Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Paraguay (RATIFICATION: 1966)

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See under Convention No. 87, as follows:

The Government has supplied the following information:

There are no special or distinct legislative or regulatory provisions applicable to the constitution of workers' organizations on the one hand, and of employers' organizations on the other hand. Section 95 of the current National Constitution on freedom of association states that all public and private sector workers have the right to organize in trade unions without the necessity of prior authorization. Members of the Armed Forces and the police are excluded from this right. Employers have the right to the same freedom of association. No one can be forced to belong to a trade union.

Section 290 of the Labour Code provides that the following persons can constitute executive committees of unions: (a) persons over 18 years old without distinction based on sex, be they citizens or foreigners; (b) persons over 14 years and under 18 years old, with the express permission of their legal representative, clarifying that such young persons cannot participate in the direction or the administration of the union; and (c) foreigners of good conduct and good character who have resided for more than five years in the country. Section 366 of the Labour Code, Chapter 2, provides that a "lockout" or a "closure" means the partial or total temporary suspension of work at the initiative of the employers in the event of disputes with workers, for the direct and exclusive defence of their occupational interests.

Section 97 of the current National Constitution refers to the right to strike and lockout. It provides for the following with respect to collective agreements: unions have the right to carry out collective action and to conclude agreements on employment conditions. The State favours conciliatory solutions for labour disputes, as well as labour consultation.

The Government mentioned that it has taken into account the comments made by the Committee of Experts with regard to the application of the provisions of this Convention to workers of public bodies. In effect, the drafting committee of the draft Labour Code relied on the relevant documents sent to this Organization, observing the prerequisites required of workers under section 353 in order to declare a strike, and concerning the services where strikes are prohibited under sections 353 and 284 of the Labour Code, and section 291 of the Code of Labour Procedures. With regard to the submission of collective disputes to compulsory arbitration, the new Constitution already provides under section 96 that arbitration is optional.

In addition, a Government representative stated that his Government undertook to communicate the reports due and, if it had not yet done so, this was due to the fact that since 3 February 1989, which marked the end of 30 years of dictatorship, a democratic reconstruction process had begun and eight national elections had been conducted and a national constitutional assembly (with the participation of trade union leaders and employer representatives) adopted a new Constitution on 20 June 1992. The articles of the new Constitution dealing with labour relations were the result of the consensus among the social partners. They recognized freedom of association of all workers of the public and private sectors, the right to collective bargaining, the right to strike and lockout. Moreover, the draft that revised the whole labour code was in its final stages of examination by the Chamber of Deputies which had done its best to include the comments made by the representative of the ILO. An agreement on strikes and lockouts existed between the representatives of workers and employers. He added that the Government intended to repeal Law No. 200 thus giving public servants a new legal status, probably within the next year. This situation had not, however, prevented the conclusion for the first time of collective agreements in the public sector. The Government also undertook to amend the Labour Procedural Code and had requested the technical assistance of the Office in this regard. Finally, he stated his Government's intention to apply the Convention and that it would do its best to this end.

The Workers' members noted with regard to the report of the Committee of Experts that the Government had not supplied a report. This failure was all the more regrettable as positive factors had been noted in 1992, a mission had been carried out during the same year by an ILO regional adviser, the situation was generally developing positively, and the Constitution was adopted in June 1992 which, in particular, recognized freedom of association. Subsequently the situation appeared to have markedly deteriorated. They noted with regret that the examination of the draft new Labour Code was suspended and that the Government seemed to wish to impose, without consulting the social partners, a Code that would not be in comformity with ILO standards. While taking note of certain partial revisions of the legislation, such as the new conditions for participation in the executive committees of trade unions, they regretted the lack of relevant information from the Government. They also noted the contradictions between the information presented to this Committee in 1992 and the written information given to this Committee this year. The Government still seemed to be referring to section 353 of the former Labour Code that it had declared to be repealed last year, and appeared not to be moving towards the legislative reform as required by the new Constitution.

The Employers' members generally shared the view of the Experts with regard to the six points of criticism in their report. However, they did not agree that strikes were an internal matter as, by definition, they were also directed against third parties, thus affecting their interests. As the Convention did not provide for the weighing of interests of third parties, the Government was responsible for establishing reasonable provisions if it was considered necessary to regulate strikes. They were unsure whether the correct percentage of members for calling a strike should be 75 per cent or some other figure, as this could not be ascertained from the terms of the Convention, and did not wish to take a stand with regard to compulsory arbitration in some circumstances as they were not in possession of all the facts. However, they emphasized that the other points listed by the Experts were clearly internal trade union matters in which the Government should not interfere. Although the new Constitution contained general principles concerning freedom of association and the right to strike, the essential issue was whether these principles had been implemented in specific legislation. A first draft of such a law had been mentioned, but they were unaware of its content. With regard to Convention No. 98, the Employers' members noted that there was a gap in the protection of civil servants and public enterprise employees, a lack of protection against trade union discrimination, and no free collective bargaining. Clarifications were requested with regard to the "Memoranda of Agreement on Labour Relations and Social Security in the Bi-national Hydro-electric Power Plant YACYRETA" which prevented the establishment of employers' associations. They asked the Government to provide a detailed report with the corresponding legal texts attached.

The Workers' member of Paraguay stated that it would have been necessary to have available a detailed report in response to the well-conceived indications of the Committee of Experts, which referred to points that, for the most part, had been raised the last year. In his opinion the indications of the Government representative conformed to reality, since he referred to the transitional situation which the country was going through. The new national Constitution proclaimed a Social State of Law which gave priority to development with social justice. The merit of this democratic development was due in part to the role of the working class and to the commitment which all this represented for workers. He hoped that the Inter-American Agreement on Human Rights would be genuinely applied in his country with the support of the social partners, and would bring with it true economic and social progress. He was concerned about the situation of the new Labour Code, fearing that the victories which had taken shape in the Code would not in the end be expressed in concrete terms since the discussion had been extended. The code should be promulgated before 1 July, when there would be a new change of the legislature. With regard to the application of Convention No. 87, he thought that freedom of association was for now being fully respected since there were major deficiencies in respect of the protection of this freedom. A very low percentage of workers was unionized and it was necessary to strengthen trade union rights in order to ensure the free organization of workers. With regard to Convention No. 98, it was necessary that the country have a new labour law containing the indispensable changes that would ensure that collective bargaining would be adequate, and would permit Paraguayan trade unions to perform the role they should have. He referred to the voting procedures in trade union elections provided for in the new Constitution, and hoped that this constitutional provision would be strictly applied to guarantee the return to democracy. Finally, he referred to the need to be able to rely upon a Ministry of Labour having the necessary means to ensure compliance with the labour laws.

The Workers' member of Colombia stated that it was unacceptable that non-compliance with a Convention that was ratified 31 years ago would be due to planned steps for the strengthening of democracy. The points established by the Committee of Experts with regard to the restriction of the right to strike, the prohibition of strikes in essential public services and the prohibition on collective resolutions allowed one to see that the rights of workers were being trampled on and that an outrage was committed against the trade union movement, exactly like that which had occurred in the rest of Latin America. He rejected as too simple the proposition that the problems were the result of the present transition to democracy, since this would run the unacceptable risk of being invoked by the governments to justify non-compliance with the Conventions. He invited the workers of Paraguay not to act as sounding boards for orders which were inappropriate for workers.

The Workers' member of Uruguay stated that he had closely followed the democratic process in Paraguay since his own central trade union organization was part of the coordinating committee of central trade union organizations which joined together the central trade union organizations of Paraguay, Chile, Bolivia and Brazil. He considered that they were in the presence of a case not only of stagnation of freedom of association but of a clear movement backwards. Last April he had participated in a meeting in Paraguay in which the two main central trade union organizations of this country -- the National Central Trade Union Organization of Workers (CNT) and the Unified Central Trade Union Organization of Workers (CUT) -- demanded respect for freedom of association, non-interference by the Government in internal matters of trade unions and denounced the Government's violation of the Convention. A decision of the Court of Justice which should have suspended the decision to leave trade union leaders on the fringes of legality had not been respected by the Government. He requested that the conclusions which this Committee had adopted last year be maintained and strengthened.

