Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 381, Marzo 2017

Caso núm. 3019 (Paraguay) - Fecha de presentación de la queja:: 14-MAR-13 - Cerrado

Allegations: Deficiencies in sanctions procedures of the labour inspectorate in relation to corruption practices, barriers to the creation of trade unions, dismissals of union leaders and members, and obstacles to collective bargaining and anti-union discrimination

1. 516. The Committee examined this case at its October 2015 meeting and on that occasion presented an interim report to the Governing Body [see 376th Report, paras 825–847]. The Central Confederation of Workers–Authentic (CUT–A) sent new allegations in a communication dated 20 July 2016.
2. 517. The Government sent its observations in communications dated 9 November 2016, 9 January and 6 February 2017.
3. 518. 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. Previous examination of the case

1. 519. In its previous examination of the case, the Committee made the following recommendations [see 376th Report, para. 847]:
   • (a) Taking into account the fact that section 292 of the Labour Code, by requiring 20 per cent of workers to be affiliated in public sector institutions of up to 500 employees, could result in a requirement of up to 100 workers to establish a trade union, the Committee requests the Government to review this provision in consultation with the social partners concerned in order to not, in effect, undermine the right of public sector employees to establish and join organizations of their own choosing.
   • (b) The Committee urges the Government to provide detailed information on the alleged legal irregularities in the establishment of SINFAPAVI which led it to deny the union its final registration. Furthermore, in the light of the existence of numerous allegations of interference by management relying on legal provisions to challenge the final registration of unions, the Committee invites the Government to review on a tripartite basis without delay the use of employers’ powers to contest the registration of unions.
   • (c) The Committee requests the Government to provide additional information on the allegations of anti-union dismissals made against the MAEHARA and IPFSA enterprises. In this regard, taking account of the general nature of the allegations of anti-union discrimination it has received, the Committee invites the complainants to provide additional information so that it may examine those and other allegations of anti-union dismissals and discrimination in greater detail, and to seek the relevant additional observations from the Government.
   • (d) The Committee invites the Government to hold consultations with the social partners, to establish mechanisms to guarantee effective protection against acts of anti-union discrimination, including rapid and impartial procedures, with provision for appeals and sufficiently dissuasive sanctions. The Committee requests the Government to keep it informed in this respect.
   • (e) The Committee firmly expects the Government to provide more information on the grounds for the detention of trade unionists protesting outside the premises of the MAEHARA enterprise, and to keep it informed of the outcome of the resultant proceedings.
   • (f) The Committee requests the Government to provide its observations on the following allegations to which it has yet to reply: (1) procedures of the labour authorities in the event of violations of labour or union rights involving a high degree of corruption and which last one year; failure to deal with complaints made by trade unions; and the labour inspectorate’s conducting inspections without the participation of the unions; (2) the Ministry of Labour’s refusal to register more than 90 per cent of the collective agreements in the public service; (3) the passive attitude of the labour authorities to the illegal replacement of striking workers by other workers; and (4) the cancellation of the registration of the Union of Workers of the DORAM SA Enterprise. Furthermore, the Committee invites the Government to address these issues in tripartite dialogue with the most representative organizations of employers and workers, and to keep the Committee informed in this regard.

B. The complainants’ new allegations

1. 520. In a communication dated 20 July 2016, the CUT–A reported that Citibank (hereinafter, the bank) committed acts of anti-union discrimination against Mr Oscar Ricardo Paredes Dürrling, who worked in the bank from 1980 to 2014 and was a member of the executive committee of the Union of Citibank Employees (SECP) (a union which ceased to exist in around 1997). The CUT–A indicated that, in accordance with the pay adjustment mechanism agreed upon in the collective agreement on working conditions signed in 1995 by the SECP, Mr Paredes Dürrling’s salary should have been automatically adjusted in accordance with the consumer price index. However, between 2002 and 2014 the real increase in Mr Paredes Dürrling’s salary was 7.2 per cent compared with an increase in the consumer price index of 83.9 per cent, and between October 2001 and February 2006 his salary remained unchanged. The complainant organization adds that on various occasions the bank tried to obtain his voluntary resignation, and that over the past 12 years he felt discriminated against and persecuted.
