Report in which the committee requests to be kept informed of development - Report No 409, March 2025

Case No 3242 (Paraguay) - Complaint date: 13-SEP-16 - Active

Allegations: the complainant organizations allege, on the one hand, dismissals and the refusal by the Ministry of Labour to recognize and approve a trade union, thereby favouring the member of Parliament owning the company concerned, and, on the other, in the context of a bidding process, the lack of action by the labour authorities in response to the successful company’s refusal to re-engage the employees of the original licensed operator on allegedly anti-union grounds

1. 286. The Committee last examined this case at its June 2018 meeting, when it presented an interim report to the Governing Body [see 386th Report, paras 553 to 588]. 
2. 287. The Government sent its observations in communications dated 1 February 2019 and 17 October 2024.
3. 288. 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. 289. In its previous examination of the case, the Committee made the following recommendations [see 386th Report, para. 588]:
   • (a) As regards the allegations concerning the refusal to register the Union of Drivers and Employees of the La Limpeña Transport Company and the alleged anti-union dismissals, the Committee requests the Government to keep it informed of any administrative or judicial proceedings in progress and to send copies of any decisions. In view of the seriousness of the allegations of acts of anti-union discrimination carried out in the days following the establishment of the union, the Committee requests the Government to conduct an investigation into these acts in accordance with its conclusions in this regard and to take the appropriate measures in consequence. The Committee requests the Government to keep it informed in this respect.
   • (b) As regards the allegations of anti-union discrimination against the Union of Drivers and Employees of the Julio Correa Transport Company, the Committee requests the Government to take the necessary steps to conduct an investigation without delay into the allegations of failure to re-engage the employees of the original licensed operator on anti-union grounds. Moreover, the Committee invites the complainant organizations, with a view to facilitating the investigation, to send the Government information on the allegedly anti-union nature of the reported occurrences. The Committee requests the Government to keep it informed in this respect.

B. The Government’s reply

1. 290. In a communication dated 1 February 2019, the Government submitted additional information provided by the companies concerned. According to the information from the Government, the La Limpeña Transport Company (bus company 1) indicates that: (i) the dismissals were not motivated by anti-union reasons; (ii) the trade union that lodged the complaint (the Union of Drivers and Employees of bus company 1) does not exist, since its union registration was cancelled by a final and enforceable decision of the Ministry of Labour, Employment and Social Security (MTESS); (iii) there are four sets of proceedings under way before the judicial authorities – three of them were instituted by the company for justification of the grounds for dismissal, in which judgments were handed down accepting the claims and appeals were filed by the former workers – and one set of proceedings was instituted by 44 former workers seeking reinstatement and the payment of various work benefits, in which no judgment on the merits had been handed down as of the date of submission of the information; and (iv) there is a trade union within the company, which demonstrates its respect for freedom of association.
2. 291. With regard to the employees of the original licensed operator, the Julio Correa Transport Company, and the alleged refusal of the new operator, San Isidro S.R.L. (bus company 2), to re engage them on trade union grounds, bus company 2 indicates, according to the information submitted by the Government, that, although the representatives appointed by the workers were not involved formally in the re-engagement committee and no former workers had registered for the process, the new licensed operator voluntarily hired three former workers with loss of seniority.
3. 292. In the same communication dated 1 February 2019, the Government also provides information and documentation supplied by the Labour Directorate and other MTESS bodies. In relation to bus company 1, the Government attaches the decisions issued in the four sets of judicial proceedings, as well as the MTESS decision revoking the provisional registration of the Union of Drivers and Employees of bus company 1. As regards bus company 2, the Government: (i) reports that the original licensed operator remains registered as an active employer; (ii) provides a list of workers belonging to the original licensed operator’s union who were affected by this company’s closure; and (iii) indicates that the representatives of the workers in the re-engagement process and other former workers had attended the meetings of the re engagement committee, but had refused to identify and register themselves.
4. 293. In a communication dated 17 October 2024, the Government submitted the technical report of the MTESS Legal Advice Department updating the information on the four sets of judicial proceedings related to the dismissals from bus company 1. According to this information, the appeals filed by the former workers in the three sets of judicial proceedings instituted by the company for justification of the grounds for dismissal had been declared null and void, along with the appeal filed in the proceedings instituted by a number of former workers seeking reinstatement.

