Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee takes note of the Government’s report which basically limits itself to mentioning the legislative provisions relating to the Convention.

The Committee also notes the comments from the International Trade Union Confederation (ITUC), dated 29 August 2008 referring to matters already raised by the Committee and also to acts of anti-union discrimination (dismissals of trade union leaders and members for exercising their union rights) and an act of interference by an enterprise in the internal affairs of a trade union. The Committee requests the Government to send its observations in this respect. The Committee also requests the Government once again to send its observations on the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC) of 2005 referring to: (1) acts of anti-union discrimination against trade union leaders and members and delays in the administration of justice; and (2) the fact that collective agreements must be submitted to compulsory arbitration, and also the comments of the Trade Union of Maritime Dock Workers of Asunción (SEMA) regarding interference by employers in that sector though the creation of trade unions favourable to the enterprise.

Articles 1 and 2 of the Convention. Protection against acts of discrimination and anti-union interference. The Committee recalls that for many years it has been commenting on:

–      the absence of legal provisions affording protection to workers who are not trade union leaders against all acts of anti-union discrimination (article 88 of the Constitution affords protection only against discrimination based on trade union preferences); and

–      the absence of adequate penalties for non-observance of the provisions relating to the employment stability of trade unionists and to acts of interference in workers’ and employers’ organizations by each other (the penalties laid down in the Labour Code for failure to comply with the legal provisions on this point in sections 385, 393 and 395 are not a sufficient deterrent).

The Committee recalls that in its previous observation it noted that, except in the case of repeated anti-union acts by the employer, the penalties established are not a sufficient deterrent. The Committee therefore requests the Government to take the necessary steps to adopt provisions which provide adequate protection through deterrent penalties against acts of anti-union discrimination and interference and to keep the Committee informed of all further developments.

The Committee also requests the Government once again to provide information on the steps taken to overcome the problem of delays in the application of justice in relation to acts of anti-union discrimination and interference.

Article 6. Public servants not engaged in the administration of the State. The Committee recalls that in its previous observation it considered that sections 49 and 124 of the Public Service Act do not afford adequate protection against all acts of anti-union discrimination within the meaning of Article 1 of the Convention (which not only covers dismissal but also transfers and other prejudicial measures) and recalled that the protection afforded to workers and trade union officials against acts of anti-union discrimination constitutes an essential aspect of freedom of association (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 202 and 203). The Committee therefore requests the Government to take the necessary measures to establish in the legislation adequate protection against acts of anti-union discrimination against public servants, including those who are not trade union leaders, and also sufficiently dissuasive sanctions for those who commit violations.

Bearing in mind that it has been making these comments for many years without progress being achieved in practice, the Committee urges the Government to take the necessary measures without delay to bring the legislation into conformity with the Convention. The Committee strongly encourages the Government to avail itself of technical assistance from the Office to this end.

[The Government is requested to report in detail in 2009.]