Report in which the committee requests to be kept informed of development - Report No 362, November 2011

Case No 2834 (Paraguay) - Complaint date: 11-NOV-10 - Closed

Allegations: The complainant organization alleges that following the registration of a workers’ committee and its delegates at a transport enterprise, the administrative authority revoked its decision and annulled the legalization of the documents and the registration of the delegates

1. 1149. The complaint is contained in a communication from the National Trade Union of Transport Workers (SINATT) dated 11 November 2010. SINATT sent new allegations in a communication dated 9 May 2011.
2. 1150. The Government sent it observations in a communication of 12 May 2011.
3. 1151. 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 organization’s allegations

1. 1152. In its communication of 11 November 2010, SINATT states that it is a first-level representative association for all transport workers providing services in the collective passenger transport industry. It adds that, on 1 September 2010, union members Roberto Medina Giménez and Gustavo Klaner called on all those concerned to set up a workers’ committee to represent the workers of the transport company La Santaniana SA. The invitation to the initial meeting set a date of 7 September 2010 at 9 a.m. at house No. 485 in Lepacho c/Inca in the city of Asunción, the purpose being accreditation of the workers authorized to establish a trade union.
2. 1153. The complaint organization states that on 7 September 2010 at 10 a.m., 97 workers met in order to hold discussions and as appropriate to set up a committee. Once the officers of the meeting had been elected and the agenda drawn up, it was agreed to form a workers’ committee at the transport enterprise, and in accordance with SINATT by-laws the regular and deputy delegates Juan Carlos Martini Núñez and Sergio Coronel, respectively, were elected, as well as other officers. On 8 September 2010, the President of SINATT together with the regular member of the workers’ committee submitted an application for registration with the Vice-Ministry of Labour and Social Security, together with the documentation required under section 294 of the Labour Code. On 7 September 2010, SINATT sent registered telegram No. 01870 to the company informing it of the establishment of the workers’ committee, the elected delegates who would enjoy the right to union stability, and the duration of their term of office.
3. 1154. The union states that in Resolution No. 1153 of 14 September 2010 adopted by the ViceMinistry of Labour and Social Security, the documents submitted were duly legalized and the delegates of the workers’ committee were registered. The complainant adds that with notes (incoming reference Nos 2141/2010 and 2206/2010) submitted to the Ministry of Justice and Labour, the enterprise brought an action for hierarchical remedy and appeal against Resolution No. 1153 of 14 September 2010 adopted by the Vice-Ministry of Labour and Social Security, contesting the legalization of the documents and the registration of the workers’ committee delegates on the following grounds: (a) there is no provision for the establishment of workers’ committees in the Labour Code, or in the bylaws of SINATT; (b) SINATT had not complied with section 304(a) of the Labour Code which requires that “(a) the labour administrative authority be informed within ten working days following each election of any changes in the executive committee and of any amendments to the act of constitution and by-laws, for which purpose they shall provide authentic copies of the relevant documents, duly obtaining legal certification and registration of the latter for them to be valid”; and “(b) each year a list be provided to the administrative authority of the names of all persons who have joined or left [the committee]”.
4. 1155. SINATT alleges that Ministry of Justice and Labour Resolution No. 791 of 11 October 2010 revoked Resolution No. 1153 of 14 September 2010 of the Vice-Ministry of Labour and Social Security, and consequently cancelled the legalization of the documents and the registration of the workers’ committee delegates at the enterprise. In a written communication (incoming document reference No. 2431 dated 18 October 2010) SINATT applied for the remedy of revocation and appeal against Ministry of Justice and Labour Resolution No. 791 of 11 October 2010. As of the date on which this complaint was made, no final ruling has been given despite the attempts to expedite matters.
5. 1156. SINATT states that the arguments invoked by the Ministry of Justice and Labour to annul the legal personality of the workers’ committee at the company have no legal basis or logic. Since its foundation in August 1999 and in accordance with its by-laws, SINATT has established more than 50 workers’ committees, all of which are registered with the Vice-Ministry of Labour and Social Security. SINATT states that the transport enterprise La Santaniana SA is part of a holding company comprising 24 companies that belong to one employers’ group, in the majority of which there is no union precisely because of the group’s anti-union practices. SINATT maintains that, although the workers’ rights are inalienable, the founder members of the workers’ committee have been coerced into signing a document, the seventh clause of which states that they abide by Ministry of Justice and Labour Resolution No. 791 and expressly refrain from contesting its provisions. According to SINATT, the Ministry of Justice and Labour has acted arbitrarily and illegally by annulling the legal personality of the workers’ committee at La Santaniana SA, which under international standards and national law it is not authorized to do.
6. 1157. In its communication of 9 May 2011, SINATT states that together with other transport workers’ federations it has presented a number of representations to the Government in connection with workers’ demands, and specifically regarding the lack of freedom of association in the sector. It alleges that the Government, through the Ministry of Justice and Labour, undertook to set up a technical committee for the purpose of settling disputes, including the case of the workers’ committee at La Santaniana SA. According to SINATT, however, the technical committee was never set up and there has been no response to the representations.
7. 1158. SINATT adds that it and other transport sector organizations in Paraguay held a two-day workshop in January 2011, during which they discussed and adopted a number of conclusions: point 2 of which states that the Ministry of Justice and Labour does not respect freedom of association.
8. 1159. The complainant states that the Ministry of Justice and Labour issued Resolution No. 203 on 11 March 2011, rejecting the application for reconsideration of Resolution No. 791 of 11 October 2010 by which the Ministry had annulled the legal personality of the workers’ committee at the enterprise. During this period (almost five months), the employers managed to break up the workers’ committee through antiunion measures and without any reaction from the Ministry of Justice and Labour. The rejection of SINATT’s application for reconsideration was based on the argument that the principle of legality prevents the Ministry from examining such an appeal. When the employers lodged a similar appeal, however, the Ministry not only allowed it to proceed, but actually ruled in favour of the employers, something that is specifically prohibited by Paraguayan labour law and ILO Convention No. 87.
9. 1160. The complainant organization states that another important aspect of this case is the fact that article 2 of the same Resolution No. 203 states that the SINATT appeal is admissible and requires the Ministry of Justice and Labour to provide all the relevant background documents to the Labour Appeals Court in order to enable the union to substantiate its claim. As of 9 May 2011, however, that material had not been provided for the Labour Court, so that SINATT cannot seek the annulment of the Ministry’s arbitrary Resolution No. 791 of 11 October 2010.
10. 1161. Lastly, SINATT states that the Ministry of Justice and Labour, in a formal note, MJT/SG/326 dated 5 May 2011, orders SINATT within 48 hours to communicate its institutional and official position regarding the complaint presented to the ILO. SINATT claims that this constitutes a form of coercion or intimidation, there being no justification for such notice.

