Report in which the committee requests to be kept informed of development - Report No 386, June 2018

Case No 3127 (Paraguay) - Complaint date: 31-MAR-15 - Closed

Allegations: The complainant alleges the absence of dialogue and collective bargaining, mass anti-union dismissals, and failure to respect trade union immunity

1. 531. The complaint is contained in a communication dated 31 March 2015 from the Single Confederation of Workers of Paraguay (CUT).
2. 532. The Government sent its observations in a communication dated 25 July 2016.
3. 533. 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. 534. In its communications of 31 March and 20 April 2015, the complainant organization denounces action taken against the Yacyretá Binational Entity Employees’ Union (SEMEBY), affiliated to the CUT, by the Argentine–Paraguayan Yacyretá hydroelectric power plant (hereinafter: binational entity). The CUT alleges that the use of force, ideological violence, discrimination and systematic anti-union persecution are widespread at the binational entity, and negotiation of a collective agreement – let alone of any internal regulations – is not allowed. The complainant alleges that anti-union persecution has been occurring since August 2013.
2. 535. According to the complainant organization, the binational entity has arbitrary recourse to its founding treaty despite the fact that, under the terms of the treaty, the authorities’ conduct is subject to the laws in force in each country. The CUT also states that the binational entity adopted new internal regulations behind the backs of the workers without consulting the trade unions. In its opinion, the binational entity used this instrument to launch a campaign of dismissals, thereby causing a serious labour dispute within the entity. The CUT adds that the union members expressed the wish to talk to the director of the entity on several occasions but the latter refused to see the workers. Furthermore, the CUT indicates that the new regulations do not recognize the Paraguayan Labour Code and do not safeguard seniority or trade union immunity. In this regard, the complainant alleges that the binational entity sent a note to the Government stating that staff regulation matters cannot be addressed through the laws of either of the States signatory to the agreement but are subject to the machinery of international law, in the particular case of the binational entity, by the standards established by it. The CUT asserts that, according to the binational entity, the founding treaty prevails unquestionably over the laws of either of the signatory States (Argentina and Paraguay).
3. 536. As regards the mass dismissals, the complainant organization alleges that from 15 August to 31 December 2013 hundreds of dismissals occurred for ideological reasons and trade union persecution occurred within the binational entity. The CUT indicates that the dismissals included those of 40 SEMEBY members. According to the complainant, the dismissals were unjustified and evidently stemmed from discrimination of a partisan and ideological nature. In its opinion, the measure is part of the downsizing of government structures by the current national executive, involving the dismissal of persons branded as “leftists” purely for having gained entry under the last national executive, in 2008. The CUT indicates that since this was a case of mass dismissals, authorization should have been sought from the labour administrative authority, but this did not happen. The complainant adds that Argentine law, which applies at the binational entity, prohibits mass dismissals except for reasons of force majeure. In this respect, the complainant alleges that the binational entity failed to send its representative to a tripartite meeting scheduled for 28 November 2013 which had been convened by the Ministry of Justice and Labour to deal with the reinstatement of 800 dismissed workers.
4. 537. The CUT also adds that the dismissals included leaders who enjoyed trade union immunity (such as negotiators of the collective agreement on conditions of work), a delegate at the office in Encarnación, and a founding member of SEMEBY. In this regard, the complainant indicates that appeals from 32 of the 40 dismissed SEMEBY members are in progress.
5. 538. As regards the dismissal on 18 November 2013 of Mr Jorge Luis Bernis, collective agreement negotiator and general secretary of the union, the complainant indicates that: (i) by Decision No. 1385 of 13 December 2012 of the Office of the Deputy Labour and Social Security Minister, Mr Bernis had been recognized as a negotiator of the collective agreement; (ii) under section 319 of the Labour Code, Mr Bernis had double trade union immunity on account of being both the general secretary of SEMEBY, with over 200 members, and a negotiator of the collective agreement; (iii) on 19 November 2013, Mr Bernis filed an appeal for reinstatement in trade union office and payment of outstanding remuneration, and requested the precautionary measure of reinstatement; (iv) on 20 November 2013, Mr Bernis attached to his appeal the certificate of trade union immunity issued by the supreme labour authority; and (v) however, observing the pressure that existed and the collusion of high-ranking officials within the binational entity and the Government, Mr Bernis decided to withdraw the appeal and accept the partial compensation provided in the staff regulations. In this regard, the complainant alleges irregularities in the judicial proceedings and interference by the Government and the binational entity, in particular: (i) in the precautionary measure for the reinstatement of Mr Bernis, the CUT alleges that the judge showed active bias favouring the employer in the production of evidence by requesting a series of background documents from the Ministry of Justice and Labour which were used in the binational entity’s presentation; (ii) on 2 December 2013, the representatives of the binational entity challenged the appeal lodged by Mr Bernis without the due notification having occurred (according to the complainant, this abuse of procedure was intended to put pressure on the judge, and on 3 December 2013, the response was allowed by order, in violation of the principles of labour law); (iii) as regards union immunity, the CUT denounces the statement by the Legal Director at the Ministry of Justice and Labour that Mr Bernis does not have union immunity because the negotiation of the collective agreement was the subject of judicial proceedings (this constituted interference in the union’s decision, with disregard for the certified trade union immunity of Mr Bernis and lack of competence to interpret the labour legislation); and (iv) on 18 November 2014, the Minister of Labour annulled the trade union immunity granted to Mr Bernis and two other union members by Decision No. 534/14 (in this regard, the CUT indicates that revocation of notified acts such as the registration of trade union immunity for a collective agreement negotiator is restricted to cases of clear irregularities, and denounces the fact that the power of the administration prohibits the revocation of regular administrative acts that grant subjective rights once they have been notified).
6. 539. Furthermore, the CUT denounces that for 40 years the binational entity has not negotiated a single collective agreement, contrary to the terms of section 334 of the Labour Code, which states as follows: “Any enterprise that employs 20 or more workers shall have the obligation to conclude a collective agreement on conditions of work. The general conditions shall be negotiated with any organized trade union that exists there.” According to the complainant organization, the entity is failing to comply with its statutory obligation to conclude, sign and validate a collective agreement.
7. 540. In addition, the complainant organization reports persecution of labour judges. In this regard, it alleges that two judges were reported and suspended for having reinstated officials in their posts at the binational entity. It adds that the competence to interpret and enforce labour regulations and the rules of labour procedure in the event of a dispute lies exclusively with the labour courts and tribunals and not, as has occurred in practice, with the Judicial Disciplinary Board.

