Report in which the committee requests to be kept informed of development - REPORT_NO376, October 2015

1. 848. The complaint is contained in communications from the National Union of Teachers–National Trade Union (UNE–SN), dated 19 and 30 September 2014, and 29 April 2015, and in a communication from the Central Confederation of Workers Authentic (CUT–A), dated 30 September 2014. In its communication of 19 September 2014, the organization Education International (EI) expressed its support for the claim lodged by UNE–SN, which is affiliated to EI.
2. 849. In the absence of observations from the Government, the Committee was obliged to postpone its examination of the case. At its session in June 2015 [see 375th Report, para. 8], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
3. 850. 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

1. 851. In its communication dated 28 August 2014, UNE–SN alleges that, by means of Resolution No. 9726 of 13 June 2014, the Paraguayan Ministry of Education and Culture terminated, in an arbitrary, non-consultative and unilateral manner, the granting of paid trade union leave to teachers with leadership positions in official trade union organizations. The UNE–SN considers that the Resolution undermines the principles of freedom of association and the possibility of performing trade union duties: (i) by granting leave only to teachers who have been registered for five years (Article 2), thus contradicting the provisions of the Labour Code which establish that the status of trade union officials is subject solely to the decisions made at trade union meetings and to trade union regulations; and (ii) by establishing that leave is granted “without prejudice to the duties performed” (Article 3), which, according to the UNE–SN, allows the employer or higher authority full discretion to grant leave. The UNE–SN also alleges that Circular No. 7/14 of the Ministry of Education and Culture required workers who were on trade union leave when Resolution No. 9726 was enacted to return to their posts at the corresponding educational institutions, and established that workers who did not comply with the orders would be subjected to administrative proceedings for dereliction of duty. Consequently, the majority of the UNE–SN leaders who had been granted union leave returned to their workplaces and two officials (Mr Julio Rafael Benítez González and Mr Juan Carlos Vera Sánchez) were subjected to administrative proceedings, which the UNE–SN considers is proof of the persecution of trade union officials. As a result of Resolution No. 9726, the UNE–SN believes that its organization does not have access to paid trade union leave, which is the only support for trade union organizations provided by the State. The UNE–SN furthermore states that Resolution No. 9726 violated agreements on the granting of leave which had been adopted since 1993 between the Ministry and trade unions, in addition to various ministerial resolutions through which leave had been granted since that time. The UNE–SN adds that, although the most recent leave granted was to expire on 31 December 2013, it had been agreed that this leave would remain in effect until a consensus had been reached, which did not happen as the Ministry adopted Resolution No. 9726 instead.
2. 852. In its communication of 30 September 2014, the UNE–SN includes as further proof of the violation of the principles of freedom of association Ministry of Education and Culture Resolution No. 14787 of 18 September 2014, which establishes that the staff at educational institutions attached to the Ministry would not be paid for the days and hours not worked during a strike that took place on 27–28 August 2014.
3. 853. In its communication of 30 September 2014, the CUT–A, which alleges the continued persecution of trade union leaders in the national education sector, states that the Government has reaffirmed the suspension of current trade union leave, and has demanded, under the threat of sanctions, that leaders come forward within 72 hours for job reassignment.
4. 854. In its communication of 29 April 2015, the UNE–SN alleges that Decision No. 84 of 30 March 2015 of the Legal Advisory Service of the Ministry of Education and Culture establishes that the deduction of trade union dues is not feasible in cases where workers are members of multiple unions, which is against the law. This decision recommends that workers belonging to several trade unions be required to notify their membership of one trade union, and that the aforementioned deductions be suspended throughout the entire duration of the necessary procedures. The UNE–SN considers that the decision violates the obligation of the authorities to refrain from any interference that may circumscribe the right to, and exercise of, freedom of association. The UNE–SN underscores that, instead of seeking a solution with the affected trade unions and applying other criteria such as the most recent trade union membership, the Decision proposes an arbitrary solution which does not take into account time limits and procedures to be followed. The UNE–SN concludes that the Ministry does not have the authority to suspend the deduction of periodical trade union dues without the involvement and consent of the affected parties.

B. The Committee’s conclusions

1. 855. The Committee deeply regrets that, despite the time that has elapsed since the complaint was presented in 2014, the Government has still not replied to the complainant organizations’ allegations despite having been invited on several occasions to do so, including by means of an urgent appeal [see 375th Report, para. 8]. In these circumstances and in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee finds itself obliged to present, once again, a report on the substance of the case without being able to take into account the information it hoped to receive from the Government. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in practice. The Committee remains confident that, while the procedure protects governments from unreasonable accusations, governments, on their side, will recognize the importance of presenting, for objective examination, detailed replies concerning allegations made against them [see First Report, para. 31].
2. 856. The Committee notes the complainant organizations’ allegations that Ministry of Education and Culture Resolution No. 9726 unilaterally nullifies the right of teachers to trade union leave by requiring them to have been registered for five years and, by stating that leave is granted “without prejudice to the (work) duties performed”, it affords employers or higher authorities full discretion when granting leave. The Committee furthermore notes UNE–SN’s allegation that Decision No. 84 of 30 March 2015 issued by the Legal Advisory Service of the Ministry of Education and Culture unilaterally establishes the suspension of deductions of trade union dues for workers who are members of more than one trade union.
3. 857. In the absence of any response from the Government to the allegations, the Committee wishes to stress that any changes to the scope and exercise of trade union rights should, as a matter of importance, be subject to in-depth consultations with the most representative organizations, in order to find, as far as possible, shared solutions. As regards the substantive issues highlighted in the allegations, the Committee considers that the content of the Resolution raises problems of conformity with the principles of freedom of association by establishing that teachers must have been registered for five years in order to obtain trade union leave and by apparently allowing the authorities excessive discretion when deciding whether to grant such leave. The Committee notes that the restrictions contained in Decision No. 84 of the Ministry’s Legal Advisory Service on the deduction of union dues in cases of multiple membership are based on the impossibility, established in section 293(c) of the Labour Code, for workers, even if they have more than one employment contract, to become members of more than one trade union, in either their enterprise, industry, occupation or trade, or institution. This does not comply with the principles of freedom of association, as it unduly impedes the right of workers to join organizations of their own choosing. The Committee recalls that the Committee of Experts on the Application of Conventions and Recommendations has made the same point when examining the application of Convention No. 87 by Paraguay.
4. 858. In this context, with regard to the issues raised in this complaint which relate to the aforementioned Resolution and Decision, the Committee requests the Government to initiate dialogue with the most representative organizations affected with a view to finding satisfactory solutions for both parties in terms of trade union leave and the deduction of trade union dues. The Committee requests the Government to keep it informed in this respect.
5. 859. As regards the allegations concerning the decision not to pay wages for the days and hours not worked during a strike in 2014, the Committee recalls that “salary reductions for days of strike give rise to no objection from the point of view of the principles of freedom of association” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 654].