Rapport intérimaire - Rapport No. 326, Novembre 2001

Cas no 2105 (Paraguay) - Date de la plainte: 05-AOÛT -00 - Clos

Allegations: Anti-union discrimination; sanctions for exercising the right to strike

1. 432. The present complaint is contained in communications from the International Confederation of Free Trade Unions (ICFTU) and the Trade Union of Workers of the National Electricity Authority (SITRANDE) dated 5 August and 9 October 2000.
2. 433. Since no reply was received from the Government, the Committee was obliged on two occasions to postpone its examination of this case. At its meeting in May-June 2001 (see the 325th Report, paragraph 8), the Committee issued an urgent appeal and drew the Government’s attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case, even if the Government’s complete observations or information have not been received in due time. To date the Government has not sent its observations.
3. 434. 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. 435. In their respective communications of 5 August and 9 October 2000, the International Confederation of Free Trade Unions (ICFTU) and the Trade Union of Workers of the National Electricity Authority (SITRANDE) allege acts of anti-union discrimination, violations of the right to strike and interference by senior managers of the National Electricity Authority (ANDE).
2. 436. As regards the alleged violation of the right to strike, the complainants state that SITRANDE has carried out two strikes. The first, lasting 24 hours, was called on 27 January 2000 in protest at the failure to implement an agreement between the Government and the Trade Union and Social Front (which encompasses the main public-sector trade unions). The second, which lasted 37 days, began on 22 February 2000 and was motivated by a failure to implement a collective agreement and by the presence of police on company premises for the purpose of intimidating workers. During the strike, about 50 workers were dismissed, and 70 staff members of ANDE were dismissed subsequently.
3. 437. Both the strikes in question were ruled by the courts to be illegal. In the first case, this was because of the organizers’ failure to give due strike notice to the Ministry of Justice and Labour, although ANDE had been informed. An appeal was lodged against this ruling in the Supreme Court, which ruled the appeal admissible, thereby suspending the measures taken against the strikers by the lower courts. Despite this, in defiance of the Supreme Court ruling, ANDE initiated 800 summary proceedings as a result of which 70 workers were dismissed, another 80 were suspended, 30 were transferred and hundreds of others were given warnings. SITRANDE again appealed against these measures before the Supreme Court, which issued interim rulings on 29 June and 3 and 26 July ordering the suspension of the dismissals, suspensions, transfers and warnings; there has to date been no response from ANDE. At the same time, the labour courts ordered the reinstatement in their former posts of nine trade union officers, but despite this, ANDE transferred them. The workers in question disregarded this decision and as a result, summary administrative proceedings were initiated and payment of their wages was stopped.
4. 438. The complainants allege that ANDE is waging a campaign of discrimination against SITRANDE by paying special bonuses to trade unionists who did not join the strike.
5. 439. They also allege that, when the union announced its intention to begin talks with ANDE, the latter refused to recognize the nomination of one member of the SITRANDE negotiating committee on the grounds that he had been dismissed by the company. The complainants also allege that the company, in a harsh internal clampdown, has decided that trade union officers will be required to clock in and out of the workplace and request special leave to go out on trade union business, under penalty of having their wages withheld.
6. 440. The complainants allege further that the dismissed workers are picketing in front of the ANDE central office and that other workers who come to express their solidarity suffer intimidation and threats of dismissal or suspension. They also allege that pressure is brought to bear on members to make them leave SITRANDE.

