Allegations: Violation of the trade unions’ prerogative to nominate dockworkers
for recruitment in accordance with the law and collective agreements, refusal of collective
bargaining and anti-union discrimination (mass dismissals and non-recruitment of trade union
members) by the San Francisco SA enterprise, violation of the right to demonstrate and the
detention of 11 workers accused of participating in collective actions, and restriction of
the trade unions’ right to represent their members
- 602. The Case No. 3110 complaint is contained in a communication of 17
December 2014 from the World Federation of Trade Unions (WFTU). The Case No. 3123
complaint is contained in communications of 26 January 2015 from the League of Maritime
Workers of Paraguay (LOMP) and of 3 March 2015 from the WFTU.
- 603. The Government sent its observations concerning both complaints in a
communication of 27 January 2016.
- 604. 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
A. The complainants’ allegations- 605. In its communications of 17 December 2014, and 26 January and 3
March 2015, the complainant organizations make the following allegations.
Allegations of violation of the prerogative of trade unions to nominate dockworkers for recruitment in accordance with the law and collective agreements, refusal of collective bargaining, and anti-union discrimination (mass dismissals and non-recruitment of trade union members)
- 606. The complainant organizations allege that the law requires the
intervention of the authorized trade unions to determine which dockworkers are to be
recruited, in accordance with article 66(c) of Act No. 1248 of 1936 (which requires that
dockworkers be nominated by the executive committee of the respective trade union for
recruitment). The complainant organizations allege that: (i) under Executive Decree No.
19260/61, various labour jurisdictions were granted to the trade unions of LOMP; (ii) in
the port of Caacupe-mí, the San Francisco SA enterprise outsourced its dock work to
evade the legal requirements, using subcontracting and to that end establishing the
affiliated company Jeroviá Servicios SA; (iii) private port enterprises, and in
particular San Francisco SA and its affiliated company Jeroviá Servicios SA, violate Act
No. 1248/36 by hiring workers who are not members of the trade unions authorized for the
respective jurisdiction; and (iv) the Prefecture-General for Shipping and the
Directorate-General for National Merchant Shipping, at the instigation of the
association of port managers, issue work permits to dockworkers who do not meet the
requirements of Act No. 1248/36. In view of this situation, LOMP filed a complaint with
the Ministry of Labour, Employment and Social Security, requesting an inspection to
determine whether the dockworkers who are hired comply with the legal requirements
relating to authorization and whether they are members of the trade unions authorized to
provide access to recruitment (LOMP indicates that the Human Rights Committee of the
Senate requested a report from the Prefecture-General for Shipping in a note dated 17
December 2014). Accordingly, on 23 December an inspection report was published, which
indicated that three attempts had been necessary before the inspection could be carried
out and that it had found that the dockworkers concerned were not employed by either San
Francisco SA or by the subcontractor Jeroviá Servicios SA and other employees of the
latter enterprise were working there at the time. The complainants consider that the
inspection report and the enterprise’s actions provide evidence that it has committed
violations: the inspection report found, firstly, that the workers were not members of
any of the trade unions authorized to supply the necessary staff, in violation of
article 66 of Act No. 1248/36 and, secondly, that in a tripartite meeting held on 27
November 2014 with representatives of LOMP, the representatives of San Francisco SA
claimed the right to hire workers of their choosing. The complainants conclude that, by
allowing the enterprise to choose its dockworkers and the fact that the
Prefecture-General for Shipping authorizes this, the State is violating the legal
provisions in force.
