Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 386, Juin 2018

Effect given to the recommendations of the Committee and the Governing Body

1. 54. The Committee last examined this case at its October 2015 meeting, without having received a reply from the Government, and on that occasion it made the following recommendation [see 376th Report, para. 860(b)]:
   • (b) Observing that the content of the Resolution and the Decision, which are the subject of this complaint, raise 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, by apparently allowing for excessive discretion when granting such leave, and by suspending the deduction of trade union dues in cases of multiple trade union membership, the Committee requests the Government to initiate a dialogue with the most representative organizations affected, with a view to finding satisfactory solutions for both parties concerning trade union leave and the deduction of union dues. The Committee requests the Government to keep it informed in this respect.
2. 55. In a communication of 24 February 2016, the complainant organization (the National Union of Teachers–National Trade Union (UNE–SN)) presented the following additional allegations:
   • (i) On 2 September 2015, the Attorney-General of the Republic filed an application, after the applicable time limit had passed, calling for a three-day strike staged by the UNE–SN on 27 and 28 August and on 1 October 2014 to be declared illegal. As more than a year had passed, the action was time-barred but the Labour Court ruled in favour of the application and declared the strike illegal. An appeal was lodged against this ruling, and in a ruling of 15 December 2015 the Labour Appeal Court of the City of Asunción declared the invalidity of the proceedings. The application by the Attorney-General’s Office demonstrates the Government’s policy of anti-union intimidation and harassment. Furthermore, after the strike, deductions were made from the strikers’ wages, even though the UNE–SN had offered at the tripartite round table to make up the days in return for the non-deduction of wages – a possibility that is provided for under section 373 of the Labour Code.
   • (ii) As a result of the strike, it was agreed that a tripartite round table would be set up with the Ministry of Education and Culture (MEC) to discuss the adoption of a collective agreement on working conditions in the sector. Although working sessions were held in October, November and December 2014 and in January 2015, since March 2015 all work has been suspended without any explanation, which demonstrates the reluctance on the part of the authorities to reach a collective agreement. Furthermore, the UNE–SN alleges that, in 2015, no progress was made in respect of effective communication and joint work between the unions and the MEC. For instance, it points out that the Minister did not agree to hold any meetings with union officials in a year and that she issued decisions on matters affecting the education system and relating to competitive examinations without prior consultation.
   • (iii) In general, the UNE–SN alleges anti-union harassment through repressive measures, which is demonstrated through accusations and sanctions against officials. In particular, it alleges that, at the end of 2015, many trade union officials from other organizations were dismissed, most of whom had more than 23 years of service, mentioning in particular Ms Blanca Avalos (general secretary of the Organization of Education Workers of Paraguay–National Trade Union (OTEP-SN)); Mr Marcos González (general secretary of the Federation of Educators of Paraguay (FEP)); Mr Atilano Fleitas (FEP vice-president); Mr Carlos Parodi (FEP official); and Mr Javier Benítez (FEP official).
3. 56. In communications of 19 January and 19 August 2016 and 3 March 2017, the Government sent its observations on the Committee’s recommendations and on the complainant organization’s additional allegations.
4. 57. With regard to the Committee’s previous recommendations, the Government states, in relation to suspending the deduction of several sets of union dues from one person, that: (i) this suspension is based on a legal restriction laid down in the Labour Code, section 293(c) of which provides that “each worker can become a member of only one trade union, in either their enterprise, industry, occupation or trade, or institution” which is why it is not feasible for the MEC to continue to deduct union dues in cases where workers are members of multiple unions; (ii) nevertheless, workers are free to join more than one union if they are from different enterprises, institutions or federations; (iii) the MEC has agreed to postpone the suspension measure in order to allow unionized workers to expressly and freely state their wish to belong to a particular trade union organization, and has already granted several extensions to regularize the situation (which shows that the MEC has involved the trade unions concerned); (iv) the MEC set up a clear procedure enabling workers who belong to multiple trade unions to choose one of them, and in cases where workers do not make their wishes known, the most recent trade union membership prevails, in accordance with the criteria established in the Electoral Code; and (v) the ban on joining more than one trade union is designed to prevent monopolization on the part of members and union fragmentation. Regarding the granting of trade union leave, the Government indicates that: (i) trade union leave is recognized in the Teachers’ Statute, section 38 of which provides that in no case may trade union leave be granted to teachers who have been registered for less than five years; and (ii) Resolution No. 92726 of 13 June 2014, which is being challenged by the complainant organization and which governs the granting of trade union leave, was issued in accordance with the national legal framework.
5. 58. The Committee notes, in relation to its previous recommendations, that, with regard to suspending the deduction of several sets of union dues from one person, the Government confirms that this decision is based on the impossibility of joining more than one union, as laid down in section 293(c) of the Labour Code. While the Government states that in practice workers can belong to more than one trade union if these are from different institutions, the Committee recalls that the complaint concerned the non-deduction of trade union dues, through Decision No. 84 of 30 March 2015 of the Legal Advisory Service of the Ministry of Education and Culture, due to the illegality of workers being members of multiple unions. The Committee also notes that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has made the same observation in the context of the examination of the application by Paraguay of Convention No. 87. The Committee further notes that the restrictions on the granting of trade union leave alleged by the complainant organization, in particular the requirement that teachers must have been registered for five years, are also based on legislative provisions (section 38 of the Teachers’ Statute). The Committee wishes to recall in this regard, as it did in its previous examination of the case, that establishing that teachers must have been registered for five years in order to obtain trade union leave raises problems of conformity with the principles of freedom of association. With regard to the apparent restrictions on multiple membership established in section 293(c) of the Labour Code, which apparently had an impact on the retention of union dues, and the requirements for the granting of trade union leave, in particular the requirement that teachers must have been registered for five years, the Committee again requests the Government to initiate social dialogue with the most representative organizations affected with a view to finding, including by making any amendments to the aforementioned laws that may be necessary, satisfactory solutions in terms of trade union leave and the deduction of trade union dues, in the light of the abovementioned principles of freedom of association. The Committee refers this legislative aspect of the case to the CEACR.
