Report in which the committee requests to be kept informed of development - REPORT_NO378, June 2016

1. 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.
2. 603. The Government sent its observations concerning both complaints in a communication of 27 January 2016.
3. 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

1. 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)

1. 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.
2. 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).
3. 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.
4. 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.
5. 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

1. 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

1. 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

1. 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)

1. 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.
2. 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.
3. 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

1. 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.
2. 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

1. 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

1. 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)

1. 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.
2. 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.
3. 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

1. 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.
2. 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].
3. 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

1. 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.