Interim Report - Report No 376, October 2015

Case No 3019 (Paraguay) - Complaint date: 14-MAR-13 - Closed

Allegations: Deficiencies in sanctions procedures of the labour inspectorate in relation to corruption practices, barriers to the creation of trade unions, dismissals of union leaders and members, and obstacles to collective bargaining

1. 825. The complaint is contained in a communication by the National Confederation of Workers (CNT), the Single Authentic Confederation of Workers (CUT–A) and the Trade Union Confederation of Workers of the Americas (CSA) dated 27 December 2012. These organizations presented fresh allegations in a communication dated 17 May 2013.
2. 826. The Government sent its partial observations in a communication dated 1 October 2014.
3. 827. 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 complainants’ allegations

1. 828. In a communication dated 27 December 2012 (received by the Office on 14 March 2013), the CNT, the CUT–A and the CSA allege that the registration of the following trade unions was cancelled: (1) the Union of Workers of the Don Remigio Bakery (SITRAPAN); (2) the Union of Workers of the Paraguayan Glass Factory, SA (SINPAFAVI); (3) the Union of Health Workers of the Maternity and Paediatric Hospital of Limpio (SITRASALIM), a hospital under the responsibility of the Ministry of Public Health; and (4) the Union of Workers of the MAEHARA Enterprise (SINTRAMAE). In all cases, the Ministry of Labour refused the final registration of the unions in response to objections from the employer.
2. 829. The complainants further allege that various enterprises dismissed a large number of union leaders and members or carried out other anti-union practices or obstructed collective bargaining: (1) the MAEHARA SA enterprise dismissed union leaders and members simply because they founded the union; the union members were detained by the police for protesting outside the enterprise’s premises; (2) the refrigeration enterprise IPFSA does not recognize the union, dismissed its leaders and members, and refuses to negotiate a collective agreement; the dismissals, which resulted from demands to amend the collective agreement in force for workers of the Union of Workers of the Refrigeration Company (SITRAFIASA), affected all the union leaders and members, resulting in the disappearance of the trade union; (3) the PROSEGUR enterprise dismissed 325 workers for setting up a trade union and for demanding the right to bargain collectively; (4) the Grupo La Victoria enterprise dismissed the leaders and members simply because they founded a trade union; (5) the SAECA regional bank disregards freedom of association and refuses to sign the collective agreement; (6) the Social Action Secretariat (SAS) dismissed eight members of the executive committee of the Union of SAS Workers (SITRASAS); and (7) the multinational ESSO is seeking to destroy the union.
3. 830. The complainants add that, in the public service, over 90 per cent of collective agreements are not registered in practice, owing to the refusal of the Vice-Ministry of Labour to register them.
4. 831. In their communication dated 17 May 2013, the complainants allege that, on repeated occasions, the labour administration of Paraguay has, through the General Directorate of Labour and the Department of Legal Affairs, required participants in union assemblies to attend in person to prove the validity of the signatures of those present, thereby completely undermining the union’s autonomy. The Vice-Ministry of Labour and Social Security thus places in doubt the signatures of the participants in union assemblies. In many cases, those concerned have to travel from remote areas of the country to the capital, where the Vice Ministry’s headquarters are located.
5. 832. The complainants state that the Union of Workers of the DORAM SA Enterprise obtained provisional registration by Resolution No. 10 of the administrative authority of the Vice Ministry of Labour and Social Security on 3 April 2012. In violation of the prohibition on interference by employers in trade union organizations, the employer submitted objections to the labour administration and sought to cancel the union’s registration, and the Ministry granted the request in an arbitrary manner. According to the allegations, the Minister of Labour has not yet provided any information on the issue, but workers have been dismissed.
6. 833. With regard to the right to strike, the complainants allege that the Vice-Ministry of Labour does not prevent the entry of workers to replace striking workers, hence employers hire replacements at will and strikes have no effect whatsoever. This is in violation of articles 368 and 369 of the Labour Code and the right to strike guaranteed by the national Constitution. In the event of a strike, the Vice-Ministry should guarantee that only formalized workers who are not participating in the strike are allowed to enter the workplace. The strikes called by the Union of Workers of the ALAMBRA SA Enterprise and the Union of Drivers of the Ciudad Villeta Enterprise illustrate this problem.
7. 834. Lastly, the complainants allege that, when labour inspectors inspect workplaces, they fail to verify the complaints made by union members concerning violations of labour or union rights, or they delay them arbitrarily in the Ministry’s offices. Furthermore, procedures for administrative sanctions last one year and are subject to a high level of corruption.

B. The Government’s reply

1. 835. In its communication dated 1 October 2014, the Government provides a partial reply to the complainants’ allegations and transmits the replies of various enterprises concerned.