6. 59. Regarding the new allegations made by the complainant organization, the Government indicates, in relation to the application for the strike to be declared illegal, that: (i) the Office of the Attorney-General of the Republic, together with the MEC, called for the four-day strike held in 2014 to be declared illegal; (ii) in a ruling of 29 September 2015, the Labour Court of First Instance decided to dismiss the objection that the application was time-barred and declared the strike illegal; (iii) in a ruling of 15 December 2015, the Labour Appeal Court declared the invalidity of the proceedings that led to the strike being declared illegal, but in March 2016 an appeal against this ruling was lodged with the Supreme Court of Justice; (iv) there is no intimidation or judicial harassment, but compliance with the country’s constitutional and legal provisions, taking into consideration the general interests and the restrictions that by virtue thereof may be imposed on the constitutional right to strike; (v) in this regard, pursuant to section 130 of Act No. 1626/100, essential public services are considered to be “those whose total or partial interruption may endanger the life, health or safety of the whole community or part of it”, and “education at all levels” is included in the list of such essential public services; and (vi) the employer has the legal right to withhold pay for days and hours not worked, regardless of the legality or illegality of the strike.
7. 60. The Committee notes that the question of the legality of the strike that was staged for a few days in 2014 (the complainant alleges that it was for three days and the Government considers that it was for four) concerns the consideration of education – at all levels – as an essential public service, in relation to which there is a legal obligation to ensure its normal operation in the event of a strike. In this regard, the Committee recalls that the education sector does not constitute an essential service in the strict sense of the term, although minimum services may be established in the education sector, in full consultation with the social partners, in cases of strike of long duration [see Compilation, op. cit., paras 842 and 898]. The Committee requests the Government to inform it of the outcome of the appeal against the ruling by the Labour Appeal Court (which invalidated the proceedings concerning the declaration of illegality of the strike) and requests that, through social dialogue, it take the measures that are necessary to ensure full respect for the abovementioned principles of freedom of association.
8. 61. Regarding the allegations of dismissals, the Government denies that they were anti-union in nature and provides the following information on the reasons for the dismissals: (i) Ms Blanca Avalos (general secretary of the OTEP–SN) was dismissed for unjustified absence, abandonment of office and failure to comply with orders issued by her superiors, and an appeal has been filed against the measure before the ordinary courts; (ii) the FEP officials (Mr Marcos González, Mr Atilano Fleitas, Mr Carlos Parodi and Mr Javier Benítez) were dismissed for having actively participated in a strike held from 29 July to 28 August 2013, industrial action that was declared illegal by the ordinary courts. Regarding the dismissals for participation in 2013 in a teachers’ strike that was declared illegal, the Committee refers to the abovementioned principles on strikes in the education sector and recalls that no one should be penalized for carrying out or attempting to carry out a legitimate strike [see Compilation, op. cit., para. 953]. The Committee requests the Government to take the necessary measures to ensure compliance with these principles, including the compensation and reinstatement of the officials who were dismissed for participating in a teachers’ strike, and to keep it informed in this regard. The Committee also requests the Government to keep it informed of the outcome of any legal proceedings that are pending in relation to the alleged dismissals.
9. 62. Lastly, in its observations, the Government denies the assertions of the complainant organization alleging a lack of political will to conclude a collective agreement. The Government emphasizes in this respect that the collective agreement is something that is wanted and being promoted by the MEC, and states that since 2014 it has been working with the unions, especially with the UNE–SN, on projects aimed at entering into a collective agreement, and that the adoption of such an agreement will represent a milestone for labour relations in the country. The Government reports that the support of the ILO has been requested for these efforts. The Government also denies the allegations that there has been a lack of progress in effective communication and joint work, and the allegations of anti-union harassment. In this regard, the Government provides detailed information on the implementation of initiatives and activities that demonstrate the joint work that is being carried out by the MEC and the trade unions, including vocational and trade union training programmes organized jointly with the trade unions (and delivered to more than 30,000 teachers per month in 2015 and 2016), as well as the creation of institutional round tables with the different trade union organizations to discuss issues of common interest such as salary adjustment or the teaching and administrative career. To sum up, regarding the allegations of denial of social dialogue and collective bargaining, while noting that the complainant organization alleges that since March 2015 and for the rest of that year there was no progress in collective bargaining or in effective communication or joint work, the Committee notes that the Government emphasizes its commitment to enter into a collective agreement – indicating that the ILO has been asked for support in this respect – and describes in detail various joint initiatives and activities carried out with the trade unions in 2015 and 2016. The Committee encourages the authorities concerned to continue to promote social dialogue with the representative trade unions in the MEC, in particular with the complainant organization, and trusts that, in the very near future, a collective agreement on working conditions will be signed, and that any of the issues raised in this case that may still be pending can be addressed through this agreement. The Committee requests the Government to keep it informed in this regard.