Report in which the committee requests to be kept informed of development - Report No 382, June 2017

Case No 3146 (Paraguay) - Complaint date: 02-MAR-15 - Closed

Allegations: campaign by the authorities promoting withdrawal from the trade union; requests for revocation of its registration; other acts of anti-union discrimination against its officers and members; and refusal to bargain collectively

1. 467. The complaint is contained in a communication dated 2 March 2015 from the Single Confederation of Workers (CCT).
2. 468. The Government sent its observations in a communication dated 25 July 2016.
3. 469. 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. 470. In its communication of 2 March 2015, the CCT alleges that the National Institute of Technology, Standardization and Meteorology’s Union of Professionals and Technicians (INTN Sindical) has been subjected to anti-union harassment.
2. 471. The complainant reports that INTN Sindical was harassed by one of the general directors of the National Institute of Technology, Standardization and Meteorology (hereinafter “the Institute”) during his two terms of office (July to December 2012 and 16 August 2013 to the date on which the complaint was presented, respectively) through: (a) a campaign, launched in July 2012, that led to the withdrawal of over half of the union’s members (a fact that was reported to the General Director of the Institute and to the Ministry of Justice and Labour); (b) two requests for revocation of INTN Sindical’s registration, made by the General Director of the Institute (the General Director for Labour decided not to grant the revocation request but the Institute persisted with a second request); (c) dismissal of three members of INTN Sindical who enjoyed security of tenure (Ms Delia Ríos, Ms Silvia Vidal and Ms Elba Ramírez) without an administrative investigation; (d) during the General Director’s first term of office, intimidation of the trade union’s general secretary, who was summoned to a meeting at which an attorney from the Institute’s legal office threatened him with dismissal unless he withdrew from the union; (e) violation of the right to freedom of expression through a decision (No. 064/2014) requiring the General Directorate’s express approval of trade union announcements and notices and imposing other conditions (the content must be of trade union or general interest and may not include insults and incitement that impugn the integrity of individuals or foment hatred on the part of public servants; and (f) harassment of other members of the union through transfers and other anti-union measures: (i) the Deputy General Secretary, Ms Nancy Melgarejo, was transferred twice with no regard for her profile; (ii) the union’s spokesperson, Ms Carmen Mallorquín, was transferred twice (first to an isolated, unsafe and unclean office and then with a demotion) and dismissal proceedings (subsequently dropped) were brought against her; (iii) the current General Secretary of the union, Ms Delfina de Franco, was demoted and threatened with dismissal; (iv) dismissal proceedings were brought against the organization’s Secretary, Mr Mario Leiva, on three occasions (the proceedings were dropped on two occasions and on the third, which ended in dismissal, they were procedurally flawed); (v) the union’s Deputy Communications Secretary, Ms Trini Jimenez, received a two-step demotion, dismissal procedures (subsequently dropped) were brought against her and she was relieved of some of her duties; (vi) the union’s Finance Secretary, Ms Rita Rodríguez, was removed from her post, demoted, investigated and threatened with dismissal; (vii) Mr Miguel Ángel Barrios was unfairly transferred for attempting to make management transparent; and (viii) Ms Susana Cabrera and Mr Ricardo Ramírez were demoted. During these periods, complaints of anti-union discrimination were brought before the congressional human rights committees and those of other institutions, such as the Ministry of Industry and Trade and the Public Service Secretariat. The complainant also indicates that two tripartite meetings – at which the union’s representatives reiterated the complaints that they had brought before the labour administration, alleging anti-union harassment – were requested and held and that no agreement with the employer was reached.
3. 472. Lastly, the complainant alleges that the Institute’s authorities are unwilling to grant the requests for the signing of a collective agreement made by INTN Sindical and two of the Institute’s other unions.

