Informe definitivo - Informe núm. 407, Junio 2024

Caso núm. 3300 (Paraguay) - Fecha de presentación de la queja:: 18-AGO-17 - Cerrado

Allegations: The complainant organizations allege anti trade union persecution and interference by employers in trade union matters: the payment of additional benefits to members of a particular trade union and to non-unionized employees and the refusal to register a new trade union despite its fulfilment of all applicable formal requirements

1. 339. The complaint is contained in a communication dated 18 August 2017 presented by the Federation of Banking and Allied Workers of Paraguay (FETRABAN), the Central Confederation of Workers Authentic (CUT-A) and UNI Américas Finanzas. UNI Global Union submitted a communication supporting the complaint on 3 October 2017.
2. 340. The Government sent its observations in communications dated 28 August 2018 and 30 August 2023.
3. 341. 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. 342. In their communication of 18 August 2017, the complainants allege multiple violations of the rights of workers and of the organizations belonging to FETRABAN by the SAECA regional bank (hereinafter “the bank”), including violations of guarantees that ensure the effective exercise of freedom of association. The complainants allege that the Government’s inactivity in that regard, and its precarious and vulnerable institutions, have allowed the bank to steamroller the rights of workers and their organizations on a daily basis, with anti-trade union persecution by the employers often supported by the State.
2. 343. The complainants allege that the bank pays additional benefits in a discriminatory manner, since payment is contingent on membership of “a particular trade union” or on not being a member of a trade union, excluding members of the “bank workers’ union” from receiving those additional benefits. The complainants also allege that the registration of a new trade union, the Organization of Workers of the Bank (OTRABR), formed on 18 April 2015, was refused, despite its fulfilment of all applicable formal requirements. The complainants allege that the bank has taken a series of actions with the aim of intimidating and frightening new trade union leaders and workers in general, such as the dismissal of founding leaders and members of the OTRABR, who were protected by the legal regulations in force, and the subsequent coercion of other workers into leaving the union with the aim of bringing the number of members below the minimum required by the Labour Code. According to the complainants, all these actions were supported by the Ministry of Labour, Employment and Social Security (MTESS), which accepted objections submitted by the employers outside the applicable time frame since the authority had yet to resolve the matter of the OTRABR’s provisional registration.
3. 344. The complainants also allege that the bank employs harmful practices, such as branch closures, that hinder workers’ right to employment stability, thereby affecting other rights such as the right to a dignified retirement, leaving hundreds of workers without protection. Furthermore, the complainants allege that the bank requires its workers to work unplanned and unpaid overtime, and they also refer to a practice used by the bank that consists of bullying or emotional abuse. According to the complainants, although complaints have been lodged with the MTESS, it has failed to send its inspectors or officers.

