Informe provisional - Informe núm. 324, Marzo 2001

Caso núm. 2036 (Paraguay) - Fecha de presentación de la queja:: 16-JUN-99 - Cerrado

Allegations: Dismissals and transfers of trade union officials; non-compliance with a collective

agreement; refusal to deduct trade union dues

1. 779. The complaint is contained in a communication from the Trade Union Confederation of State Employees of Paraguay (CESITEP) dated 16 June 1999. CESITEP sent additional information in a communication dated 12 July 1999. Public Services International associated itself with the complaint in a communication dated 21 June 1999. The Government sent its observations in communications dated 16 June and 13 October 2000.
2. 780. Paraguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 781. In its communication of 16 June 1999, the Trade Union Confederation of State Employees of Paraguay (CESITEP) alleges that the Ministry of Public Health and Social Welfare failed to comply with a collective agreement governing working conditions. That agreement was signed on 23 April 1998 between the Ministry and its workers' trade union, ratified by a commitment document and officially approved by the Ministry of Justice and Labour. To date, the Ministry of Health refuses to respond to workers' requests to comply with it, even violating Decree No. 6109 regulating the Public Health Code (the Health Act), which governs administrative careers within the Ministry of Health; it also ignores the hierarchical structure, only promoting officials in one specialized area and discriminating against others, and not allowing the trade union, despite the fact that the collective agreement so provides, to participate in the preparation of salary scale reclassifications. Moreover, considerable anti-union discrimination has recently become apparent in the Ministry of Health, which refuses to deduct the premiums for medical insurance directly from the wages of trade union members, but allow deductions from wages to be made for medical insurance premiums for private enterprises providing pre-paid medical care.
2. 782. The complainant also alleges that the commitment document signed on 5 May 1999 between the Government, represented by the Ministry of Justice and Labour, and the Trade Union Confederation of Employees has been violated. The document essentially contains the acknowledgement of a government debt to the Institute of Medical Insurance for State Employees (ISMSTE) and establishes the form in which it is to be paid. The ISMSTE is a workers' organization that provides medical assistance to CESITEP members.
3. 783. CESITEP also alleges acts of anti-union persecution against its officials by the Government. More specifically, it indicates that the Government is threatening reprisals, such as dissolving the organization through a "revision" of resolution No. 145/99 concerning registration and dismissing the president of the CESITEP, Mr. Barreto Medina (who in fact has not been paid since December 1998).
4. 784. In its communication dated 12 July 1999, the Trade Union Confederation of State Employees of Paraguay (CESITEP) alleges that the Ministry of Public Health and Social Welfare has committed further acts of anti-union discrimination. These include, in particular, the following:
   • - the transfer of trade union officials, Ms. Magdalena Duarte and Mr. William José Ledesma Acuña, members of the executive committee of the Trade Union of the Medical Emergencies Clinic;
   • - the refusal by the State Administration Office to comply with arrangements for the deduction of trade union dues for the Workers' Union of the Ministry of Public Health and Social Welfare (SITRAMIS);
   • - the dismissal of trade union officials, Ms. Blanca Alvarez, Mr. Darío Matiauda and Mr. Rigoberto Gómez.