2. 521. The complainant organization indicates that on several occasions Mr Paredes Dürrling requested the bank to readjust his salary as it had for the other employees whose salaries the bank had increased between 48 per cent and 219 per cent but that, following the bank’s constant refusal to adjust his salary, on 28 August 2014 Mr Paredes Dürrling did not go to work and after 34 years of service terminated his contract on account of the failure to pay the corresponding salary. According to the complainant, section 84 of the Labour Code provides that failure to pay the corresponding salary at the agreed or usual time and place is a legitimate reason for termination by the worker’s unilateral will. The bank ordered the worker to return to his post but he did not show up and on 29 August 2014 he filed a claim against the bank demanding readjustment of his salary, regularization of pension payments and compensation for moral damages (verbal insults and social isolation). The bank, in turn, filed a case claiming compensation for unjustified resignation.
3. 522. The CUT–A has appended the text of the request filed by Mr Paredes Dürrling against the bank, as well as a copy of the first instance ruling issued on 8 April 2016 by the third rota labour court, which states that: (i) the provision of the 1995 collective agreement concerning salary readjustment is in force since it was incorporated into the complainant’s labour contract; (ii) the bank is thereby ordered to pay compensation to the complainant for the amount claimed; (iii) the case filed by the bank claiming compensation for unjustified resignation is dismissed; and (iv) the request for reparation for failure to pay into the pension fund and compensation for moral damages is dismissed since the complainant did not prove that he had been a victim of bullying. Mr Paredes Dürrling appealed this ruling and the case is currently pending before the First Chamber of the Labour Appeals Court.

C. The Government’s reply

1. 523. In a communication of 9 November 2016, the Government replied to the new allegations of anti-union discrimination presented by the CUT–A. The Government sent the bank and its own observations, according to which: (i) Mr Paredes Dürrling’s claim against the bank is currently pending before the First Chamber of the Labour Appeals Court and is reserved for judgement; (ii) the bank has not committed acts of anti-union discrimination given that the Paraguay branch does not have a workers’ union; the last union stopped operations in around 1997; there is no record of Mr Paredes Dürrling having been the leader of this union and he never invoked trade union status in the judicial proceedings that he himself launched; (iii) the bank did not readjust his salary in accordance with the 1995 collective agreement because it was only in force until 1997 and his salary could not be compared with that of his colleagues who hold different posts; and (iv) the bank did not dismiss Mr Paredes Dürrling but rather he ordered the bank to pay a specific amount within 48 hours, as salary readjustment and damages, and resigned even before the end of the 48-hour period.
2. 524. The Government has appended various documents to its communication, including: (i) a copy of decision No. 400 of the Ministry of Labour dated 31 July 2001 registering the members of the last executive committee of the SECP who were elected at the extraordinary general assembly on 5 April 2001, who do not include Mr Paredes Dürrling; and (ii) a copy of a report by the Department of Collective Relations and Trade Union Registration of the Ministry of Labour stating that the union has been “inactive” since 2001.
3. 525. In its communications of 9 January and 6 February 2017, the Government sent its observations on some of the recommendations made by the Committee in its previous examination of the case. With regard to recommendation (a) of the Committee (review section 292 of the Labour Code, in consultation with the social partners concerned, which requires that 20 per cent of workers be affiliated in public sector institutions of up to 500 employees, as this could result in a requirement of up to 100 workers to establish a trade union, thus undermining the right of public sector employees to establish organizations of their own choosing), the Government indicates that: (i) this section of the Labour Code has not been examined by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) in relation to the establishment of trade unions in the public sector; (ii) in order to avoid an excessively strict minimum threshold for public servants, national legislation fixes the percentage for public servants at a level that does not restrict the possibility for them to freely establish their organizations; and (iii) the Ministry of Labour, Employment and Social Security has made a considerable effort to facilitate the establishment of trade unions, such as setting up an online trade union registration system to streamline the procedures the unions must follow.
