Report in which the committee requests to be kept informed of development - Report No 348, November 2007

Case No 2526 (Paraguay) - Complaint date: 26-OCT-06 - Closed

Allegations: The complainant alleges the anti-union dismissal of an official from the banking sector

1037. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 26 October 2006. The ICFTU sent additional information in a communication dated 31 October 2006. The Government sent its observations in a communication dated 8 June 2007.

1. 1038. 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. 1039. In its communications of 26 and 31 October 2006, the ICFTU criticizes the arbitrary and anti-union dismissal of Ms Shirley Marisol Rojas, an official of the INTERBANCO SA Workers’ Union, on 25 August 2006. The ICFTU indicates that Ms Rojas had been working at INTERBANCO SA for nine years and five months and was therefore very close to obtaining stability of employment, since Paraguayan labour law stipulates that: “Any worker who obtains stability of employment after ten years of service shall not be liable to dismissal, unless there is a valid reason.” According to the ICFTU, the bank has acknowledged that she has been given an “A” performance appraisal for the impeccable way in which she performs her duties; that category is reserved for exemplary employees and entitles them to an end-of-year bonus. Furthermore, her trade union activities during this entire period were very intense, and for three consecutive terms she was a member of the union’s executive committee. Her dismissal was therefore presumed to be simply a means of putting a stop to her trade union activities, given that the bank does not recognize her trade union immunity and refuses to acknowledge her membership of the union’s executive committee.
2. 1040. The ICFTU states that, as a result of the intense pressure maintained by the Federation of Bank Employees (FETRABAN) and other Paraguayan trade union organizations in protest at such an unfair dismissal, as acknowledged by lawyers from the Ministry of Labour, Ms Rojas was allowed to return to work but was not paid any wages for the month of September, was not reinstated in her former post, and not assigned any duties.
3. B. The Government’s reply
4. 1041. In its communication of 8 June 2007, the Government states that, with regard to this case, the Office of the Deputy Minister of Labour and Social Security sent letters to the Federation of Production, Industry and Commerce (FEPRINCO) and INTERBANCO requesting them to state their position on the matter. INTERBANCO SA indicated the following: (1) Ms Shirley Marisol Rojas was dismissed from INTERBANCO SA on 25 August 2006 in accordance with the administrative powers granted to enterprises under labour law, and received full compensation and social benefits. She refused to accept this situation and on 31 August 2006 filed a complaint which is currently under examination by the courts; the bank has agreed to be bound by the outcome of this examination. At present, Ms Shirley Marisol Rojas is not a staff member, in accordance with a judicial decision; (2) at the time of her dismissal, Ms Shirley Marisol Rojas did not have the employment stability afforded to union officials owing to the fact that she was serving on the executive committee of the INTERBANCO SA Workers’ Union for a third consecutive term of office. In this respect, section 323 of the Labour Code clearly states that the employment stability enjoyed by union officials cannot be extended to cover the same person for more than two consecutive or alternate terms within a period of ten years. The INTERBANCO SA Workers’ Union and the Labour Directorate were informed of this situation in writing in May 2006; (3) on 8 October 2006, following her dismissal and after she had filed a judicial complaint against INTERBANCO, Ms Shirley Marisol Rojas sent a certified telegram to inform the bank that she was pregnant; (4) the actions of union representatives and their aggressive behaviour during a campaign to discredit INTERBANCO, its management and its authorized representative, and the related demands, claims and absurd complaints, all of which were clearly intended to extort concessions, are not helping to resolve the dispute, given that the bank is simply awaiting a ruling; and (5) INTERBANCO SA respects the independence of the judiciary and fully complies with the constitutional and legal requirements that protect employees’ freedom of association for trade union purposes.
5. 1042. The Government adds that the Office of the Deputy Minister of Labour and Social Security has applied the following procedures in relation to this case: (1) the INTERBANCO SA union filed a complaint with the Deputy Minister of Labour and Social Security alleging irregular practices at INTERBANCO SA and referred, among other things, to the illegal dismissal of Ms Shirley Marisol Rojas, who was a member of the union’s executive committee and protected by the employment stability afforded to union officials; this was a violation of the Labour Code (document No. 21187/96 and 21188/06); (2) the Office of the Deputy Minister of Labour and Social Security, through inspection Order No. 0393/06 and in response to the complaint filed, ordered a labour inspection for the purpose of assessing the situation of workers and compliance with existing labour standards; (3) the officers appointed to assess the enterprise’s compliance with labour standards visited the workplace and wrote up their findings, which were submitted to the Labour Administration Authority and referred to the Labour Directorate (inspection and monitoring department); (4) the legal office, in accordance with Order No. 2564/06, recommended that administrative proceedings should be instituted concerning the alleged infringements of existing labour laws at INTERBANCO SA, in accordance with section 398 of the Labour Code; and (5) the file is pending and has been assigned to a judge, and, if it is established that labour laws have been infringed, as alleged by the workers, the sanctions set out in the Labour Code will be imposed, in accordance with the provisions of the Labour Code, Book V, Title I, section 384 ff.

