Rapport intérimaire - Rapport No. 58, 1962

Cas no 168 (Paraguay) - Date de la plainte: 10-AOÛT -57 - Clos

1. 60. At its meeting on 23 February 1961 the Committee continued its examination of this case, on which it had previously submitted an interim report to the Governing Body in paragraphs 140 to 157 of its 49th Report, and laid before the Governing Body the conclusions and recommendations which are contained in paragraphs 55 to 78 of its 52nd Report. That report was approved by the Governing Body at its 148th Session (March 1961).
2. 61. The only allegations on which the Committee had not submitted its final conclusions to the Governing Body are certain allegations relating to the denial of trade union rights in Paraguay. The present report, therefore, is confined to the further consideration of these outstanding allegations.
3. 62. Paraguay has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to Denial of Trade Union Rights
  63. 63 It is alleged that an unjustifiable state of siege exists in the country, that enjoyment of civil liberties, of the right to associate and of the right to strike are impossible, and that workers cannot improve their conditions because they are not permitted to form a free and independent trade union organisation; only a single trade union centre, patronised by the Government, is recognised. Hence, declare the complainants, the workers of Paraguay call for an end of the state of siege, the right to associate and to strike and a minimum wage of 156.52 guaranis.
  64. 64 In its reply dated 1 June 1960 the Government declared that at no time has it refused to recognise the trade union rights of the workers or made use of the state of siege to persecute them. During the period 1948-60, contended the Government, laws have been passed which protect the right of the workers to belong to trade union organisations; there are laws which govern both the right of association and the right to strike. The Government denied that there is any " state trade union centre " and stated that hundreds of trade unions exist which freely elect their officers and that their delegates set up the Paraguayan Confederation of Trade Unions. In order to call strikes in Paraguay the requirements of the law must be observed; conciliation boards exist. Matters affecting the workers are dealt with by the National Department of Labour. Complaints of the workers have always received attention, added the Government, but strikes on occupational grounds have been called on many occasions. In conclusion the Government declared that the wage for an eight-hour day is 161 guaranis-more than the demand referred to in the complaint.
  65. 65 At its meeting on 8 November 1960 the Committee observed that one of the essential points put forward by the Government was that in the period 1948-60 laws were passed protecting the right to organise in trade unions, while other legislation governs the right to strike. No further details as to these laws were given. Paraguay resumed membership of the I.L.O in 1956, but did not forward any reports under article 19 of the Constitution of the I.L.O on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), for the period ending 31 December 1957, as requested by the Governing Body.
  66. 66 In these circumstances the Governing Body, on the recommendation of the Committee, requested the Government to be good enough to furnish texts of the legislation to which reference was made in its reply.
  67. 67 In its communication dated 24 January 1961 the Government declared that freedom of association is defined in Paraguay by the provisions of articles 19 and 32 of the Constitution of Paraguay, a copy of which the Government has forwarded to the Office, and that the protection of workers' and employers' organisations is ensured by Legislative Decree No. 3080 of 18 December 1937. The Government stated that it also enclosed with its reply a copy of Informaciones, the review of the Labour Department, containing the text of the said Legislative Decree. This latter document, however, was not received by the Office with the communication in question.
  68. 68 At its meeting on 23 February 1961 the Committee observed that the legal position relative to these allegations was not at all clear. While article 19 of the Constitution affirms the right of association for lawful purposes in conformity with the legislation regulating the exercise of this right, article 32, also referred to by the Government, provides that the State shall regulate the organisation, functioning and activities of public groups or entities.
  69. 69 On 12 March 1931 the Government of Paraguay issued Decree No 39361 respecting the right of assembly and association. On 20 February 1945 the Government issued Decree No. 7347 declaring workers' organisations to be in a state of reorganisation. In its letter dated 24 January 1961 the Government stated that the protection of workers' organisations is ensured by Legislative Decree No. 3080 of 18 December 1937, a copy of which the Government stated to be enclosed with its letter, but which was not then received. Finally, in its letter dated 1 June 1960, the Government stated that during the period 1948-60 laws were passed which protect the right of workers to belong to trade unions, while other laws govern both the right of association and the right to strike, but, in reply to the Governing Body's request for information, the Government gave no details of the said post-war legislation.
  70. 70 The Committee, therefore, considered that, before it made its recommendations to the Governing Body on this aspect of the case, it should be informed by the Government as to whether Decree No. 39361 of 12 March 1931 respecting the right of assembly and association is still in force, as to how far Legislative Decree No. 3080 of 18 December 1937 has been affected by Decree No. 7347 of 20 February 1945 declaring workers' organisations to be in a state of reorganisation, and as to whether the last-mentioned decree is still in force. The Committee also expressed the wish to be furnished with the text of Legislative Decree No. 3080 of 18 December 1937 and with information, including copies of the relevant texts, on the legislation, referred to in the Government's letter of 1 June 1960 as having been enacted between 1948 and 1960, to protect the right of workers to belong to trade union organisations and on the other laws governing the right of association and the right to strike also referred to in the Government's letter of 1 June 1960.
  71. 71 The Committee therefore recommended the Governing Body to request the Government of Paraguay to be good enough to furnish the information and copies of legislative texts referred to in paragraph 70 above. The Governing Body adopted this recommendation at its 148th Session (March 1961).
  72. 72 By a letter dated 14 March 1961 this decision of the Governing Body was brought to the notice of the Government, which forwarded by a communication dated 17 May 1961, certain further information and copies of the texts requested.
  73. 73 In its reply the Government, after making a number of further comments on certain of the other allegations previously examined by the Committee, declares, with reference to legislation mentioned in paragraph 70 above, that Decree No. 39361 of 12 March 1931 respecting the right of assembly and association was repealed by Legislative Decree No. 1217 of 11 November 1943, and that the latter enactment was in turn repealed by Legislative Decree No. 15465 of 17 September 1946. Despite the repeal of the repealing decree, the Government states that Decree No. 39361 is no longer in force. Decree No. 7347 of 20 February 1945 declaring workers' organisations to be in a state of reorganisation is also no longer in force.
  74. 74 In fact it would appear from the Government's latest reply that the only legal texts relating to the exercise of trade union rights are the Constitution of 1940 (articles 19 and 32) and Legislative Decree No. 3080 of 18 December 1937 to establish the National Department of Labour. Whereas the Government stated in its letter dated 1 June 1960 that legislation had been enacted between 1948 and 1960 to protect the right of workers to belong to trade union organisations, it is now stated in the reply dated 17 May 1961 that no legislation has been issued under the present Government because a draft labour code, which will provide for the right of association without previous authorisation, is to be examined in the Legislative Congress during the present year. The Government declares that, with regard to the draft code, it has received the advice of officials of the International Labour Office.
  75. 75 Article 19 of the Constitution of 1940, the text of which has been forwarded by the Government, provides that all inhabitants of Paraguay shall have the right to associate for lawful purposes and that the exercise of this right shall be regulated by legislation. The Government states that no decrees or laws have been promulgated which restrict this Constitutional provision.
  76. 76 The Government has also furnished the text of Legislative Decree No. 3080 of 18 December 1937 to establish the National Department of Labour. The following are the provisions of the decree which refer directly to workers' and employers' organisations. According to section 2, one representative each of the central organisations of workers' and employers' organisations " will form part " of the Department of Labour. Section 9 (f) provides that the Department shall be responsible for the register and " legal control " (control legal) of workers' and employers' organisations and for the examination and approval of their Constitutions and rules in agreement with the Executive Power, and (section 9 (m)) for the preparation of the draft of the proposed labour code. The examination and " legal control " of the Constitutions and rules of workers' and employers' organisations shall be, more specifically, within the purview of the Legislation, Statistics and Social Information Section of the National Department of Labour (section 15 (c)). Delegates of workers' organisations shall exercise, in certain respects, the functions of labour inspectors (section 21). A register of trade unions and their members shall be maintained by the Employment Section of the Department (section 22 (1) (2)).
  77. 77 No strike or lockout shall take place until the procedures for settlement of disputes laid down in the decree are exhausted (section 26). First there shall be an attempt at direct conciliation by delegates of the two parties (section 27); if this is fruitless, the dispute must be submitted to the Department of Labour (section 28), which refers the matter to a Conciliation Board composed of officials of the Department (sections 29 and 30). If no result is reached, the President of the Department of Labour shall invite the parties to submit the dispute to an arbitration tribunal (section 31) and, if they accept, the tribunal will make an award. Either party can ask for the award to be declared binding in default of agreement by both parties on the implementation of the award (section 38); where the undertaking concerned in the dispute is responsible for maintaining public services, the award is binding in any event (section 39). It is an offence for either party to refuse to accept the intervention of the National Department of Labour (section 52). In performing its functions the National Department of Labour is required to observe the " recognised principle " of freedom of association (section 60).

