Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

The Government has supplied the following information:

There are no special or distinct legislative or regulatory provisions applicable to the constitution of workers' organizations on the one hand, and of employers' organizations on the other hand. Section 95 of the current National Constitution on freedom of association states that all public and private sector workers have the right to organize in trade unions without the necessity of prior authorization. Members of the Armed Forces and the police are excluded from this right. Employers have the right to the same freedom of association. No one can be forced to belong to a trade union.

Section 290 of the Labour Code provides that the following persons can constitute executive committees of unions: (a) persons over 18 years old without distinction based on sex, be they citizens or foreigners; (b) persons over 14 years and under 18 years old, with the express permission of their legal representative, clarifying that such young persons cannot participate in the direction or the administration of the union; and (c) foreigners of good conduct and good character who have resided for more than five years in the country. Section 366 of the Labour Code, Chapter 2, provides that a "lockout" or a "closure" means the partial or total temporary suspension of work at the initiative of the employers in the event of disputes with workers, for the direct and exclusive defence of their occupational interests.

Section 97 of the current National Constitution refers to the right to strike and lockout. It provides for the following with respect to collective agreements: unions have the right to carry out collective action and to conclude agreements on employment conditions. The State favours conciliatory solutions for labour disputes, as well as labour consultation.

The Government mentioned that it has taken into account the comments made by the Committee of Experts with regard to the application of the provisions of this Convention to workers of public bodies. In effect, the drafting committee of the draft Labour Code relied on the relevant documents sent to this Organization, observing the prerequisites required of workers under section 353 in order to declare a strike, and concerning the services where strikes are prohibited under sections 353 and 284 of the Labour Code, and section 291 of the Code of Labour Procedures. With regard to the submission of collective disputes to compulsory arbitration, the new Constitution already provides under section 96 that arbitration is optional.

In addition, a Government representative stated that his Government undertook to communicate the reports due and, if it had not yet done so, this was due to the fact that since 3 February 1989, which marked the end of 30 years of dictatorship, a democratic reconstruction process had begun and eight national elections had been conducted and a national constitutional assembly (with the participation of trade union leaders and employer representatives) adopted a new Constitution on 20 June 1992. The articles of the new Constitution dealing with labour relations were the result of the consensus among the social partners. They recognized freedom of association of all workers of the public and private sectors, the right to collective bargaining, the right to strike and lockout. Moreover, the draft that revised the whole labour code was in its final stages of examination by the Chamber of Deputies which had done its best to include the comments made by the representative of the ILO. An agreement on strikes and lockouts existed between the representatives of workers and employers. He added that the Government intended to repeal Law No. 200 thus giving public servants a new legal status, probably within the next year. This situation had not, however, prevented the conclusion for the first time of collective agreements in the public sector. The Government also undertook to amend the Labour Procedural Code and had requested the technical assistance of the Office in this regard. Finally, he stated his Government's intention to apply the Convention and that it would do its best to this end.

The Workers' members noted with regard to the report of the Committee of Experts that the Government had not supplied a report. This failure was all the more regrettable as positive factors had been noted in 1992, a mission had been carried out during the same year by an ILO regional adviser, the situation was generally developing positively, and the Constitution was adopted in June 1992 which, in particular, recognized freedom of association. Subsequently the situation appeared to have markedly deteriorated. They noted with regret that the examination of the draft new Labour Code was suspended and that the Government seemed to wish to impose, without consulting the social partners, a Code that would not be in comformity with ILO standards. While taking note of certain partial revisions of the legislation, such as the new conditions for participation in the executive committees of trade unions, they regretted the lack of relevant information from the Government. They also noted the contradictions between the information presented to this Committee in 1992 and the written information given to this Committee this year. The Government still seemed to be referring to section 353 of the former Labour Code that it had declared to be repealed last year, and appeared not to be moving towards the legislative reform as required by the new Constitution.

The Employers' members generally shared the view of the Experts with regard to the six points of criticism in their report. However, they did not agree that strikes were an internal matter as, by definition, they were also directed against third parties, thus affecting their interests. As the Convention did not provide for the weighing of interests of third parties, the Government was responsible for establishing reasonable provisions if it was considered necessary to regulate strikes. They were unsure whether the correct percentage of members for calling a strike should be 75 per cent or some other figure, as this could not be ascertained from the terms of the Convention, and did not wish to take a stand with regard to compulsory arbitration in some circumstances as they were not in possession of all the facts. However, they emphasized that the other points listed by the Experts were clearly internal trade union matters in which the Government should not interfere. Although the new Constitution contained general principles concerning freedom of association and the right to strike, the essential issue was whether these principles had been implemented in specific legislation. A first draft of such a law had been mentioned, but they were unaware of its content. With regard to Convention No. 98, the Employers' members noted that there was a gap in the protection of civil servants and public enterprise employees, a lack of protection against trade union discrimination, and no free collective bargaining. Clarifications were requested with regard to the "Memoranda of Agreement on Labour Relations and Social Security in the Bi-national Hydro-electric Power Plant YACYRETA" which prevented the establishment of employers' associations. They asked the Government to provide a detailed report with the corresponding legal texts attached.

