Report in which the committee requests to be kept informed of development - Report No 356, March 2010

Case No 2681 (Paraguay) - Complaint date: 02-DEC-08 - Closed

Allegations: The complainant organization alleges anti-union transfers of workers for participating in demonstrations in support of claims, and acts of violence against a woman union member

1. 1025. The complaint is set out in a communication of the Trade Union Confederation of State Employees of Paraguay (CESITEP) dated 2 December 2008.
2. 1026. The Government sent its observations in a communication of 19 June 2009.
3. 1027. 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 complainant’s allegations

1. 1028. In its communication of 2 December 2008, the CESITEP states that it is presenting the complaint on behalf of the Trade Union of Workers of the Ministry of Public Health and Social Welfare. The CESITEP indicates that Ms Angelina Concepción Ortiz de Pessutto, Ms Juana Sosa and Ms Elsa Benítez are delegates of the union at the Itá District Hospital (which comes under the Ministry of Public Health and Social Welfare). The delegates were recognized as such by the assembly and by Resolution No. 1246 of 25 November 2008 of the Ministry of Justice and Labour. That means they are union representatives of the workers at the hospital in question, which has become a difficult environment for union members because of the harassment by the new management. The CESITEP alleges that the delegates in question were removed from the workplace where they are supposed to represent the union because they had taken action to defend workers and participated in three demonstrations in support of claims in front of the National Parliament. According to the CESITEP one of these marches was brutally crushed on 25 November 2008 (these allegations are the subject of Case No. 2693).
2. 1029. The CESITEP indicates that the new management wants to break up the existing trade union representation recognized by the workers and by the authorities, because action to defend workers’ interests in a highly sensitive public sector such as the health sector does not suit the new authorities, which prefer to fall back on the same strategies as those they complained of before they came to power; that is, to exclude those who do not share their views from the public administration in favour of tame officials who will allow them to act as they wish. According to the CESITEP, existing laws and regulations are being violated, for example, Law No. 1626/00, section 124 of which stipulates that: “the [job] security of the trade union official as provided for in the Constitution shall be guaranteed in those cases and subject to those limitations set out in this law, the labour law also being applicable”, and section 317 of the Labour Code according to which: “trade union stability shall mean the guarantee enjoyed by certain workers not to be dismissed, transferred, suspended or subjected to modified working conditions, without a valid reason approved in advance by a competent judge”.
3. 1030. According to the CESITEP, law is absolutely clear and does not allow for interpretation. No effort of study is needed to deduce the violation of any norm relating to relations between the State and its servants through action undertaken without any consultation and aimed solely at breaking up the union organization and harming its members. What is more, Ms Elsa Benítez suffers from ailments due to her nursing activity and is prone to health problems that prevent her from working the long hours that would be required to commute to the location where she has been transferred to, which is some 15 km from her present home and not served by public transport.

B. The Government’s reply

1. 1031. In its communication of 19 June 2009, the Government indicates that it has sent notes to the authorities mentioned in the note presented by the CESITEP. In this regard, the Government states that the report of the Collective Relations and Union Registration Section under the office of the Deputy Minister for Labour and Social Security indicates that: (1) Ms Angelina Concepción Ortiz de Pessutto, Ms Juana Sosa and Ms Elsa Benítez are not representatives of the Union of Employees of the Itá District Hospital (SIFUHDI), which was recognized by Resolution No. 23 of 23 May 2008; (2) the persons mentioned are delegates of the Decentralized Council of the Workers’ Union of the Ministry of Public Health and Social Welfare (SITRAMIS) for the Itá District Hospital, under Resolution No. 465 of 7 July; and (3) Resolution No. 1246 of 25 November 2008, mentioned in the note, is not in the registry of the Collective Relations and Union Registration Section (the Government also transmits information on the allegations regarding acts of violence that are being examined under Case No. 2693).

C. The Committee’s conclusions

1. 1032. The Committee notes that in this case, the complainant organization alleges that in the context of anti-union harassment, Ms Angelina Concepción Ortiz de Pessutto, Ms Juana Sosa and Ms Elsa Benítez, delegates of the Union of Workers of the Ministry of Public Health and Social Welfare at the Itá District Hospital, were transferred to a distant location not served by public transport, thus removing them from the workplace where they act as union representatives, for having taken part in three marches in front of the National Parliament in support of workers’ claims.
2. 1033. The Committee notes the Government’s statements to the effect that the delegates in question are not representatives of the Union of Employees of the Itá District Hospital, but delegates of the Decentralized Council of the Trade Union of Workers of the Ministry of Public Health and Social Welfare for the Itá District Hospital, and that Resolution No. 1246 of 25 November 2008, mentioned in the allegations (and which according to the allegations recognizes their status as union representatives of another union) is not in the records of the Collective Relations and Union Registration Section of the Ministry of Labour.
3. 1034. The Committee notes with regret that the Government has not communicated its observations on the allegations concerning the anti-union transfer of the union delegates in question. The Committee recalls that, when examining allegations on various forms of discrimination, it has highlighted on numerous occasions that “protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 781].
4. 1035. Under these circumstances, the Committee requests the Government to conduct an investigation without delay into alleged anti-union transfers of trade union delegates Ms Angelina Concepción Ortiz de Pessutto, Ms Juana Sosa and Ms Elsa Benítez, of the Itá District Hospital, and if the transfers are found to have been motivated by the trade union status of the employees in question, or by their exercise of legitimate trade union activities (for example, the exercise of the right to demonstrate, as the complainant organization alleges), to take the necessary measures to ensure that they are reinstated in the posts they occupied before their transfers. The Committee requests the Government to keep it informed in this regard.

The Committee's recommendations

1. 1036. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to conduct an investigation without delay into alleged anti-union transfers of the union delegates Ms Angelina Concepción Ortiz de Pessutto, Ms Juana Sosa and Ms Elsa Benítez of the Itá District Hospital, and, if the transfers are found to have been motivated by the trade union status of the individuals in question, or by their exercise of legitimate union activities (such as the exercise of the right to demonstrate, as the complainant organization alleges), to take the necessary measures to ensure that they are reinstated in the posts they occupied before their transfers. The Committee requests the Government to keep it informed in this regard.