C. The Committee’s conclusions

1. 294. The Committee recalls that this case concerns, on the one hand (bus company 1), the alleged mass dismissal of trade unionists at a public transport company on account of the establishment of a trade union and the refusal by the labour administrative authority to grant registration to the union and, on the other (bus company 2), the lack of action by the Government in response to the fact that in the context of a bidding process the successful company had refused to re-engage the employees of the original licensed operator on allegedly anti-union grounds.
2. 295. In relation to bus company 1, the Committee recalls that, when it first examined the case, it noted that: (i) the constituent assembly of the trade union of bus company 1 was held on 22 June 2015 with 51 members; (ii) some 40 trade unionists – including at least 11 members of the executive committee – were dismissed two days after the constituent assembly was held; (iii) on 17 July 2015, the company called for the trade union’s registration to be rejected; (iv) the dismissed workers organized a protest movement that led the MTESS to attempt mediation; (v) on 19 November 2015, the MTESS provisionally registered the union, to which the company objected; and (vi) on 2 May 2016, the MTESS rejected the union’s application for registration on the grounds that it did not have the minimum of 20 members, as the employment of 42 of the 51 founding members of the union had been terminated through resignations or dismissals, and this decision was upheld by the courts. The Committee recalls that, in view of the seriousness of the allegations of acts of anti-union discrimination carried out in the days following the establishment of the union, it requested the Government to conduct an investigation into these acts.
3. 296. The Committee notes that, according to the information submitted by the Government: (i) the company brought three sets of judicial proceedings for justification of the grounds for dismissal, which were successful in the first instance, and the respective appeals filed by the former workers who had been dismissed were declared null and void; (ii) in a fourth set of judicial proceedings brought by 44 former workers seeking reinstatement and the payment of various work benefits, the appeal filed by the former workers was also declared null and void insofar as it concerned reinstatement; and (iii) in the judicial proceedings instituted by the trade union challenging the MTESS decision rejecting the organization's application for definitive registration for failing to meet the minimum number of members, the union's appeal was declared null and void, and the Supreme Court of Justice rejected the union’s action to have the decision of the Appeal Court declared unconstitutional, on the grounds that there was no indication of the alleged arbitrariness as claimed by the union and that no specific infringement of constitutional provisions or violation of the right of defence or due process had been demonstrated.
4. 297. The Committee takes due note of this information and observes that, while it has copies of the four first instance judgments concerning the workers’ dismissals and the text of the MTESS decision rejecting the union’s application for definitive registration, it has received neither the appeal judgments concerning the dismissals nor the various court judgments upholding the rejection of the union’s application for registration. Based on the information available in the MTESS decision of May 2016, the Committee notes that: (i) ten dismissals were ordered on 24 July 2015, two days after the union’s constituent assembly, “without valid cause” under Paraguayan law; (ii) several dozen workers left their posts that same day and were subsequently dismissed for dereliction of duty; and (iii) the MTESS decision, which, ten months after the union’s general assembly, rejected the union’s application for registration for failing to reach the minimum of 20 company employees, did not consider the possible impact of the potentially anti-union nature of the dismissals affecting some 40 union members in July 2015. The Committee observes that despite its recommendation, the Government has provided no indication that an investigation has been carried out into the possible anti-union nature of the dismissals; and that there is nothing in the texts of the first instance judgments upholding the validity of several of the dismissals to suggest that the possible anti-union nature of the dismissals was examined in court.
5. 298. The Committee regrets that, contrary to its recommendation, no investigation appears to have been carried out into the possible anti-union nature of the dismissals following the establishment of the union. The Committee reiterates that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1159]. The Committee also recalls once again that, especially at the initial stages of unionization in a workplace, dismissal of trade union leaders might fatally compromise incipient attempts at exercising the right to organize, as it not only deprives the workers of their representatives, but also has an intimidating effect on other workers who could have envisaged assuming trade union functions or simply join the union [see Compilation, para. 1131]. In its previous examination of the case, the Committee had recalled that it had invited the Government, in the context of Case No. 3019, to hold consultations with the social partners concerning the establishment of mechanisms to guarantee effective protection against acts of anti-union discrimination, including rapid and impartial procedures, with provision for appeals and sufficiently dissuasive sanctions. In the light of the present case, the Committee urges the Government, in consultation with the social partners, to take additional steps to establish effective protection mechanisms against anti-union discrimination and to ensure that these mechanisms take due account of the situation of trade unions in the establishment and registration stages. Bearing in mind the long-standing comments of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) on the need to strengthen the legal framework of protection against anti-union discrimination in Paraguay, the Committee refers this legislative aspect of the case to the CEACR.