The Workers' member of Paraguay stated that it would have been necessary to have available a detailed report in response to the well-conceived indications of the Committee of Experts, which referred to points that, for the most part, had been raised the last year. In his opinion the indications of the Government representative conformed to reality, since he referred to the transitional situation which the country was going through. The new national Constitution proclaimed a Social State of Law which gave priority to development with social justice. The merit of this democratic development was due in part to the role of the working class and to the commitment which all this represented for workers. He hoped that the Inter-American Agreement on Human Rights would be genuinely applied in his country with the support of the social partners, and would bring with it true economic and social progress. He was concerned about the situation of the new Labour Code, fearing that the victories which had taken shape in the Code would not in the end be expressed in concrete terms since the discussion had been extended. The code should be promulgated before 1 July, when there would be a new change of the legislature. With regard to the application of Convention No. 87, he thought that freedom of association was for now being fully respected since there were major deficiencies in respect of the protection of this freedom. A very low percentage of workers was unionized and it was necessary to strengthen trade union rights in order to ensure the free organization of workers. With regard to Convention No. 98, it was necessary that the country have a new labour law containing the indispensable changes that would ensure that collective bargaining would be adequate, and would permit Paraguayan trade unions to perform the role they should have. He referred to the voting procedures in trade union elections provided for in the new Constitution, and hoped that this constitutional provision would be strictly applied to guarantee the return to democracy. Finally, he referred to the need to be able to rely upon a Ministry of Labour having the necessary means to ensure compliance with the labour laws.

The Workers' member of Colombia stated that it was unacceptable that non-compliance with a Convention that was ratified 31 years ago would be due to planned steps for the strengthening of democracy. The points established by the Committee of Experts with regard to the restriction of the right to strike, the prohibition of strikes in essential public services and the prohibition on collective resolutions allowed one to see that the rights of workers were being trampled on and that an outrage was committed against the trade union movement, exactly like that which had occurred in the rest of Latin America. He rejected as too simple the proposition that the problems were the result of the present transition to democracy, since this would run the unacceptable risk of being invoked by the governments to justify non-compliance with the Conventions. He invited the workers of Paraguay not to act as sounding boards for orders which were inappropriate for workers.

The Workers' member of Uruguay stated that he had closely followed the democratic process in Paraguay since his own central trade union organization was part of the coordinating committee of central trade union organizations which joined together the central trade union organizations of Paraguay, Chile, Bolivia and Brazil. He considered that they were in the presence of a case not only of stagnation of freedom of association but of a clear movement backwards. Last April he had participated in a meeting in Paraguay in which the two main central trade union organizations of this country -- the National Central Trade Union Organization of Workers (CNT) and the Unified Central Trade Union Organization of Workers (CUT) -- demanded respect for freedom of association, non-interference by the Government in internal matters of trade unions and denounced the Government's violation of the Convention. A decision of the Court of Justice which should have suspended the decision to leave trade union leaders on the fringes of legality had not been respected by the Government. He requested that the conclusions which this Committee had adopted last year be maintained and strengthened.

The Government representative stated that the discussion of the draft Labour Code was not suspended but delayed due to the position taken by the employers. Trade union freedom was not restricted and the declarations of the Workers' members of Colombia and Uruguay were incorrect. Numerous trade union organizations had been created, including in the public sector, and the process was under way for the establishment of a trade union federation of the civil servants. The right to strike was not limited and an agreement existed between the workers and the employers concerning the procedures for the negotiation of strikes on a tripartite basis. In respect of collective agreements, he declared that there were five or six such agreements in different enterprises of the public sector, in particular in the national cement industry. He recognized that there had been a certain negligence in the supply of reports; it would be appropriate to insist that the Ministries of Justice and of Labour comply with their obligation in this respect. Considering that certain information shaded the truth for political reasons, he stressed that his country has made progress in the field of freedom of association and civil rights and that it would be unjust not to recognize this progress. He stated that the Government would invite an ILO mission to visit the country so as to obtain a better appreciation of the situation and to provide all the necessary assistance.

