Rapport définitif - Rapport No. 399, Juin 2022

Cas no 3351 (Paraguay) - Date de la plainte: 29-NOV. -18 - Clos

Allegations: The complainant organizations allege that two enterprises refuse to comply with the decisions of the Ministry of Labour setting minimum wages for workers in the newspaper graphics sector and that one of the enterprises refuses to sign a collective labour agreement

1. 248. The complaint is contained in a communication from the National Union of Press Workers (SITRAPREN) and the Single Confederation of Workers – Authentic (CUT–Auténtica) dated 29 November 2018.
2. 249. The Government sent its observations in a communication dated 7 September 2020.
3. 250. 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. 251. In their communication dated 29 November 2018, SITRAPREN and CUT–Auténtica indicate that: (i) Executive Decree No. 7351 of 2017 provides for the readjustment of minimum salaries and wages for workers in the private sector; (ii) through Decision No. 550 dated 10 August 2017, the Ministry of Labour, Employment and Social Security (MTESS) regulated the increase in minimum salaries and wages for press workers; (iii) Decision No. 597 dated 29 August 2017 extended article 3 of the aforementioned Decision No. 550; (iv) Executive Decree No. 9088 dated 22 June 2018 provides for the readjustment of minimum salaries and wages for workers in the private sector; and (v) through Decision No. 384 dated 27 June 2018, the MTESS regulated the readjustment of minimum salaries and wages for press workers.
2. 252. The complainants allege that: (i) for the second consecutive year, the enterprises Editorial AZETA S.A. – Diario ABC Color (hereinafter enterprise A) and Editorial El País S.A., Diario Última Hora y Diario Extra (hereinafter enterprise B) have refused to comply with the aforementioned decisions setting the minimum wages for workers in the newspaper graphics sector and the MTESS has failed to carry out the oversight function conferred on it by law; (ii) the enterprises have not taken part in the work meetings of the National Minimum Wage Commission, playing down the importance of this delicate issue; (iii) without any argument and to the detriment of the workers, enterprise A filed an action challenging the constitutionality of Decision No. 550 of 2017; and (iv) despite the fact that for seven years SITRAPREN has been negotiating a collective agreement on terms and conditions of employment with enterprise A, to date the enterprise has not agreed to sign it.

B. The Government’s reply

1. 253. In its communication dated 7 September 2020, the Government sends its observations, as well as those of enterprise A. First of all, the Government indicates that the allegations concerning the application of the minimum wage for workers in the newspaper graphics sector fall outside the competence of the Committee on Freedom of Association. The Government indicates that: (i) while the National Council on Minimum Wages is a tripartite body, the representatives of the enterprises referred to in the present case are not officially members of that body; (ii) enterprise A filed an action challenging the constitutionality of Ministerial Decisions Nos 550/17, 597/17 and 384/18 (the outcome of which is still pending) and, prior to the aforementioned decisions, most of the workers in the press sector received a salary higher than the legal minimum, established by mutual agreement with the employer; (iii) the MTESS extended Decision No. 550/17 through Decision No. 597/19, meaning that at this point in time the complaint made is barred; and (iv) on 1 July 2019, the MTESS issued Decision No. 2309 regulating the readjustment of minimum salaries and wages for press workers, meaning that the complaint being made by the complainants is no longer valid (the complainants are making a complaint against Decree No. 7351/17 and Decree No. 9088/18, as well as against MTESS Decisions Nos 550/17, 597/17 and 384/18).
2. 254. The Government further indicates that: (i) on 17 October 2018, SITRAPREN filed a complaint with the MTESS for non-compliance with Decision No. 384/18 of 27 June 2018, which amends the salary scales of the newspaper graphics sector by enterprises A and B. In this complaint, SITRAPREN indicated that in 2017 it had already reported non-compliance with Decisions Nos 550/17 and 597/17 to the MTESS, in connection with which an action had been filed challenging their constitutionality; (ii) as a result of this complaint, on 22 February 2018, the Collective Dispute Mediation Department of the MTESS Labour Directorate summoned the parties to a tripartite meeting for 28 February 2019; and (iii) in a memorandum from the Mediation Department dated 16 May 2019, it was reported that the deadline had passed without any of the parties concerned coming forward to give a procedural boost to the case, demonstrating that they had no interest in this case.
3. 255. The Government states that, although no collective agreement on terms and conditions of employment in enterprise A has been registered, such a collective agreement between the Union of Journalists of Paraguay (SPP) and Radio Ñanduti AM and a collective agreement between the Association of Journalistic Organizations of Paraguay and the SPP have been registered, which shows that collective bargaining exists in the country. The Government points out that most press workers are members of SITRAPREN, SPP and the Association of Graphic Reporters of Paraguay, which demonstrates that there is freedom of association and collective bargaining. The Government further emphasizes that collective bargaining and the content of a collective agreement on terms and conditions of employment are based on the wishes of the parties (employers and workers), in accordance with the provisions of Article 4 of ILO Convention No. 98 and article 326 of the Labour Code.
4. 256. The Government then submits the observations of enterprise A, which state that: (i) the MTESS has inspection processes regulated by the regulations in force, thereby ensuring transparency and efficiency in the supervision of enterprises in compliance with labour rights; (ii) the Committee has concluded on several occasions that Paraguayan labour laws provided for advanced protection and sufficiently promote the principles of freedom of association and collective bargaining; and (iii) while collective bargaining is a fundamental right, the guiding principle of the ILO Conventions is free and voluntary collective bargaining, which cannot be imposed by any of the parties.

C. The Committee’s conclusions

1. 257. The Committee notes that, in the present case, the complainants allege that two enterprises refuse to comply with the MTESS decisions of 2017 and 2018 setting minimum wages for workers in the newspaper graphics sector and that one of the enterprises in the sector refuses to sign a collective agreement on terms and conditions of employment.
2. 258. With regard to the alleged non-compliance with ministerial decisions on wages, the Committee recalls that its mandate consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 9]. Noting that the allegation in question relates only to the alleged non-compliance with provisions adopted by the Executive to set minimum wages in a sector of activity and that it does not raise issues relating to freedom of association, the Committee will not proceed to examine these allegations.
3. 259. As regards the allegation that SITRAPREN had been negotiating with enterprise A for years, but that the latter had not agreed to sign the collective agreement on terms and conditions of employment, the Committee notes that both the Government and enterprise A refer to the free and voluntary nature of collective bargaining. The Committee recalls that the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association [see Compilation, para. 1313]. Noting, moreover, that the Government refers to some examples of collective agreements on terms and conditions of employment between other trade union organizations and enterprises in the sector, and recalling 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 [see Compilation, paras 1313 and 1231], the Committee encourages the Government to do everything in its power to promote collective bargaining between the parties.

The Committee’s recommendations

1. 260. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling 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, the Committee encourages the Government to do everything in its power to promote collective bargaining between the parties; and
   • (b) The Committee considers that this case does not call for further examination and is closed.