4. 526. With regard to recommendation (b) of the Committee (detailed information on the alleged legal irregularities in the establishment of the Union of Workers of the Paraguayan Glass Factory (SINFAPAVI), which led the Government to deny the union its final registration and conduct a review on a tripartite basis of the use of employers’ powers to contest the registration of unions), the Government indicates that while the Legal Adviser of the General Labour Directorate advised preliminary registration of SINFAPAVI, the enterprise representative objected to this registration on the grounds that: (i) the registration did not fulfil the official requirements of Chapter III of the Labour Code; (ii) the General-Secretary of the trade union had left the enterprise of his own volition and for personal reasons; and (iii) the union did not have the required number of members to establish a union. The Government emphasizes that the union officials refrained from responding to the objections raised and that, therefore, the registration of the union was not finalized. The Government also reports that, under Decree No. 5159 of 18 April 2016, a Tripartite Advisory Council was established, under the Ministry of Labour, Employment and Social Security, which meets at least once a month to evaluate socio-economic and labour issues and make recommendations on questions relating to the competency of the Ministry of Labour, Employment and Social Security.
5. 527. With regard to recommendation (c) of the Committee, the Government has forwarded the observation of the MAEHARA enterprise, according to which the workers’ employment was terminated owing to restructuring carried out by the enterprise to reduce its labour and align itself with environmental and technological standards. The enterprise also indicates that the workers received the corresponding compensation and that a judgement of payment on consignment was handed down for those who were refused their entitlements, whereby those wages were deposited in judicial accounts. According to the enterprise, the workers whose employment was terminated established a trade union immediately after being relieved of their posts and the request for registration of the union was refused by the administrative labour authorities because it did not meet the minimum number of members required under section 292 of the Labour Code (20 members to establish an enterprise-level union).
6. 528. With regard to recommendation (d) of the Committee (consultations with the social partners to establish mechanisms to guarantee effective protection against acts of anti-union discrimination), the Government reports that, in April 2014, a Memorandum of Commitment was signed between the public sector and the trade union federations and that round tables have been set up at which the trade union federations requested training on compliance with legislation on freedom of association. The Government therefore underlines that an online system for registering and updating data has been established enabling the trade unions to follow up cases and manage documents, thereby minimizing the red tape associated with those procedures.
7. 529. With regard to recommendation (e) of the Committee (information on the grounds for the detention of trade unionists protesting outside the premises of the enterprise), the Government has forwarded the enterprise’s observations, which reveal that the arrests of Mr Leoncio Brítez, Mr Gustavo Adolfo Jara Aquino and Mr Teodoro Enciso were made, further to complaints submitted in April 2012 to the national police, that these individuals had carried out acts of vandalism at the entrance to the enterprise, brandished wooden sticks, burned tyres and blocked access to the enterprise. The Government emphasizes that, as shown in the reports, police statement and arrest warrant of 24 April 2012, the arrests were ordered for the alleged commission of crimes against the safe coexistence of people and for disturbance of the public peace, which have no bearing on trade union affairs. The Government has attached the reports of the Public Prosecution Service and the national police related to the criminal case before the court against the detainees.
8. 530. With regard to recommendation (f)(1) of the Committee (procedures of the labour authorities in the event of violations of labour or union rights involving a high degree of corruption, and which last one year; failure to deal with complaints made by trade unions; and the labour inspectorate’s conducting inspections without the participation of the unions), the Government indicates that the reports and inspection requests made by the trade union organizations are followed up by issuing orders and when labour inspectors perform inspection duties in workplaces, they are accompanied by an employer representative and a union representative if there is one, or by the most senior worker in the enterprise, if the employer authorizes access for these officials to the workplace. The Government adds that one of its priorities is to modernize the labour inspectorate and increase the effectiveness of inspection procedures. In this connection, the Government reports that, in 2015, 30 new labour inspectors were recruited who were trained in areas relating to the Conventions ratified by the country. The Government further highlights that various measures have been implemented to combat corruption, such as the creation of a website for the submission of complaints concerning allegations of corruption that have an impact on public institutions and the establishment of the Anti-corruption and Transparency Directorate under the Ministry of Labour, Employment and Social Security.