B. The Government’s reply

1. 541. In its communication of 25 July 2016, the Government sent its observations relating to the allegations made by the complainant organization. As regards the allegations concerning the arbitrary use of the founding treaty, the Government indicates that the binational entity is a Paraguayan–Argentine undertaking with equal capital investment, established under a treaty signed by the Republic of Paraguay and the Argentine Republic on 3 December 1973, and ratified in Paraguay by Act No. 433 of 3 December 1973. The Government indicates that the entity is governed by the provisions of the treaty, its annexes and other diplomatic instruments in force. With regard to labour matters, the Government indicates that the binational entity is governed by the “labour and social security protocol” adopted in Paraguay through Act No. 606 of 19 November 1976.
2. 542. As regards the allegations concerning trade union immunity, the Government states that the certificate of trade union immunity for Mr Jorge Luis Bernis and Mr Hernan Viera, as collective agreement negotiators, was registered at the Department of Collective Relations and Registration on 20 November 2013. However, the Government indicates that Decision No. 534/14 of the Office of the Deputy Minister of Labour annulled the aforementioned certificate.
3. 543. As regards the dismissal of members of SEMEBY, the Government indicates that the Collective Dispute Mediation Department at the Ministry of Labour stated that a note was submitted denouncing the mass dismissal of workers, and this led to the scheduling of a tripartite meeting for 28 November 2013 to seek conciliation between the parties. However, the Government indicates that this meeting did not go ahead because of the withdrawal of the complainant. As regards the legal actions brought in the labour court by the dismissed workers, the Government provides copies of judicial decisions relating to six of the lodged appeals. These judicial decisions show that: the case of Mr Jose Rafael Ciro Rojas is before the Labour Appeal Court; the cases of Mr Hernan Ignacio Viera Zorrilla, Mr Ymer Hanamel Garay Sanchez and Ms Andrea Lorena Pintos Santander are before the first-instance labour court (second rota); the case of Mr Jorge Luis Bernis concerning restoration of union status was before the third rota of the court but the union leader withdrew his complaint; and in the case of Ms Rogelia Esmelda Zarza Sanabria, the action was declared out of time at the appeal stage.
4. 544. As regards the negotiation of a collective agreement on conditions of work, the Government indicates that a note of 8 March 2016 from the Secretariat-General of the Office of the Deputy Labour Minister stated that no collective agreement relating to the binational entity has been registered and no decision validating a collective agreement has been issued.
5. 545. The Government indicates, in a communication dated 6 April 2016, that the binational entity categorically rejected the allegations made in the complaint. The Government adds that it asked the entity to expand its response and provide more details of the events that occurred, with supporting documentary evidence.