- 607. Furthermore, the complainant organizations refer to a number of
collective agreements recognizing the trade unions’ right to propose dockworkers for
recruitment in the labour jurisdictions for which those trade unions are authorized (in
particular, the collective agreement of 1956 between the Trade Union of Maritime
Dockworkers and Related Services (SEMA) and the Small and Large-Scale Cabotage
Shipowners/Association of River Shipowners (CAF); the collective agreement adopted by a
decision of 19 February 1988 between the Association of Shipping Agents (ASAMAR) and the
Trade Union of Port Checking Clerks of the Capital (SAPAC, a member of LOMP); and the
agreement of 4 May 2004 between SEMA and the Trade Union of Maritime Dockworkers of
Zeballos Cué). The complainants report that, although in the past the public
authorities, including the judiciary, had recognized the applicability of these
collective agreements and the jurisdiction of the trade unions, in recent years there
has been a failure to apply the provisions contained in the agreements concerning the
role of the trade unions in the selection of workers. In particular, they allege that
the Directorate-General for National Merchant Shipping and the Ministry of Labour,
Employment and Social Security, through the Prefecture-General for Shipping, allow and
even encourage non-compliance with the collective agreement between ASAMAR and SAPAC and
that the Supreme Court of Justice revoked the aforementioned collective agreement by
Ruling No. 1325 of 7 September 2006 (not allowing the participation of the trade unions
in the judicial proceedings – a matter which was the subject of another
allegation).
- 608. The WFTU also alleges that the private port enterprises refuse
collective bargaining, even though article 334 of the Labour Code provides that
enterprises with more than 20 workers are obliged to enter into a collective agreement
governing conditions of work.
- 609. The WFTU indicates that the owners of the Caacupe-mí port dismissed
more than 200 workers simply because they were trade union members and that, while some
of these workers managed to get reinstated, the dismissal of the other workers is still
effective. LOMP, for its part, alleges the unfair dismissal of 60 workers.
- 610. The complainant organizations indicate that the employers in the
private ports refuse to hire workers who are members of LOMP trade unions (despite being
in labour jurisdictions granted to those trade unions) and that they only hire workers
individually on condition that they do not join a union.
Allegations of violation of the right to demonstrate and detention
- 611. The complainant organizations indicate that LOMP organized a
demonstration on 13 November 2014 for workers in their member trade unions to protest
against the violations of their members’ rights by the San Francisco SA enterprise and
its affiliated company, Jeroviá Servicios SA, in dismissing 60 workers. The complainants
indicate that eight to ten canoes took up positions on the Paraguay River as a symbolic
act of protest, while a demonstration was being held on land opposite the Caacupe-mí
port. The complainants indicate that these flimsy canoes did not constitute any obstacle
for vessels of any size moving along the Paraguay River; in fact, when the launch from
the Prefecture-General for Shipping passed by, the wash was strong enough to overturn
one of the canoes. The complainants indicate that, in response to an action filed by the
enterprise, the Criminal Judge of Guarantees No. 8 of the capital issued an emergency
preventive measure, under a ruling of 15 December of 2014, ordering the workers to
refrain from obstructing freedom of movement on the Paraguay River and from preventing
the entry and exit of vehicles and persons to and from the port premises, whereupon the
Prefecture-General for Shipping intervened to arrest the workers who were protesting.
The complainants consider that, under this preventive measure, a decision was taken on
the substance of the matter without requiring the claimant to pay the bond for costs, as
provided for by law. The complainants add that, as a result of the complaint filed by
the enterprise, an order was given for the detention of 11 workers – whose names are
listed in the complaint by LOMP – who were placed in preventive detention on the basis
of article 214 of the Criminal Code of Paraguay (concerning dangerous interference in
shipping) and are facing a six-year prison sentence. The complainants add that,
following an appeal against the preventive detention measure, the 11 workers were put
under house arrest, which still prevents them from working or supporting their families.
The complainants consider that the preventive measures violate freedom of
association.
