Definitive Report - Report No 251, June 1987

Case No 1368 (Paraguay) - Complaint date: 09-APR-86 - Closed

79. The Committee examined Case No. 1275 at its meetings of November 1984 and November 1985 (see 236th Report, paras. 444 to 458, and 241st Report, paras. 522 to 550, approved by the Governing Body at its 228th and 231st Sessions (November 1984 and November 1985)).

1. 79. The Committee examined Case No. 1275 at its meetings of November 1984 and November 1985 (see 236th Report, paras. 444 to 458, and 241st Report, paras. 522 to 550, approved by the Governing Body at its 228th and 231st Sessions (November 1984 and November 1985)).
2. 80. The complaint in Case No. 1368 is contained in a communication from the World Confederation of Labour (WCL) and the World Federation of Industrial Workers (WFIW), dated 9 April 1986. The Government replied in a communication of 6 October 1986.
3. 81. At its February 1987 meeting, the Committee noted that the Government had not supplied full information concerning all of the pending allegations, in spite of the time elapsed since the last examination of Case No. 1275, and since the presentation of allegations in Case No. 1368; the Committee accordingly informed the Government that it would submit a report on the substance of the cases at its next meeting in accordance with its procedure (127th Report, para. 17), even if the observations requested from the Government had not been received.
4. 82. Paraguay 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. A. The complainants' allegations

• Case No. 1275
  1. 1 Previous examination of the case
  83. 83 When the Committee examined the case at its November 1985 meeting, the question concerning the dismissal of Messrs. Duarte, Virgili and Cáceres, members of the Union of Employees of the Bank of Brazil, was pending judgement in court. The Committee adjourned its examination of this matter until judgement was pronounced, and requested the Government to transmit a copy of the judgement as soon as it was handed down (see 241st Report, para. 550). In this connection it would be useful to recall the information gathered during the direct contacts mission carried out in Paraguay from 23 to 28 September 1985, which is reproduced below (see paras. 27 to 29 of the mission report, which are annexed to the 241st Report):
• "As regards the alleged dismissal of Messrs. Rolando Duarte, Adolfo Virgili and Guillermo Cáceres, members of the Union of Employees of the Bank of Brazil, the leaders of the Federation of Bank Employees who were interviewed stated that these dismissals were illegal since they violated the provisions of section 285 of the Labour Code (maintenance of the employment relationship during the settlement of labour disputes procedure). They pointed out that although the undertaking claimed that the dismissals were made in order to reduce costs they were, in fact, due to trade union activities. Messrs. Virgili and Cáceres were very active members of the trade union and Mr. Roland Duarte was its former Deputy General Secretary. Furthermore, if the argument concerning the reduction of costs were true, the Bank could have dismissed other persons since 20 workers were nearing retirement and their departure from the undertaking would not have prevented them from receiving their legal retirement benefits. In the same way, when the arbitration award was made concerning the points of contention in the new collective agreement, and which upheld the claims of the trade union, the undertaking dismissed two further members. The management of the Bank of Brazil denied that the dismissal of Messrs. Duarte, Virgili and Cáceres was of an anti-trade union nature or related to collective bargaining. All the workers of the Bank were members of the trade union and the dismissed workers were not members of the executive board of the trade union. The dismissal of the workers in question was due to administrative reasons and not to a reduction in costs and the workers concerned received the compensation prescribed by law. Subsequent to these measures, there was only one other dismissal, that of a worker in another branch of the Bank, and the departure from the undertaking of a secretary by mutual agreement. The secretary went to work in another banking institution. The authorities of the Ministry stated that no definitive ruling had been issued concerning the dismissals and that the judiciary had indicated that such a ruling was imminent."
  2. 2 The Government's reply
  84. 84 In its communication of 6 October 1986, the Government states that the case concerning the dismissal by the Bank of Brazil of Messrs. Duarte, Virgili and Cáceres came before the Second Circuit First Instance Labour Court, which handed down definitive sentence No. 129/85. This sentence was appealed and the matter brought before the Labour Appeals Court on 26 July 1985. By means of sentence No. 24, the Appeals Court upheld the earlier sentence. Its decision in the matter was final (the Government states that it transmits a photocopy of the sentence, but none has been received by the ILO).
• Case No. 1368
  1. 1 The complainants' allegations
  85. 85 In their communication of 9 April 1986, the World Confederation of Labour and the World Federation of Industrial Workers allege that in spite of the fact that the National Trade Union of Metalworkers and Allied Trades (SINOMA) of Paraguay, founded in 1977, was legally recognised by the Ministry of Justice and Labour in 1978, the Labour Office has systematically refused to recognise an amendment to the trade union's by-laws which was duly approved by its Extraordinary General Assembly on 7 October 1983; nor has it recognised the trade union's Executive Board which was duly elected in 1984. Moreover, the police have twice prevented the trade union's General Assembly from meeting, first on 20 December 1985 under the pretext that the corresponding permit had not been requested, and next on 31 January 1986 as the result of pressure applied by the CTP, the pro-government central federation from which the SINOMA withdrew in accordance with the decision of its members, and owing to the CTP's ineffectiveness and its submission to the dictatorial regime.
  2. 2 The Government's reply
  86. 86 In its communication of 6 October 1986, the Government states that the Trade Union of Metalworkers and Allied Trades (SINOMA) had requested the recognition of its Executive Board, and that the Labour Office, after having verified compliance with the requirements stipulated by the Labour Code, recognised the SINOMA's Executive Board by means of resolution No. 1076, dated 28 August 1986