9. 531. With regard to recommendation (f)(2) of the Committee (the Ministry of Labour’s refusal to register more than 90 per cent of the collective agreements in the public service), the Government indicates that: (i) the Civil Service Secretariat is empowered to certify and register collective agreements on working conditions in state bodies and undertakings where they meet the requirements of form and content for their validation; (ii) collective agreements should be in line with the terms under Act No. 508/1994 on collective bargaining in the public sector; (iii) the draft collective agreements presented to the Civil Service Secretariat included benefits for public servants which were not subject to negotiation with the highest authority of the relevant institution, owing to which they could not be adopted; and (iv) public sector benefits are provided for in Act No. 1626/2000 and in the Act on the national general budget, and their inclusion in a collective agreement is therefore inappropriate since the public authorities are not legally competent to negotiate these issues.
10. 532. With regard to recommendation (f)(3) of the Committee (the passive attitude of the labour authorities to the illegal replacement of striking workers by other workers), the Government indicates that the labour inspectorate oversees the non-replacement of striking workers during the strike, which is reported and communicated to the Administrative Labour Authorities with a specific period of advance notice. Where a replacement is detected, management is informed and the case is referred to the legal adviser. The Government quotes the names of certain enterprises in which monitoring of replaced workers was conducted in 2014 and 2015.
11. 533. With regard to recommendation (f)(4) of the Committee (cancellation of the registration of the Union of Workers of the DORAM SA Enterprise), the Government indicates that while the enterprise representative raised objections to the establishment of the trade union, these were contested by the General-Secretary of the trade union and the legal adviser of the Ministry advised that the objections be dismissed and registration be finalized. However, following this, the members of the trade union executive committee (with the exception of the General-Secretary) expressed their wish to annul the final recognition of the trade union given that several of them had left the enterprise. Although the General-Secretary of the trade union urged that a decision be issued on the union’s final recognition, the legal adviser of the Ministry recommended that the appellants’ request be upheld and that the union’s final registration be annulled. The General-Secretary of the trade union filed an appeal against this decision but subsequently withdrew it and hence the case was closed.

D. The Committee’s conclusions

1. 534. The Committee recalls that this case concerns deficiencies in sanctions procedures of the labour inspectorate in relation to corruption practices, barriers to the creation of trade unions, dismissals of union leaders and members, obstacles to collective bargaining and anti-union discrimination.
2. 535. With regard to recommendation (a) (review section 292 of the Labour Code in consultation with the social partners concerned), the Committee notes the Government’s indications that: (i) this section of the Labour Code has not been examined by the CEACR as it applies to the establishment of trade unions in the public sector; (ii) in order to avoid an excessively strict minimum threshold for public servants, national legislation fixes the percentage for public servants at a level that does not restrict the possibility for them to freely establish their organizations; and (iii) the Ministry of Labour, Employment and Social Security has made a considerable effort to facilitate the establishment of trade unions, such as setting up an online trade union registration system to streamline the procedures the unions must follow. The Committee recalls that in this case it examined specific allegations on the way in which section 292 of the Labour Code undermines the rights of public sector workers’ organizations and noted that a requirement that 20 per cent of workers be affiliated in public sector institutions of up to 500 employees could result in a requirement of up to 100 workers to establish a trade union, and that this could, in effect, undermine public sector workers’ rights to establish organizations of their own choosing. In the light of the foregoing, the Committee once again requests the Government to hold consultations with the social partners concerned with a view to ensuring that section 292 of the Labour Code does not, in effect, undermine the right of public sector employees to establish organizations of their own choosing.