Allegations of restriction of the right of trade unions to represent their members
- 612. The complainant organizations allege that repeated rulings of the
Constitutional Chamber of the Supreme Court of Justice curtail trade union freedom by
restricting the trade unions’ ability to represent their members. The complainants refer
to three rulings in particular:
- (i) Ruling No. 1812 of 20 December 2004
concerning a claim for the payment of wages to SEMA members, brought against a
shipping enterprise domiciled outside Paraguay that occasionally employed a national
enterprise to manage unloading and other services. In this ruling, the Supreme Court
of Justice concluded that the “law does not authorize trade unions to represent
their members vis-à-vis the judicial authorities without an express mandate” and
that “the ensuing deregulation may be deemed to be arbitrary and to distort the
purpose of the trade union, but it is currently the legal provision in force,
whereby the law does not confer direct procedural competence on the trade unions to
represent their members before the courts, requiring the maximum authority of the
trade union – the assembly – to grant an express mandate to bring legal actions” and
that the trade union did not provide any kind of instrument conferring such
authorization. The complainants allege, however, that the court had received the
minutes of SEMA’s general assembly, which were incorporated into a valid public
instrument (pp. 29–33), and this shows that the assembly decided to file an appeal
but that the Court had not seen the document. The complainants allege that, as a
result of this ruling, the payment of money owed to the workers was
prevented;
- (ii) Ruling No. 1325 of 7 November 2006, referred to above,
declaring articles 9 and 29 of the collective agreement – which had previously
recognized the trade unions’ right to nominate workers for recruitment – to be
unconstitutional on the grounds that it could undermine possible pay increases for
non-unionized workers. According to the complainant organizations, although the
assembly’s minutes conferring an express mandate had been submitted under
aforementioned Ruling No. 1812, the Supreme Court of Justice ruled that the trade
union concerned (SAPAC) was not authorized to file a claim for the payment of wages
(accrued prior to the declaration of unconstitutionality) and that each individual
union member should file his own claim, which, according to the complainants, was
impossible as a claim could only be filed for the total amount that was alleged to
be unpaid; and
- (iii) Ruling No. 1449 of 15 October 2012 regarding the claim
for reimbursement of US$126 million to workers who had contributed to the defunct
National Workers’ Bank. The Court, while again recognizing that the ensuing
deregulation could be deemed to be arbitrary and to distort the purpose of the trade
union, rejected the claim on the basis of the doctrine underlying aforementioned
Ruling No. 1812, finding that the trade unions did not have an express mandate from
their members to bring the legal action or the necessary legal capacity (in this
regard, the complainant organizations claim that the trade unions had submitted the
requisite powers of attorney to file the claim). The complainants add that, as a
result of this decision, the money owed was never reimbursed.
B. The Government’s reply
B. The Government’s reply- 613. In its communications of 27 January 2016, the Government submits the
observations of the enterprise and of the public authorities concerned.
Allegations of violation of the prerogative of trade unions to nominate dockworkers for recruitment in accordance with the law and collective agreements, refusal of collective bargaining, and anti-union discrimination (mass dismissals and non-recruitment of trade union members)
- 614. In its observations, the enterprise denies the allegations and
indicates the following: (i) the San Francisco SA enterprise is responsible for private
operations in Caacupe-mí port, while the Jeroviá Servicios SA enterprise is responsible
for outsourcing certain services, and they have both been inspected by the Ministry of
Labour, Employment and Social Security, which found that they comply with the labour
regulations; (ii) there was a contractual relationship for the provision of services
between Jeroviá Servicios SA and various trade unions (Trade Union of Maritime
Dockworkers of Zeballos Cué and SEMA from the Caacupe-mí district, both members of
LOMP); (iii) the trade unions themselves acted as employers, in other words, they
provided services through their registered workers; (iv) the enterprises did not dismiss
any workers since the latter were not their employees; (v) in November 2014, as a result
of a dispute between the trade unions and the enterprises relating to service contracts,
LOMP and the trade unions took industrial action entailing the closure of the Paraguay
River and of land access points to Caacupe-mí port; (vi) the enterprise terminated the
service contracts with the trade unions, alleging serious non-compliance on their part –
including the consequences of the industrial action taken by the trade unions; (vii) on
4 February 2015, a tripartite conciliation meeting was held at the Ministry of Labour,
Employment and Social Security in which: (a) the trade unions indicated that 60 rather
than 200 people had been dismissed; (b) the enterprise explained that it had not filed
the criminal proceedings against the workers for their involvement in the industrial
action (they had been filed by the Public Prosecutor’s Office) and that it would not
oppose any requests to lift the detention measures; (c) the possibility of restoring the