B. The Government’s reply

1. 473. In a communication dated 25 July 2016, the Government transmits the observations of the Institute and the General Labour Directorate in reply to the allegations contained in the complaint.
2. 474. The Institute makes the following arguments in its defence: (a) with regard to the alleged anti-union harassment by the General Director, who, during his first term of office, is said to have forced over half of the union’s members to withdraw, the Institute states that after he was removed from office, the members who had withdrawn from the union did not re join it even though the supposed harasser had left his post (the Institute maintains that the complaint was, in fact, prompted by the fact that INTN Sindical’s officers are public servants who formerly held senior posts in the Institute and were removed from their positions of trust); (b) with regard to the requests for revocation of the registration of INTN Sindical, the authorities merely requested verification of compliance with section 292 of the Labour Code, which establishes the minimum number of members, since they were aware that many members had withdrawn from the union and they had confirmed that INTN Sindical did not have the minimum number of members required; in that connection, the Institute states that it will request revocation of the registration of any union that does not meet the criteria established by law; (c) with regard to the alleged dismissal without an administrative investigation of two members of INTN Sindical who enjoyed security of tenure (Ms Delia Ríos and Ms Silvia Vidal), the Institute states that they held positions of trust (Internal Auditor and Administrative and Financial Officer, respectively); therefore, pursuant to the Public Service Act, these posts were filled at the discretion of the highest authority (the Institute also emphasizes that: (i) these public servants had been seconded to the Institute; therefore, once dismissed, they went back to work at their original institutions; (ii) both women appealed before the Court of Auditors, which dismissed the appeal; and (iii) these public servants, who had been members of the previous administration, are attempting to discredit the current one); (d) with regard to the allegation that the transfer of several public servants (Ms Nancy Melgarejo, Ms Carmen Mallorquín, Ms Delfina de Franco, Mr Mario Leiva, Ms Trini Jimenez, Ms Rita Rodríguez, Mr Miguel Ángel Barrios, Ms Susana Cabrera and Mr Ricardo Ramírez) constitutes anti-union harassment, the Institute indicates the transfers were carried out in full compliance with the law, which empowers the authority to assign new responsibilities to the Institute’s employees; it also denies the complainant’s allegation that there are isolated or unhealthy offices; (e) with regard to the administrative investigations opened, the Institute reports that they were prompted by reports of irregularities and that in each case, an inquiry was ordered in order to assign responsibility in accordance with the law (in the case of Mr Mario Leiva, the examining magistrate in the public prosecution service ordered his dismissal for serious misconduct; Mr Leiva appealed before the Court of Auditors and the proceedings are ongoing pending a final judgment); (f) with regard to the allegation of intimidation directed against the General Secretary of INTN Sindical, the Institute categorically denies that he was threatened and emphasizes that he has produced no evidence in support of his complaint; and (g) with regard to the allegation that Decision No. 064/2014 constituted a violation of freedom of expression, the Institute indicates that the decision regulated the posting of announcements, notices and other documents on blackboards or notice boards and that there was no effort to restrict the right to freedom of expression, but only to ensure that communication was better organized.
3. 475. With respect to the complaint that the complainants brought before the human rights committees of the two chambers of Congress, the Institute states that its representatives participated in all of the meetings held and replied to all of the committees’ questions regarding the complaints made by INTN Sindical. Furthermore, the Government states that there is no record showing that the complainants brought administrative proceedings concerning the complaint before the administrative labour authority.
4. 476. Lastly, the Institute categorically denies the allegation that it is unwilling to grant the request for the signing of a collective agreement and states that its General Directorate is more than willing to sign such an agreement since it would include benefits to be enjoyed by all of the Institute’s employees. However, as this entails an extremely broad and sensitive document, (since each of its provisions would have to be brought into line with the legislation), the draft is still under consideration.