B. The Government's reply

1. 785. In its communication dated 16 June 2000, the Government denies violating the collective agreement governing working conditions in the Ministry of Public Health and Social Welfare (it indicates that officials are being reclassified gradually and that medical insurance contributions are paid). It also denies violating the commitment document of 5 May 1999.
2. 786. The Government adds that it is not true that it wishes to dismiss the president of the CESITEP, nor that he has not been paid. Mr. Barreto Medina did not claim his salary for the months of March, September, October and December 1998, nor his Christmas bonus. However, he did collect his salary for the months of January and February 1999 and then again did not claim his salary for March, April and May 1999.
3. 787. In its communication of 13 October, the Government states with regard to the allegation concerning the deduction of trade union dues for SITRAMIS, that the Administration Office of the Ministry of Public Health and Social Welfare had deducted the trade union dues from SITRAMIS members and that the SITRAMIS representatives had received those dues. There has never been an interruption in these deductions.
4. 788. As regards the transfer of trade union officials Ms. Magdalena Duarte and Mr. William José Ledesma from the Medical Emergencies Clinic, the Government states that, in view of the inauguration on 24 June 1999 of the Medical Emergencies Centre, "Prof. Dr. Luis María Argaña", situated in Asunción, the former First Aid Clinic, had to be moved to the new premises. This change necessarily led to the redistribution of human resources in order to optimize them in accordance with the needs of the various services. For this reason, the Director-General of the Medical Emergencies Centre made Mr. William Ledesma and Ms. Magdalena Duarte available to the General Directorate of Human Resources on 8 July 1999. Subsequently, following a decision taken on 2 August 1999, Mr. William José Ledesma Acuña was moved from the General Directorate of Human Resources to the district hospital of Lambaré, to comply with a request submitted by the management of that institution, for his services in his capacity as debt collector as it was impossible to recruit new staff with experience in that occupation and Mr. William Ledesma had already performed that function at the Medical Emergencies Clinic. Mr. Ledesma's transfer is a temporary one.
5. 789. As regards the transfer of Ms. Magdalena Salvadora Duarte, the Government states that, bearing in mind the lack of available nursing staff, the limited recruitment budget and the high demand for such staff, she was transferred following a decision dated 9 August 1999 from the General Directorate of Human Resources to the Mother and Child Care Clinic of Santísima Trinidad as that institution was situated close to her home. It was therefore not an anti-union move but a service-related one.
6. 790. On a general note, the Government states with regard to the alleged transfers that in 1999 the Ministry of Health was allocated very limited funds for recruitment under the national budget which obliged it to move staff around as, in a number of institutions under the Ministry, the lack of available staff was causing serious problems. These moves or secondments were not isolated, and none of the seconded persons were obliged to perform tasks of less hierarchical importance, nor was there any uprooting. This being the case, the persons concerned were not wronged as they were not prohibited from exercising their trade union activities.
7. 791. As regards Ms. Blanca Alvarez, an official of the Ministry of Foreign Affairs, the Government states that she was the subject of an administrative inquiry at that institution and that under Decree No. 12550/96 she was dismissed from her duties (the inquiry concluded that the official had committed serious offences - improper use of the Ministry's premises and property, irregular attendance at the Ministry and lack of respect towards and insults directed at her superiors). The judicial authority amended Decree No. 12550, ordering that the official be suspended from her work without pay for a period of 90 days. This case is currently pending before the Office of the Attorney-General of the Republic.
8. 792. With respect to Mr. Darío Matiauda, an official of the Ministry of Public Health and Social Welfare, the Government states that he was dismissed following an inquiry and subsequently reinstated under Decree No. 4007 of 7 July 1999. Mr. Matiauda later requested leave without pay twice for a period of three months. These periods of leave were granted under resolution No. 2414 of 27 October 1999 and resolution No. 1460 of 5 June 2000.
9. 793. As regards Mr. Rigoberto Gómez Rivas, the Government indicates that following an inquiry he was dismissed from his duties under Decree No. 1586 of 6 January 1999 for having committed the offence stipulated in article 52(10) of Act No. 200/70 (failure to observe obligations).
10. 794. The Government states that it is untrue that it threatened to dissolve the trade union organization CESITEP through a revision of resolution No. 145/99. Concerning the alleged failure to pay medical insurance, the Government indicates that the legal office of the Treasury issued Legal Opinion No. 665 dated 1 June 1999 in respect of the CESITEP case. Following CESITEP's appeal for protection of its constitutional rights against the Treasury, the fourth circuit court of judicial protection handed down final ruling No. 362 of 15 June 1999. The legal opinion and the ruling serve to explain why medical insurance benefits are paid to state employees on an individual basis.

