Interim Report - Report No 284, November 1992

Case No 1656 (Paraguay) - Complaint date: 15-JUN-92 - Closed

1. 1051. The complaint is contained in a communication from the International Union of Food and Allied Workers' Associations (IUF) dated 15 June 1992. This organisation presented new allegations in a communication dated 20 July 1992. The Government replied in a communication dated 24 July 1992.
2. 1052. 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. The complainant's allegations

1. 1053. In its communication of 15 June 1992, the International Union of Food and Allied Workers' Associations (IUF) alleges that after almost a year of fruitless negotiations to conclude a new collective agreement in the Sant Jordi refrigeration enterprise, workers announced that they would hold a legal strike. The enterprise asked the Conciliation and Arbitration Board to postpone the strike while negotiations were resumed. The following day, instead of negotiating, the enterprise began to recruit replacement workers (which is prohibited during a strike). Naturally the workers reacted by going on strike. The Minister of Labour immediately declared the strike illegal and all the strikers were dismissed. An application has been made to the Labour Court against the decision of the Board of Conciliation and Arbitration holdinthat the employer was free to dismiss the strikers. The strike is continuing.
2. 1054. Furthermore, the IUF alleges that although the Minister of Justice and Labour and the employer were informed immediately of the establishment of the Union of Workers of the Itá Enramada Hotel Casino, four of the trade union leaders were dismissed. Faced with this situation, the workers are now on strike to protest against the dismissal of the trade union officials, the delay in the payment of wages and the refusal of the employer to negotiate a collective agreement.
3. 1055. Likewise, the IUF alleges that two leaders of the Industrial Areguá trade union, the secretary-general, Mr. Walter Villasboa, and the financial secretary, Mr. Ramón Ortega, were falsely accused of sabotage. What in fact they did was to disconnect an electricity cable which was overheating, something which occurs everyday in the factory. After several weeks in prison, they were released when it was impossible to substantiate the accusation of sabotage; however, they have been dismissed. The entire executive committee of the trade union and ten of its members were also dismissed. The workers have gone on strike; the employer, contrary to the provisions of the Labour Code, has not paid the wages outstanding for the period prior to the strike.
4. 1056. Finally, in its communication dated 20 July 1992, the IUF alleges that the Ministry of Justice and Labour and the Board of Conciliation and Arbitration, despite the requests made by the above-mentioned three trade unions, have not carried out investigations or sanctioned the employers concerned, and have not intervened in the respective collective disputes, where the strike still continues after three months.

B. The Government's reply

1. 1057. The Government states in its communication of 24 July 1992 that in the early months of 1991 an official of the Ministry of Justice and Labour mediated between the Sant Jordi refrigeration enterprise and the trade union in the negotiation of a collective agreement and that agreement was reached on all points under discussion with the exception of the wage increase (the trade union demanded a 30 per cent increase on the wage in force, whereas the enterprise offered an increase graded by seniority on the basis of 8 per cent). The Government adds that the strike in this enterprise was promoted and followed by only 38 of the 300 workers in the enterprise from 1 May 1992 and that the trade union leader, Mr. Pedro Saledo, removed the negotiation process from its normal framework, i.e. within the Ministry of Justice and Labour, and took it to the parliamentary level. The labour dispute is currently being examined by the Permanent Board of Conciliation and Arbitration.
2. 1058. As regards the dispute in the Itá Enramada Hotel Casino enterprise, the Government states that in May 1992 the Ministry of Justice and Labour carried out an inspection in the enterprise to settle matters concerning wages and social security problems and to clarify the situation of Messrs. Jorge Ovidio Sánchez, Eladio Pereira, Andrés Fernández and Salustiano Díaz, who have filed applications with the Labour Court and are awaiting a judicial decision on the dispute in which they are implicated. In spite of this, tripartite meetings were convened to negotiate a settlement of the labour disputes. Once the administrative procedure had been exhausted, workers and employers, by common agreement, informed the Ministry that negotiations would be taken to Congress so that a peaceful settlement could be achieved on the matters of dispute in the worker/employer relationship.
3. 1059. As regards the Industrial Areguá enterprise, the manager made a formal denunciation to the Ministry of Justice and Labour on 24 January 1992 stating that a large number of workers of this enterprise had been working since 20 January below the minimum normal levels of production and were producing only the minimum quantities established in the collective agreement in force. However, in no case does this minimum level entitle workers to an additional bonus. According to the manager, the workers were hindered in carrying out their work by Messrs. Walter Villasboa, the secretary-general of the trade union, Pedro Cristaldo and Ignacio Torres, the secretaries responsible respectively for records and disputes.
4. 1060. The Government adds that, on 30 January 1992, the Areguá Industrial Union of Workers denounced the dismissal of workers and associates as being contrary to the provisions of the collective agreement. Although the Ministry convened tripartite meetings, the parties have not been able to settle their dispute.
5. 1061. The Government adds that at an extraordinary meeting on 7 February 1992, the trade union decided to call a strike against the alleged infringement of the collective agreement and that the Permanent Board of Conciliation and Arbitration intervened on 27 February 1992, after being requested by the trade union to arbitrate the matters under dispute. On 15 June 1992 the Board notified the workers on strike that they had 24 hours to return to their workplaces, and this decision was appealed by the trade union to the Board. Furthermore, the Industrial Areguá enterprise made an application to the Labour Court of the First Instance requesting justification for the dismissal against workers having special job stability. This is currently a matter for the judiciary since the Ministry of Justice and Labour is no longer competent in this respect.