The Employers' members noted that the misunderstandings and the erroneous information mentioned by the Government representative would have been less numerous if the Government had communicated its report and if the representative had taken a position on the concrete points. The Government should send a complete report which would permit an assessment of eventual progress.

The Workers' members supported the proposals made by the Employers' members concerning the lack of relevant information. In 1992 this Committee had expressed strong hope that the Government would indicate in the near future that the necessary changes had been made. The Committee should express its disappointment now that the Government had not sent a report and should insist that the Government fulfil this obligation.

The Committee took note of the written and oral information provided by the Government and regretted that the report due had not been sent in time to be examined by the Committee of Experts. The Committee noted the attitude of the Government with regard to the questions under discussion. Nevertheless, in view of the concern expressed by the Committee of Experts and shared by this Committee on the questions raised for some years, the Committee expressed its firm hope that appropriate measures would be adopted as rapidly as possible. The Committee asked the Government to adopt all the necessary measures so as to bring all its legislation and practice into conformity with Conventions Nos. 87 and 98, as well as to provide the pertinent texts and the agreement signed by the social partners on the right to strike. The Committee took due note of the desire of the Government to receive new technical assistance from the ILO which it hoped would be provided as soon as possible.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

The Government communicated the following information:

The situation resulting from the application of Act No. 200/70 which does not allow public servants to organise and denies them the right to strike will be rectified. The regulation made under Act No. 200/70 is going to disappear. In this regard, the Government adopted Decree No. 3210/89 of 17 October 1989 signed by the President of the Republic which names the director-general of the public service workers and under section 2 provides: "The general directorate of public service workers, besides the special duties attributed to it under the law, will elaborate a revised, updated draft of Act No. 200/70 to be presented to the National Parliament."

At present, for procedural reasons based on the principle of legal supremacy, the Government hopes that once the new Constitution is adopted and promulgated in the near future, the new Act on the public service will be submitted to Parliament and that it will be in conformity with the contents of the new Charter.

Furthermore, it should be pointed out that the draft Constitution has overcome these inconveniences. Chapter 8 concerning labour (first section), in respect of labour rights provides, in section 96: "All workers, whether in the public service or in the private sector, have the right to organise trade unions without prior authorisation." Only the members of the armed forces and the police are excluded from this right. The employers also benefit from the right to organise. No one can be required to join a trade union. A trade union will be recognised and will be able to function as long as it has registered with the relevant administrative body. The democratic practice established in the Act will determine the election of the leaders and the functioning of the unions. The Act will also guarantee immunity to trade union leaders.

The Government adds that all workers in the public service and in the private sector have the right to strike in cases of conflict of interest.

The employers have the right to lockout in the same conditions. The Act regulates the exercises of this right so that the essential public services are not affected.

Article 288 of the draft Labour Code provides, in its last paragraph, that the right to organise extends to civil servants and workers in the public sector, in conformity with section 2 of the draft which provides that civil servants of the central administration, with respect to this right, will be regulated by a special Act, from which it can be deduced that they will be submitted to the provisions of the Code and that only members of the armed forces and the police will be excluded.

With respect to the other comments made by the Committee of Experts, the Government assures that the draft Labour Code provides for the adaptation of national law to international Conventions and the abrogation of all laws which restrict, suppress, or attack the victories obtained at the international level concerning labour issues.

Thus, with respect to standards concerning strikes, those which are contained in the present Labour Code, such as sections 285, 353 and 360, as well as section 284 et suite of the Code of Labour Procedure, which have been criticised by the ILO, have been eliminated.

The Government has attached copies of the draft national Constitution, the articles of which have been approved until 20 April 1992, as well as Decree No. 3210 of 17 October 1989.

In addition, a Government representative, the Vice-Minister of Labour, pointed out that, with respect to Act No. 200 and the recognition of the right to organise and collective bargaining of workers in public enterprises and public services, the new Decree No. 3210 stipulated that the General Direction of Public Servants was to elaborate a draft updating the above-mentioned Act. This demonstrated the will of the Government to amend national legislation. The new Constitution included fundamental changes concerning labour rights; in particular, the following: the right to work; the promotion by the State of policies to ensure full employment; the prohibition of discrimination on the basis of age, social conditions, sex, religion, political preference; equality in employment for men and women; regulation of the work of young persons; maternity leave; and hours of work per day and per week. Furthermore, he noted that there were provisions concerning wages and the creation of an incentive scheme for companies which provided additional benefits to workers. The new Constitution provided also for the resolution of collective disputes, social security benefits and provisions concerning freedom of association. In particular, workers in both the private and public sector had the right to organise trade unions without prior authorisation with the exception of members of the police and the armed forces. Furthermore, the new Constitution would provide trade unions with the right to bargain collectively, to have voluntary recourse to arbitration and, for workers in both the private and public sector, the right to strike in the case of a collective dispute. Finally, a section of the new Constitution concerning the public service provided for the following: all Paraguayans have the right to employment in the public service and shall benefit from the guarantees provided for by this Constitution on equal terms with workers in the private sector. With the promulgation of this new Constitution on 12 June 1992, the provisions which were in contradiction with ratified Conventions would be considerably amended.