B. The Committee’s conclusions

1. 441. The Committee regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not responded to any of the allegations made by the complainants, despite the fact that it has been urged on a number of occasions to send its observations or information on the case, including through an urgent appeal. The Committee urges the Government to cooperate fully with the Committee in the future.
2. 442. In these circumstances, in accordance with the applicable procedural rule [see para. 17 of its 127th Report, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without being able to take into account the information it had hoped to receive from the Government.
3. 443. The Committee reminds the Government that the purpose of the whole procedure is to promote respect for trade union freedoms in law and in fact. The Committee is convinced that, if it protects governments against unreasonable accusations, governments on their side must recognize the importance for the protection of their own good name of formulating for objective examination detailed factual replies to such allegations made against them. [See the Committee’s First Report, para. 31].
4. 444. The Committee notes that the complainants have alleged dismissals, suspensions, transfers and sanctions against workers employed by the National Electricity Authority for having participated in the strikes of 27 January and 22 February 2000, as well as the refusal to recognize one member of the union’s negotiating committee and acts of intimidation against workers at the company to force them to leave the union.
5. 445. As regards the allegations of dismissals, suspensions, transfers and warnings against workers for participating in the strikes, the Committee notes that, according to section 362 of the Paraguay Labour Code, strikes in the electricity supply sector are permitted on condition that minimum services are maintained. The Committee notes that, according to the information supplied by the complainants, the strikes of 27 January and 22 February were declared illegal under the anti-strike law adopted as part of the state reform programme; the first strike was declared illegal because of the failure by the organizers to meet the notification requirements, in that they notified ANDE and not the Ministry of Justice and Labour; the complainants do not indicate the reasons for which the second strike was declared illegal. The Committee notes that the Supreme Court, in decisions handed down on 29 June and on 3 and 26 July, temporarily suspended all the measures adopted previously by the lower courts against the strikers, and notes with concern that even after these rulings, ANDE initiated 80 summary proceedings resulting in the dismissal of 70 workers, the suspension of 80 workers, the transfer of 30 workers and hundreds of warnings being issued. At any event, the Committee recalls that arrests and dismissals of strikers on a large scale involve a serious risk of abuse, and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests and dismissals involve [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 604]. Under these circumstances, the Committee requests the Government to mediate between the parties with a view to enabling them to achieving a joint negotiated settlement of this dispute.
6. 446. As regards the allegations that special bonuses were paid to workers who had not taken part in the strike, the Committee has taken the view, when examining other similar allegations, that such discriminatory practices constitute a major obstacle to the right of trade unionists to organize their activities [see Digest, op. cit., para. 605]. The Committee requests the Government to take the necessary steps to carry out investigations into these allegations and, if it is established that the allegations are true, to ensure that there is no repetition of such acts in future within the administration.
7. 447. With regard to the refusal to recognize one of the members of the union’s negotiating committee (Mr. Trinidad) because he had been dismissed by the company, the Committee recalls that, given that workers’ organizations are entitled to elect their representatives in full freedom, the dismissal of a trade union leader, or simply the fact that he leaves the work which he was carrying out in a given undertaking, should not affect his trade union status or functions unless stipulated otherwise by the constitution of the trade union in question [see Digest, op. cit., para. 373]. The Committee requests the Government to ensure that ANDE does not oppose the nomination of the deputy general secretary.
8. 448. As regards the restrictions with regard to the use of trade union leave, the Committee recalls that legal provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered as legitimate trade union activities [see Digest, op. cit., para. 726]. The Committee requests the Government to ensure that no unnecessary restrictions are placed on normal trade union activities.
9. 449. Lastly, with regard to the alleged anti-union practices against workers in the form of intimidation, threats of dismissals and suspensions, and pressure put on workers to make them leave their trade unions at the National Electricity Authority, the Committee recalls that such practices are contrary to Article 2 of Convention No. 98, according to which workers’ and employers’ organizations should enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration. The Committee requests the Government to take the necessary measures to carry out an investigation to establish the facts and to provide its observations in this respect.

The Committee's recommendations

1. 450. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has not responded to any of the allegations made by the complainants, and urges the Government to cooperate fully with the Committee in the future.
   • (b) As regards the allegations of dismissals, suspensions, transfers and warnings against workers for participating in the strikes, the Committee requests the Government to mediate between the parties with a view to enabling them to achieving a joint negotiated settlement of this dispute.
   • (c) As regards the allegations that special bonuses were paid to workers who had not taken part in the strike, the Committee requests the Government to take necessary steps to carry out investigations into these allegations and, if it is established that these allegations are true, to ensure that there is no recurrence of such acts in future within the administration.
   • (d) With regard to the refusal to recognize one of the members of the union’s negotiating committee, the Committee requests the Government to ensure that ANDE does not oppose the nomination of the deputy general secretary.
   • (e) As regards the restrictions with regard to the use of trade union leave, the Committee requests the Government to ensure that no unnecessary restrictions are placed on normal trade union activities.
   • (f) Lastly, with regard to the alleged anti-union practices against workers in the form of intimidation, threats of dismissals and suspensions, and pressure put on workers to make them leave their trade unions, the Committee requests the Government to take the necessary measures to carry out an investigation to establish the facts, and to provide its observations in this respect.