The Government representative stated that the discussion of the draft Labour Code was not suspended but delayed due to the position taken by the employers. Trade union freedom was not restricted and the declarations of the Workers' members of Colombia and Uruguay were incorrect. Numerous trade union organizations had been created, including in the public sector, and the process was under way for the establishment of a trade union federation of the civil servants. The right to strike was not limited and an agreement existed between the workers and the employers concerning the procedures for the negotiation of strikes on a tripartite basis. In respect of collective agreements, he declared that there were five or six such agreements in different enterprises of the public sector, in particular in the national cement industry. He recognized that there had been a certain negligence in the supply of reports; it would be appropriate to insist that the Ministries of Justice and of Labour comply with their obligation in this respect. Considering that certain information shaded the truth for political reasons, he stressed that his country has made progress in the field of freedom of association and civil rights and that it would be unjust not to recognize this progress. He stated that the Government would invite an ILO mission to visit the country so as to obtain a better appreciation of the situation and to provide all the necessary assistance.

The Employers' members noted that the misunderstandings and the erroneous information mentioned by the Government representative would have been less numerous if the Government had communicated its report and if the representative had taken a position on the concrete points. The Government should send a complete report which would permit an assessment of eventual progress.

The Workers' members supported the proposals made by the Employers' members concerning the lack of relevant information. In 1992 this Committee had expressed strong hope that the Government would indicate in the near future that the necessary changes had been made. The Committee should express its disappointment now that the Government had not sent a report and should insist that the Government fulfil this obligation.

The Committee took note of the written and oral information provided by the Government and regretted that the report due had not been sent in time to be examined by the Committee of Experts. The Committee noted the attitude of the Government with regard to the questions under discussion. Nevertheless, in view of the concern expressed by the Committee of Experts and shared by this Committee on the questions raised for some years, the Committee expressed its firm hope that appropriate measures would be adopted as rapidly as possible. The Committee asked the Government to adopt all the necessary measures so as to bring all its legislation and practice into conformity with Conventions Nos. 87 and 98, as well as to provide the pertinent texts and the agreement signed by the social partners on the right to strike. The Committee took due note of the desire of the Government to receive new technical assistance from the ILO which it hoped would be provided as soon as possible.

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The Committee notes the observations of the Central Confederation of Workers Authentic (CUT-A) received on 30 August 2022, which refer to matters considered in the present comment. The Committee also notes the observations of the International Trade Union Confederation (ITUC) alleging anti-trade union dismissals, including that of the Chairperson of the National Union of Doctors and in the education sector, as well as other restrictions to freedom of association and collective bargaining in the health and public sector, received on 1 September 2022. The Committee requests the Government to provide its comments in this respect.

The Committee also takes note of the information provided by the Government on the adoption of measures to address the COVID-19 pandemic, such as a rapid resolution system for labour disputes, including mediation hearings by telephone and digital means.

Articles 1 to 3 of the Convention. Pending legislative matters. The Committee recalls that, since the adoption of Act No. 213 of 1993 establishing the Labour Code, it has been highlighting the lack of compliance of various provisions of the Labour Code with the Convention. The specific issues are: (i) the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination; (ii) the absence of adequate and sufficiently dissuasive penalties for non-observance of the provisions relating to the employment stability of trade union officers and mutual interference between workers’ and employers’ organizations; and (iii) the delays in the application of justice in relation to acts of anti-union discrimination and interference. The Committee notes with regret the Government’s indication that to date no preliminary draft has yet been formulated bringing the Labour Code into conformity with the ratified Conventions on freedom of association. In this regard, the Committee notes the observations of the CUT-A indicating the absence of information regarding measures adopted by the Government to address pending legislative matters. Observing that the Government provides no information on any specific progress regarding measures taken to bring the Labour Code into conformity with the Convention and recalling that it has been requesting legislative reform since 1994, the Committee urges the Government, in consultation with the social partners, to take the necessary measures to ensure full conformity of the legislation and national practice with the requirements of Articles 1 to 3 of the Convention. The Committee requests the Government to keep it informed of progress made in this regard and recalls that the Government can avail itself of the technical assistance of the Office in this regard.

Articles 1 and 6. Public servants not engaged in the administration of the State. The Committee recalls that it has been requesting the Government to take the necessary measures to guarantee adequate legislative protection against acts of anti-union discrimination for public servants and public employees covered by the Convention since 2004. The Committee notes the Government’s indication that the Constitution protects all public servants from trade-union discrimination (sections 88 and 102). Equally, section 49 of Act No. 1626/2000 provides that public servants may file administrative appeals and take legal proceedings in defence of the right, without any discrimination, to equality of opportunity and treatment in their position. The Committee also notes the adoption of Act No. 6715/2021 on administrative procedures, in force since September 2022 which: (i) regulates the procedures for administrative appeals and the procedure for sanctions; (ii) applies to all State bodies and entities with administrative functions; and (iii) includes among its objectives the respect for fundamental rights. The Committee observes that, although the administrative appeals filed by public official in defence of their rights, such as the summary administrative procedures to be followed for the dismissal of a public official protected by trade union employment stability (section 63 of Act No. 1626/2000), guarantee the rights of the public official in conformity with Act No. 6715/2021, the legal system, apart from the Constitution, does not specifically include protection against acts of anti-union discrimination for all workers in the public sector covered by the Convention, and does not provide sufficiently dissuasive penalties should those acts occur.

The Committee also notes the approval, through the adoption of Decision No. 516/2020, of the second Plan for Equality, Inclusion and Elimination of Discrimination, valid until 2024, which establishes mechanisms to address and penalise acts of discrimination occurring under the responsibility of the public institutions. The Committee further notes that the Secretariat of the Public Service (SFP) adopted the Protocol for action against workplace violence with a gender perspective (Decision SFP No. 387/2018 of 8 June 2018), which aims to prevent, provide guidance and resolve cases of workplace violence, including discrimination, in public institutions. The Committee observes that both the Plan and the Protocol define discrimination in a broad manner, without however referring explicitly to trade union affiliation or activities as a prohibited motive of discrimination. The Committee notes that the Protocol establishes different bodies, including a Standing Commission for Investigation (CPI), which is mandated to issue recommendations to the SFP and to take preventive action. The Committee observes that although the CPI may issue recommendations, including in respect of applicable penalties (verbal warnings, mandatory trainings, summary administrative procedures against the person responsible), those penalties are not sufficiently dissuasive, and could in practice fail to provide adequate protection against acts of anti-union discrimination.

The Committee also recalls that in its previous comment it requested the Government to supply information regarding the complaints of acts of anti-union discrimination made to the Transparency and Anti-Corruption Directorate under the action protocol and assistance guidelines for cases of labour discrimination and harassment in the public service (SFP Decision No. 415/16 of 30 May 2016). The Committee notes the observations of the CUT-A indicating the absence of measures adopted by the Government in respect of the Committee’s earlier comments.

In light of the above, the Committee requests the Government to provide detailed information on the application of the Protocol for action against workplace violence with a gender perspective and the Plan for Equality, Inclusion and the Elimination of Discrimination with regard to the complaints concerning acts of anti-union discrimination against public servants and officials covered by the Convention, including the number of investigations undertaken and the penalties issued, as well as on other measures adopted in this respect. Observing that the Government provides no information in this connection, the Committee once again requests the Government to provide information regarding the complaints concerning acts of anti-union discrimination made to the Transparency and Anti-Corruption Directorate.

Observing with concern that the legislation applicable to public employees still fails to explicitly prohibit the acts of anti-trade union discrimination included in the Convention and that it has not received detailed information on the effectiveness of the multiple existing general mechanisms, the Committee urges the Government to take the necessary measures, in consultation with the social partners, to adopt legislative provisions that expressly prohibit anti-union discrimination in the public sector and establish mechanisms that guarantee all public sector workers covered by the Convention effective protection against acts of anti-union discrimination, including accessible, rapid and impartial proceedings and sufficiently dissuasive remedies, and penalties. The Committee requests the Government to provide information in this respect.

