Rapport intérimaire - Rapport No. 256, Juin 1988

1. 401. The complaints are made in communications from the Latin American Central of Workers (CLAT) and the International Union of Food and Allied Workers Associations (UITA) dated 9 and 16 February 1988 respectively. The UITA submitted additional information in a communication of 1 March 1988. The Government replied in communications of 5 and 27 April 1988.
2. 402. 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. 403. The complainants allege in their communications of 9 and 16 February 1988 that, since 1985, when a new executive committee of the Paraguayan Cotton Company Workers' Union was elected, the General Secretary and members of the union have been continuously harassed and were finally dismissed for "repeated absences at work", although they were, in fact, carrying out their trade union tasks in accordance with the collective agreement. In some cases union activists were dismissed for militancy although they had been in the company for seven to nine years (Paraguayan legislation guarantees stability of employment after ten years of service).
2. 404. The complainants also allege that the Labour Directorate has refused to recognise the committee elected by the general assembly of delegates on 28 May 1987, but has legally recognised the committee of a union sponsored by the company management although only 50 to 60 workers attended its constituent assembly. The complainants state that some of the members of this committee had been expelled from the legitimate union for anti-union activities.
3. 405. Lastly, the complainants report that the company union, which represents from 500 to 700 permanent workers, has been continually obstructed in attempting to carry out its normal activities and that constant violations of the collective agreement - which has not been renewed since 1974 - are taking place (working hours that are over the legal limit, disregard of the legal breaks allowed between different work shifts, and payroll deduction of dues, which have not been handed over to the union since February 1987, etc.).
4. 406. In support of its allegations, UITA annexes to its communication of 1 March 1988 a number of judicial appeals submitted by the CAPSA union against the company and against various resolutions of the General Directorate of Labour. Those appeals refer in particular to the following considerations and facts:
5. - since 1986, as a result of the activities of the CAPSA union, the campaign of union persecution by the company has led to the dismissal of the union leaders Benito Rodríguez, Gumersindo Notario and José Devaca (December 1986), of the union member Angélica Riquelme (January 1987) and of the General Secretary of the union, Pedro Salcedo (February 1987). Some of those dismissed were subsequently reinstated;
6. - between 15 March 1987 (when the regular general assembly of the union was held and the executive committee was re-elected) and 28 May 1987, five assemblies were called but could not be held because they were, in most cases, physically prevented from convening by the Capiatá police. On two occasions they arrested union leaders (Pedro Salcedo, Victor López, Antonio Moral and Mario Estigarribia), who were released days later. On 28 May 1987, the general assembly was finally held with 232 members present, and the new executive committee was elected with Pedro Salcedo as its General Secretary. Three and a half months later, the General Directorate of Labour issued a resolution refusing to register the executive committee "owing to serious irregularities". That very Directorate had, however, recognised on 19 May 1987 a so-called reorganising committee of the union composed of 21 workers (including three former members of the union's executive committee - Miguel Angel Melgarejo, Pedro Riquelme and Juan Gimínez); this had been set up on 23 April 1987 and had organised a general assembly on 17 September 1987 when another executive committee was elected consisting of Juan Ramón Ramírez (General Secretary) and the three persons mentioned above. This was recognised on 20 October 1987 by the General Directorate of Labour;
7. - according to the by-laws, it is the responsibility of the executive committee to convene the general assembly and not of a so-called "reorganising committee". In the opinion of the complainant organisation, the facts set out here clearly demonstrate that there has been connivance between the undertaking (CAPSA) and the General Directorate of Labour for the purpose of establishing a union controlled by the undertaking.
8. B. The Government's reply
9. 407. The Government states in its communications of 5 and 27 April 1988 that the complaint is aimed at implicating it in the situation as regards the internal relations between the workers' union of the Paraguayan Cotton Company and the management and, more specifically, in the issue of the election and appointment of union officials, in which the public authorities have not intervened, in accordance with the express provision of Convention No. 87 (Article 3) and section 283(2) of the Paraguayan Labour Code. The fact that the union has been obstructed in the normal performance of its functions is not attributable to the public authorities, but is due to ignorance of its rights and failure to carry out its obligations as specified in the relevant provisions (Chapter IV, sections 300 et seq. of the Labour Code).
10. 408. The Government goes on to state that the failure to renew the collective agreement since 1974 cannot be blamed on the Government, but is the fault of the union itself since rights acquired through collective agreements depend entirely on the bargaining ability of the workers' leader, in this case Mr. Pedro Salcedo and his executive committee. The Paraguayan Labour Code lays down general guide-lines and governing principles for the subject in Part II, Chapter VI, sections 314 et seq. In addition, the Procedural Labour Code states that, when the parties are unable to come to an amicable agreement for the formalisation of collective agreements, ... disputes arising for economic and social reasons connected with the fixing of new working conditions may be settled before the Standing Conciliation and Arbitration Board (section 284).
