Interim Report - Report No 268, November 1989

Case No 1435 (Paraguay) - Complaint date: 16-FEB-88 - Closed

1. 379. The Committee on Freedom of Association last examined this case at its meeting in May 1988. (See the Committee's 256th Report, paragraphs 401-418, approved by the Governing Body at its 240th Session (May-June 1988).)
2. 380. Since the last examination of the case, the Government furnished its observations in a communication dated 5 September 1989. The Paraguayan Cotton Company Workers' Union (CAPSA) sent further information in a letter dated 15 September 1989 and the International Union of Food and Allied Workers' Associations (IUF) sent a letter dated 15 September 1989 in support of the allegations and requests made by the CAPSA trade union.
3. 381. 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. 382. The allegations mainly concern the refusal by the General Labour Directorate to register the executive committee of the CAPSA trade union, headed by Mr. Pedro Salcedo, considered by the complainant organisation to be the genuine executive. Instead, the Labour Directorate registered another executive committee, headed by Mr. Juan Ramón Ramírez, which according to the complainant organisation serves the employers' interests. The allegations also referred to the dismissal of a number of union leaders, including Pedro Salcedo, and to police intervention in five meetings called by Mr. Salcedo, preventing them from continuing.
2. 383. In May 1988, the Committee invited the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to ensure that in future the labour authorities refrain from any act of interference in matters pertaining to the election of union leaders.
   • (b) The Committee deeply deplores the detentions and other acts of interference and anti-union discrimination alleged in this case and requests the Government to take steps to ensure that the legislation guarantees adequate protection against such acts through sufficiently effective civil remedies and penal sanctions.
   • (c) The Committee requests the Government to inform it of the progress in and results of the legal proceedings set in motion by the CAPSA union in relation to the questions raised in this case, in particular the dismissal of union members and the refusal to register the executive committee headed by Mr. Salcedo.

B. The Government's reply

1. 384. In a letter dated 5 September 1989 the Government states that Mr. Pedro Salcedo, General Secretary of the CAPSA trade union was indeed dismissed. He appealed to the courts to be reinstated. The relevant case (entitled Gumercindo Notario, Pedro Salcedo and others versus CAPSA) has now reached the final stage of the proceedings and is before the Labour Court of Appeal awaiting its final ruling, which will be communicated to the ILO.
2. 385. Concerning the alleged refusal to register the executive committee headed by Mr. Pedro Salcedo, the Government states that the allegation is false and that the truth is that there are two trade union executives within the company, one headed by Mr. Juan Ramón Ramírez and the other by Mr. Pedro Salcedo. Both executives applied for registration in letters to the Labour Directorate dated 21 and 27 March 1989 respectively. The legal advisers to the Labour Directorate, in Opinion No. 15/IV/89, recommended that no decision should be taken until the National Audit Office ("Tribunal de Cuentas"), the first court of the judicial authorities, gave a ruling as to the legality of one or other of them. The Labour Directorate, sharing the views of its advisers, duly adopted those concerned accordingly. The Government states that it will inform the ILO of the final decision in the matter.

C. Further information

1. 386. In a letter dated 15 September 1989, the Paraguayan Cotton Company Workers' Union states that on 19 March 1989 the union held its general meeting to discuss its balance sheet and annual report and to elect new officers. The list of elected officers was sent (in accordance with the Labour Code) to the Labour Directorate.
2. 387. The CAPSA union states that so far the judicial authorities have taken no decision in the cases concerning recognition of the executive committee headed by Pedro Salcedo; the reinstatement of five dismissed leaders; the refund by the company of the money held as trade union contributions since February 1987; and the complaint against the Labour Directorate for unlawful recognition of the other executive committee. Nevertheless, on 2 May 1989, the judicial authorities decided to grant the executive committee headed by Mr. Salcedo possession of the trade union premises which, until then, had been occupied by the other executive.
3. 388. The CAPSA union states that in view of this situation and the number of unresolved problems the workers decided at a meeting on 29 August 1989 to call a strike as from 30 August. The claims made by the union headed by Pedro Salcedo included a demand that the employers negotiate on the dismissals and suspensions that the company wanted to make and that the latter hold discussions with the union, as well as a demand that the company reinstate the dismissed trade union leaders and refund the trade union contributions that had been deducted by it since February 1987. The strike (which was supported by 95 per cent of the workers of CAPSA) was suspended following an injunction ("recurso de amparo") applied for by the company and a telegram from the Ministry of Labour requesting that the strike be called off so that a tripartite meeting - Ministry-union-company - could be held within 24 hours. The meeting took place on 1 September 1989 before the Conciliation and Arbitration Board of the Ministry of Labour. At the meeting the company representatives stated that although the problem of recognising one or other executive committee was before the courts, they recommended resolving the issue by the merger of the two committees. According to the complainant, the real executive committee confined itself to presenting the claims which justified the strike, while the representative of the Ministry granted the employers a specified period of time in which to reply. On 4 September, at a further meeting, the company rejected the union's claims. Subsequently the Conciliation and Arbitration Board decided: to declare the strike illegal and to put an end to individual contracts of employment and negotiate a new collective agreement; in these negotiations the workers were represented by the other executive, which is considered by the workers - who gave massive support to the strike - as being set up, influenced and manipulated by the company.
4. 389. In conclusion, the complainant states that this series of arbitrary acts, contradictions and delays is prejudicial to the workers' legitimate interests, their rights and trade union freedom and, consequently, infringes the international labour Conventions ratified by Paraguay. It therefore requests the ILO to consider the possibility of sending representatives to carry out an on-the-spot investigation into the allegations since, in view of the seasonal nature of the activity, time is an essential factor.