Article 4. Promotion of collective bargaining in practice. Further to its previous comments, the Committee notes the Government’s indication that the Ministry of Labour, Employment and Social Security (MTESS): (i) in 2021, through the Citizens’ Channel (Canal Ciudadano), provided interactive training on collective bargaining; and (ii) launched an electronic procedure to facilitate the approval and registration of collective agreements. The Committee observes that four meetings of the Tripartite Consultative Council (CCT) were held, respectively in 2018, 2019, 2020 and 2021, noting in general terms that the 2018 meeting dealt with social dialogue and freedom of association. The Committee notes the statistics provided regarding the number of collective agreements registered in various sectors: six in 2017; three in 2018; eighteen in 2019; four in 2020; and four in 2022. The Committee invites the Government to continue to provide information on the activities of the CCT, in particular on the measures that are adopted, or are subject to dialogue, to encourage and promote collective bargaining. Observing on the one hand, that the statistics provided by the Government show a limited number of collective agreements negotiated, and on the other hand, that no details are included on how many agreements are in force, or the number of workers covered by agreements, the Committee requests the Government to continue providing information in this respect, specifying the sectors and the number of workers covered by collective agreements. Finally, the Committee requests the Government to continue providing information regarding the measures adopted in conformity with Article 4 of the Convention, to promote collective bargaining at all levels.

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The Committee notes the observations of the Central Confederation of Workers Authentic (CUT–A), dated 27 May 2016 and 26 July 2018, indicating that members of the ESSAP–SITUE United Workers’ Union have been subject to discrimination and anti-union dismissals. The Committee requests the Government to send its observations on these allegations.

Articles 1–3 of the Convention. Pending legislative matters. The Committee recalls that, since the adoption of Act No. 213 of 1993 establishing the Labour Code, it has been highlighting the lack of conformity with the Convention of some provisions of the Code and asking the Government to take the necessary measures to amend the legislation with respect to the following issues:

• -the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution only affords protection against discrimination based on trade union preferences);
• -the absence of adequate penalties for non-observance of the provisions relating to the employment stability of trade union officers and mutual interference between workers’ and employers’ organizations (the Committee previously indicated that the penalties laid down in the Labour Code for non-compliance with the legal provisions on this matter in sections 385,393 and 395 do not constitute an adequate deterrent, except for repeated offences by the employer, in which case the fine is doubled); in this respect, the Committee recalls, with regard to protection against acts of anti-union discrimination, that the Committee on Freedom of Association also requested the Government, in consultation with the social partners, to ensure effective national procedures for the prevention or sanctioning of anti-union discrimination (see 381st Report, Case No. 3019, paragraph 548; 365th Report, Case No. 2648, paragraph 1132); and
• -the delays in the application of justice in relation to acts of anti-union discrimination and interference.

In this respect, the Committee notes the Government’s reply indicating that it has requested ILO technical assistance with a view to bringing the Labour Code and the Code of Criminal Procedure into line with ratified Conventions. The Committee also notes that Ministry of Labour, Employment and Social Security (MTESS) memorandum No. 449/17 of 30 May 2017 initiated the process to recruit an expert responsible for formulating a draft bill to bring the Labour Code into line with ratified Conventions relating to freedom of association and with the Committee’s comments. The Committee requests the Government to send a copy of the draft bill as soon as the final version is available. Recalling that it has been requesting the abovementioned legislative reforms since 1994, the Committee once again trusts that measures will be taken in the near future to ensure the full conformity of national law and practice with the requirements of Articles 1–3 of the Convention.

Articles 1 and 6. Protection of public officials not engaged in the administration of the State from anti-union discrimination. In its previous comments, the Committee requested the Government to take the necessary measures to guarantee adequate legislative protection against acts of anti-union discrimination for public officials and public employees covered by the Convention. The Committee notes the Government’s indications that: (i) the right to trade union immunity, protection against anti-union acts and the right to compensation in the event of unjustified dismissal of workers in the public or private sector are expressly provided for in articles 88, 94 and 102 of the Constitution; (ii) under Act No. 1626/00, a public official protected by trade union employment stability may only be dismissed following an administrative inquiry (section 63); and (iii) the Secretariat of the Civil Service (SFP) adopted SFP Decision No. 415/16 of 30 May 2016, adopting the action protocol and assistance guidelines for cases of labour discrimination and harassment in the public service. The Committee observes that this Decision: (i) despite containing a wide-ranging and non-exhaustive list of grounds of discrimination, does not expressly mention trade union membership or activity; and (ii) provides that any complaint related to cases of discrimination or harassment at work can be made to the SFP Transparency and Anti-Corruption Directorate, which, however, does not have the power to impose penalties. While requesting the Government to supply information regarding the complaints of acts of anti-union discrimination made to the Transparency and Anti-Corruption Directorate under the abovementioned protocol, the Committee observes that the legislation applicable to public sector workers still does not contain provisions that expressly prohibit the acts of anti-union discrimination covered by the Convention and provide effective protection in that regard. Recalling that it has been calling for the abovementioned reforms since 2004, the Committee once again requests the Government to take the necessary measures, in consultation with the social partners, to adopt legislative provisions that expressly prohibit anti-union discrimination in the public sector and establish mechanisms that guarantee all public sector workers covered by the Convention effective protection against acts of anti-union discrimination, including rapid and impartial proceedings and remedies, and penalties constituting an adequate deterrent. The Committee requests the Government to provide information in this respect.

Article 4. Promotion of collective bargaining in practice. In its previous comments, the Committee requested the Government to take measures to encourage and promote collective bargaining. The Committee notes the Government’s indications that: (i) on 18 April 2018, Presidential Decree No. 5159/16 established the powers of the Tripartite Advisory Council, which include the right to issue recommendations on draft bills regulating socio-economic and labour issues to draw up or commission reports and studies on different subjects including freedom of association; (ii) the social dialogue round table met for the first time on 6 September 2018, with high levels of participation from the trade union federations in the country, and discussed various subjects, including freedom of association and social dialogue; and (iii) on 16 August and 23 October 2018, two collective agreements were registered on conditions of work in the public and private sectors. The Committee welcomes the first meeting of the social dialogue round table and once again invites the Government to take measures to encourage and promote collective bargaining, including through the round table. The Committee also requests the Government to report on the number of collective agreements concluded and in force in the country, and to indicate the number of workers and the sectors covered by those agreements.

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Article 4 of the Convention. Development of collective bargaining and social dialogue in practice. In its previous comments, the Committee requested the Government to take measures to encourage and promote collective bargaining. The Committee observes that the Government provides no information on this matter in its report. It further observes that the Memorandum of Understanding on International Labour Standards, signed on 1 October 2014 by the Government and the social partners, provided for the organization of a national tripartite seminar on international labour standards relating to collective bargaining (public sector). The Committee again requests the Government to take steps to encourage and promote collective bargaining, as required by Article 4 of the Convention, and to continue to send information in this regard, indicating also the number of collective agreements concluded, the sectors to which they apply and the number of workers covered.

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Articles 1–3 of the Convention. Pending legislative matters. The Committee recalls that for many years its comments have referred to:

• -the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution only affords protection against discrimination based on trade union preferences);
• -the absence of adequate penalties for non-observance of the provisions relating to the employment stability of trade unionists and to acts of interference in workers’ and employers’ organizations by each other (the Committee previously indicated that the penalties laid down in the Labour Code for non-compliance with the legal provisions on this point in sections 385, 393 and 395 are not sufficiently dissuasive, except in the case of a repeated offence by the employer, in which case the fine is doubled); in this regard, the Committee recalls, with regard to protection against acts of anti-union discrimination, that the Committee on Freedom of Association also requested the Government to ensure, in consultation with the social partners, the effectiveness of national procedures to prevent or punish acts of discrimination (see 355th Report, Case No. 2648, paragraph 963); and
• -the delays in the application of justice in relation to acts of anti-union discrimination and interference.

The Committee recalls that in its previous comments it noted the preparation of preliminary draft legislation to amend certain sections of the Labour Code and amending Act No. 496/94, and that the Government had held meetings with the President of the Legislative Committee of the Chamber of Senators in relation to the preliminary draft legislation to amend certain sections of the Labour Code. The Committee also notes the Memorandum of Understanding on International Labour Standards concluded on 1 October 2014 between the Government and the social partners, in which it was agreed, among other matters, to entrust the Tripartite Advisory Council of the Ministry of Labour, Employment and Social Security with the examination of possible legislative amendments in accordance with the provisions of the international labour Conventions ratified by Paraguay. Observing that the Government has not provided additional information on this subject in its report, the Committee firmly trusts that in the near future the necessary measures will be taken to ensure the full conformity of national law and practice with the requirements of the Convention, as indicated above. The Committee invites the Government to have recourse to ILO technical assistance. The Committee requests the Government to provide information on any progress made in this regard.