11. 409. As all these aspects are covered by the national legislation, if Mr. Salcedo is to justify his position as union leader he must display a willingness and some ability at least to deal with the problems affecting the members through a frank and sustained dialogue with the employer. Furthermore, the right of the union to denounce alleged irregularities to the competent national authorities is upheld by all the laws in force.
12. 410. As regards the dismissal of union members by the undertaking, the Government states that no specific cases were mentioned but, if this did in fact occur, the trade unionist, like any other citizen, is entitled to appeal to the labour administrative authority and the courts to demand observance of the law guaranteeing his rights.
13. 411. The Government points out that the Labour Directorate has been given legal powers to register trade union organisations or not, in accordance with section 297 of the Paraguayan Labour Code and section 4 of Act No. 1172/85. Consequently, in accordance with this mandate the power vested in the Labour Directorate to approve or refuse union registration is not arbitrary. In view of the general union situation in the Paraguayan Cotton Company (CAPSA), the labour administrative authority, at the request of a number of workers in the undertaking and in response to the petition submitted for the establishment of a reorganising committee to reactivate the institutional life of the union, since its executive committee, elected in 1985, was leaderless and its mandate had expired in March 1987, issued resolution No. 542 of 19 May 1987 recognising the reorganising committee in accordance with section 8 of Act No. 1172/85 on "Stability in the work of the union leadership". The Labour Directorate is not aware that persons who are members of the reorganising committee have been expelled for anti-union activities as the allegations state.
14. 412. The Government adds that the executive committee of the union of workers of the Paraguayan Cotton Company (CAPSA), elected by the alleged general assembly of delegates on 28 May 1987, was refused recognition because of serious irregularities that had been reported and recorded in a file on the case, including the following facts: the assembly in question was not held in accordance with article 35 of the union's by-laws; of the 332 members assumed to have attended the assembly, 102 were not listed in the official register of active members held in the Union Registry Section of the Labour Directorate; the names of 15 people who had already left the company were duplicated; according to information received on the assembly in question, it was not held on the day and at the time indicated; the union did not comply with section 301 b)of the Paraguayan Labour Code. It will be noted that there have been innumerable breaches of specific legal provisions by the executive committee headed by Mr. Salcedo and that these affect the institutional existence of the union. This is why the Labour Directorate considered it improper to legalise the documents submitted and to register the executive committee. The Government also indicates that Mr. Salcedo has never been arrested.
15. 413. The Government appends, among other things, a copy of the resolution of 17 September 1987 of the General Directorate of Labour refusing to register the executive committee elected by the assembly of 28 May 1987. Some of the consideranda in the resolution are reproduced below: ...
16. That ... (c) on 26 September 1986 an extraordinary assembly of the CAPSA labour union was held to fill the vacancies on the executive committee caused by the departure from the undertaking of some members of the union leadership, in their capacity as members of the workforce, and a request was made to the Labour Directorate in a note dated 6 October 1986, ref. No. 7533/86, for recognition of the newly formed executive committee; (d) having studied the information submitted, the Labour Administrative Authority notified the appellants of ruling No. 868 of 9 December 1986 from the Legal Adviser's Office to the effect that the request for recognition was inadmissible in that it violated article 13 of the by-laws which provided for the appointment of a "titular (voting) member" to the vacant posts and not simply of associate members. The ruling in question was duly notified to, answered and contested by the appellants in note No. 9404 of 19 December 1986; (e) the Deputy General Secretary and Deputy Treasurer of the union referred to, in a note dated 1 December 1986, ref. No. 9016, denounced irregularities committed by General Secretary Pedro Salcedo in the management of union activities. This accusation was repeated in a note of 2 March 1987, ref. No. 1532, which was signed by the officials referred to above and 27 associates; (f) in February 1987 the company penalised Pedro Salcedo, General Secretary of the union, suspending him from work, and the Labour Directorate was notified of this situation by a note of 5 February 1987, ref. No. 920; (g) on 10 March 1987, the Treasurer of the union in question transmitted to the Labour Department note No. 1771/87 denouncing irregularities committed by the General Secretary in the management of funds; (h) the irregular situation of the General Secretary, restricted by his suspension from work and legal proceedings still in progress, made it impossible to hold the ordinary general assembly within the time-limit set by article 35 of the by-laws, with the result that the union remained leaderless and the mandate of the executive committee expired.