B. B. The Committee's conclusions

1. 78. The Committee considers that, on the basis of the above legal text, and without more detailed information than it has as to what the trade union situation is in actual fact and as to how the legislation itself is applied in practice, it is not possible for it to express with certainty a conclusion as to how far the right of association can be exercised in freedom by the workers in Paraguay. The question would seem to depend in part on how certain of the legal provisions referred to above operate-especially section 9 (f) of Legislative Decree No. 3080 which provides for control or supervision of trade unions by the Department of Labour and for the approval of their Constitutions and rules by the Department in agreement with the Executive Power; in the enactment forwarded there is no indication as to the criteria which have to be applied, for instance, in approving or disapproving the rules of a trade union, which would appear to indicate that approval is a matter within the discretion of the administrative authorities. In this connection the Committee of Experts on the Application of Conventions and Recommendations has pointed out that the right of organisations to draw up their Constitutions and rules in freedom would appear to be considerably restricted in the case, for example, of countries in which Constitutions and rules must be submitted for previous approval by the authorities, whose power of decision does not appear to be limited by any specific rules." Further, the Committee does not have before it any evidence as to how far means may exist whereby the exercise of the right of association of individual workers is protected and the free functioning and internal administration of workers' organisations is ensured.
2. 79. The Committee observes, however, that the Government states unequivocally that a draft labour code, which will provide for the right of association without previous authorisation and upon which the Government has received the advice of officials of the International Labour Office, is to be examined in the Legislative Congress during the present year.

The Committee's recommendations

1. 80. In these circumstances the Committee recommends the Governing Body:
   • (a) to take note of the Government's statement that a draft labour code, which will provide for the right of association without previous authorisation, is to be examined in Legislative Congress during the present year;
   • (b) to draw the attention of the Government to the importance which the Governing Body has always attached to the principle that workers and employers, without distinction whatsoever, should have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation; and to the principle that workers' and employers' organisations should have the right to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof; and also to the principle that workers' and employers' organisations should not be able to be dissolved or suspended by administrative authority;
   • (c) to urge the Government to ensure that full regard will be had in the draft legislation to be examined in the Legislative Congress to the principles enunciated in subparagraph (b) above and to the other generally accepted principles relating to freedom of association and trade union rights which are embodied in International Labour Conventions and, in particular, 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), and that legislation giving full effect to the principles will be enacted at an early date;
   • (d) to suggest to the Government that, when the legislation in question has been enacted, it may give consideration to ratifying 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);
   • (e) to request the Government to be good enough to keep the Governing Body informed as to further developments in connection with the draft labour code which is to be examined by the Legislative Congress of Paraguay this year.