The Workers' members noted that this was the first time this Committee had had the opportunity to discuss this case due to the absence of the Government of Paraguay in previous years. They noted that trade unions and their activities had been so regulated that the trade union movement had been truly suffocated. Trade union activity was completely prohibited in the public sector. They noted that the information provided by the Government both orally and in writing indicated that the national legislation would be amended in order to bring it into line with international standards and, in particular, with this Convention. The Government had requested ILO technical assistance for the elaboration of a draft Bill on freedom of association. There was, therefore, insufficient information available at present to permit a close examination of the application of this Convention. They stressed, however, that real progress could be noted if the Government were to adopt in the near future and implement the draft legislation. They urged the Government to take this action soon and to communicate all relevant information, including any texts adopted and to indicate the measures envisaged for the practical application of the legislation.

The Employers' members noted that the information available was not sufficient to permit an in-depth examination of this case. They welcomed, however, the indication that the new Constitution addressing several questions raised by the Committee of Experts would be adopted on 12 June 1992. Still they noted that specific details concerning the draft legislation had not been provided and urged the Government to send a copy of the draft to the Office to permit an evaluation of its conformity with the Convention. In particular, they pointed out that the legislation presently in force required approval by three-quarters of trade union membership to call a strike. This requirement was probably too high but since strikes affect the society the Government had a right to set a requirement at a lower level. Furthermore, the Committee of Experts had identified a number of services which were not granted the right to strike and which it did not consider to be essential services. As the Convention did not specifically mention the right to strike, they felt that the definition of an essential service may depend on the size of the country, the state of its economy, etc., and accordingly may differ as between countries.

The Government's statement was encouraging but, once again, words must be followed by deeds.

The Workers' member of Paraguay noted that the statement made by the Government representative with respect to the new provisions concerning social questions introduced in the new Constitution was accurate both in respect of freedom of association in the public and private sector and with respect to the right to strike. He stated that these new provisions met with the satisfaction of the workers and he expressed the hope that they would soon be adopted. Nevertheless, he explained that three major trade union organisations had requested that the draft Labour Code be held in suspense until the new Constitution was adopted, thus ensuring a number of fundamental rights. He expressed concern, however, that some sectors might try to change some of the essential elements of the new Constitution. He indicated the need for the Government to keep the ILO well informed in this regard. Concern was also expressed for the approach taken by the employers of the country with respect to freedom of association, collective bargaining and other workers' rights. He was concerned that the Minister of Justice and Labour might not possess the authority necessary to defend the rights of the workers when they were faced with an employers' sector which still did not understand that Paraguay could only find peace based upon respect for all the sectors of the economy, including the working classes. Finally, he expressed the hope that the new Government would be able to comply with international labour standards.

The Government representative, in reply to the questions raised by the Workers' member, recalled that these were times of change in Paraguay, both of an institutional and a legal nature, and that this change affected all groups of society. As concerns the alleged weakness and absence of authority of the Ministry of Labour, he stated his belief that the strength of an institution did not depend on power relative to the institution but rather on the standards which were laid down to enable the institution to ensure the respect of the rights of both workers and employers. The speaker requested ILO technical assistance to verify that the new standards adopted were in conformity with the Conventions and to assist in finding solutions to the problems remaining in the legislation.

The Workers' members associated themselves with the concerns raised and the statement made by the Workers' member of Paraguay concerning the guarantees necessary for true freedom of association. These elements were clearly essential to the democratisation process.

The representative of the Secretary-General indicated that the regional adviser on standards would undertake a mission to his country to provide the necessary technical assistance to complete the legislative process being undertaken there and would take into account, in particular, ILO standards relating to freedom of association.