Article 6. Public servants not engaged in the administration of the State. The Committee recalls that in its previous comments it considered that sections 49 and 124 of the Public Service Act afford adequate protection against the dismissal of trade union officers within the meaning of Article 1 of the Convention, but do not cover protection against dismissal or other prejudicial measures against public servants and public employees due to their membership or legitimate union activities. The Committee once again notes that the Government has not provided information on this point. The Committee once again requests the Government to take the necessary measures to provide for adequate protection in the legislation against acts of anti-union discrimination against public servants and public employees, including those who are not trade union officers, and also to establish sufficiently dissuasive sanctions.

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The Committee notes the observations from the International Trade Union Confederation (ITUC) dated 4 August 2011 and 31 July 2012 and from the National Union of Workers (CNT) dated 31 August 2011, which refer to the issues being examined by the Committee as well as to anti-union practices and to the small number of collective agreements concluded in the public and private sectors. The Committee requests the Government to send its comments in relation to all the observations referred to above.

Pending legislative matters. The Committee recalls that it has been commenting for many years on:

• -the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution only affords protection against discrimination based on trade union preferences);
• -the absence of adequate penalties for non-observance of the provisions relating to the employment stability of trade unionists and to acts of interference in workers’ and employers’ organizations by each other (the Committee previously indicated that the penalties laid down in the Labour Code for non-compliance with the legal provisions on this point in sections 385, 393 and 395 are not an adequate deterrent, except in the case of a repeat offence by the employer, in which case the fine is doubled); the Committee recalls, with regard to protection against acts of anti-union discrimination, that the Committee on Freedom of Association also asked the Government to ensure, in consultation with the social partners, the effectiveness of national procedures to prevent or punish acts of discrimination (see Case No. 2648, 355th Report, paragraph 963); and
• -the delays in the application of justice in relation to acts of anti-union discrimination and interference.

In its previous comments, the Committee noted the preparation of preliminary draft legislation amending certain sections of the Labour Code and also noted amending Act No. 496/94. The Committee notes the Government’s statement in its report that in 2011 meetings were held with the president of the Legislation Committee of the Chamber of Senators in relation to the preliminary draft legislation to amend certain sections of the Labour Code and that it is proposed to hold an awareness-raising seminar with members of parliament and officers of the judiciary concerning international labour standards, with a view to promoting the progress of the necessary reforms. The Committee trusts that the necessary steps will be taken to modify or amend the provisions concerned in the near future. The Committee invites the Government to avail itself of technical assistance from the Office with respect to the process of amending the legislation. The Committee requests the Government to provide information in its next report on any progress made in this respect.

Article 6 of the Convention. Public servants not engaged in the administration of the State. The Committee recalls that in its previous observation it expressed the view that sections 49 and 124 of the Public Service Act afford adequate protection against the dismissal of trade union officers within the meaning of Article 1 of the Convention but do not cover protection against dismissal or other prejudicial measures against union members because of their membership or legitimate union activities. The Committee notes that the Government does not supply any information on this matter. The Committee again requests the Government to take the necessary steps to establish in the legislation adequate protection against acts of anti-union discrimination against civil servants and public employees, including those who are not trade union officers, and also to establish penalties that act as an adequate deterrent against violations.

Other matters. Promotion of collective bargaining and social dialogue in practice. The Committee notes the indication by the ITUC that, as a result of the Government’s promotion of social dialogue, there are now 14 forums for dialogue; however, collective bargaining only covers 4 per cent of workers. The Committee notes the Government’s indication that between August 2010 and July 2012 a total of 14 collective agreements were concluded in the public sector and 55 in the private sector. The Committee requests the Government to continue to provide information on this subject and to take steps to encourage and promote collective bargaining, as provided for by Article 4 of the Convention.

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Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee notes the comments of 24 August 2010 by the International Trade Union Confederation (ITUC) referring to anti-union practices in various enterprises or public institutions in the country. The Committee asks the Government to send its observations thereon.

The Committee observes that in its report (identical to the report of 2009), the Government makes no reference to the comments the Committee has been making for many years on the inconsistency of the legislation with the provisions of the Convention, and that in particular it makes no reference to the stage reached by the Bill (for which the ILO provided technical input) to amend various sections of the Labour Code in conformity with the Committee’s observations. In these circumstances, the Committee repeats its previous comments:

The Committee recalls that for many years it has been commenting on:

–      the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution only affords protection against discrimination based on trade union preferences);

–      the absence of adequate penalties for non-observance of the provisions relating to the employment stability of trade unionists and to acts of interference in workers’ and employers’ organizations by each other (the Committee indicated previously that the penalties laid down in the Labour Code for failure to comply with the legal provisions on this point in sections 385, 393 and 395 are not sufficiently dissuasive, except in the case of a repeat offence by the employer, when the fine is doubled); and

–      the delays in the application of justice in relation to acts of anti-union discrimination and interference.

The Committee also notes that the Committee on Freedom of Association 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, paragraph 963).

The Committee further recalls that the Convention guarantees to workers adequate protection against any acts of anti-union discrimination during recruitment and employment, and in respect of termination of employment, and that this protection encompasses all measures that are discriminatory in nature (dismissals, transfers, demotion). Although, as the Government points out, the law prohibits acts of interference, the Committee recalls that under the Convention, workers’ and employers’ organizations shall enjoy adequate protection against any acts of anti-union discrimination and interference, and emphasizes that legislative provisions are inadequate if they are not accompanied by effective and prompt procedures and sufficiently dissuasive penalties to ensure their enforcement in cases of anti-union discrimination or interference. The Committee again requests the Government to take measures to resolve these matters, for example through the draft partial reform of the Labour Code that is under examination. In this connection, the Committee requests the Government to report on the status of the reform and to provide a copy of the final text as soon as it is promulgated.

Article 6. Public officials not engaged in the administration of the State. The Committee recalls that in its previous observation it expressed the view that sections 49 and 124 of the Public Service Act afford adequate protection against the dismissal of trade union officers within the meaning of Article 1 of the Convention, but do not cover protection against dismissal and other prejudicial measures against union members because of their membership or legitimate union activities. The Committee requests the Government to take the necessary measures to establish in the legislation adequate protection against acts of anti-union discrimination against civil servants and public employees, including those who are not trade union leaders, and also sufficiently dissuasive sanctions for those who commit violations.

The Committee hopes that it will be able to note progress at the legislative level (particularly in relation to the forthcoming reform of the Labour Code) in the near future and again requests the Government to provide information in its next report on any developments in this respect.

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Articles 1 and 2 of the Convention. Protection against acts of discrimination and anti-union interference. The Committee recalls that for many years it has been commenting on:

–      the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution only affords protection against discrimination based on trade union preferences);

–      the absence of adequate penalties for non-observance of the provisions relating to the employment stability of trade unionists and to acts of interference in workers’ and employers’ organizations by each other (the Committee indicated previously that the penalties laid down in the Labour Code for failure to comply with the legal provisions on this point in sections 385, 393 and 395 are not sufficiently dissuasive, except in the case of a repeat offence by the employer, when the fine is doubled). In this respect, the Government refers in general terms to section 286 of the Labour Code, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other; and

–      the delays in the application of justice in relation to acts of anti-union discrimination and interference.

The Committee notes the Governments reply to the comments of the International Trade Union Confederation (ITUC), of 29 August 2008, in relation to the application of the Convention, and also to comments made in previous years concerning the dismissal of trade union leaders and members, as well as acts of anti-union interference. The Committee also notes the new comments of the ITUC of 26 August 2009 referring to further dismissals of trade union leaders and members. The Committee requests the Government to provide its observations in this respect.

The Committee also notes that the Committee on Freedom of Association 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, paragraph 953(a)).