3. 536. With regard to recommendation (b) made during its last examination of the case (alleged legal irregularities in the establishment of SINFAPAVI which led the Government to deny the union its final registration), the Committee notes the Government’s statement that although the Legal Adviser of the General Labour Directorate advised preliminary registration of the union, the enterprise raised objections on grounds that: (i) the registration did not fulfil the official requirements of Chapter III of the Labour Code; (ii) the General-Secretary of the trade union had left the enterprise of his own volition; and (iii) the union did not have the required number of members to establish a union. The Committee notes that the Government emphasizes that the union officials refrained from responding to the objections raised and that, therefore, the union’s registration was not finalized. The Committee notes that the documents provided by the Government reveal that 20 members of the union gave up their membership of their own free will on 21 and 22 June 2011, which is to say a few days before the union requested its registration from the General Labour Directorate. The Committee also notes that these voluntary membership withdrawals from SINFAPAVI made it possible for the enterprise to challenge the union’s final registration.
4. 537. The Committee had also requested the Government in its recommendation (b) in the light of the existence of numerous allegations of interference by management relying on legal provisions to challenge the final registration of unions, to review on a tripartite basis the use of employers’ powers to contest the registration of unions. In this respect, the Committee notes that the Government reports that in April 2016 the Tripartite Advisory Council was established under the Ministry of Labour, Employment and Social Security, which meets at least once a month to evaluate socio-economic and labour issues and make recommendations on questions regarding the competency of the Ministry of Labour, Employment and Social Security. The Committee requests the Government to keep it informed of the tripartite discussions held in the Tripartite Advisory Council or in any other setting in relation to the use of employers’ powers to contest the registration of unions.
5. 538. With regard to recommendation (c), the Committee notes the observations of the enterprise forwarded by the Government, according to which: (i) the workers’ employment was terminated owing to restructuring carried out by the enterprise to reduce its labour; (ii) the workers received the corresponding compensation and a judgement of payment on consignment was handed down for those who were refused their entitlements, whereby those wages were deposited in judicial accounts; and (iii) the workers whose employment was terminated established a trade union immediately after being relieved of their posts, which could not be registered because it did not meet the minimum number of members required under section 292 of the Labour Code (20 members to establish an enterprise-level union). The Committee, while noting the enterprise’s observations, recalls that, taking account of the general nature of the allegations of anti-union discrimination raised, it had invited the complainants to provide additional information so that it may examine those and other allegations of anti-union dismissals and discrimination in greater detail, and to seek the relevant additional observations from the Government. Noting that the complainants have not provided such information, and that without it an in-depth examination of the allegations of anti-union dismissals is not possible, the Committee will not pursue its examination of these allegations.
6. 539. With regard to recommendation (d) (consultations with the social partners, to establish mechanisms to guarantee effective protection against acts of anti-union discrimination), the Committee notes the Government’s indication that in April 2014 a Memorandum of Commitment was signed between the public sector and the trade union federations, under which round tables on freedom of association had been set up at which the trade union federations had requested training on compliance with legislation on freedom of association. The Committee also notes that the Government underlines that an online system for registering and updating data has been established enabling the trade unions to follow up cases and manage documents, thereby minimizing red tape. Recalling that for many years the CEACR has been observing the need to strengthen the legal provisions against anti-union discrimination and that this Committee has in the past 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, para. 963], the Committee requests the Government to inform the CEACR, to which the legislative aspects of the case are referred, of the consultations held with the social partners to establish mechanisms to guarantee effective protection against acts of anti-union discrimination, including rapid and impartial procedures, with provision for appeals and sufficiently dissuasive sanctions.
7. 540. With regard to recommendation (e), the Committee notes that the Government has forwarded the enterprise’s observations, according to which the arrests of Mr Leoncio Brítez, Mr Gustavo Adolfo Jara Aquino and Mr Teodoro Enciso were made further to the complaints submitted in April 2012 to the national police that these individuals had carried out acts of vandalism at the enterprise entrance, brandished wooden sticks, burned tyres and blocked access to the enterprise. The Government emphasizes that, as shown in the complaints, police statement and arrest warrant of 24 April 2012, the arrests were ordered for the alleged commission of crimes against safe cohabitation of people and for disturbance of the public peace, which have no bearing on trade union affairs. Noting that, according to the reports of the Public Prosecution Service and the national police attached by the Government, the arrest warrant was issued on 24 April 2012, the Committee urges the Government to indicate whether Mr Leoncio Brítez, Mr Gustavo Adolfo Jara Aquino and Mr Teodoro Enciso remain in detention, to specify the status of the criminal case against them and to forward a copy of the court rulings once they have been issued.