B. The Government’s reply

1. 1162. In its communication of 12 May 2011, the Government categorically denies that SINATT has any legal right to present a complaint to the ILO’s Committee on Freedom of Association, inasmuch as on 16 March 2011 the appeal against Ministerial Resolution No. 791 of 11 October 2010 was referred to the Labour Appeals Court of the capital, of which the union’s President was also informed.
2. 1163. The Government adds that the judicial authority has not yet given a definitive ruling on the matter. That means that the normal channels of redress available in Paraguay remain open, but SINATT’s lack of legitimacy lies in the fact that the organizers of the assembly which created the works council are not members of the union.
3. 1164. The Government states that the background information in this case shows that in a note, MJT/SGT/N dated 8 September 2010, SINATT sought from the administrative labour authority recognition of the workers’ committee delegates at the transport company. Considering that the union organization in question with legal personality is seeking recognition of the delegates elected at the constituent General Assembly of 7 September 2010 in accordance with its by-laws, the Legal Advisory Service issued ruling No. 2387 of 8 September 2010, by which the workers’ committee of the transport enterprise La Santaniana SA, was granted recognition and registered in accordance with Resolution No. 1153/2010.
4. 1165. According to case files referred to the Ministry of Justice and Labour (incoming document reference Nos 2141/2010 and 2206/2010) and to the General Directorate of Legal Advisory Services (incoming document reference Nos 931/2010 and 957/2010), the representatives of La Santaniana SA are lodging an action for hierarchical remedy and appeal against Resolution No. 1153 of the ViceMinistry of Labour and Social Security of 14 September 2010, which grants recognition and registration to the members of the workers’ committee of the transport enterprise concerned who are affiliated to SINATT. The argument put forward for this is that there is no provision in the Labour Code or in the by-laws of SINATT for such a works council, and none of the members of the works council belonged to the union. As regards the question whether the works council members at the company are SINATT members, the legal advisors of the General Directorate of Legal Advisory Services met with the Department of Collective Relations and Trade Union Registration, of the Subsecretariat of State for Labour and Social Security, subordinate to the Ministry of Justice and Labour, in order to determine whether the relevant workers are members of SINATT. The background documents of the union available to the Subsecretariat indicate that those listed as members of the workers’ committee at La Santaniana SA are not listed as SINATT members, and thus the requirements of section 304 of the Labour Code are not met; according to the provision in question, the union is required under subparagraph (b) each year to give the names of all persons who have joined or left [the committee]. “Article 107 of the SINATT by-laws stipulates that, in order to be elected as a delegate, a member must be at least 18 years of age, hold Paraguayan nationality (either from birth or by naturalization), have at least one year’s length of service in his or her job, and must have been a member of the union for the same period. In the case of new enterprises the length of service requirements may be dropped.”
5. 1166. The Government cites verbatim other provisions of the SINATT by-laws:
   • Membership, rights and obligations of members
   • Article 6. All workers employed in this area of activity, irrespective of their political ideology, religious beliefs, race or nationality, shall be entitled to join SINATT. For a worker to be admitted as a member, he or she shall be required to have expressed a wish to join in writing and that application must be accepted by the national executive committee. The latter is required to give its decision within 15 working days and may not refuse the application without stating a valid reason. Should that period elapse without a decision being given, the application shall be deemed to have been tacitly accepted.
   • A refusal shall always be subject to confirmation by the general congress of delegates, to which body the national executive committee shall be required to report its decision at the meeting closest in time to the date on which the decision is given.
   • An application for membership shall be considered to imply that the applicant is familiar with the relevant regulations and undertakes to abide by them.
   • Article 7. Unsuccessful applicants for membership shall be entitled to contest the refusal before the national congress of delegates which meets on the date closest to the date on which he or she is notified of that decision. The appeal must be made within 15 days of receipt of the notification that application for membership has been refused, and must be substantiated.