6. 299. Concerning the aspects of the case relating to bus company 2, the Committee recalls that, in its first examination of the case, it took note of: (i) the complainant organizations’ allegations that, in the context of a bidding process for the operation of a public transport route held in October 2015, the new licensed operator had given an undertaking to hire all the workers employed by the original licensed operator; (ii) the information provided by the Government, according to which, based on public instrument No. 30/10/2015, the successful company had undertaken, with the workers’ agreement, to incorporate only 25 per cent of the drivers and employees in its workforce; (iii) the indication that the complainant organizations formally requested the MTESS and the Office of the Deputy Transport Minister to include the employees of the original licensed operator in the re engagement process, and that they brought legal action in relation to the supposed forgery of the public instrument, as the appeal for amparo filed to that end was dismissed in view of the existence of other, more satisfactory procedural avenues ; and (iv) the Government’s indication that, despite having appointed its representatives to the re-engagement committee, no workers’ representatives or former workers belonging to the union participated formally in its meetings or registered for re-engagement during the employer changeover period.
7. 300. It is recalled that the Committee, while noting the parties’ different versions, requested the Government to take the necessary steps to conduct an investigation without delay into the allegations of failure to re-engage the employees of the original licensed operator on anti-union grounds. Moreover, the Committee invited the complainant organizations, with a view to facilitating the investigation, to send the Government information on the allegedly anti-union nature of the reported occurrences.
8. 301. The Committee takes note of the new information provided by the Government, according to which: (i) although the representatives appointed by the workers were not involved formally in the re engagement committee and no former workers had registered for the process, the new licensed operator decided to voluntarily hire three former workers; and (ii) while the original licensed operator remained registered as an active employer until 2018, it submitted lists of employees only up to 2015, as the new licensed operator began operating the route from 2016.
9. 302. The Committee takes note of this information and notes that it has received no new evidence from the complainant organizations. The Committee regrets to observe that, as noted in relation to the allegations regarding bus company 1, the communications submitted by the Government do not mention any investigation having been carried out, as requested in the first examination of the case, to determine whether the failure to re-engage the employees of the original licensed operator was motivated by anti-union reasons. In this respect, the Committee once again recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions [see Compilation, para. 1072], and that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Compilation, para. 1159].
10. 303. While reiterating the need for the establishment of effective protection mechanisms against anti-union discrimination, the Committee requests the Government to conduct an investigation without further delay into the anti-union allegations concerning bus companies 1 and 2 and to keep it informed in that regard. The Committee also requests the Government and the complainant organisation to submit copies of the appeal judgments concerning the dismissals of workers by bus company 1 and the court judgments upholding the administrative rejection of the union’s application for registration.

The Committee’s recommendations

1. 304. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government, in consultation with the representative social partners, to take additional steps to establish effective protection mechanisms against anti-union discrimination and to ensure that these mechanisms take due account of the situation of trade unions in the establishment and registration stages. In the light of the long-standing comments of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) on the need to strengthen the legal framework of protection against anti-union discrimination in Paraguay, the Committee refers this legislative aspect of the case to the CEACR.
   • (b) The Committee requests the Government to conduct an investigation without further delay into the anti-union allegations concerning bus companies 1 and 2, and to keep it informed in that regard.
   • (c) The Committee also requests the Government and the complainant organization to submit copies of the appeal judgments concerning the dismissals of workers by bus company 1 and the court judgments upholding the rejection of the union’s application for registration.