The Committee noted the information supplied by the Government that the legislation was being changed. It stressed the importance of freedom of association and strongly expressed its hope that the Government would be able to report in the very near future that the necessary changes had been made. It therefore requested the Government to send all relevant documents to the ILO as soon as possible.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments of 24 August 2010 by the International Trade Union Confederation (ITUC) referring to matters under examination by the Committee, such as the arrest of trade unionists. The Committee recalls in this connection that the detention of trade unionists on grounds related to activities carried out to defend the interests of workers is a serious violation of fundamental freedoms in general and freedom of association in particular. The Committee requests the Government to send its observations thereon.

The Committee observes that in its report the Government makes no reference to the comments the Committee has been making for many years on the legislation’s inconsistency with the provisions of the Convention. In particular, the report makes no reference to the stage reached in the enactment of the Bill which was to amend various provisions of the Labour Code in line with the Committee’s observations (the Bill had technical input from the ILO). In these circumstances, the Committee repeats its earlier comments.

The Committee reminds the Government that for many years it has been pointing out that the following provisions of the law are incompatible with the Convention:

–           the requirement of an unduly large number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

–           the prohibition on joining more than one union even if the worker has more than one part-time employment contract, whether at the level of the enterprise or industry, occupation or trade, or institution (section 293(c) of the Labour Code);

–           imposition of unduly demanding conditions of eligibility for office on the executive body of a trade union: the need to be an employee in the enterprise, industry, occupation or institution, whether active or on leave (section 298(a) of the Labour Code), to have reached the age of majority and to be an active member of the union (section 293(d) of the Labour Code);

–           the requirement for trade unions to respond to all requests from the labour authorities for consultations or reports (sections 290(f) and 304(c) of the Labour Code);

–           the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code);

–           the obligation to provide a minimum service in the event of a strike in public services that are essential to the community without any requirement to consult the employers’ and workers’ organizations concerned (section 362 of the Labour Code);

–           the referral of collective disputes to compulsory arbitration (sections 284–320 of the Code of Labour Procedure).

The Committee notes the information sent by the Government on the drafting of a Bill to amend certain sections of the Labour Code and Amending Act No. 496/94, which was submitted to the President of the Republic for consideration on 5 June 2009 and that several of the Bill’s provisions take account of the Committee’s comments. These are: section 290(f) which limits requests for information from the labour authorities to annual statements of account; section 293(c), which allows every worker to belong to several unions on the basis of the category of work they perform; section 293(d), which extends eligibility for membership of the executive body of a trade union to non-active members; section 298(a), which provides that the general assembly shall decide on the election and removal of the authorities who must be dependent or independent workers of the enterprise, industry or occupation, whether active or on leave; sections 358 and 376, extending the purposes of a legal strike to cover not only occupational interests but also economic and social protection interests.

Furthermore, the Committee is of the view that other amendments proposed in the Bill could be improved to bring them fully into conformity with the principles of freedom of association, and in particular:

–           the proposed amendment of section 292 to reduce from 300 to 100 the minimum membership for establishing a branch trade union. The Committee is of the view that, although the reduction is significant, the number of 100 workers may still be difficult to attain and ought therefore to be reduced to no more than 50. Similarly, the minimum number of workers required to establish unions in the public sector should also be reduced by half;

–           the amendment of section 304(c) limiting the requirement to disclose information and data to “complaints raised by trade unionists”. In the Committee’s view, so as to avoid acts of interference in trade union activities, a specified percentage (for example 10 per cent) of members should be required in order to request intervention by the administration;

–           the amendment of section 362 on minimum services which introduces a last sentence stating “The decision shall be sent to the organizations of workers and employers so that they participate in the determination, and in the event of disagreement shall be referred to the competent authority”. In the Committee’s view, any disagreement in determining minimum services should be settled by an independent body that the parties deem reliable, such as the judicial authority.

The Committee further observes that the abovementioned draft Bill proposes no amendment to sections 284–320 of the Code of Labour Procedure which cover the referral of collective disputes to compulsory arbitration. The Committee noted in an earlier observation that, according to the Government, these provisions were repealed by section 97 of the Constitution, promulgated in 1992, which provides that “the State shall facilitate conciliatory solutions to labour disputes and social dialogue. Arbitration shall be optional”. The Committee again requests the Government, in accordance with the Constitution and in order to avoid any misinterpretation, to take the necessary steps to repeal sections 284–320 of the Code of Labour Procedure.