Denial of final registration of various unions

1. 836. On the subject of the denial of various unions’ final registration, the Government reports that applications for registration are submitted for a period of 30 days, during which time objections may be made, and the labour administration subsequently decides whether to grant final registration. In the case of SITRAPAN, the owner of the enterprise submitted an objection to the provisional registration on the grounds that no employer–employee relationship existed. The trade union was founded on 14 January 2011 but, as a result of a public tendering process, all of the workers were on fixed-term contracts, which had ended on 31 November 2010. The labour administration had notified the applicants of the objection but had not received any reply from them. Consequently, it decided not to approve the final registration of the trade union. In the case of SINFAPAVI, the enterprise objected that there had been irregularities in the establishment of the union. Having received no reply from the union, the labour administration considered that the legal requirements for the establishment of the union had not been fulfilled. In the case of SITRASALIM, the Government notes that the objections to its final registration were submitted not by the management, but by another trade union of the same institution, the Union of Workers of the District Hospital of Limpio (SITRALIMP), which alleged that documents had been submitted out of time and that some members were ineligible to join the union because they were civil servants who held positions of trust. Although the labour administration considered that SITRALIMP’s objections could not form the basis of a challenge, it rejected the final registration of the union on the grounds that SITRASALIM did not comply with the legal requirements because: the articles of incorporation did not state the names of the founding members; the required minimum 20 per cent founding members in a public sector union in institutions of up to 500 employees was not met (only 18 persons of a total of 417 civil servants were recorded as having attended); and the documents submitted were wholly unclear as to the name of the union and used various formulations and acronyms. In the case of SINTREMAE, the MAEHARA enterprise objected that the union did not have the minimum number of members required by article 292 of the Labour Code (20 members for enterprise trade unions). The labour administration had notified the applicant trade union of the objection and, as it had not received a reply, it considered that final registration should not be granted. The union’s appeal was denied, as the administration’s decision was final.

Allegations of dismissals of trade unionists and other anti-union practices

1. 837. As to the allegations of dismissals of trade union leaders and members by various enterprises for having established unions and conducted other union activities (the MAEHARA, Grupo La Victoria, PROSEGUR and SAS enterprises), the Government states that the administrative authorities are addressing all of the complaints received and are holding meetings to mediate between the parties. The Government transmits the information provided by the competent administrative authorities in relation to the cases and indicates the meetings and mediation attempts that have taken place. It appears from the documentation provided that an agreement was reached on two individual complaints made against the MAEHARA enterprise, with the offer of payment of accrued wages and of welfare benefits for unfair dismissal sought by the workers concerned. In most of the other cases reviewed by the administrative authorities, the meetings did not result in the resolution of the complaints. The Government also transmits information provided by some of the enterprises concerned. The Grupo La Victoria enterprise states that the reduction in workers as a result of shortages of raw materials had been communicated to the regional labour directorate and that at no point were trade unionists dismissed, given that the four workers who were dismissed were not unionized at the time and only joined the union after the fact. As to the allegations of anti-union dismissals by the SAS, the SAS states that the workers were not dismissed; instead, it had been decided that the contracts of a large number of workers would not be renewed and those affected received notice in accordance with the contract. The SAS also states that the majority of those workers were rehired, in particular the union leaders who enjoyed trade union immunity, and their status was applied. The SAS considers that the labour dispute was resolved as a result. With regard to the PROSEGUR enterprise, the Government states that the enterprise signed a collective agreement that was approved and registered by decision of 10 December 2012, and that the alleged dismissal was the subject of legal proceedings and is before the Committee under Case No. 3010.
2. 838. With regard to the alleged detention of trade unionists for protesting outside the premises of the MAEHARA enterprise, the Government requested a report from the national police force, and states that the leaders of the group of employees blocking the main entrance to the enterprise with pieces of wood were detained. The Government states that the police asked them to go with them to the police station, where they were informed of their detention order in compliance with all legal safeguards, including communication with their lawyers. They were subsequently transferred to another police station, where they continued to communicate freely and were under the responsibility of the Public Prosecutor’s Office.

Allegations of enterprises’ obstructing collective bargaining

1. 839. With regard to the allegations of obstructions to the signing of collective agreements, the Government provides information on the outcome of collective bargaining in certain enterprises. The SAECA regional bank, which had a collective agreement that was approved and registered in 2006, negotiated a new collective agreement that was approved and registered by an administrative resolution of 5 January 2012. The ESSO enterprise indicates in a communication dated 26 September 2012 that it has always shown complete willing to engage in negotiations, that there has never been any obstacles to negotiating a collective agreement with the union and that consensus was reached on a preliminary collective agreement on 20 September 2012. The refrigeration enterprise IPFSA states that it has not reviewed the draft collective agreement submitted by the union because it has, for several years, had fewer than 20 employees (with only 11 at the present time) and consequently does not meet the conditions of article 334 of the Labour Code for a collective agreement to be mandatory. In addition, this enterprise states that not one labour law violation has been determined in any of the inspections carried out in the enterprise.