B. B. The Committee's conclusions

• The Committee's conclusions
  87. 87 In the first place, the Committee deplores the fact that, despite its urgent request addressed to the Government in February 1987, the Government has not sent a full reply to all of the questions pending. In this connection the Committee recalls that the objective of the procedure is to foster the respect of de jure and de facto trade union rights; since the procedure protects governments against unjustified accusations, the Committee expects governments to recognise that the preparation of detailed replies to all allegations ensures an objective examination of the case.
  88. 88 As regards the dismissal of Messrs. Duarte, Virgili and Cáceres (members of the Union of Employees of the Bank of Brazil) in 1984, during the course of collective bargaining procedures (Case No. 1275), the Committee notes that the Court of Appeal upheld the sentence handed down by the Second Circuit First Instance Labour Court, which denied the reinstatement of the interested parties.
  89. 89 The Committee notes that, according to the preamble of the sentence handed down by the First Instance Court, the employer failed to invoke justified lawful grounds for the dismissals. Likewise, the sentence states that "the stability of employment is regulated by sections 95, 69(h) and 131 of Paraguay's Labour Code. Section 95 provides for the stability of employment, stipulating that workers who have been in the service of the same employer for more than ten years shall not be dismissed unless justified lawful grounds for dismissal can be proved. The stability of employment, however, is not absolute, and in cases envisaged in section 98 of the Labour Code, workers who cannot be reinstated are paid special compensation. Section 69 establishes the concept of general stability: the employer may dismiss workers without lawful grounds, but he assumes full responsibility for the required financial compensation."
  90. 90 The Committee considers that it does not have sufficient information concerning the dismissals in question to determine whether or not they constitute anti-trade union discrimination, especially in view of the contradictory statements made by the trade union and by the employer made to the direct contacts mission in September 1985. In any event, in view of the sentence and Paraguayan labour legislation, the Committee concludes that the workers with less than ten years' service in the enterprise do not enjoy sufficient legal protection against dismissals for legitimate trade union activities.
  91. 91 In this connection, the Committee draws to the Government's attention the fact that national legislation does not give sufficient protection against anti-trade union discrimination when it authorises employers to dismiss workers without just cause on condition that they pay the compensation prescribed by law; in fact, such a situation implies that an employer who pays the compensation prescribed by law may dismiss any member of his staff for trade union or other activities, the public authorities being powerless to prevent him from doing so. (See, for example, 246th Report, Case No. 1339 (Dominican Republic), para. 87.)
  92. 92 As regards Case No. 1368, the Committee notes that, in reply to the allegation that the Labour Office refuses to recognise the Executive Board of the SINOMA which was elected in 1984, the Government has replied that the Executive Board of the trade union was duly registered on 28 August 1986, after having complied with the provisions of the Labour Code. In this connection, the Committee regrets the delay in the registration of the above-mentioned Executive Board and the fact that the Government has not given more complete information in this regard. The Committee draws the Government's attention to the fact that the registration of the executive boards of trade union organisations should take place automatically when reported by the trade union, and should in principle be contested only at the request of the members of the trade union in question.
  93. 93 Lastly, the Committee deplores the fact that the Government has not replied to the allegation that the police prevented the meeting of the SINOMA's General Assembly in December 1985 on the grounds that a permit had not been requested, and again in January 1986, or to the allegation concerning the refusal of the public authorities to recognise an amendment to the trade union's by-laws. In the absence of the Government's observations in this regard, the Committee draws the Government's attention to the fact that the right to hold trade union meetings should not be subject to prior authorisation and that public authorities should refrain from any interference liable to restrict that right (see, for example, 233rd Report, Case No. 1217 (Chile), para. 109, and 236th Report, Cases Nos. 1207 and 1209 (Uruguay), para. 168), and that in accordance with Article 3 of Covention No. 87, workers' organisations have the right to draft their by-laws without any interference on the part of the public authorities.

The Committee's recommendations

1. 94. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) Noting that the legislation does not give adequate protection against actions of anti-trade union discrimination, the Committee draws the legislative aspect of the cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations, and requests the Government to take measures with a view to adopting legislative provisions which effectively protect trade unionists and workers against dismissals based on trade union activities.
   • b) The Committee requests the Government to respect in the future, the principles outlined in the foregoing paragraphs concerning trade union autonomy in the drafting of trade union by-laws and in the election of executive boards, and non-interference in trade union meetings, and to take measures to remove the requirement for administrative authorisation to hold trade union meetings.