The Committee further recalls that the Convention guarantees to workers adequate protection against any acts of anti-union discrimination during recruitment and employment, and in respect of termination of employment, and that this protection encompasses all measures that are discriminatory in nature (dismissals, transfers, demotion). The Committee emphasizes the importance of rapid protection procedures accompanied by effective and dissuasive penalties. Furthermore, the Convention provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other. The Committee also emphasizes that legislative provisions are inadequate if they are not accompanied by effective and prompt procedures and sufficiently dissuasive penalties to ensure their enforcement in cases of anti-union discrimination or interference. The Committee requests the Government to take measures to resolve these matters, for example through the draft partial reform of the Labour Code that is under examination.

Article 6. Public officials not engaged in the administration of the State. The Committee recalls that in its previous observation it considered that sections 49 and 124 of the Public Service Act do not afford adequate protection against all acts of anti-union discrimination within the meaning of Article 1 of the Convention (which not only covers dismissal, but also transfers and other prejudicial measure). The Committee requests the Government to take the necessary measures to establish in the legislation adequate protection against acts of anti-union discrimination against public servants and public employees, including those who are not trade union leaders, and also sufficiently dissuasive sanctions for those who commit violations.

Finally, while appreciating the fact that the Government has requested technical assistance from the Office with a view to resolving the pending problems and to address the issue of the legislative amendments requested in the previous paragraphs in the context of the National Congress, the Committee hopes that this assistance will be provided in the near future.

The Committee hopes that it will be able to note progress at the legislative level (particularly in relation to the forthcoming reform of the Labour Code) in the near future and requests the Government to provide information in its next report on any developments in this respect.

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The Committee takes note of the Government’s report which basically limits itself to mentioning the legislative provisions relating to the Convention.

The Committee also notes the comments from the International Trade Union Confederation (ITUC), dated 29 August 2008 referring to matters already raised by the Committee and also to acts of anti-union discrimination (dismissals of trade union leaders and members for exercising their union rights) and an act of interference by an enterprise in the internal affairs of a trade union. The Committee requests the Government to send its observations in this respect. The Committee also requests the Government once again to send its observations on the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC) of 2005 referring to: (1) acts of anti-union discrimination against trade union leaders and members and delays in the administration of justice; and (2) the fact that collective agreements must be submitted to compulsory arbitration, and also the comments of the Trade Union of Maritime Dock Workers of Asunción (SEMA) regarding interference by employers in that sector though the creation of trade unions favourable to the enterprise.

Articles 1 and 2 of the Convention. Protection against acts of discrimination and anti-union interference. The Committee recalls that for many years it has been commenting on:

–      the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution affords protection only against discrimination based on trade union preferences); and

–      the absence of adequate penalties for non-observance of the provisions relating to the employment stability of trade unionists and to acts of interference in workers’ and employers’ organizations by each other (the penalties laid down in the Labour Code for failure to comply with the legal provisions on this point in sections 385, 393 and 395 are not a sufficient deterrent).

The Committee recalls that in its previous observation it noted that, except in the case of repeated anti-union acts by the employer, the penalties established are not a sufficient deterrent. The Committee therefore requests the Government to take the necessary steps to adopt provisions which provide adequate protection through deterrent penalties against acts of anti-union discrimination and interference and to keep the Committee informed of all further developments.

The Committee also requests the Government once again to provide information on the steps taken to overcome the problem of delays in the application of justice in relation to acts of anti-union discrimination and interference.

Article 6. Public servants not engaged in the administration of the State. The Committee recalls that in its previous observation it considered that sections 49 and 124 of the Public Service Act do not afford adequate protection against all acts of anti-union discrimination within the meaning of Article 1 of the Convention (which not only covers dismissal but also transfers and other prejudicial measures) and recalled that the protection afforded to workers and trade union officials against acts of anti-union discrimination constitutes an essential aspect of freedom of association (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 202 and 203). The Committee therefore requests the Government to take the necessary measures to establish in the legislation adequate protection against acts of anti-union discrimination against public servants, including those who are not trade union leaders, and also sufficiently dissuasive sanctions for those who commit violations.

Bearing in mind that it has been making these comments for many years without progress being achieved in practice, the Committee urges the Government to take the necessary measures without delay to bring the legislation into conformity with the Convention. The Committee strongly encourages the Government to avail itself of technical assistance from the Office to this end.

[The Government is requested to report in detail in 2009.]

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The Committee notes the Government’s report.

ICFTU comments. The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU), of 10 August 2006, referring to matters already raised by the Committee. The Committee recalls in this connection that in its previous observation it noted the ICFTU’s earlier comments (2005) referring to numerous acts of violence, including the murders of trade unionists, acts of anti-union discrimination against trade union leaders and members, as well as delays in the administration of justice. The Committee also noted the comments of the Trade Union of Maritime Dockworkers of Asunción (SEMA) relating to interference by employers in private ports and river and maritime transport agencies through the creation of trade unions favourable to the enterprise which negotiate lower minimum daily wages and deprive workers of social security. The Committee regrets that the Government’s report does not contain any practical information on these matters. The Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of discrimination in respect of employment. The Committee also recalls that Article 2 of the Convention establishes the total independence of workers’ organizations in relation to employers in the organization of their activities. Moreover, cases relating to issues of anti-union discrimination and interference, in violation of Convention No. 98, should be examined rapidly so that the necessary remedial measures can be really effective. Under these conditions, the Committee requests the Government to take the necessary measures to undertake an investigation of the allegations and, if they are found to be true, to take measures to bring them to an end by imposing dissuasive penalties on those responsible. The Committee requests the Government to keep it informed on this matter and to indicate the measures that it is considering to overcome the problem of delays in the administration of justice in cases relating to anti-union acts.

Articles 1 and 2 of the Convention (protection against acts of discrimination and anti-union interference). The Committee recalls that for many years its comments have been referring to:

–         the absence of legislative provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution affords protection only against discrimination based on trade union preferences); and

–         the absence of sanctions for non-observance of the provisions relating to the employment stability of trade unionists and acts of interference in workers’ and employers’ organizations by each other (the penalties envisaged in the Labour Code for failure to comply with the legal provisions on this point in sections 385, 393 and 395 are not sufficiently dissuasive).

The Committee notes that, according to the Government, the legislation contains constitutional provisions and laws which afford real protection to workers who are not trade union leaders against acts of anti-union discrimination and interference, and that these provisions are also applicable to public officials and employees. In this respect: (1) article 88 of the national Constitution prohibits discrimination against workers on grounds of their trade union preferences; (2) article 99 of the Constitution provides that “failure to comply with labour standards (…) shall be subject to inspection by the authorities established by the law, which shall establish sanctions in the event of their violation”; (3) Act No. 1416/99 amended section 385 of the Labour Code by establishing that: those violations of the law for which there is no specific penalty shall be sanctioned by penalties of between 10 and 30 minimum daily wages for each worker concerned; the administrative authority shall order the temporary suspension of the activities undertaken by the employer with the payment of the wages due for dependent workers in cases in which within one year the violation of the provisions of the Labour Code is repeated and affects over 10 per cent of the workers or involves failure to comply with sections 393, 394 and 395 of the Labour Code (respecting sanctions in the event of disloyal practices by the employer violating guarantees of the employment stability of trade unionists, denial to recognize or deal with a trade union or to enter into collective bargaining, as well as the inclusion of workers on blacklists): in the event of a further violation, the labour authorities may double the penalty or cancel the registration of the employer; and (4) section 286 of the Labour Code prohibits acts of interference by trade unions by each other, which shall also be penalized.

The Committee considers that, except in the case of repeated anti-union acts by the employer, the penalties established are not sufficiently dissuasive. It therefore requests the Government to take the necessary measures to adopt provisions providing adequate protection against acts of anti-union discrimination and interference and to keep it informed of any developments in this respect.