C. The Committee’s conclusions

1. 477. The Committee notes that the complaint concerns allegations of anti-union discrimination (campaign by the Institute’s authorities promoting the withdrawal of members of INTN Sindical and other acts of anti-union discrimination against its officers and members); requests for revocation of the union’s registration; and refusal to bargain collectively.
2. 478. Concerning the allegations of anti-union discrimination, the Committee notes that: (a) with regard to the allegation that members of INTN Sindical who enjoyed security of tenure were dismissed without an administrative investigation, the Government indicates that the posts of two of the aforementioned public servants were positions of trust filled at the discretion of the authorities; that, once dismissed, they went back to work at their original institutions; and that the Court of Auditors dismissed their appeal; (b) with regard to the allegations of anti-union transfers, the Government indicates that they were carried out in full compliance with the law, which empowers the authority to assign new responsibilities to the Institute’s employees; (c) the Government denies the allegation that the General Secretary of INTN Sindical was subjected to intimidation or threats and states that he has produced no evidence of such actions; (d) with regard to the administrative investigations opened, the Government indicates that they were prompted by reports of irregularities; that in each case, an inquiry was ordered in order to assign responsibility; and that, in the case of Mr Mario Leiva, the examining magistrate in the public prosecution service ordered his dismissal for serious misconduct; Mr Leiva appealed before the Court of Auditors and the proceedings are ongoing pending a final judgment; the Committee requests the Government and the complainant to keep it informed regarding the outcome of Mr Mario Leiva’s appeal; and (e) with regard to the allegation that a campaign was carried out from July to December 2012 in order to force over half of INTN Sindical’s members to withdraw, the Government maintains that after the General Director (who had allegedly caused the withdrawal) was removed from office, the members who had withdrawn from the union did not re-join it.
3. 479. Having taken due note of the foregoing, the Committee notes that the Government’s general statement that there is no record showing that the complainants brought administrative proceedings concerning the complaint before the administrative labour authority is inconsistent with various specific references in the documents provided by the complainant, including notes sent to the administrative authority alleging anti-union harassment (for example, as reflected in the minutes of the tripartite meetings, which were certified by ministerial authorities) and letters submitted as part of the complaint, in which INTN Sindical reported acts of anti-union discrimination to the Institute and the Ministry of Labour, Employment and Social Security. In that regard, the Committee would like to recall that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 835]. In light of this principle and of the conflicting information received from the parties with respect to the various allegations of anti-union discrimination, the Committee invites the complainant, if it so desires, to provide the competent authorities with the detailed additional information in its possession so that they can investigate any remaining allegations of anti-union discrimination and, if these allegations are confirmed, ensure that the appropriate penalties are imposed and compensation provided. The Committee requests the Government and the complainant to keep it informed in this respect. If the complainant does not provide the additional detailed information referred to, the Committee will not pursue its examination of this allegation.
4. 480. Concerning the allegation that the Institute’s General Directorate requested revocation of the registration of INTN Sindical, the Committee takes due note of the Government’s statement that INTN Sindical is still registered although the Institute: (i) maintains that its requests were prompted by the fact that INTN Sindical did not have the minimum number of members required; and (ii) states that it will request revocation of the registration of any union that does not meet the criteria established by law (section 292 of the Labour Code). On this point, the Committee recalls that in Case No. 3019, it examined specific allegations on the way in which section 292 of the Labour Code may undermine the rights of public sector workers’ organizations and noted that 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 and that this could, in effect, undermine the right of public sector employees to establish organizations of their own choosing. The Committee refers to its conclusions and recommendations in this case, in which it drew the legislative aspects to the attention of the Committee of Experts on the Application of Conventions and Recommendations and requested the Government to hold consultations with the social partners concerned in order to ensure that this provision did not, in effect, undermine the right of public sector employees to establish organizations of their own choosing [see 381st Report, Case No. 3019, para. 535].
5. 481. With respect to the alleged refusal to bargain collectively, the Committee notes that, according to the Government, the Institute is more than willing to sign the collective agreement and is considering the draft that has been submitted. The Committee encourages the Government to promote collective bargaining so that a collective agreement can be signed at the Institute in the near future.
6. 482. Concerning the allegation that freedom of expression is restricted pursuant to Decision No. 064/2014, while noting the Government’s statement that this instrument’s purpose is not to restrict the right to freedom of expression, but rather to ensure that communication is better organized, the Committee observes that the decision requires the General Directorate’s approval before any announcement or other document can be posted. In that connection, the Committee recalls that the publication and distribution of news and information of general or special interest to trade unions and their members constitutes a legitimate trade union activity and the application of measures designed to control publication and means of information may involve serious interference by administrative authorities with this activity. The Committee recalls that the 1970 International Labour Conference resolution concerning trade union rights and their relation to civil liberties places special emphasis on the civil liberties essential for the normal exercise of trade union rights, including the right to freedom of opinion and expression and, in particular, the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media. The Committee hopes that in light of the principles of freedom of association, the concerned parties will address the issue of the use of communication channels for trade union purposes during the aforementioned collective bargaining.

The Committee’s recommendations

1. 483. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the complainant, if it so desires, to provide the competent authorities with the detailed additional information in its possession so that they can investigate any remaining allegations of anti-union discrimination and, if these allegations are confirmed, ensure that the appropriate penalties are imposed and compensation provided. The Committee requests the Government and the complainant to keep it informed of developments in this respect and of the outcome of the appeal brought by Mr Mario Leiva. If the complainant does not provide the additional detailed information referred to, the Committee will not pursue its examination of this allegation.
   • (b) The Committee encourages the Government to promote collective bargaining so that a collective agreement can be signed at the Institute in the near future. The Committee requests the Government to keep it informed in this respect.