C. The Committee’s conclusions

1. 1043. The Committee observes that, in the present case, the complainant alleges that Ms Shirley Marisol Rojas, an official of the INTERBANCO SA Workers’ Union, was dismissed on 25 August 2006 (after working at the enterprise for over nine years with an impeccable work record) and that, although she subsequently returned to work, she received no wages for the month of September 2006, was not reinstated in her former post and not assigned any duties.
2. 1044. The Committee notes that according to the Government, INTERBANCO SA stated that: (1) Ms Shirley Marisol Rojas was dismissed from INTERBANCO SA on 25 August 2006 in accordance with the administrative powers granted to enterprises under labour law and received full compensation and social benefits. Ms Shirley Marisol Rojas refused to accept the situation and on 31 August 2006 filed a complaint, which is currently before the courts; the bank has agreed to be bound by the outcome of that examination. At present, Ms Shirley Marisol Rojas is not a staff member, under the terms of a judicial decision; (2) at the time of her dismissal, Ms Shirley Marisol Rojas did not enjoy the employment stability afforded to union officials owing to the fact that she was serving on the executive committee of the INTERBANCO SA Workers’ Union for a third consecutive term. In this respect, section 323 of the Labour Code clearly states that the employment stability afforded to union officials cannot be extended to cover the same individual for more than two consecutive or alternate terms within a period of ten years. The INTERBANCO SA Workers’ Union and the Labour Directorate were informed of this situation in writing in May 2006; (3) the actions of union representatives and their aggressive behaviour during a campaign to discredit INTERBANCO, its management and its authorized representative, are in no way helping to resolve the dispute, given that the bank is simply awaiting a ruling; and (4) INTERBANCO SA respects the independence of the judiciary and fully complies with the constitutional and legal requirements that protect employees’ freedom of association for trade union purposes.
3. 1045. Furthermore, the Committee notes the Government’s statements to the effect that: (1) the INTERBANCO SA union filed a complaint with the Deputy Minister of Labour and Social Security concerning irregular practices at INTERBANCO SA and referred, among other things, to the illegal dismissal, in violation of the Labour Code, of the employee in question, who was a member of the union’s executive committee and protected by the employment stability afforded to union officials; (2) the Office of the Deputy Minister of Labour and Social Security, through inspection Order No. 0393/06 and in response to the complaint filed, ordered that a labour inspection be conducted to assess the situation of workers and compliance with existing labour standards; (3) the officers appointed to assess the enterprise’s compliance with labour standards visited the workplace and wrote up their findings, which were submitted to the Labour Administration Authority and referred to the Labour Directorate (inspection and monitoring department); (4) the legal office, in accordance with Order No. 2564/06, recommended that administrative proceedings should be instituted into the alleged infringements of existing labour laws at INTERBANCO SA, in accordance with the provisions of section 398 of the Labour Code; and (5) the file is pending and has been assigned to a judge, and, if it is established that labour laws have been infringed, as alleged by the workers, the sanctions set out in the Labour Code will be applied, in accordance with the provisions of Book V, Title I, section 384 ff., of the Labour Code.
4. 1046. In this regard, the Committee observes that, while the complainant indicates that union official Ms Shirley Marisol Rojas has been allowed to return to work, INTERBANCO SA states that she has been dismissed from the enterprise. The Committee also notes that according to INTERBANCO SA, she filed a judicial complaint following her dismissal, while according to the Government, the administrative authority conducted an investigation into the case, which is still pending and under examination by the legal authority. The Committee recalls that: “No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment”; and that “One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 771 and 799]. Under these circumstances, and in view of the fact that union officials are not protected by law after two consecutive or alternate terms in union office during a period of ten years (section 323 of the Labour Code), the Committee trusts that: (1) there are other legal provisions which provide for sanctions and compensatory measures for acts of anti-union discrimination after the period set out in section 323 of the Labour Code; and (2) if the legal authority confirms that union official Ms Shirley Marisol Rojas was dismissed for anti-union reasons, the Government will take the necessary measures to ensure that she is reinstated in her post, or a similar post corresponding to her abilities, and paid any arrears of wages owed to her. If the judicial authority considers that reinstatement is not possible, the Committee expects that she will receive adequate compensation. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 1047. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government, if the judicial authority confirms that union official Ms Shirley Marisol Rojas was dismissed from INTERBANCO SA for anti-union reasons, to take the necessary measures to ensure that she is reinstated in her post, or a similar post corresponding to her abilities, and paid any arrears of wages owed to her. If the judicial authority considers that reinstatement is not possible, the Committee expects that she will receive adequate compensation. The Committee requests the Government to keep it informed in this respect.