Articles 4 and 6. Collective bargaining in the public sector. The Committee also notes Act No. 508 on collective bargaining in the public sector. The Committee understands that this is the special law which, under section 51 of Act No. 1626 on the public service, governs contracts of employment, of which the Committee requested a copy in its previous observation. The Committee also requested the Government to identify the provisions which afford protection to public servants and public employees who are not trade union leaders against acts of anti-union discrimination. The Committee notes that the Government refers to sections 49 and 124 of the Act on the public service. However, the Committee notes that these provisions are of a general nature and refer to the right of public servants to stability of employment, equality without discrimination and to organize for social, economic, cultural and occupational purposes. The Committee considers that these provisions do not constitute adequate protection against all acts of anti-union discrimination, within the meaning of Article 1 of the Convention (which not only covers dismissal, but also transfer and other prejudicial measures), and it recalls that the protection afforded to workers and trade union officials against acts of anti-union discrimination constitute an essential aspect of freedom of association (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 202 and 203). Under these conditions, the Committee requests the Government to take the necessary measures to establish in the legislation adequate protection against acts of anti-union discrimination against public servants not engaged in the administration of the State, including when they are trade union leaders, and also to establish sufficiently dissuasive sanctions against those responsible for violations.

Finally, the Committee requests the Government to reply to the ICFTU’s comment that collective agreements have to be submitted to compulsory arbitration.

Bearing in mind that the Committee has been making these comments for many years, without progress being achieved in practice, it urges the Government to take the necessary measures to bring the legislation into conformity with the Convention without delay. The Committee draws the Government’s attention to the fact that the technical assistance of the Office is at its disposal.

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The Committee once again notes with regret that the Government’s report has not been received. It is therefore bound to repeat its previous observation, which read as follows:

The Committee recalls that for many years its comments have been referring to:

–      the absence of legislative provisions affording adequate protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution affords protection only against discrimination based on trade union preferences); and

–      the absence of sanctions against non-observance of the provisions relating to the employment stability of trade unionists and acts of interference by workers’ and employers’ organizations in each other’s organizations (the penalties envisaged in the Labour Code for failure to comply with the legal provisions on this point in sections 385 and 393 are not sufficiently dissuasive).

Under these conditions, the Committee regrets that, despite the technical assistance provided by the ILO in 2002, progress has not been made on the issues raised and it reminds the Government of the importance of adopting measures to ensure that full effect is given to Articles 1 and 2 of the Convention. The Committee hopes that the above measures will be adopted in the near future and requests the Government to provide information on this matter in its next report.

In its previous observation, the Committee requested the Government to provide a copy of the special law which, under section 51 of Act No. 1626 on the public service, is to govern contracts of employment and to identify the provisions which afford protection to public servants and public employees who are not trade union leaders against acts of anti-union discrimination. The Committee reiterates this request.

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) referring to numerous acts of violence, including the murders of trade unionists, and acts of anti-union discrimination against trade union leaders and members, as well as delays in the administration of justice. The Committee also notes the comments made by the Trade Union of Maritime Dockworkers of Asunción (SEMA) relating to interference by employers in private ports and river and maritime transport agencies through the creation of trade unions favourable to the enterprise which negotiate lower minimum daily wages and deprive workers of social security. Furthermore, the enterprise dismisses and refuses to recruit unionized workers. The Committee requests the Government to provide its comments on this subject.

The Committee requests the Government to examine all these matters, including those of a legislative nature, with the social partners and to keep it informed of any progress achieved. The Committee expresses its concern at the gravity of the matters denounced by the ICFTU and draws the Government’s attention to the principle that “a climate of violence in which the murder […] of trade union leaders go[es] unpunished constitutes a serious obstacle to the exercise of trade union rights and that such acts require that severe measures be taken by the authorities”. Furthermore, “when disorders have occurred involving loss of human life [...], the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions. Judicial inquiries of this kind should be conducted as promptly and speedily as possible, since otherwise there is a risk of de facto impunity which reinforces the climate of violence and insecurity and which is therefore highly detrimental to the exercise of trade union activities” (see General Survey on freedom of association and collective bargaining, 1994, paragraph 29).

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The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

The Committee recalls that for many years its comments have been referring to:

-  the absence of legislative provisions affording workers who are not trade union leaders adequate protection against all acts of anti-union discrimination (article 88 of the Constitution affords protection only against discrimination based on trade union preferences); and

-  the absence of sanctions against non-observance of the provisions relating to the employment stability of trade unionists and acts of interference by workers’ and employers’ organizations in each other’s organizations (the Committee had noted that the sanctions envisaged in the Labour Code for non-observance of the legal provisions concerning this point (sections 385 and 393) were not sufficiently dissuasive and noted with interest the new Act No. 1416, which amends section 385 of the Labour Code and provides for adequate sanctions; however, the constitutionality of the Act has been challenged and the Act has been suspended).

The Committee notes that the Government does not provide firm information on these subjects and confines itself to indicating that: (1) with regard to Article 1 of the Convention, article 88 of the National Constitution provides that no discrimination shall be admitted between workers on grounds of trade union preference; (2) with regard to Article 2 of the Convention, the Labour Code provides in section 286 that workers’ and employers’ occupational organizations shall enjoy adequate protection against any interference in each other’s activities.

Under these conditions, the Committee regrets that, despite the technical assistance provided by the ILO, progress has not been made on the issues raised and it reminds the Government of the importance of adopting measures to ensure that full effect is given to Articles 1 and 2 of the Convention. The Committee hopes that the above measures will be adopted in the near future and requests the Government to provide information on this matter in its next report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Finally, with respect to the observations, concerning Law No. 1626 on the civil service, submitted by the General Confederation of Workers (CGT), the Confederation of Trade Unions of Workers of the State of Paraguay (CE SITEP) as well as by the Single Confederation of Workers (CUT), the Committee requests the Government to transmit a copy of the special law that governs the collective bargaining of contracts of employment referred to in section 51. Further the Committee requests the Government to identify the provisions that afford a protection to public servants and public employees, who are not trade union leaders, against any act of anti-union discrimination.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee recalls that for many years its comments have been referring to:

-  the absence of legislative provisions affording workers who are not trade union leaders adequate protection against all acts of anti-union discrimination (article 88 of the Constitution affords protection only against discrimination based on trade union preferences); and

-  the absence of sanctions against non-observance of the provisions relating to the employment stability of trade unionists and acts of interference by workers’ and employers’ organizations in each other’s organizations (the Committee had noted that the sanctions envisaged in the Labour Code for non-observance of the legal provisions concerning this point (sections 385 and 393) were not sufficiently dissuasive and noted with interest the new Act No. 1416, which amends section 385 of the Labour Code and provides for adequate sanctions; however, the constitutionality of the Act has been challenged and the Act has been suspended).

The Committee notes that the Government does not provide firm information on these subjects and confines itself to indicating that: (1) with regard to Article 1 of the Convention, article 88 of the National Constitution provides that no discrimination shall be admitted between workers on grounds of trade union preference; (2) with regard to Article 2 of the Convention, the Labour Code provides in section 286 that workers’ and employers’ occupational organizations shall enjoy adequate protection against any interference in each other’s activities.

Under these conditions, the Committee regrets that, despite the technical assistance provided by the ILO, progress has not been made on the issues raised and it reminds the Government of the importance of adopting measures to ensure that full effect is given to Articles 1 and 2 of the Convention. The Committee hopes that the above measures will be adopted in the near future and requests the Government to provide information on this matter in its next report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Finally, with respect to the observations, concerning Law No. 1626 on the civil service, submitted by the General Confederation of Workers (CGT), the Confederation of Trade Unions of Workers of the State of Paraguay (CE SITEP) as well as by the Single Confederation of Workers (CUT), the Committee requests the Government to transmit a copy of the special law that governs the collective bargaining of contracts of employment referred to in section 51. Further the Committee requests the Government to identify the provisions that afford a protection to public servants and public employees, who are not trade union leaders, against any act of anti-union discrimination.

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The Committee notes the Government’s report.

The Committee recalls that for many years its comments have been referring to:

-  the absence of legislative provisions affording workers who are not trade union leaders adequate protection against all acts of anti-union discrimination (article 88 of the Constitution affords protection only against discrimination based on trade union preferences); and

-  the absence of sanctions against non-observance of the provisions relating to the employment stability of trade unionists and acts of interference by workers’ and employers’ organizations in each other’s organizations (the Committee had noted that the sanctions envisaged in the Labour Code for non-observance of the legal provisions concerning this point (sections 385 and 393) were not sufficiently dissuasive and noted with interest the new Act No. 1416, which amends section 385 of the Labour Code and provides for adequate sanctions; however, the constitutionality of the Act has been challenged and the Act has been suspended).