original conditions prior to the dispute was discussed and the enterprise declared its
willingness to employ any workers who might be interested, but stated that recruitment
could not be imposed purely according to whether or not a dockworker belonged to a
specific trade union organization, whereupon the parties agreed that the only
requirement would be the registration of dockworkers with the Prefecture-General for
Shipping; and (d) the tripartite meeting resulted in an agreement between the parties to
work in good faith to resolve the situation of the 11 workers who were being prosecuted,
to initiate negotiations to re-establish the contractual relations governing the
delivery of services and to drop all judicial, extrajudicial and trade union actions, as
a sign of good faith; (viii) however, the negotiations were not successful, given that
the trade unions did not drop the judicial actions that they had filed; (ix) as regards
the alleged refusal to hire union members, the enterprise states that: (a) the statement
is incorrect and LOMP’s true intention is to restrict recruitment to trade union
members; (b) LOMP filed a legal action seeking to ban the enterprises from hiring
non-union members (arguing that the right to work in the area is limited to these
unions, to which the enterprises responded that the law guarantees their right to hire
staff freely); the enterprise indicates that the legal action was subsequently dropped
by LOMP; and (c) it is LOMP which is violating freedom of association by excluding the
possibility of hiring workers who are not its members and by restricting the freedom of
association of non-unionized workers; (x) as regards the alleged refusal to sign a
collective agreement, the two trade unions referred to above are the employers of those
they refer to as members, and so there is a legal obstacle to their signing a collective
agreement, given that the document cannot be signed by more than one employer; (xi) as
regards the allegation of violation by the enterprise of the rule that only trade union
members are allowed to work in a given jurisdiction, the enterprise alleges that the
rule was established under the previous Labour Code, which included a provision whereby
collective agreements could contain a clause under which the employer was obliged only
to hire workers who were members of the trade union party to the agreement; according to
the enterprise, this is an old provision which runs counter to the Constitution of
Paraguay and to the ILO Conventions.
- 615. As regards the allegation of anti-union discrimination (dismissal of
workers and non-recruitment of union members), the Government indicates that, following
the complaint concerning the mass dismissal of members of the Trade Union of Maritime
Dockworkers of Zeballos Cué and the Trade Union of Maritime Dockworkers and Related
Services (SEMA) of the Caacupe-mí district, the representatives of the private port of
San Francisco Caacupe-mí and the representatives of the complainant trade unions were
called to two tripartite meetings at the Ministry of Labour, Employment and Social
Security in September 2014. When the enterprise representative failed to attend the
second meeting, the workers’ representatives requested a general inspection, which
resulted in an inspection order dated 6 October 2014 to review the employment situation
of the dockworkers concerned and the employer’s compliance with the regulations. At the
first two attempts, the inspectors were unable to conduct the inspection owing to the
refusal of the enterprise’s legal adviser, who claimed that the inspectors could only
enter the premises to conduct the inspection if they had a court order. The inspection
was carried out at the third attempt, on 10 October 2014. The Government indicates that
the inspection found that the workers alleging the violation of their rights were
members of the trade union organizations of maritime dockworkers but that they were not
employees of the enterprise in question.
- 616. As regards the allegations of refusal of collective bargaining, the
Government provides a list of 15 collective agreements governing conditions of work
which were approved for the years 2011 to 2014 and were signed by maritime and river
enterprises (the two enterprises operating in Caacupe-mí port referred to above do not
appear on the list).
Allegations of violation of the right to demonstrate and detention
- 617. As regards the allegations of violations of freedom of association
and of dispersal of workers participating in protest actions on the Paraguay River on 13
December 2014, the Government submits a note from the Prefecture-General for Shipping,
which indicates that: (i) this institution acted within the framework of legality and in
compliance with a judicial order of 5 November 2014 issued by the Civil and Commercial
Judge of First Instance, ordering the end of the blockade of the Paraguay River at all
points; and (ii) the dockworkers were notified in due time and form but they refused to
comply with the ruling, whereupon the persons involved were arrested and handed over to
the Public Prosecutor’s Office.
- 618. The Government adds that the right to strike is guaranteed for
workers in both the public and private sectors and that, in the case referred to in this
complaint, the striking workers blockaded the Paraguay River, affecting the free passage
and movement of vessels, which was aggravated by the fact that the country is landlocked
and the Paraguay River is its main waterway. Accordingly, the Government indicates that
article 214 of the Criminal Code was applied, which provides that any person who creates
an obstacle endangering the safety of air or rail transport or shipping shall be liable
to imprisonment of up to six years.