C. The Committee’s conclusions

Denial of final registration of various unions

1. 840. The Committee observes that the complainants allege that the labour administration denied the final registration of various trade unions without justification. The Committee notes that, according to the Government, in the case of the SITRAPAN union, the denial resulted from an objection from the owner, who alleged that there was no employment relationship as the contract of all of the workers had ended two months prior to the preliminary registration, that they were fixed-term workers as a result of a public tendering process, and that they had not challenged the objection when they had the opportunity to do so. In the case of SITRASALIM, the Committee notes that, according to the Government, the labour administration denied the union’s final registration owing to its non-compliance with the legal requirements concerning the inclusion of the names of the founding members, a lack of clarity as to the name of the trade union in the documents submitted, and non-compliance with the minimum number of members – established in section 292 of the Labour Code as 20 per cent for the public sector in institutions of up to 500 employees. In this respect, the Committee wishes to recall the principle whereby “while a minimum membership requirement is not in itself incompatible with Convention No. 87, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered” and “what constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 287]. In the light of this principle, and taking into account the fact that section 292 of the Labour Code, by requiring 20 per cent of workers to be affiliated in public sector institutions of up to 500 employees, could result in a requirement of up to 100 workers to establish a trade union, the Committee requests the Government to review this provision in consultation with the social partners concerned in order to not, in effect, undermine the right of public sector employees to establish and join organizations of their own choosing. In the case of SINTRAMAE, the Committee observes that its final registration was denied because it did not have the minimum of 20 members required by section 292 of the Labour Code for enterprise trade unions. In the case of SINFAPAVI, the Committee notes that the Government indicates that registration was denied as a result of an objection from the enterprise, which alleged that there had been irregularities in the establishment of the union, but that it has not provided further details. The Committee therefore urges the Government to provide detailed information on the alleged legal irregularities in the establishment of SINFAPAVI which led it to deny the union its final registration. In the light of the numerous allegations of interference by management relying on legal provisions to object to the final registration of trade unions, the Committee invites the Government to review on a tripartite basis without delay the use of employers’ powers to contest the registration of unions.

Allegations of dismissals of trade unionists and other anti-union practices

1. 841. The Committee observes that the complainants make various allegations of dismissals of trade union leaders and members as a result of their having established unions and conducted other trade union activities. The Committee observes that the complainant provided a list of the trade unionists purportedly dismissed by the SAS, but did not provide names or other precise information concerning the other alleged dismissals in the other enterprises. Furthermore, the Committee notes that the Government has provided information on various complaints made against some of those enterprises, and indicates that the administrative authorities are handling the complaints and holding meetings to mediate between the parties. In this connection, recalling that the Committee of Experts on the Application of Conventions and Recommendations has for many years been observing the need to strengthen legal provisions against anti-union discrimination, and that this Committee has in the past requested “the Government, in consultation with the social partners, to ensure effective national procedures for the prevention and sanctioning of anti-union discrimination” [see Case No. 2648, 355th Report, para. 963], the Committee invites the Government to hold consultations with the social partners to establish mechanisms to guarantee effective protection against acts of anti-union discrimination, including rapid and impartial procedures, with provision for appeals and sufficiently dissuasive sanctions. The Committee requests the Government to keep it informed in this respect.
2. 842. The Committee also notes in relation to the alleged dismissals by Grupo La Victoria that the enterprise states that the dismissals resulted from a shortage of raw materials, that the regional labour directorate had been informed, and that no trade unionists were dismissed, but that the dismissed workers had joined the union subsequently. With regard to the allegations of anti-union dismissals by the SAS, the Committee notes the explanations of the SAS that the situation was one of expiry and non-renewal of contracts and that the contracts of all union leaders enjoying trade union immunity were later renewed, as were the contracts of most of the workers affected by the non-renewal. With regard to the allegations of anti-union dismissals by the PROSEGUR enterprise, the Committee refers to its examination of the allegations in Case No. 3010 [see 375th Report, paras 438–459]. With regard to the allegations of anti-union dismissals by the IPFSA and MAEHARA enterprises, the Committee observes that the Government refers to the dismissal cases of two employees of the MAEHARA enterprise, who reportedly reached an agreement including compensation, but it is not possible to determine whether those workers were trade union members. As to the IPFSA enterprise, it merely states that no labour law violations have been established in any of the inspections conducted at the request of the union. In the light of the foregoing, the Committee requests the Government to provide further information on the allegations of anti-union dismissals made against the MAEHARA and IPFSA enterprises. In this regard, and taking into account the general nature of the allegations of anti-union discrimination it has received, the Committee invites the complainants to provide additional information so that it may examine those and other allegations of anti-union dismissals and discrimination in greater detail, and to seek the relevant additional observations from the Government.
3. 843. With regard to the allegation that the ESSO enterprise is seeking to destroy the union, the Committee observes that the complainants do not provide precise information or evidence to substantiate the allegation. The Committee further observes that the enterprise states that it has always shown complete willingness to engage in negotiations and that consensus has been reached on a preliminary collective agreement.
4. 844. With regard to the allegations of the detention of trade unionists protesting outside the premises of the MAEHARA enterprise, the Committee notes that the Government states that their detention complied with all procedural guarantees, but does not state the grounds for the order to detain them. The Committee firmly expects the Government to provide more information on the grounds for the detention and to keep it informed of the outcome of the resultant proceedings.