D. The Committee's conclusions

1. 390. The Committee observes that the allegations in this case refer basically to the existence of two executive committees of the CAPSA trade union, one of which, according to the complainant, was set up by and is influenced and manipulated by the company; this is the one recognised by the Labour Directorate. The allegations also concern the dismissal of a number of trade union leaders, including Pedro Salcedo; police disruption of a number of meetings convened by Mr. Salcedo; and the banning of a strike called by the executive committee headed by him. The Committee notes the information supplied by the Government to the effect that the Labour Directorate is awaiting the court ruling as to the legality of one or other of the two executive committees before it can follow up the applications for registration. The Committee nevertheless observes that the refusal the register the executive committee headed by Mr. Salcedo goes back to 1987 and that, according to the complainant, that was the year in which the Labour Directorate recognised the other executive committee. Furthermore the Committee notes that the Conciliation and Arbitration Board of the Ministry of Labour had decided that a new collective agreement should be negotiated and that the workers should be represented in these negotiations by the other executive committee.
2. 391. With regard to the existence of two executive committees within the trade union, one of which is allegedly manipulated by the employer, and the dismissal of five trade union leaders including Mr. Pedro Salcedo, the Committee recalls the need to lay down explicity in legislation remedies and penalties for acts of anti-union discrimination and acts of interference by employers in workers' organisations in order to ensure the effective application of Article 2 of Convention No. 98 which requires that workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration. (See 234th Report of the Committee, Case No. 1242 (Costa Rica), paragraph 139.)
3. 392. As regards the allegations of pressure or favouritism, the Committee has stated on numerous occasions that by according favourable or unfavourable treatment to a given organisation as compared with others, a government may be able to influence the choice of workers of the organisation which they intend to join. In addition, a government which deliberately acts in this manner violates the principle, laid down in Convention No. 87, that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise. (See Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, para. 254.)
4. 393. The Committee requests the Government rapidly to inform it of the outcome of the current legal proceedings concerning the recognition of the executive committee headed by Mr. Salcedo, the reinstatement of dismissed leaders, the refund of trade union contributions retained by the employer since 1987 and the recognition of the other executive committee by the Labour Directorate in 1987. The Committee recalls that justice delayed is justice denied.
5. 394. As regards the strike which began during the harvest on 30 August 1989 with the support of 95 per cent of the workers of the CAPSA undertaking, the Committee notes that according to the complainant the strike was suspended by an injunction ("recurso de amparo") applied for by the company and that on 4 September the Concilation and Arbitration Board declared the strike illegal.
6. 395. The Committee considers that the complaints referring to the right to strike are not outside its competence in so far as they concern the exercise of trade union rights; it considers that the right to strike is one of the essential means through which workers and their organisations may promote and defend their economic, social and occupational interests. (See Digest of decisions, paras. 360 and 363.) Consequently the Committee requests the Government to supply information and its observations on the allegation concerning the banning of this strike.

The Committee's recommendations

1. 396. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee recalls the need for legislation to lay down explicitly remedies and penalties for acts of interference by employers in workers' organisations in order to ensure the effective application of Article 2 of Convention No. 98.
   • (b) The Committee requests the Government rapidly to inform it of the outcome of the current legal proceedings concerning the recognition of the executive committee headed by Mr. Salcedo, the reinstatement of dismissed union leaders, the refund of trade union contributions retained by the employer since 1987 and the recognition of the other executive committee by the Labour Directorate. It recalls that justice delayed is justice denied.
   • (c) The Committee draws the Government's attention to the fact that it has stated on numerous occasions that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests. Consequently the Committee requests the Government to supply information and its observations on the allegation concerning the banning of the strike by workers in the CAPSA company, together with any information on developments in the labour dispute within this company.