Allegations of restriction of the right of trade unions to represent their members
- 619. As regards the court decisions contested by the complainant
organizations as limiting the possibility of trade unions to represent their members,
the Government observes that these are final rulings that have been implemented and that
they were issued by the ordinary courts, as the latter are competent to do under the
rule of law.
C. The Committee’s conclusions
C. The Committee’s conclusions- 620. The Committee decided to consider these two cases together in so far
as they involve the same allegations supported by the same international
complainant.
Allegations of violation of the prerogative of trade unions to nominate dockworkers for recruitment in accordance with the law and collective agreements, refusal of collective bargaining, and anti-union discrimination (mass dismissals and non-recruitment of trade union members)
- 621. The Committee observes that one of the central issues raised in the
complaints concerns the allegation that, under certain items of legislation and
collective agreements, it is the prerogative of the trade unions authorized in each
jurisdiction to nominate dockworkers to carry out work in the ports concerned (the
complainant organizations report that both the enterprise and the public authorities
have violated this trade union prerogative). On the other hand, the Committee observes
that the enterprise in question alleges that it is the League of Maritime Workers of
Paraguay (LOMP) which is violating freedom of association by seeking to impose the
selection of workers, exclude the possibility of hiring workers that are not members of
its trade unions, and curtail the freedom of association of non-unionized workers. In
that regard, the Committee wishes to recall that a distinction should be made between
union security clauses allowed by law and those imposed by law, only the latter of which
appear to result in a trade union monopoly system contrary to the principles of freedom
of association; that problems related to union security clauses should be resolved at
the national level, in conformity with national practice and the industrial relations
system in each country; and that both situations where union security clauses are
authorized and those where they are prohibited can be considered to be in conformity
with ILO principles and standards on freedom of association [see Digest of decisions and
principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras
363 and 365]. The Committee recalls that union security clauses should be agreed freely
and observes that the complaints contain no elements to show that the enterprises
concerned have agreed to a union security clause; on the contrary, the observations
provided show their opposition to any such clause.
- 622. The Committee also observes that the complaints contain allegations
of anti-union discrimination (dismissals and non-recruitment of union members) and
refusal to engage in collective bargaining. In this regard, the Committee observes that,
although the complainant organizations refer to the subcontractor as the dockworkers’
employer, the enterprise that manages the port indicates that the legal relationship was
based on service contracts between the subcontractor and the trade unions, which were
the employers. The Committee observes that an inspection was conducted to monitor the
enterprise’s compliance with the labour regulations and, in particular, to investigate
the allegations of anti-union dismissals, but that the inspection did not find any
violation and found that the workers that claimed a violation of their rights were
members of the trade unions of maritime dockworkers and were not employed by the
enterprise against which the complaint had been filed. Moreover, the Committee observes
that the enterprise indicates that: (i) since the employment relationship was based on
service contracts with the trade unions, there was no possibility of collective
bargaining on account of the legal obstacle arising from the fact that the workers were
employed by the trade union; (ii) no dismissals were carried out, but rather the service
contracts with the trade unions were terminated on the grounds of serious non-compliance
by the unions (the enterprise includes in this the blockade of the Paraguay River, which
reportedly took place after the dismissals); (iii) the enterprise indicated that it was
open to hiring the dockworkers who had lost their jobs; and (iv) the enterprise claims
that it does not exclude workers who are trade union members from recruitment, but that
it is opposed to the imposition of the recruitment of trade union members only. In these
circumstances, the Committee does not have the necessary information to conclude that
the issues raised involve acts of anti-union discrimination.
- 623. Furthermore, the Committee welcomes the conciliation efforts made by
the Government to address the dispute between the parties, in particular through the
tripartite meeting of 4 February 2015, which, according to the enterprise, yielded the
beginnings of an agreement. The Committee invites the Government to continue promoting
negotiations between the parties and encourages the parties to continue their dialogue
with a view to finding joint solutions in accordance with the principles of freedom of
association.
