Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

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.