   • Article 8. The worker’s application for membership may be refused under the circumstances specified in the relevant laws and regulations if they are reliably established.
   • Rights and obligations
   • Article 9. Members who have been members for at least one month and have paid their dues shall be entitled to:
6. 1. Request and receive any due assistance in accordance with its purposes, and also receive other benefits under the by-laws, provided that the requirements of the respective regulations are met.
7. 2. Submit to the national executive committee any project which he or she may consider to be of potential collective benefit for workers in this area of activities.
8. 3. Put forward proposals for consideration by the assemblies.
9. 4. Promote any measure to ensure compliance with the relevant laws and regulations.
   • Article 10. Members who have been members for at least six months in the area of activity shall be entitled to speak and vote in assemblies and to vote in elections.
10. 1167. The Government adds that none of the participants in the assembly which elected the workers’ committee delegates were SINATT members and were thus not subjected, either actively or passively, to the established procedures of the meeting and elections under the (new) SINATT by-laws. Interestingly, SINATT’s by-laws contain no legal basis for its auxiliary body (the works council) and was put on notice to establish one. The crucial element is the presentation of the list of new members at La Santaniana SA, which was received in the registry of Ministry of Justice and Labour (Vice-Ministry for Labour and Social Security), incoming document reference No. 37074 dated 20 October 2010.
11. 1168. The Government states that the legal advisory service has also noted that with NDT No. 1295 of 14 September 2010, the Director-General of Labour instructed SINATT to adjust its by-laws within 30 days to provide for the establishment of the works council, on pain of deregistration. The Government states that SINATT has complied with NDT No. 1295 of 14 September 2010, partially amending the SINATT by-laws (incoming document reference No. 34952/2010 at the Vice-Ministry of Labour and Social Security and incoming document reference No. 1000/2010 at the General Directorate of the Legal Advisory Service). Subsequently the Legal Advisory Service issued its ruling No. 645 of 7 October 2010 to the effect that Resolution No. 1153/2010 was annulled by Ministry of Justice and Labour Resolution No. 791/2010. This was prompted by section 304(b) of the Labour Code, the body of laws in force, and SINATT’s own by-laws, the Ministry of Justice and Labour being the highest authority of the labour administration and as such responsible for reviewing and overseeing the administrative acts of its subordinates.
12. 1169. The Government adds that subsequently, according to a note received by the Ministry of Justice and Labour under (reference 2431/2010), SINATT representatives affiliated to the CUT lodged an application for reconsideration and appeal of the Ministry’s Resolution No. 791 of 11 October 2010. The Ministry’s Legal Advisory Service again passed Resolution, No. 203 of 11 March 2011, rejecting the application for reconsideration and upholding the appeal. The application was referred to the Labour Appeals Court in the city of Asunción, as required by law, on 16 March 2011 with a view to substantiating the application.
13. 1170. The Government states that the resolutions originating from the Vice-Ministry of Labour and Social Security under the Ministry of Justice and Labour in the years 1999, 2000 and 2001, which are provided as proof of recognition and registration of workers’ committees at the company (according to SINATT), assumes that delegates and those attending electoral meetings are members of SINATT; they are undoubtedly flawed in the sense that the union’s by-laws do not provide an explicit legal basis for this. The Ministry of Justice and Labour has adhered to all the established administrative process, and the terms of the relevant resolutions can be presumed to be legal under Paraguayan law; it is the Ministry’s intention to defend freedom of association at all levels, and in this case in particular will have to submit to a judicial ruling. Lastly, the Government emphatically denies that the invitation to establish a workers’ committee at SINATT is legal, especially in the company, because the workers in question were not members of the union. Paraguay has ratified ILO Conventions Nos 87 and 98 but cannot depart from legality in order to register a workers’ committee whose members are not members of the very union from which the committee is purportedly derived.

