Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

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.