The Committee notes that in its report the Government does not provide firm information on these subjects and confines itself to indicating that: (1) with regard to Article 1 of the Convention, article 88 of the National Constitution provides that no discrimination shall be admitted between workers on grounds of trade union preference; (2) with regard to Article 2 of the Convention, the Labour Code provides in section 286 that workers’ and employers’ occupational organizations shall enjoy adequate protection against any interference in each other’s activities.

Under these conditions, the Committee regrets that, despite the technical assistance provided by the ILO, progress has not been made on the issues raised and it reminds the Government of the importance of adopting measures to ensure that full effect is given to Articles 1 and 2 of the Convention. The Committee hopes that the above measures will be adopted in the near future and requests the Government to provide information on this matter in its next report.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

1. The absence of legislative provisions providing workers who are not trade union leaders with adequate protection against acts of anti-union discrimination. The Committee notes with regret that the Government’s report contains no information on this point. The Committee considers that Article 1 of the Convention guarantees all workers adequate protection against acts of anti-union discrimination not only at the time of recruitment but also throughout their employment. The Committee again requests the Government to take the necessary measures to ensure that national legislation gives full effect to Article 1 of the Convention.

2. Sanctions against non-observance of the provisions relative to the employment stability of trade unionists and acts of interference by workers’ and employers’ organizations in each other’s organizations. The Committee had noted that the sanctions envisaged in the Labour Code for non-observance of the legal provisions concerning this point (sections 385 and 393 of the Labour Code) are not sufficiently dissuasive. The Committee notes with interest the enactment of Act No. 1416 which amends section 385 of the Labour Code and which enforces new sanctions such as the temporary suspension of employer activities for a period of eight days with full pay to employees, and the cancellation of the employer’s register. These measures are applicable in the event of a second or third repeat infraction by the employer where non-compliance affects more than 10 per cent of all employees or in the event of infraction of the job security of trade unionists. The Committee notes that the constitutionality of this Act is before the Supreme Court of Justice, and the provisions of the Act have been stayed pending the Court’s decision. The Committee requests the Government to keep it informed of any progress in this regard and on the measures adopted to enhance the existing protection, in conformity with Articles 1 and 2 of the Convention.

The Committee notes that the Government representatives and the technical assistance mission which visited the country in 2000 prepared a draft law which takes into consideration the comments made in its observations and that the representatives of the most representative organizations of workers are in agreement with the proposed measures. The Committee expresses the hope that the draft law in question will be submitted to the legislative authority in the near future, and requests the Government to keep it informed of developments.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes the Government's report.

1. The absence of legislative provisions providing workers who are not trade union leaders with adequate protection against acts of anti-union discrimination. The Committee notes with regret that the Government's report contains no information on this point. The Committee considers that Article 1 of the Convention guarantees all workers adequate protection against acts of anti-union discrimination not only at the time of recruitment but also throughout their employment. The Committee again requests the Government to take the necessary measures to ensure that national legislation gives full effect to Article 1 of the Convention.

2. Sanctions against non-observance of the provisions relative to the employment stability of trade unionists and acts of interference by workers' and employers' organizations in each other's organizations. The Committee had noted that the sanctions envisaged in the Labour Code for non-observance of the legal provisions concerning this point (sections 385 and 393 of the Labour Code) are not sufficiently dissuasive. The Committee notes with interest the enactment of Act No. 1416 which amends section 385 of the Labour Code and which enforces new sanctions such as the temporary suspension of employer activities for a period of eight days with full pay to employees, and the cancellation of the employer's register. These measures are applicable in the event of a second or third repeat infraction by the employer where non-compliance affects more than 10 per cent of all employees or in the event of infraction of the job security of trade unionists. The Committee notes that the Government reports that the constitutionality of this Act is before the Supreme Court of Justice, and the provisions of the Act have been stayed pending the Court's decision. The Committee requests the Government to keep it informed of any progress in this regard and on the measures adopted to enhance the existing protection, in conformity with Articles 1 and 2 of the Convention.

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The Committee notes the reports supplied by the Government and recalls that for several years its comments have referred to: (1) the absence of legislative provisions providing workers who are not union leaders with adequate protection against acts of anti-union discrimination in respect of their employment; and (2) the insufficient number of sanctions provided for in the Labour Code for the non-observance of the provisions relating to interference among workers' and employers' organizations and to union stability (section 385: ten to 30 days' minimum wages for each worker affected by the non-observance of the provisions of the Code and section 393: 30 times the minimum wage for each worker affected by the failure of an employer to provide guarantees of union stability).

The Committee regrets to observe that the Government limits itself to pointing out that thus far no changes have been made to the Labour Code in relation to the questions raised. The Committee recalls that under the provisions of Article 1 of the Convention adequate protection against acts of anti-union discrimination must be guaranteed for workers, at the time of taking up employment and during the course of employment, with such protection extending to all measures of a discriminatory nature (dismissals, transfers, downgrading and any other measures prejudicial to workers); it also recalls that the effectiveness of the legislative provisions depends, to a large extent, on whether such measures are accompanied by sanctions which are sufficiently dissuasive as to ensure their application.

The Committee once again urges the Government to take the measures necessary for bringing the legislation into full conformity with the provisions of the Convention and requests the Government to provide, in its next report, information on the measures adopted in this respect.

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The Committee notes that the Government's report contains no specific information on the questions raised and recalls that its previous comments referred to:

- the lack of provisions protecting workers who are not trade union leaders against dismissal for trade union activities;

- the inadequacy of penalties amounting to a fine of from 10 to 30 days' wages in the event of the non-observance of the provisions of the Labour Code including in case of anti-union discrimination or interference where there are no other special penalties (section 385 of the new Labour Code), as well as the penalty for 30 days' minimum wage for violations by the employer of the protection set out in section 393 of the same Code against the dismissal of trade union leaders;

- the prohibition on the establishment of associations of employers (sections 10 and 12 of the "Memoranda of agreement on labour relations and social security in the hydro-power plant Yacyreta'".

In regard to the first two points, the Committee stresses that Article 1 of the Convention guarantees all workers adequate protection against acts of anti-union discrimination both at the time of recruitment and during employment and covers all discriminatory measures (dismissal, transfer, downgrading or other prejudicial acts) and that the effectiveness of the legal provisions depends to a great extent on the way in which they are applied in practice so as to ensure that they are sufficiently dissuasive.

The Committee once again requests the Government to take measures to bring its legislation into conformity with the requirements of the Convention regarding the two points mentioned above and to inform it of any developments in the matter.

With regard to the prohibition on the establishment of employers' associations (sections 10 and 12 of the "Memoranda of agreement on labour relations and social security in the hydro-power plant Yacyreta'"), the Committee requests the Government to inform it whether these sections have been repealed since they would allow serious interference by the public authorities with free collective bargaining as provided in Article 4 of the Convention.

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The Committee notes the Government's report, the information supplied by the Government representative to the Conference Committee in 1993 and the subsequent discussions in that Committee. The Committee also notes the provisions of the new Labour Code of 29 October 1993 relating to freedom of association and collective bargaining, and recalls that its previous comments referred to:

- the lack of protection provided for public servants who are not engaged in the administration of the State, public employees and workers in public enterprises against acts of anti-union discrimination;

- the lack of protection for the organizations of this category of workers against acts of interference by employers or their organizations;

- the need to guarantee them the right to bargain freely.

The Committee notes with satisfaction that the national Constitution of 1992 and the new Labour Code of October 1993 contain various provisions which improve the application of Articles 1, 2 and 4 of the Convention.

In specific terms, section 96 of the Constitution and section 317 of the Labour Code protect trade union leaders from dismissal; section 63 prohibits employers from influencing the trade union convictions of their workers (subsection (d)), from compelling workers to terminate their membership of the trade union or branch association (subsection (f)), and from using a "blacklist" against workers who resign or are dismissed with a view to preventing them from finding employment (subparagraph (g)); section 286 of the Labour Code provides protection against any act of interference; section 97 of the Constitution and sections 290(b) and 291(k) of the Labour Code recognize the right to collective bargaining of workers in both the public and private sectors; section 334 makes it compulsory for any enterprise which employs 20 or more workers to engage in collective bargaining; and section 2 of the Labour Code includes workers in state enterprises within the scope of the Code.

