Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Paraguay (Ratification: 1966)

The Committee notes the observations of the Central Confederation of Workers Authentic (CUT–A), dated 27 May 2016 and 26 July 2018, indicating that members of the ESSAP–SITUE United Workers’ Union have been subject to discrimination and anti-union dismissals. The Committee requests the Government to send its observations on these allegations.

Articles 1–3 of the Convention. Pending legislative matters. The Committee recalls that, since the adoption of Act No. 213 of 1993 establishing the Labour Code, it has been highlighting the lack of conformity with the Convention of some provisions of the Code and asking the Government to take the necessary measures to amend the legislation with respect to the following issues:

• -the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution only affords protection against discrimination based on trade union preferences);
• -the absence of adequate penalties for non-observance of the provisions relating to the employment stability of trade union officers and mutual interference between workers’ and employers’ organizations (the Committee previously indicated that the penalties laid down in the Labour Code for non-compliance with the legal provisions on this matter in sections 385,393 and 395 do not constitute an adequate deterrent, except for repeated offences by the employer, in which case the fine is doubled); in this respect, the Committee recalls, with regard to protection against acts of anti-union discrimination, that the Committee on Freedom of Association also requested the Government, in consultation with the social partners, to ensure effective national procedures for the prevention or sanctioning of anti-union discrimination (see 381st Report, Case No. 3019, paragraph 548; 365th Report, Case No. 2648, paragraph 1132); and
• -the delays in the application of justice in relation to acts of anti-union discrimination and interference.

In this respect, the Committee notes the Government’s reply indicating that it has requested ILO technical assistance with a view to bringing the Labour Code and the Code of Criminal Procedure into line with ratified Conventions. The Committee also notes that Ministry of Labour, Employment and Social Security (MTESS) memorandum No. 449/17 of 30 May 2017 initiated the process to recruit an expert responsible for formulating a draft bill to bring the Labour Code into line with ratified Conventions relating to freedom of association and with the Committee’s comments. The Committee requests the Government to send a copy of the draft bill as soon as the final version is available. Recalling that it has been requesting the abovementioned legislative reforms since 1994, the Committee once again trusts that measures will be taken in the near future to ensure the full conformity of national law and practice with the requirements of Articles 1–3 of the Convention.

Articles 1 and 6. Protection of public officials not engaged in the administration of the State from anti-union discrimination. In its previous comments, the Committee requested the Government to take the necessary measures to guarantee adequate legislative protection against acts of anti-union discrimination for public officials and public employees covered by the Convention. The Committee notes the Government’s indications that: (i) the right to trade union immunity, protection against anti-union acts and the right to compensation in the event of unjustified dismissal of workers in the public or private sector are expressly provided for in articles 88, 94 and 102 of the Constitution; (ii) under Act No. 1626/00, a public official protected by trade union employment stability may only be dismissed following an administrative inquiry (section 63); and (iii) the Secretariat of the Civil Service (SFP) adopted SFP Decision No. 415/16 of 30 May 2016, adopting the action protocol and assistance guidelines for cases of labour discrimination and harassment in the public service. The Committee observes that this Decision: (i) despite containing a wide-ranging and non-exhaustive list of grounds of discrimination, does not expressly mention trade union membership or activity; and (ii) provides that any complaint related to cases of discrimination or harassment at work can be made to the SFP Transparency and Anti-Corruption Directorate, which, however, does not have the power to impose penalties. While requesting the Government to supply information regarding the complaints of acts of anti-union discrimination made to the Transparency and Anti-Corruption Directorate under the abovementioned protocol, the Committee observes that the legislation applicable to public sector workers still does not contain provisions that expressly prohibit the acts of anti-union discrimination covered by the Convention and provide effective protection in that regard. Recalling that it has been calling for the abovementioned reforms since 2004, the Committee once again requests the Government to take the necessary measures, in consultation with the social partners, to adopt legislative provisions that expressly prohibit anti-union discrimination in the public sector and establish mechanisms that guarantee all public sector workers covered by the Convention effective protection against acts of anti-union discrimination, including rapid and impartial proceedings and remedies, and penalties constituting an adequate deterrent. The Committee requests the Government to provide information in this respect.

Article 4. Promotion of collective bargaining in practice. In its previous comments, the Committee requested the Government to take measures to encourage and promote collective bargaining. The Committee notes the Government’s indications that: (i) on 18 April 2018, Presidential Decree No. 5159/16 established the powers of the Tripartite Advisory Council, which include the right to issue recommendations on draft bills regulating socio-economic and labour issues to draw up or commission reports and studies on different subjects including freedom of association; (ii) the social dialogue round table met for the first time on 6 September 2018, with high levels of participation from the trade union federations in the country, and discussed various subjects, including freedom of association and social dialogue; and (iii) on 16 August and 23 October 2018, two collective agreements were registered on conditions of work in the public and private sectors. The Committee welcomes the first meeting of the social dialogue round table and once again invites the Government to take measures to encourage and promote collective bargaining, including through the round table. The Committee also requests the Government to report on the number of collective agreements concluded and in force in the country, and to indicate the number of workers and the sectors covered by those agreements.