The Committee hopes that in the near future it will be able to note progress in the legislation and requests the Government to provide information in its next report on all developments in this regard.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s reply to the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) referring to acts of violence by police against workers in the sugar and steel sectors who took part in demonstrations, and to arrests of trade unionists. With regard to incidents that took place in a sugar plant, the Committee notes that according to the Government, in May 2007 a number of workers in the Tebicuary area blocked the access roads to the sugar plant and played a leading part in violence that prompted the police to intervene to restore the peace, protect private property and ensure workers’ free access to the plant. According to the Government, negotiations at the initiative of the enterprise put an end to the dispute. As to the comments regarding the steel enterprise, the Committee notes the Government’s statement that trade unionists initiated a strike and used violence and weapons to prevent the workers from entering or leaving the enterprise, even blocking the way of an ambulance that was transporting a member of the anti-riot squad who was seriously hurt, which prompted the police authority to arrest three people; the strikers went to the police station to object the arrest and assaulted the police officers present and the latter reacted. The Committee also notes the ITUC’s comments of 26 August 2009 referring to these matters. Lastly, the Committee notes with regret that the Government has not sent its observations on the comments of 2005 by the International Confederation of Free Trade Unions (ICFTU) – presently known as ITUC – referring to numerous acts of violence, including the murder of trade unionists. The Committee emphasizes in this respect that in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. The Committee urges the Government to conduct such an inquiry.

The Committee reminds the Government that for many years it has been pointing out that the following provisions of the law are incompatible with the Convention:

–           the requirement of an unduly high number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

–           the prohibition on joining more than one union even if the worker has more than one part-time employment contract, whether at the level of the enterprise, industry, occupation or trade, or institution (section 293(c) of the Labour Code);

–           imposition of unduly demanding conditions of eligibility for office on the executive body of a trade union: the need to be an employee in the enterprise, industry, occupation or institution, whether active or on leave (section 298(a) of the Labour Code), to have reached the age of majority and to be an active member of the union (section 293(d) of the Labour Code);

–           the requirement for trade unions to respond to all requests from the labour authorities for consultations or reports (sections 290(f) and 304(c) of the Labour Code);

–           the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code);

–           the obligation to provide a minimum service in the event of a strike in public services that are essential to the community without any requirement to consult the employers’ and workers’ organizations concerned (section 362 of the Labour Code);

–           the referral of collective disputes to compulsory arbitration (sections 284–320 of the Code of Labour Procedure).

The Committee notes with interest that the Government has sent information on the drafting of a Bill to amend certain provisions of the Labour Code and Amending Act No. 496/94 which was submitted to the President of the Republic on 5 June 2009 for consideration. The Committee observes that various provisions have been amended to take account of the comments made by the Committee of Experts. Specifically: section 290(f), which limits the information the labour authorities may require to annual financial statements; section 293(c), allowing every worker to belong to several unions corresponding to the categories of work they perform; section 293(d) extending to non-active members of the union the possibility of standing for membership of the executive body; section 298(a), establishing that the general meeting shall decide as to the appointment to and removal from offices to be filled by workers who are employed in or are independent of the enterprise, industry or occupation, whether active or on leave; sections 358 and 376, extending the purposes of lawful strikes to economic and social protection interests as well as occupational ones.

Furthermore, the Committee is of the view that other amendments proposed in the Bill could be better drafted to bring them fully into line with the freedom of association, in particular:

–           the amendment proposed to section 292 reducing the minimum requirement for establishing a branch union from 300 to 100. Although this is a significant reduction, the Committee is of the view that a membership of 100 workers could be difficult to reach and that the number should therefore be reduced to 50. Likewise, the minimum number of workers needed for trade unions in the public sector should be reduced by one half;

–           the amendment to section 304(c), restricting the obligation to provide information and data “in the event of complaints raised by trade unionists”. The Committee is of the view that in order to avoid interference in trade union activities, there should be a requirement for a percentage of the membership (for example 10 per cent) in order to request administrative intervention;

–           the amendment to section 362 on minimum services introducing a final sentence that reads “The decision shall be notified to the organization of workers and employers to allow them to participate in the determination of the services and, in the event of disagreement, shall be referred to the competent authority.” In the Committee’s view, any disagreement in the determination of minimum services should be settled by an independent body – such as the judicial authority – that has the trust of all the parties.

The Committee further observes that the abovementioned Bill does not provide for any amendment of sections 284–320 of the Code of Labour Procedure regarding the referral of collective disputes to compulsory arbitration. The Committee points out that in an earlier observation it noted that according to the Government, these provisions had been tacitly repealed by article 97 of the Constitution of the Republic promulgated in 1992 which states that “the State shall facilitate conciliatory solutions to labour disputes and social dialogue. Arbitration shall be optional.” The Committee again asks the Government to take the necessary steps, in accordance with the Constitution and in order to avoid all confusion, expressly to repeal sections 284–320 of the Code of Labour Procedure.