Nevertheless, the Committee notes that the new Labour Code does not include provisions protecting workers who are not trade union leaders against dismissal for trade union activities. Moreover, the penalty set out in section 385, which amount to a fine of a minimum of from 10 to 30 days' wages in the event of the non-observance of the provisions of the Labour Code including in case of anti-union discrimination or interference where there are no other special penalties as well as the penalty of 30 days' minimum wage for violations by the employer of the protection set out in section 393 against the dismissal of trade union leaders are not sufficiently dissuasive.

The Committee recalls that Article 1 of the Convention provides that workers shall enjoy adequate protection against acts of anti-union discrimination, both during recruitment and in the course of employment, and covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts), and that the effectiveness of legal provisions depends to a large extent on the way in which these provisions are applied in practice and on the penal sanctions which are established being sufficiently dissuasive (see the 1994 General Survey on Freedom of Association and Collective Bargaining, paragraphs 211 to 222).

The Committee requests the Government to take measures to adapt the legislation to the requirements of the Convention and to report any development in this respect.

The Committee notes that the Government has not replied to its comments concerning the prohibition on the establishment of associations of employers (sections 10 and 12 of the "Memoranda of agreement on labour relations and social security in the hydro-power plant "Yacireta") and it therefore once again requests the Government to determine the scope of these provisions in relation to the right to collective bargaining contained in Article 4 of the Convention.

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The Committee regrets that it has not received the report that was due. Nevertheless, it notes the enactment of the new National Constitution in June 1992 which contains provisions which could improve the effect given to the Convention.

The Committee reminds the Government that its previous comments referred to the lack of protection provided for public servants and workers in public enterprises against acts of interference and anti-trade union discrimination and the need to guarantee them the right to bargain freely.

The Committee recalls that acts of anti-union discrimination have been the subject of many complaints to the Committee on Freedom of Association (Cases Nos. 1275, 1341, 1368, 1435, 1446, 1510, 1546 and 1656 (251st, 259th, 277th, 278th, 281st and 284th Reports of the Committee on Freedom of Association approved by the Governing Body at its Sessions of May 1987, November 1988, February 1991, May 1991, February 1992 and November 1992)).

With reference to sections 10 and 12 of the "Memoranda of agreement on labour relations and social security in the hydro-power plant Yacyreta", which prevent the establishment of associations of employers, the Committee once again requests the Government to determine the scope of these provisions and reminds it that, on the question of the right to collective bargaining, Article 4 of the Convention provides that measures appropriate to national conditions shall be taken, where necessary, 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 notes with interest that the new Constitution grants the right of association and of collective bargaining both to workers in the private sector and to those in the public sector, as well as the right to resort to optional arbitration (sections 96 and 97).

The Committee hopes that in the new Labour Code and the regulations issued thereunder account will be taken of the comments that it has been making for several years, as well as of the amendments proposed by the ILO through the technical assistance that it has provided, and that in this manner the legislation will be brought into harmony with the Convention. The Committee requests the Government to supply information on the measures which have been adopted in this respect in its next report.

[The Government is asked to supply full particulars to the 80th Session of the Conference and to report in detail for the period ending 30 June 1993.]

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The Committee recalls that its previous comments referred to the need to adopt provisions to protect certain categories of workers excluded from the Labour Code (public officials not engaged in the administration of the State, public employees and workers in public enterprises) against acts of anti-union discrimination, and to protect the organisations of these categories of workers against acts of interference on the part of employers or their organisations (Articles 1 and 2 of the Convention), and to recognise the right of the organisations of these categories of workers to bargain collectively (Articles 4 and 6 of the Convention).

The Committee observes with concern that a number of complaints of acts of anti-union discrimination have been addressed to the Committee on Freedom of Association (Cases Nos. 1275, 1341, 1368, 1446 and 1546 (251st, 259th, 277th and 278th Reports of the Committee approved by the Governing Body at its meetings of May 1987, November 1988, February and May 1991)).

The Committee notes the Government's statement in its report that the new Labour Code will provide for national legislation to be brought into line with international conventions and repeal all laws that restrict or suppress rights recognised at the international level in the labour, political and social fields.

The Committee notes the "Memoranda of agreement on labour relations and social security in the hydro power plant Yacyreta binational entity". It observes that according to sections 10 and 12 of these memoranda "the Itaipú, hydro power plant in view of its binational nature, will not include any employers' group which could be unionised" and that the "Yacyreta will not include any employers' union". In these circumstances, the Committee requests the Government to give details on the extent of these provisions; as regards the right of collective bargaining, it recalls that according to Article 4 of the Convention, measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

The Committee has been informed that the authorities have requested technical assistance from the International Labour Office in preparing a Bill on trade unions, with a view to aligning the legislation with the Convention.

In view of the great importance of the questions raised and the fact that the Committee has been emphasising them for many years, the Committee expresses the firm hope that at its next meeting it will be able to ascertain that there have been concrete results in bringing the legislation into line with the Convention, particularly as regards the right to organise of public officials and employees.

[The Government is asked to supply full particulars at the 79th Session of the Conference.]

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The Committee takes note of the Government's report.

For many years, the Committee has been insisting on the need to adopt provisions setting out sanctions which are sufficiently efficacious and dissuasive to protect a number of categories of workers not covered by the Labour Code (public officials not engaged in the administration of the State, and public employees and workers in public enterprises) against acts of anti-union discrimination, and to protect the organisations of these categories of workers against acts of interference by employers or their organisations (Articles 1 and 2 of the Convention), and on the need to recognise the right to collective bargaining of the organisations of these categories of workers (Articles 4 and 6) (on the last point, see the observation on the application of Convention No. 87).

The Committee notes with concern that a number of complaints of acts of anti-union discrimination have been addressed to the Committee on Freedom of Association (Cases Nos. 1275, 1341, 1368 and 1446 (251st, 259th and 277th Reports of the Committee on Freedom of Association approved by the Governing Body at its meetings of May 1987, November 1988 and February 1991)). Furthermore, the Committee notes that the Committee on Freedom of Association, at its meeting of February 1991, asked the Government to take measures to ensure that the legislation guarantees the right to organise and to bargain collectively of workers in the (public) education sector (see 277th Report, paragraphs 148 and 150).

In its report, the Government states that the Drafting Committee of the preliminary draft of the Labour Code has taken account of the Committee's comments on the right to organise and bargain collectively of workers employed in public entities and on the right of association of public employees, with a view to promoting and protecting their economic and professional interests. According to the Government, as soon as the new Labour Code is adopted and the rights set out in the Convention are established for public officials not engaged in the administration of the State, public employees and workers in public enterprises, the corresponding sanctions will be laid down against the acts of interference and anti-union discrimination referred to in the Convention.

The Committee asks the Government to provide the text of the preliminary draft now being prepared and to indicate whether measures are being taken also to provide adequate protection for public officials engaged in the administration of the State against acts of anti-union discrimination and to protect the organisations of such officials against acts of interference by employers.

The Committee expresses the firm hope that legislation and practice will be amended in the near future so as to bring them into full conformity with the Convention. The Committee asks the Government in its next report to provide information on any measures adopted in this respect, and recalls that the Office is at the disposal of the Government for any technical assistance it may request.

[The Government is asked to report in detail for the period ending 30 June 1991. REPORT DATE:30:06:1991

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The Committee takes note of the Government's report.

In earlier comments, the Committee stressed the need to adopt provisions setting out civil remedies and penal sanctions to protect a number of categories of workers not covered by the Labour Code (public officials not engaged in the administration of the State and public employees and workers in public enterprises) against acts of interference and anti-union discrimination (Articles 1 and 2 of the Convention).

The Committee notes that the Government reiterates in its report that the proposals for amendments put forward during the direct contacts mission carried out in September 1985 have not yet been adopted. The Committee notes with concern that a number of complaints of acts of anti-union discrimination have been addressed to the Committee on Freedom of Association (Cases Nos. 1275, 1341 and 1368 (251st and 259th Reports of the Committee on Freedom of Association, approved by the Governing Body at its Sessions in May 1987 and November 1988)). It again urges the Government to bring its legislation and practice into conformity with the Convention in the very near future, and requests it in its next report to indicate the measures taken to give full effect to the Convention.