Allegations of enterprises’ obstructing collective bargaining

1. 845. With regard to the allegations of obstructions to collective bargaining, the Committee observes that the complainants have not provided precise arguments or evidence concerning the alleged violations of the right to bargain collectively, and notes the information provided by the Government on the outcomes of negotiations in specific enterprises. The Committee notes that the Banco Regional SA negotiated and registered a new collective agreement in 2012; that the ESSO enterprise provides information on progress in the negotiation of a collective agreement; and that the refrigeration enterprise IPFSA has not engaged in collective bargaining because it has fewer employees than the statutory minimum of 20 employees as of which a collective agreement becomes mandatory.

Allegations to which the Government has not replied

1. 846. The Committee notes with regret that the Government has not sent its observations on the allegation concerning the Ministry of Labour’s refusal to register more than 90 per cent of the collective agreements in the public service, or on the complainants’ additional allegations dated 17 May 2013 (see paras 7–10 above). Consequently, the Committee requests the Government to provide its observations on the following allegations to which it has yet to reply: (1) procedures of the labour authorities in the event of violations of labour or union rights involving a high degree of corruption and which last one year, failure to deal with complaints made by trade unions, and the labour inspectorate’s conducting inspections without the participation of the unions; (2) the Ministry of Labour’s refusal to register more than 90 per cent of the collective agreements in the public service; (3) the passive attitude of the labour authorities to the illegal replacement of striking workers by other workers; and (4) the cancellation of the registration of the Union of Workers of the DORAM SA Enterprise. Furthermore, the Committee invites the Government to address these issues in tripartite dialogue with the most representative organizations of employers and workers, and to keep the Committee informed in this regard.

The Committee’s recommendations

1. 847. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • Taking into account the fact that section 292 of the Labour Code, by requiring 20 per cent of workers to be affiliated in public sector institutions of up to 500 employees, could result in a requirement of up to 100 workers to establish a trade union, the Committee requests the Government to review this provision in consultation with the social partners concerned in order to not, in effect, undermine the right of public sector employees to establish and join organizations of their own choosing.
   • The Committee urges the Government to provide detailed information on the alleged legal irregularities in the establishment of SINFAPAVI which led it to deny the union its final registration. Furthermore, in the light of the existence of numerous allegations of interference by management relying on legal provisions to challenge the final registration of unions, the Committee invites the Government to review on a tripartite basis without delay the use of employers’ powers to contest the registration of unions.
   • (c) The Committee requests the Government to provide additional information on the allegations of anti-union dismissals made against the MAEHARA and IPFSA enterprises. In this regard, taking account of the general nature of the allegations of anti-union discrimination it has received, the Committee invites the complainants to provide additional information so that it may examine those and other allegations of anti-union dismissals and discrimination in greater detail, and to seek the relevant additional observations from the Government.
   • (d) The Committee invites the Government to hold consultations with the social partners, to establish mechanisms to guarantee effective protection against acts of anti-union discrimination, including rapid and impartial procedures, with provision for appeals and sufficiently dissuasive sanctions. The Committee requests the Government to keep it informed in this respect.
   • (e) The Committee firmly expects the Government to provide more information on the grounds for the detention of trade unionists protesting outside the premises of the MAEHARA enterprise, and to keep it informed of the outcome of the resultant proceedings.
   • (f) The Committee requests the Government to provide its observations on the following allegations to which it has yet to reply: (1) procedures of the labour authorities in the event of violations of labour or union rights involving a high degree of corruption and which last one year; failure to deal with complaints made by trade unions; and the labour inspectorate’s conducting inspections without the participation of the unions; (2) the Ministry of Labour’s refusal to register more than 90 per cent of the collective agreements in the public service; (3) the passive attitude of the labour authorities to the illegal replacement of striking workers by other workers; and (4) the cancellation of the registration of the Union of Workers of the DORAM SA Enterprise. Furthermore, the Committee invites the Government to address these issues in tripartite dialogue with the most representative organizations of employers and workers, and to keep the Committee informed in this regard.