17. That, as the legal time-limit set for the exercise of the executive committee's functions had expired, the workers of the Paraguayan Cotton Company (CAPSA) of Capiatá, meeting together on 18 April 1987, appointed a reorganising committee and requested its recognition by the Labour Administrative Authority in a note of 24 April 1987, ref. No. 2838. The Directorate of Labour, in resolution No. 542 of 19 May 1987, registered and recognised the reorganising committee and authorised it to exercise its specific union functions, in accordance with section 8 of Act No. 1171/85.
18. ...
19. That, on 4 June of the present year, the reorganising committee of the union submitted notes Nos. 3837, 3838 and 3839/87 denouncing the holding of a so-called assembly on 28 May 1987; that the assembly had not been convened by the reorganising committee which consequently requested that the assembly be regarded as null and void.
20. That, in view of these accusations, the Labour Administrative Authority, invoking the powers vested in it by law, commissioned public service inspectors to clarify the facts of the case. From the substance of the report prepared on 19 June 1987 by the inspectors, from the statements given in evidence by neighbours in the area and the information obtained from the Capiatá Police Commissariat, it emerged that: (a) the assembly in question was not convened by the reorganising committee which is the only body entitled to do so under section 8 of Law No. 1172/85; (b) many members of the union, who were assumed to be present at the assembly of 28 May 1967, had been doing their usual work on the premises of the enterprise at the time; (c) these persons were listed as having attended the assembly in the capacity of associate members for zones that are not represented on the union; (d) the assembly did not take place in the place and on the date stated in the minutes of the assembly transmitted to the Labour Administrative Authority.
21. That, on 25 June 1987, by a note, ref. No. 4327, also bearing the signatures of the persons who are said to constitute the executive committee of the union, which has not yet been registered with the Labour Administrative Authority, Messrs. Pedro Salcedo, Gumercindo Notario Orrego, Angel Coronel Bullón and Benito Rodríguez called into question and refused to acknowledge the existence of a reorganising committee recognised by the competent authority: (a) alleging that the members of the committee had been expelled as members of the union at the regular assembly allegedly held by them; (b) requesting the Labour Administrative Authority to abstain from intervening in questions pertaining to the union on the grounds that it constituted an illegal interference.
22. That, from the analysis of the above-mentioned considerations and from the voluminous documentation appended to the file on the case, apart from the records of the reorganising committee and the report drawn up by the inspectors appointed, it seems evident that the regular general assembly, with the election of the executive committee of the union on 28 May 1987, was a fictitious event that consequently is rendered null and void by the evasion of legal provisions which are binding on the members of any occupational group by virtue of their status as rules of public order. ...

C. The Committee's conclusions

1. 414. The Committee notes that, in this case, the basic allegation made by the complainant concerns the refusal of the General Labour Directorate to register the executive committee of the CAPSA union considered by the complainant as authentic and headed by Mr. Salcedo, while nevertheless agreeing to register another executive committee (headed by Mr. Ramírez and Mr. Melgarejo) which, in the opinion of the complainant organisation, serves the employers' interests and is the product of connivance between the company and the labour authorities. The Committee takes note of the Government's reply. It notes that it has claimed that there were serious irregularities in the ordinary general assembly at which the executive committee headed by Mr. Salcedo was elected, and denies that Mr. Salcedo was arrested.
2. 415. In this respect, the Committee wishes to emphasise firmly that, irrespective of whether or not the irregularities alleged by the Government took place, when two executive committees each proclaim themselves to be the legitimate one, the dispute should be settled by the judicial authority or an independent arbiter and not by the administrative authority. In these circumstances, the Committee concludes that the General Directorate of Labour, in deciding in favour of the group headed by Mr. Ramérez and Mr. Melgarejo, has engaged in anti-union interference in violation of Article 3 of Convention No. 87 which stipulates that the public authorities must refrain from any interference that would restrict the right of workers' organisations to elect their representatives in full freedom and to organise their administration and activities. The Committee urges the Government to leave the task of settling this type of situation to the judicial authorities in the future.
3. 416. Furthermore, the Committee notes that the Government has not commented specifically on the following allegations concerning acts of anti-union persecution against the union group led by Mr. Salcedo and acts favouring the creation of a union movement with ties to the employer: first, the dismissal of union leaders and members of the group headed by Mr. Salcedo (although some have since been reinstated); secondly, the action taken, especially through the police, to prevent five regular assemblies from being convened by Mr. Salcedo, and the detention of the group's leaders for a number of days. In addition, it notes that a small number of workers are said by the complainant organisation to have attended the general assembly called by Mr. Melgarejo.
4. 417. In this respect, the Committee must deplore the fact that the general assemblies called by Mr. Salcedo were repeatedly prevented by the police and that members of the executive committee were detained. It also regrets the dismissals alleged in this case and stresses that the legislation should provide for sufficiently effective civil remedies and penal sanctions so as to deter acts of anti-union discrimination and of interference in union life and activities.