C. The Committee's conclusions

1. 1062. The Committee notes that this case refers to the dismissal of trade unionists in three enterprises and restrictions on the exercise on the right to strike.
2. 1063. As regards the dismissal of workers of the Sant Jordi refrigeration enterprise because of a strike held by the trade union to obtain the signature of a new collective agreement, the Committee notes the statements of the Government and, in particular, that mediation by the Ministry of Justice and Labour has enabled the parties to reach agreement on all the issues, with the exception of the wage increase. The Committee notes that, according to the documentation sent by the Government, the dispute was submitted in accordance with the provisions of the Code of Labour Procedure to the Board of Conciliation and Arbitration, which notified the workers on strike that if they did not return to their workplaces they would be subject to dismissal. In this respect, the Committee recalls that the substitution by legislation of arbitration for the right to strike as a means of resolving labour disputes can only be justified in respect of essential services in the strict sense of the term (i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population) (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, paras. 387 and 420). The services provided by a refrigeration enterprise are not essential services in this sense of the term. The Committee would also recall that for a number of years the Committee of Experts on the Application of Conventions and Recommendations has been making, in the same spirit, critical observations on sections 284 (submission of collective disputes to compulsory arbitration) and 291 of the Code of Labour Procedure (dismissal of workers who do not resume work when required to do so by the Board of Conciliation and Arbitration).
3. 1064. In these circumstances, the Committee requests the Government to seek to ensure the reinstatement in their jobs of the workers of the Sant Jordi refrigeration enterprise who were dismissed during the strike. It expresses the hope that the above-mentioned principles concerning arbitration and compulsory arbitration will be duly taken into account in the forthcoming Labour Code, the draft text of which is currently before the Senate, and that the imposition of compulsory arbitration will be limited to cases of collective disputes in essential services in the strict sense of the term (that is, where an interruption would endanger the life, personal safety or health of the whole or part of the population).
4. 1065. As regards the alleged dismissal of four trade union leaders by the Itá Enramada Hotel Casino enterprise, as a result of the establishment of a trade union in the enterprise, the Committee notes that, according to the Government, this matter was submitted to the Labour Court and that the various points of the dispute in the hotel will be dealt with in Congress (Parliament). The Committee emphasises that no one should be subject to dismissal or prejudicial measures as a result of exercising legitimate trade union activities, such as the establishment of a trade union, and that under Article 2 of Convention No. 98, workers should be given adequate protection against any act of discrimination which would restrict freedom of association in relation to their employment. The Committee asks the Government to keep it informed of developments in these matters before the Labour Court. The Committee also asks the Government to send its observations on the allegation that the trade union leaders Walter Villasboa and Rámon Ortega were falsely accused of sabotage and had to spend several weeks in prison before being freed, when it proved impossible to substantiate the accusation.
5. 1066. Finally, as regards the dismissal of trade unionists in the Industrial Areguá enterprise, the Committee notes that this matter has been placed before the Labour Court of the First Instance. The Committee asks the Government to keep it informed of developments in and the outcome of the inquiry.

The Committee's recommendations

1. 1067. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee asks the Government to seek to ensure the reinstatement in their jobs of the workers of the Sant Jordi refrigeration enterprise who were dismissed for continuing a strike when the collective dispute was submitted to compulsory arbitration. The Committee expresses the hope that the forthcoming Labour Code (the draft text of which is now before the Senate) will limit the imposition of compulsory arbitration to cases of collective disputes in essential services in the strict sense of the term (namely, those services whose interruption would endanger the life, personal safety or health as a whole or part of a population).
   • (b) Furthermore, the Committee asks the Government to keep it informed of the development and outcome of the proceedings before the Labour Court concerning the dismissal of four officials of the Union of Workers of the Itá Enramada Hotel Casino. The Committee also asks the Government to send its observations on the allegation that the trade union leaders Walter Villasboa and Ramón Ortega were falsely accused of sabotage and had to spend several weeks in prison before being freed, when it proved impossible to substantiate the accusation.
   • (c) The Committee asks the Government to keep it informed of developments in and the outcome of the proceedings in the Labour Court of the First Instance concerning the dismissal of trade unionists of the Industrial Areguá enterprise.