Allegations of violation of the right to demonstrate and detention
- 624. The Committee observes that the complaints contain allegations of
violation of the right to demonstrate and the criminal prosecution and detention of
workers for participating in a strike through an act of protest involving the
positioning of canoes on the Paraguay River. According to the complainant organizations,
this action did not obstruct the passage of any vessel but resulted in the prosecution
of 11 workers, who remain under house arrest. The Committee observes that the
Government, for its part, alleges that: (i) the striking workers blockaded the Paraguay
River, affecting the free passage and movement of vessels, whereupon a judge ordered the
end of the blockade at all points on the Paraguay River; and (ii) the dockworkers were
notified in due time and form but they refused to comply with the order, whereupon they
were arrested and handed over to the Public Prosecutor’s Office, and article 214 of the
Criminal Code was applied, which provides for imprisonment of up to six years for any
person who creates an obstacle that threatens the safety of shipping.
- 625. The Committee wishes to recall that, according to Article 8 of
Convention No. 87, although, in exercising the rights provided for in the Convention,
workers and employers and their respective organizations, like other persons or
organized collectivities, shall respect the law of the land, the law of the land shall
not be such as to impair, nor shall it be so applied as to impair, the guarantees
provided for in the Convention. In that regard, the Committee wishes to refer to the
following principles: that workers should enjoy the right to peaceful demonstration to
defend their occupational interests; that preventive detention should be limited to very
short periods of time intended solely to facilitate the course of a judicial inquiry;
that workers should enjoy prompt and fair trial by an independent and impartial
judiciary in all cases, including cases in which trade unionists are charged with
political or criminal offences; and that the authorities should not resort to arrests
and imprisonment in connection with the organization of or participation in a peaceful
strike, since such measures entail serious risks of abuse and constitute a grave threat
to freedom of association [see Digest, op. cit., paras 133, 78, 109 and 671].
- 626. Noting that the Government does not deny that the strike was
peaceful or that 11 workers are still being prosecuted and under house arrest, the
Committee requests the Government to keep it informed of the outcome of the judicial
proceedings brought against the workers who participated in the protest actions on the
Paraguay River and at land access points to the Caacupe-mí port, trusting that the
proceedings will be settled as soon as possible and bearing in mind the aforementioned
principles of freedom of association. The Committee also invites the authorities to
consider lifting the preventive detention measures.
Allegations of restriction of the right of trade unions to represent their members
- 627. The Committee notes with concern the allegations of restriction of
the trade unions’ right to represent their members, and of the consequences that could
arise from the refusal of representation to the trade unions (according to the
complainant organizations, failure to win claims for substantial sums of money affecting
a large number of workers). The Committee observes that the complainants refer to three
rulings by the Supreme Court of Justice, denying the unions the possibility of
representation on the grounds that no express mandate had been given by the trade
union’s assembly (the complainants claim, however, that in at least two of the three
cases they had submitted the assembly minutes conferring an express mandate). The
Committee also observes that, although the Government does not go into the substance of
the issue and merely recognizes the existence of the rulings in question, the Supreme
Court of Justice itself, while considering an express mandate to be legally necessary,
found in two of the rulings that “the ensuing deregulation may be deemed to be arbitrary
and to distort the purpose of the trade union”. In this regard, the Committee considers
that neither the legislation nor the application thereof should limit the right of
employers’ and workers’ organizations to represent their members, including in cases of
individual labour complaints. The Committee invites the Government to examine, in
consultation with the social partners, the adequacy of the legislation and of the
application thereof in order to ensure that employers’ and workers’ organizations are
able to exercise the right to represent their members.
The Committee’s recommendations
The Committee’s recommendations- 628. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) Welcoming the
conciliation efforts made, the Committee invites the Government to continue
promoting negotiations between the parties and encourages the parties to continue
their dialogue with a view to finding joint solutions in accordance with the
principles of freedom of association.
- (b) The Committee requests the
Government to keep it informed of the outcome of the judicial proceedings brought
against the workers who participated in the protest actions on the Paraguay River
and at land access points to the Caacupe-mí port, trusting that the proceedings will
be settled as soon as possible and bearing in mind the principles of freedom of
association. The Committee also invites the authorities to consider lifting the
preventive detention measures.
- (c) The Committee invites the Government to
examine, in consultation with the social partners, the adequacy of the legislation
and of the application thereof in order to ensure that employers’ and workers’
organizations are able to exercise the right to represent their
members.