C. The Committee’s conclusions

1. 546. The Committee notes that the present case is concerned with allegations of absence of dialogue and collective bargaining, mass dismissals of trade union leaders and members, and failure to respect trade union immunity.
2. 547. As regards the allegations of mass anti-union dismissals and failure to respect trade union immunity, the Committee notes the complainant organization’s indications that: (i) in the context of mass dismissals of hundreds of workers on ideological and anti-union grounds, approximately 40 leaders and members of the SEMEBY union were dismissed between 15 August and 31 December 2013 (the complainant supplies the names of 32 dismissed members who lodged appeals with the labour tribunals); and (ii) in the case of the SEMEBY general secretary and collective agreement negotiator Mr Jorge Luis Bernis, the trade union immunity that he enjoyed was not respected and there was interference by the authorities in the proceedings that were conducted, until the aforementioned union leader, on account of the pressures and perceived irregularities, decided to withdraw from the judicial proceedings and accept partial compensation. In this regard, the Committee notes that the Government: (i) has provided copies of the judicial decisions relating to six of the appeals referred to by the complainant (from the content of these decisions, the Committee understands that, at the time of the Government’s communication, four of the court cases were still in progress and two had been concluded without entering into the substance, one on account of withdrawal, the other for having expired); and (ii) indicates that Decision No. 534/14 of the Office of the Deputy Labour Minister annulled the trade union immunity of Mr Jorge Luis Bernis and of another negotiator of the collective agreement on conditions of work. The Committee observes that the Government has not sent a copy of Decision No. 534/14, does not specify any grounds for annulling the union immunity, and does not make any observation regarding the allegations of interference by the authorities. Furthermore, the Committee notes that, in view of the report of mass dismissals, the Collective Dispute Mediation Department at the Ministry of Labour scheduled a tripartite meeting for 28 November 2013 with a view to achieving conciliation but that the information provided by the parties with regard to the meeting differs: the complainant alleges that the initiative was unsuccessful because the binational entity did not send its representative, while the Government indicates that the meeting was not held because of the withdrawal of the complainant.
3. 548. Expressing regret at not having more information on these serious allegations of mass anti-union dismissals despite the time that has elapsed (information has only been received on six of the 32 appeals referred to by the complainant organization and so far there has been no comment whatsoever on the alleged anti-union motives), the Committee recalls that complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1152]. The Committee requests the Government to take the necessary steps to investigate the alleged anti-union motives for the mass dismissals and to keep it informed in this respect, particularly with regard to the outcome of the judicial proceedings under way, and to send copies of the respective rulings.
4. 549. The Committee also notes that the complainant organization: (i) denounces the absence of collective bargaining at the binational entity (emphasizing that for 40 years the binational entity has not negotiated a single collective agreement, and that the above allegations of anti-union action and interference were connected with an attempt to negotiate); and (ii) alleges that the binational entity, without consulting the trade union, adopted new internal regulations which do not recognize the applicability of the Labour Code, particularly with regard to trade union immunity, and that these were used in the campaign of dismissals. Furthermore, the Committee notes the Government’s statements that: (i) there is no record in its registers of any collective agreement on conditions of work relating to the binational entity, or any decision validating a collective agreement; and (ii) for labour matters, the binational entity is governed by the “labour and social security protocol” adopted in Paraguay by Act No. 606 of 19 November 1976 (the Committee has noted the fact that under section 4 of the protocol the trade union rights of workers at the binational entity are determined by the law of the country in which the workers are hired).
5. 550. In this regard, the Committee underlines the importance that it attaches to the promotion of dialogue and consultation. It recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements; and it recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Compilation, op. cit. paras 1231 and 1327]. The Committee requests the Government to take the necessary steps to promote within the binational entity: (i) collective negotiation in good faith on conditions of work; and (ii) social dialogue and consultation between the parties to address any issues that are still pending, including with regard to the internal regulations of the binational entity, in the light of the principles of freedom of association and collective bargaining. The Committee requests the Government to keep it informed in this respect.
6. 551. The Committee observes that despite the time that has elapsed since the presentation of the complaint, no detailed information has been received from the binational entity concerning these allegations, other than a denial thereof, despite the Government’s indication that it asked the entity to expedite this process. The Committee requests the Government to seek information from the employers’ organization concerned, so that the Committee may be apprised of its views and those of the binational entity.

The Committee’s recommendations

1. 552. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary steps to investigate the alleged anti-union motives for the mass dismissals and to keep it informed in this respect, and particularly with regard to the outcome of the judicial proceedings under way, and to send copies of the respective rulings.
   • (b) The Committee requests the Government to take the necessary steps to promote within the binational entity: (i) collective negotiation in good faith on conditions of work; and (ii) social dialogue and consultation between the parties to address any issues that are still pending, including with regard to the internal regulations of the binational entity, in the light of the principles of freedom of association and collective bargaining. The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee requests the Government to seek information from the employers’ organization concerned, so that the Committee may be apprised of its views and those of the binational entity.