8. 541. With regard to recommendation (f)(1) of the Committee (procedures of the labour authorities in the event of violations of labour or union rights involving a high degree of corruption; failure to deal with complaints made by trade unions; and the labour inspectorate’s conducting inspections without the participation of the unions), the Committee notes the Government’s indication that labour inspectors perform inspection duties in workplaces accompanied by an employer representative and a trade union representative if there is one or by the most senior worker in the enterprise, if the employer authorizes access for these officials to the workplace. The Committee also notes that, according to the Government, one of its priorities is to modernize the labour inspectorate and increase the effectiveness of inspection procedures and that in 2015, 30 new labour inspectors were recruited who were trained in areas relating to the Conventions ratified by the country. The Committee also notes the various measures implemented by the Government to combat corruption, such as the creation of a website for the submission of complaints concerning allegations of corruption affecting public institutions and the establishment of the Anti-corruption and Transparency Directorate under the Ministry of Labour, Employment and Social Security.
9. 542. With regard to recommendation (f)(2) of the Committee (the Ministry of Labour’s refusal to register more than 90 per cent of the collective agreements in the public service), the Committee notes the Government’s indication that: (i) the Civil Service Secretariat is empowered to certify and register collective agreements on working conditions in state bodies and undertakings where they meet the requirements of form and content for their validation; (ii) collective agreements should be in line with the terms under Act No. 508/1994 on collective bargaining in the public sector; (iii) the draft collective agreements presented to the Civil Service Secretariat included benefits for public servants which were not subject to negotiation with the highest authority of the relevant institution, owing to which they could not be adopted; and (iv) public sector benefits are provided for in Act No. 1626/2000 and in the Act on the national general budget, and their inclusion in a collective agreement is therefore inappropriate since the public authorities are not legally competent to negotiate these issues. In this respect, the Committee has considered that the exercise of financial powers by the public authorities in a manner that prevents or limits compliance with collective agreements already entered into by public bodies is not consistent with the principle of free collective bargaining [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1034]. The Committee also recalls that, with regard to the requirement that draft collective agreements in the public sector must be accompanied by a preliminary opinion on their financial implications issued by the financial authorities, and not by the public body or enterprise concerned, the Committee noted that it was aware that collective bargaining in the public sector called for verification of the available resources in the various public bodies or undertakings, that such resources were dependent on state budgets and that the period of duration of collective agreements in the public sector did not always coincide with the duration of the State Budgetary Law – a situation which could give rise to difficulties. The body issuing the above opinion could also formulate recommendations in line with government economic policy or seek to ensure that the collective bargaining process did not give rise to any discrimination in the working conditions of the employees in different public institutions or undertakings. Provision should therefore be made for a mechanism which ensured that, in the collective bargaining process in the public sector, both trade union organizations and the employers and their associations were consulted and could express their points of view to the authority responsible or assessing the financial consequences of draft collective agreements. Nevertheless, notwithstanding any opinion submitted by the financial authorities, the parties to collective bargaining should be able to conclude an agreement freely [see Digest, op. cit., para. 1037]. The Committee invites the Government to examine this matter of collective agreements in the public sector with the social partners concerned in the light of the aforementioned principles.
10. 543. With regard to recommendation (f)(3) of the Committee (the passive attitude of the labour authorities to the illegal replacement of striking workers by other workers), the Committee notes the Government’s indication that the labour inspectorate monitors the non-replacement of striking workers during the strike, which is reported and communicated to the Administrative Labour Authorities with a specific period of advance notice. Where a replacement is detected, management is informed and the case is referred to the legal adviser. The Government quotes the names of certain enterprises in which monitoring of replaced workers was conducted in 2014 and 2015.
