to 1,000 workers; and 5 per cent in those that employ more than 1,000). The Committee recalls that, although the legal requirement to have a minimum number of members is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see the 2012 General Survey on the fundamental Conventions, paragraph 89). Observing that the application of the percentages established in section 292 of the Labour Code could result in a requirement of up to 100 workers to establish a trade union in institutions of up to 500 employees and a requirement of an even higher number of members for public institutions with a large number of workers, and recalling that mechanisms are in place to avoid trade union fragmentation and safeguard workers’ right to establish organizations of their choosing, the Committee requests the Government to hold consultations with the relevant social partners with a view to ensuring that section 292 of the Labour Code does not, in effect, undermine the right of workers in the public sector to establish organizations of their choosing. The Committee requests the Government to provide information in this respect.

The Committee also notes that the Committee on Freedom of Association, in Case No. 3101 (386th Report, June 2017, paragraphs 57 and 58), concluded that section 38 of the Teachers’ Statute, by establishing that teachers must have been registered for five years in order to obtain trade union leave, raises problems of conformity with the principles of freedom of association and referred this legislative aspect of the case to the Committee. The Committee recalls that provisions requiring candidates for trade union leadership to have a certain length of service in an enterprise before the elections infringe the right of organizations to draw up their constitutions and to elect representatives in full freedom (2012 General Survey, paragraph 102). The Committee requests the Government, in consultation with the social partners concerned, to adopt the necessary measures to amend section 28 of the Teachers’ Statute in order to bring this provision into line with Article 3 of the Convention.

With regard to revising the legislation to bring it into line with the Convention, the Committee notes the Government’s indication that it has requested ILO technical assistance and that Ministry of Labour, Employment and Social Security (MTESS) memorandum No. 449/17 of 30 May 2017 initiated the process to recruit an expert responsible for formulating a draft bill to bring the Labour Code into line with ratified Conventions relating to freedom of association and with the Committee’s comments. In light of the above, the Committee requests the Government to provide a copy of the draft bill as soon as the final version is available and once again trusts that, in the near future and in consultation with the social partners, the necessary measures will be taken to ensure that national law and practice comply fully with the requirements of the Convention indicated in this observation.

The Committee firmly expects that, with ILO technical assistance, clear progress will be observed in the near future at the legislative level with regard to all of the abovementioned issues and requests the Government to report on any developments in this respect.

Registration in practice of trade unions and their executive committees. The Committee notes the allegations of the CUT–A that the labour administrative authority engaged in anti-union activity by not registering or recognizing the vacant posts on the executive committee of the ESSAP-SITUE United Workers’ Union. The Committee notes in this regard the Government’s indication that 77 executive committees were registered and recognized from 16 August to 23 October 2018, and requests the Government to indicate whether the ESSAP – SITUE United Workers’ Union executive committee was among those recently registered.

The Committee also notes the Government’s assertion that it has adopted several ministerial decisions with a view to modernizing the automatic registration system and improving and streamlining the procedures for establishing trade unions. In this respect, the Committee notes the Government’s indication that: (i) MTESS Decision No. 740 of 10 November 2016 established new requirements for the provisional registration of trade unions, federations and confederations in the public and private sectors; (ii) since the adoption of this Decision, the Government has made model constituent documents available to users of the institution’s website; (iii) MTESS Decision No. 792 of 2 December 2016 adopted an online procedure for updating information on trade union organizations; (iv) MTESS Decision No. 856/16 implemented online applications for the provisional registration of trade union organizations; and (v) since the adoption of these decisions, there has been an increase in the number of trade union organizations registered via the MTESS website. The Committee also notes that, according to statistical data provided by the Government, from 2013 to June 2018, a total of 110 trade unions were provisionally registered and 102 registrations were confirmed. Lastly, the Committee notes the Government’s indication that: (i) the first meeting of the social dialogue round table was held on 6 September 2018, with high levels of participation from the country’s trade union federations, and various issues were discussed, including the recognition of trade unions; and (ii) 16 new trade unions were registered from 16 August to 23 October 2018. The Committee takes due note of the measures adopted by the Government and requests it to continue sending any new information in this respect.