B. The Government’s reply

1. 345. To its communications dated 28 August 2018 and 30 August 2023, the Government annexed note No. 563/17 of 18 December 2017 of the Collective Relations and Union Registration Department of the Labour Directorate relating to Resolution No. 11 of 25 April 2016, through which the OTRABR was denied provisional registration. The Resolution indicates that Mr José Caballero and Mr Rigoberto Urbieta requested the OTRABR’s provisional registration on 27 April 2015 and that on 12 May and 30 June 2015 the bank submitted objections to the OTRABR’s provisional registration owing to several irregularities and the fact that: (i) Ms Sonia Margarita Espínola Báez had been dismissed from the bank on 5 March 2015, (ii) Mr Luis María Ocampos Fernández, Mr Sergio Osorio, Ms Bianca Bataglia and Mr Luis Bello were dismissed on 8 May 2015 and (iii) Mr Sergio David Silvero Careaga withdrew from the OTRABR.
2. 346. The Resolution also states that on 16 October 2015 the bank extended its objection to the OTRABR’s provisional registration, providing to that end documentation relating to Ms María Sehila Gwynn Leguizamón’s withdrawal from the OTRABR and the employment relationship termination agreement of Mr Luis María Ocampos Fernández, Mr Sergio Osorio, Ms Bianca Bataglia and Mr Luis Bello. Moreover, the Resolution states that in October 2015 Ms Diana Beatriz Sosa Riveros and Mr Carlos Alcides Arbo Rojas informed the Administrative Labour Authority that they had withdrawn from the OTRABR.
3. 347. The Government indicates that, according to article 292 of the Labour Code, enterprise unions must have at least 20 founders, and although the OTRABR had a total of 23 founding members, 9 were dismissed from the bank or withdrew from the union, leaving it without the legally required minimum number of members. The Government states that the OTRABR’s failure to comply with the formal requirements for its provisional registration as set out in law prevented the Administrative Labour Authority from granting its request.
4. 348. The Government also states that although the dismissals for serious misconduct of Mr Sergio Hugo Felipe Osario Acosta, Mr Luis María Ocampos Fernández, Ms Bianca Giannina Battaglia Benítez and Mr Luis Fernando Bello Torres led to a judicial dispute at the time, they all reached conciliatory agreements with the bank in which the controversial matters were settled and all claims dropped by mutual agreement, allowing the respective court cases to be closed.
5. 349. With regard to the other alleged violations of labour rights and the allegation that the MTESS did not send its inspectors or officials to the bank, the Government states that the bank was visited by MTESS officials under Inspection Order No. 88/2016 of 10 June 2016 and that the proceedings concluded with Resolution No. 325 of 25 November 2016, which sanctioned the bank for several violations of labour, health, hygiene and occupational safety standards.
6. 350. The Government adds that the bank appealed the Resolution, and the administrative records were submitted to the First Chamber of the Court of Appeal, which requested a constitutional opinion from the Supreme Court of Justice; the Supreme Court, in turn, issued a ruling on 6 September 2022 that the Resolution was constitutional.