The Committee hopes that in the near future it will be able to note progress in the legislation and asks the Government to provide information on any developments in this respect in its next report. Lastly, noting that the Government has requested technical assistance from the Office in addressing the matter of the abovementioned legislative amendments within the National Congress, the Committee expresses the hope that this will be forthcoming in the near future.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s report, which is basically confined to mentioning the legislative provisions relative to the Convention. The Committee also notes the comments made by the International Trade Union Confederation (ITUC), dated 29 August 2008. The Committee observes with concern that the ITUC refers to serious acts of violence by the police force against workers from the sugar and steel sectors who participated in demonstrations, as well as the arrest of trade unionists. The Committee requests the Government to send its observations on this matter, as well as on the comments made by the International Confederation of Free Trade Unions (ICFTU, now ITUC) in 2005, which referred, among other things, to numerous acts of violence including assassinations of trade unionists.

The Committee recalls that for many years, it has been making comments on the lack of compliance of various legislative provisions with the Convention.

Article 2 of the Convention. The requirement of an excessively high number of workers (300) to establish a branch trade union (section 292 of the Labour Code). The Committee recalls that, although the requirement of a minimum number of members to be able to establish an organization is not in itself incompatible with the Convention, the minimum number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 81). In this regard, the Committee considers that the number of 300 workers to establish a branch trade union is too high and constitutes an obstacle for the establishment by workers of organizations of their own choosing. The Committee therefore requests the Government to take the necessary measures to amend the legislation to reduce the requirement of 300 workers to establish a branch trade union to a reasonable number.

The prohibition for workers to join more than one union even if they have more than one part-time employment contract, whether at the level of the enterprise, industry, occupation or trade, or institution (section 293(c) of the Labour Code). The Committee recalls that Article 2 of the Convention establishes the right of workers to join organizations of their own choosing and that, in this respect, workers who have more than one occupation in different enterprises or sectors should be able to join the unions that correspond to each of the categories of work that they perform and to be members, at the same time, if they so wish, of a union at the level of the enterprise and the occupation. The Committee requests the Government to take the necessary measures to amend the legislation as indicated above.

Article 3 of the Convention. Imposition of excessive requirements to be able to hold office in the executive body of a trade union: the need to be an employee in the enterprise, industry, occupation or institution, whether active or on leave (section 298(a) of the Labour Code), to have reached the age of majority and to be an active member of the union (section 293(d) of the Labour Code). The Committee recalls that provisions which require the members of a trade union to belong to the respective occupation and that the officers of the organization be chosen from among its members are contrary to the Convention. Provisions of this type infringe the right of organizations to elect representatives in full freedom by preventing qualified persons, such as full-time union officers, from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. When national legislation imposes conditions of this kind on all trade union leaders, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). Under these conditions, the Committee requests the Government to take the necessary measures to amend the legislation (sections 293(d) and 298(a)) in accordance with the principles indicated above.

The requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code). The Committee recalls that problems of compatibility with the Convention arise when the law gives the administrative authorities powers to examine the books and other documents of an organization, conduct an investigation and demand information at any time. The Committee considers that such an obligation should be confined to submitting annual financial reports or in cases of denunciations by union members of violations of the law or the union’s rules (see General Survey, op. cit., paragraphs 125 and 126). The Committee therefore requests the Government to amend the legislation in accordance with the principle set out above.

The submission of collective disputes to compulsory arbitration (sections 284–320 of the Code of Labour Procedure). In its previous observation, the Committee noted that, according to the Government, these provisions were tacitly repealed by article 97 of the Constitution of the Republic enacted in 1992, which provides that “the State shall facilitate conciliatory solutions to labour disputes and social dialogue. Arbitration shall be optional.” The Committee therefore requests the Government, in accordance with the provisions of the Constitution and with a view to avoiding any possible ambiguity of interpretation, to take the necessary measures to explicitly repeal
sections 284–320 of the Code of Labour Procedure, which provide for compulsory arbitration in collective disputes.

The requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code). The Committee reminds the Government that trade union organizations, which are responsible for defending the socio-economic and occupational interests of workers, should, in principle, be able to use strike action in support of their positions in the search for solutions to problems posed by major economic and social policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living. The Committee requests the Government to take the necessary measures to amend sections 358 and 376 in accordance with the principle recalled above.