C. The Committee’s conclusions

1. 1171. The Committee notes that, in the present case, SINATT alleges that, following initial registration of a workers’ committee and its delegates at La Santaniana SA with the administrative authority, the company contested the registration and the Ministry of Justice and Labour, invoking arguments that lacked any legal basis or logic, revoked its previous decision (SINATT states that it has since 1999 set up more than 50 workers’ committees which were registered with the ViceMinistry of Labour and Social Security).
2. 1172. In this connection the Committee notes the Government’s statements to the effect that: (1) on 8 September 2010, SINATT applied to the administrative labour authority for recognition and registration of a workers’ committee at the company referred to; (2) the Legal Advisory Service of the administrative authority approved the application, and the workers’ committee was duly granted recognition and registered under Resolution No. 1153/2010 of the Vice-Ministry of Labour and Social Security; (3) the company’s representatives lodged an action for hierarchical remedy and appeal against Resolution No. 1153/2010, arguing that there was no provision in the Labour Code or in SINATT’s by-laws for the establishment of a works council, and that none of the works council members was a member of SINATT; (4) the attorneys of the General Directorate of the Legal Advisory Service met with the Department of Collective Relations and Trade Union Registration, subordinate to the Ministry of Justice and Labour, in order to ascertain whether the company’s workers are members of SINATT; the background documents of the union in question indicated that the persons named in the list of members of the workers’ committee are not SINATT members, and the requirements of section 304 of the Labour Code are therefore not met; (5) the SINATT by-laws contained no legal basis for the establishment of any auxiliary body like the works council, and SINATT was put on notice to establish one; the Director-General of Labour instructed SINATT to amend its statutes within 30 days to provide for the establishment of a works council on pain of deregistration; (6) on 11 October 2010, Resolution No. 1153/2010 was annulled by Resolution No. 791/2010 of the Ministry of Justice and Labour, in accordance with sections 304(b) and 293(d) of the Labour Code and SINATT’s own by-laws; (7) subsequently SINATT lodged an application for reconsideration and appeal of Resolution No. 791 of 11 October 2010, and the application for reconsideration was rejected by the Legal Advisory Service of the Ministry of Justice and Labour, but the appeal was upheld; (8) the appeal was referred to the Labour Appeals Court of Asunción on 16 March 2011; and (9) the Government questions the legality of the SINATT workers’ committee at the company because the workers in question were not members of the union.
3. 1173. The Committee considers that, in the light of the information available to it and unless the complainant organization sends additional information proving the contrary, the allegations in this case would not appear to amount to violations of freedom of association. Nonetheless, taking account of the fact that SINATT lodged an appeal against Resolution No. 791 of 11 October 2010 of the Ministry of Justice and Labour, annulling registration of the workers’ committee at the company in question, the Committee requests the Government to keep it informed of the outcome of these proceedings.
4. 1174. The Committee wishes to highlight that the information relating to the affiliation of workers to a trade union should be confidential, except of course in cases where trade union dues are deducted on payroll.

The Committee's recommendations

1. 1175. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to keep it informed of the final outcome of the appeal lodged by SINATT against Resolution No. 791 of 11 October 2010 of the Ministry of Justice and Labour, which annulled the registration of the workers’ committee at La Santaniana SA.