11. 544. With regard to recommendation (f)(4) (cancellation of a union registration), the Committee notes the Government’s indication that although the legal adviser of the Ministry advised that the objections raised by the enterprise should be dismissed and the trade union’s registration should be finalized, several members of the executive committee of the trade union requested that the union’s final recognition be annulled as they were no longer working in the enterprise. While the General Secretary of the union requested final recognition of the union, the legal adviser of the Ministry recommended that the appellants’ request be upheld and that the union’s final registration be annulled. The Committee notes that the General-Secretary of the union filed an appeal against that decision but subsequently withdrew it and hence the case was closed.
12. 545. With regard to the new allegations presented by the CUT–A in its communication of 20 July 2016, the Committee notes that these related to acts of anti-union discrimination against Mr Oscar Ricardo Paredes Dürrling, who worked at the bank from 1980 to 2014 and was a member of the executive committee of the SECP (a union which, according to information in annexed documents, has been inactive since 2001). In particular, the complainant alleges that on various occasions the bank tried to obtain his voluntary resignation and that since 2001, and unlike his colleagues, the bank did not readjust his salary in accordance with the consumer price index, thereby failing to comply with the 1995 collective agreement. Following the bank’s constant refusal to readjust his salary, on 28 August 2014 Mr Paredes Dürrling did not go to work and after 34 years of service terminated his contract on account of the failure to pay the corresponding salary. The bank ordered the worker to return to his post but he did not show up and on 29 August 2014 he filed a claim against the bank demanding readjustment of his salary, regularization of pension payments and compensation for moral damages (verbal insults and social isolation).
13. 546. The Committee notes that, as indicated by the complainant and the Government: (i) in the judicial proceedings in question, the bank alleged that it was not appropriate to readjust salaries in accordance with the collective agreement because it was in force until 1997 and that his salary cannot be compared with that of his colleagues, who hold different posts; (ii) in a ruling issued on 8 April 2016, the labour court decided that the provision of the collective agreement concerning salary readjustment was in force since it had been incorporated into the complainant’s labour contract and ordered the bank to pay him compensation for the amount claimed but dismissed the request for reparation for failure to pay into the pension fund and compensation for moral damages, since the complainant did not prove that he had been a victim of bullying; (iii) in these proceedings the complainant did not allege that the bank had discriminated on grounds of trade union membership or trade union activities; and (iv) Mr Paredes Dürrling appealed this ruling and the case is currently pending before the Labour Appeals Court.
14. 547. The Committee notes that, while the complainant organization alleges that over the past 12 years, out of a total of 34 years of work, the bank did not readjust Mr Paredes Dürrling’s salary as it should have, and that on various occasions he felt discriminated against, the allegations and documents provided do not prove that the bank has discriminated on grounds of his trade union membership or that it refused to readjust his salary on account of his participation in trade union activities up to 2001. The Committee also notes that in the proceedings before the labour courts, the complainant did not claim that the bank had discriminated on grounds of his trade union membership or trade union activities. In light of the foregoing, the Committee will not pursue the examination of these allegations.

The Committee’s recommendations

1. 548. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again requests the Government to hold consultations with the social partners concerned with a view to ensuring that section 292 of the Labour Code does not, in effect, undermine the right of public sector employees to establish organizations of their own choosing.
   • (b) The Committee requests the Government to keep it informed of tripartite discussions held in the Tripartite Advisory Council or in any other setting in relation to the use of employers’ powers to contest the registration of unions.
   • (c) The Committee requests the Government to inform the CEACR, to which the legislative aspects of the case are referred, of the consultations held with the social partners to establish mechanisms to guarantee effective protection against acts of anti-union discrimination, including rapid and impartial procedures, with provision for appeals and sufficiently dissuasive sanctions.
   • (d) The Committee urges the Government to indicate whether Mr Leoncio Brítez, Mr Gustavo Adolfo Jara Aquino and Mr Teodoro Enciso remain in detention, to specify the status of the criminal case against them and to forward a copy of the court rulings once they have been issued.
   • (e) The Committee invites the Government to examine the matter of collective agreements in the public sector with the social partners concerned in the light of the aforementioned principles.