C. The Committee’s conclusions

1. 351. The Committee notes that in this case the complainants allege a series of violations by the bank of the trade union rights of organizations belonging to FETRABAN and their members. The complainants also allege that the Government’s inactivity in that regard, and its precarious and vulnerable institutions, have allowed the aforementioned rights to be steamrollered, with the anti trade union persecution often supported by the State.
2. 352. The Committee notes that the complainants allege specifically that: (i) the bank pays additional benefits to members of a particular trade union and to non-unionized workers, excluding members of the “bank workers’ union”; and (ii) registration was refused to a new trade union, the OTRABR, which, despite having initially complied with all applicable formal requirements, ceased to have the required number of members because the bank dismissed some of its leaders and members and coerced others into withdrawing from the union with the aim of bringing the number of members below the minimum required by the Labour Code.
3. 353. With regard to the alleged payment of additional benefits to the members of a particular trade union, the Committee notes that the complainants have annexed a copy of an email sent by the bank’s management on 21 December 2011 indicating that it had signed a new collective agreement on working conditions with the “bank employees’ union” and that, in strict compliance with the commitment entered into by the bank at the request of one of the parties during the negotiation of the collective agreement, it would pay to all workers who were members of the signatory trade union a special one-off bonus equivalent to half their salary, a benefit that was also extended to non unionized workers. The Committee regrets that the Government has not sent its observations on that matter. The Committee notes that, according to the information available: (i) there are at least two trade unions within the bank: the bank employees’ union and the bank workers’ union, the latter being a member of FETRABAN; (ii) the bonus in question was not among the benefits set out in the aforementioned collective agreement on working conditions (in fact, under Paraguayan legislation, the provisions of collective agreements apply to all workers in a company, regardless of whether they are members of the signatory union); and (iii) the bonus was allegedly granted directly by the employer based on what was agreed between the bank and the bank employees’ union during the negotiation of the collective agreement on working conditions. The Committee also notes that the way in which the bonus was granted, that is, including workers who were members of the signatory union and non-unionized workers, but excluding members of the other trade union present in the company, could constitute a display of favouritism towards one trade union, influencing workers’ trade union membership. In the absence of additional information or updates, and recalling that workers shall have the right to join organizations of their own choosing without any interference from the employer [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1189], the Committee requests the Government to adopt the necessary measures to ensure that the bank refrains from acting in such a way that favours one trade union over the other.
4. 354. Moreover, with regard to the allegation that the MTESS refused to register a new trade union within the bank, known as the OTRABR, the Committee notes that, according to the Government, the union did not have the minimum number of founding members. The Committee notes that the complainants allege that, although the OTRABR initially had the minimum number of members required by law, the bank dismissed some workers who were founding members and also coerced others into withdrawing from the trade union, causing the OTRABR’s membership to fall below the required minimum. According to the information annexed by the Government, the OTRABR requested provisional registration on 27 April 2015, and on 8 May 2015 the bank dismissed four founding members (Mr Luis María Ocampos Fernández, Mr Sergio Osorio, Ms Bianca Bataglia and Mr Luis Bello). The Committee also notes that, according to the documentation provided by the Government, the dismissed workers brought legal action against the bank, and those court cases were closed after the signing of conciliatory agreements. The Committee notes that although, on the one hand, the Government states that the founding members were dismissed for serious misconduct, on the other, it reports that the bank decided to sign conciliatory agreements with them to bring an end to the legal action that had been brought against it. The Committee notes that, according to the documentation annexed by the complainants, that legal action related to a request for the reinstatement of the trade unionists in their jobs in order to ensure their employment stability.
5. 355. The Committee also notes that as well as referring to the dismissed workers, the complainants allege that the bank coerced workers into leaving the OTRABR with the aim of bringing the number of members below the minimum required by the Labour Code.
6. 356. The Committee recalls that, in a case in which it concluded that the reduction in the number of union members to below the legal minimum of 25 was the consequence of anti-trade union dismissals or threats, the Committee requested the Government, should it be concluded that these were anti trade union dismissals and that the withdrawal from union membership of trade union leaders resulted from pressure or threats from the employer, to impose the penalties provided by the legislation, reinstate the dismissed workers in their jobs and permit the dissolved trade union to be reconstituted [see Compilation, sixth edition, 2018, para. 985]. Noting that the case at hand concerns the registration, rather than the dissolution, of a newly formed trade union and that the legal action brought against the bank seeking the reinstatement of trade unionists to ensure their employment stability culminated in conciliatory agreements, the Committee observes that the complaint also alleges anti-trade union action intended to prevent a trade union from meeting the minimum number of members required by law. In view of the above, the Committee requests the Government, in light of the circumstances of this case, to take the necessary measures to ensure that, in future, in the case of dismissals and/or withdrawals suspected of being related to concomitant with the creation of a trade union: an investigation is conducted, in a short space of time, that verifies whether the dismissals were anti-trade union in nature and/or whether the withdrawals resulted from pressure or threats from the employer so that, should it be concluded that anti-trade union acts took place, the penalties provided by legislation are imposed, the dismissed workers are reinstated in their jobs and the newly formed trade union is registered.
7. 357. Lastly, noting the other allegations made by the complainants that are not related to issues of a trade union nature, the Committee also takes note of the information provided by the Government in that regard and of the administrative and judicial steps taken by the authorities.

The Committee’s recommendations

1. 358. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects the Government to adopt the necessary measures to ensure that the bank refrains from acting in such a way that favours one trade union over another.
   • (b) The Committee requests the Government, in light of the circumstances of this case, to take the necessary measures to ensure that, in future, in the case of dismissals and/or withdrawals suspected of being related toconcomitant with the creation of a trade union: an investigation is conducted, in a short space of time, that verifies whether the dismissals were anti-trade union in nature and/or whether the withdrawals resulted from pressure or threats from the employer so that, should it be concluded that anti-trade union acts took place, the penalties provided by legislation are imposed, the dismissed workers are reinstated in their jobs and the newly formed trade union is registered.
   • (c) The Committee considers that this case is closed and does not call for further examination.