C. The Committee's conclusions

1. 795. The Committee observes that in this case the complainants allege: (i) the failure of the Ministry of Public Health and Social Welfare to comply with the obligations set forth in a collective agreement and in a commitment document; (ii) the Ministry's refusal to allow the trade union to make the deductions for the payment of medical health insurance; (iii) threats to dissolve the trade union CESITEP and to dismiss Mr. Barreto Medina, president of the CESITEP (who has allegedly not been paid since December 1998); (iv) the transfer of trade union officials, Ms. Magdalena Duarte and Mr. William José Ledesma Acuña, members of the executive committee of the Trade Union of the Medical Emergencies Clinic, and the dismissal of trade union officials, Ms. Blanca Alvarez, Mr. Darío Matiauda and Mr. Rigoberto Gómez; and (v) the refusal by the State Administration Office to comply with arrangements for the deduction of trade union dues for the Workers' Trade Union of the Ministry of Public Health and Social Welfare (SITRAMIS).
2. 796. With regard to the transfer of trade union officials, Ms. Magdalena Duarte and Mr. William José Ledesma Acuña, members of the executive committee of the Trade Union of the Medical Emergencies Clinic, the Committee notes the Government's statement that: (1) in 1999 the Ministry of Health had a very limited recruitment budget and this fact forced it to transfer staff and that these particular moves were not the only ones to occur; (2) as a result of the inauguration of the Medical Emergencies Centre "Prof. Dr. Luis María Argaña", the former First Aid Clinic had to be moved to new premises and that change resulted in needing to optimize human resources through redistributing staff; (3) Mr. William José Ledesma Acuña was only transferred temporarily to the District Hospital of Lambaré in order to carry out the function of collector (duties that he was already performing), as it was impossible to recruit new staff; and (4) Ms. Magdalena Duarte was transferred to the Mother and Child Care Clinic, owing to the lack of available nursing staff; when ordering the transfer of Ms. Duarte account was taken of the fact that the Mother and Child Care Clinic is situated near her home. In this regard, while taking due account of the budgetary problems that may have led the Ministry of Health to carry out transfers in order to fill vacant posts, the Committee cannot fail to observe that the workers in question held trade union positions and that their transfer may have affected the exercise of their trade union activities. The Committee, therefore, requests the Government to ensure that in future, when for budgetary or financial reasons it is necessary to carry out staff transfers in the public sector, due account is taken of the status of trade union officials, and that steps are taken to avoid any negative repercussions on the performance of their trade union activities and to avoid possible discrimination against them.
3. 797. As regards the dismissal of trade union officials Ms. Blanca Alvarez, Mr. Darío Matiauda and Mr. Rigoberto Gómez, the Committee notes the Government's statement that: (1) Mr. Matiauda, an official of the Ministry of Public Health and Social Welfare, was removed from office following an inquiry and subsequently reinstated under a decree dated 7 July 1999; (2) Ms. Blanca Alvarez, an official of the Ministry of Foreign Affairs, was the subject of an administrative inquiry in which it was concluded that she had committed serious offences, such as improper use of the Ministry's premises and property, irregular attendance at work and lack of respect towards and insults directed at her superiors, which led to her dismissal from her post under Decree No. 12550; the judicial authority amended the decree, imposing on the official a suspension for a duration of 90 days, and the case is currently pending before the Office of the Attorney-General of the Republic; and (3) Mr. Rigoberto Gómez, an official of the Ministry of Public Health and Social Welfare, was the subject of an administrative inquiry and was dismissed from his post for having committed the offence set forth in article 52(10) of Act No. 200/70 (failure to observe obligations). The Committee requests the Government to: (1) keep it informed of the result of the appeal lodged before the Office of the Attorney-General of the Republic in respect of the transfer of Ms. Blanca Alvarez; and (2) in the proceedings of the administrative inquiry into Mr. Rigoberto Gómez's failure to observe his obligations, verify the charges made against him and, if these are related to the exercise of his trade union activities, to take the necessary measures to have him reinstated in his job.
4. 798. With respect to the allegation concerning the refusal by the Ministry of Public Health and Social Welfare to allow the trade union SITRAMIS to make deductions for the payment of medical health insurance, the Committee notes the Government's information that this matter was submitted to the judicial authority which in its ruling accepted the payment of medical insurance benefits to state employees on an individual basis.
5. 799. Concerning the threats to dissolve the trade union CESITEP and to dismiss Mr. Barreto Medina, president of the CESITEP (who has allegedly not been paid since December 1998), the Committee notes the Government's categoric denial of both allegations and its emphasis on the fact the Mr. Barreto Medina did not claim his salary for the months of March, September, October and December 1998 and March, April and May 1999, but that he did claim it for January and February 1999. In view of the contradictory versions presented by the complainants and the Government concerning these allegations and the lack of details in the complaint, the Committee requests the Government and the complainants to forward additional information in this regard.
6. 800. In relation to the alleged refusal by the State Administration Office to accept requests for the deduction of trade union dues for the Workers' Trade Union of the Ministry of Public Health and Social Welfare (SITRAMIS), the Committee notes the Government's denial of these allegations and its statement that the Ministry of Public Health and Social Welfare has deducted the trade union dues of SITRAMIS members, that the trade union representatives have received those dues and that in fact there has never been an interruption in the deductions.
7. 801. With respect to non-compliance by the Ministry of Public Health and Social Welfare with a number of obligations set forth in a collective agreement and a commitment document, the Committee notes the Government's denial that the instruments have not been complied with (for example, it states that there has been a gradual reclassification of officials and that medical insurance contributions are paid). In this respect, the Committee stresses generally the importance it accords to the principle that "agreements should be binding on the parties" [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 818] and requests the Government to ensure compliance with the contractual obligations contained in the instruments in question.

The Committee's recommendations

1. 802. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to adopt the following recommendations:
   • (a) The Committee requests the Government to ensure that in future, when for budgetary or financial reasons it is necessary to carry out staff transfers in the public sector, due account is taken of the status of trade union officials, and that steps are taken to avoid any negative repercussions on the performance of their trade union activities and to avoid possible discrimination against them.
   • (b) The Committee requests the Government: (1) to keep it informed of the result of the appeal lodged before the Office of the Attorney-General of the Republic in respect of the transfer of Ms. Blanca Alvarez; (2) in the proceedings of the administrative inquiry into Mr. Rigoberto Gómez's failure to observe his obligations, to verify the charges made against him and, if these are related to the exercise of his trade union activities, to take the necessary measures to have him reinstated in his job. In addition, the Committee requests the Government and the complainants to forward additional information with respect to the allegations concerning the threats to dissolve the trade union CESITEP and to dismiss Mr. Barreto Medina, president of CESITEP.
   • (c) As regards the alleged non-compliance by the Ministry of Public Health and Social Welfare with a number of obligations set forth in a collective agreement and a commitment document, the Committee stresses generally the importance it accords to the principle that agreements should be binding and requests the Government to ensure compliance with the contractual obligations contained in the instruments in question.