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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Paraguay (Ratification: 1962)

The Committee notes the observations of the Central Confederation of Workers – Authentic (CUT–A) received on 30 August 2022, which refer to matters examined in the present comment, and which mention that the Government report does not reflect a tripartite approach due to its very late receipt by the CUT–A. The Committee also notes the observations of the International Trade Union Confederation (ITUC) alleging violations of freedom of association and collective bargaining in various sectors, including the health and public sectors, received on 1 September 2022. The Committee observes that the Government has not responded to the observations of the ITUC from 2010 and 2015, in connection with the arrest of trade unionists, dismissals, anti-trade union transfers and the refusal of the Government to register certain trade union organizations. The Committee requests the Government to provide its comments in respect of the abovementioned allegations and observations.

Articles 2 and 3 of the Convention. Pending legislative issues. The Committee recalls that for many years it has been highlighting the inconsistency of certain provisions of the Labour Code with the Convention, specifically in respect of:

• -the requirement of an unduly large number of workers (300) to establish a branch trade union (section 292);
• -the prohibition on joining more than one union, whether at the level of the enterprise or industry, occupation or trade, or institution (section 293(c));
• -the imposition of unduly demanding conditions of eligibility for office on the executive committee of a trade union (section 293(d) and 298(a));
• -the requirement for trade unions to respond to all requests from the labour authorities for consultations or reports (sections 290(f) and 304(c));
• -the obligation to provide a minimum service in the event of a strike in public services that are essential to the community without any requirement to consult the employers’ and workers’ organizations concerned (section 362); and
• -the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a)).

The Committee recalls that in its previous observation, it noted the Government’s indication that it had requested ILO technical assistance and was recruiting an expert to formulate a draft bill to bring the Labour Code into line with ratified Conventions relating to freedom of association. The Committee regretsto note the Government’s indication that no such bill has yet been drafted. The Committee also notes, from the observations of the CUT–A, that no progress has been made in respect of the measures adopted by the Government regarding pending legislative questions. The Committee urges the Government, in consultation with the social partners, to take the necessary measures to align the Labour Code with the Convention. The Committee requests the Government to report on progress made in this respect and recalls that the Government may avail itself of ILO technical assistance.

The Committee recalls that the application of the percentages established in section 292 of the Labour Code could result in a requirement of up to 100 workers to establish a trade union in institutions of up to 500 employees and a requirement of an even higher number of members for public institutions with a large number of workers. The Committee notes the information provided by the Government that there are trade unions in all public institutions, some with one and others with more than ten unions. It also notes the Government’s indication that it considers it better to maintain section 292 as it stands, in order to avoid trade union fragmentation. The Committee further notes the observations of the CUT–A, indicating the absence of consultations between the Government and the social partners on this subject. The Committee recalls that mechanisms exist to avoid trade union fragmentation and, at the same time, to safeguard the right of workers to establish organizations of their own choosing. In light of the above, the Committee once again requests the Government to hold consultations with the social partners with a view to ensuring that section 292 of the Labour Code does not, in effect, undermine the right of workers in the public sector to establish organizations of their choosing. The Committee requests the Government to provide information in this respect.

The Committee welcomes the Government’s indication that a technical legal team has been appointed in the Ministry of Education and Sciences to work on a proposal to amend section 38 of the Teachers’ Statute, which establishes that teachers must have been registered for five years in order to qualify for trade union leave, to bring the provision into compliance with Article 3 of the Convention. The Committee expects that these amendments will be completed without delay, in consultation with the social partners. The Committee requests the Government to communicate information on all progress achieved in this respect.

Compulsory arbitration. The Committee recalls that in its previous comments it noted that sections 284 and 320 of the Code of Labour Procedure regarding referral of collective disputes to compulsory arbitration are not applied in practice, since they have been tacitly repealed by section 97 of the Constitution of the Republic of Paraguay, which establishes that arbitration shall be optional. Observing that the Government reports no specific progress on this subject, the Committee once again requests, in the light of the provisions of the Constitution of Paraguay and in order to avoid all possible ambiguity in interpretation, that the Government take the necessary measures to amend or repeal expressly the abovementioned provisions of the Code of Labour Procedure.

Registration in practice of trade unions and their executive committees. The Committee notes the Government’s reply to the CUT-A observations of 2018 to the effect that the executive committee of the ESSAP – SITUE United Workers’ Union was registered on 3 August 2020. The Committee notes the information provided by the Government on the number of workers affiliated to trade unions in the 2018-2020 period, in the public sector (110,881) and in the private sector (36,388). The Committee also notes the information disaggregated by sex of members holding positions on the executive committees of trade unions from 2018 to date by sector, public (5,774 men and 2,907 women) and private (5,338 men and 1,060 women). The Committee further notes that the application of the new online registration system for trade unions did not function as foreseen, since the trade unions opted for the in-person system. The Committee notes from the statistical data provided by the Government that from 2018 to 2022, a total of 16 trade unions were provisionally registered and 107 trade unions registered their executive committees. The Committee takes due note of the measures adopted and information provided by the Government.