Section 362 of the Labour Code which establishes the obligation to ensure a minimum service in the event of a strike in public services that are essential to the community, without the requirement to consult the employers’ and workers’ organizations concerned. The Committee recalls that workers’ organizations should be able, if they so wish, to participate in defining minimum services along with employers and the public authorities, and that any disagreement as to the number and duties of the workers concerned should be settled by an independent body and not unilaterally by the administrative authorities. Under these conditions, the Committee requests the Government to take the necessary measures to guarantee explicitly in the legislation the right of workers’ and employers’ organizations to participate in defining minimum services and, where disagreements arise, as to the number and duties of the workers concerned, they should be settled by an independent body.

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

[The Government is asked to supply full particulars to the Conference at its 98th Session and to reply in detail to the present comments in 2009.]

 

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report. The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006 which refer to matters already raised by the Committee.

The Committee recalls that for many years it has been commenting on the lack of conformity of various provisions of the legislation with the Convention.

Article 2 of the Convention. The requirement of an excessively high number of workers (300) to establish a trade union at the sectoral level (section 292 of the Labour Code). The Committee notes the Government’s comments that the Convention contains no provisions or restrictions in this respect and that it is therefore necessary to adapt to the national situation, in which this requirement retains a proportional relationship with the population of the country and its level of industrialization. The Government adds that it is a flexible requirement as it is possible to establish a union at the level of an occupation with 30 workers and a works union with 20 workers. In this respect, the Committee recalls that, although the requirement of a minimum number of members to be able to establish an organization is not in itself incompatible with the Convention, the minimum number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see 1994 General Survey on freedom of association and collective bargaining, paragraph 81). In this regard, the Committee considers that the number of 300 workers to establish a trade union at the sectoral level is too high and constitutes an obstacle for the establishment by workers of organizations of their own choosing. The Committee therefore requests the Government to take the necessary measures to amend the legislation to reduce the requirement of 300 workers to establish a branch trade union to a reasonable number.

Imposition of excessive requirements to be able to hold office in the executive body of a trade union: the need to be an employee in the enterprise, industry, occupation or institution, whether active or on leave (section 298(a) of the Labour Code), to have reached the age of majority and to be an active member of the union (section 293(d) of the Labour Code). The Committee notes that, according to the Government, these requirements do not constitute restrictions on freedom of association, but protect trade union activity from outside interference and constitute a safeguard for the democratization of all institutions. The Government adds that any trade union can authorize a person to participate in its management who is not an active worker, but that the provision is intended to prevent this situation from becoming usual practice with the consequence that the management of trade unions would be distant from the workers that they claim to represent. With regard to the requirement to be an active member of the union, the Government indicates that this is a requirement for all elections of whatever type held in the country. In relation to the requirement to have reached the age of majority, the Government notes that the situation has been resolved by the adoption of the new Children and Young Persons Code (Act No. 1680 of 2001, which establishes the right to organize and participate in workers’ organizations (section 53(f)).

The Committee recalls that provisions which require the members of a trade union to belong to the respective occupation and that the officers of the organization be chosen from among its members are contrary to the Convention. Provisions of this type infringe the right of organizations to elect representatives in full freedom by preventing qualified persons, such as full-time union officers, from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. When national legislation imposes conditions of this kind on all trade union leaders, there is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). Under these conditions, the Committee requests the Government to take the necessary measures to amend the legislation (sections 293(d) and 298(a)) in accordance with the principles indicated above.

The prohibition for workers to join more than one union even if they have more than one part-time employment contract, whether at the level of the enterprise, industry, occupation or trade, or institution (section 293(c) of the Labour Code). The Committee notes the Government’s indication that this requirement is derived from the provisions of the Electoral Code, which does not allow double or triple membership. The Committee recalls that Article 2 of the Convention establishes the right of workers to join organizations of their own choosing and that, in this respect, workers who have more than one occupation in different enterprises or sectors should be able to join the unions that correspond to each of the categories of work that they perform and to be members, at the same time, if they so wish, of a union at the level of the enterprise and the occupation. The Committee requests the Government to take the necessary measures to amend the legislation as indicated above.

Article 3. The requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code). The Committee notes that, in the view of the Government, this relates to the same obligation of transparency that the Constitution of the Republic imposes on each of the branches of the public authority in relation to appropriate information procedures. Furthermore, requests for information have the sole purpose of ascertaining compliance with the law. In this respect, the Committee recalls that problems of compatibility with the Convention arise when the law gives the administrative authorities powers to examine the books and other documents of an organization, conduct an investigation and demand information at any time. The Committee considers that such an obligation should be confined to submitting annual financial reports or in cases of denunciations by union members of violations of the law or the union’s rules (see General Survey, op. cit., paragraphs 125 and 126). The Committee therefore requests the Government to amend the legislation in accordance with the principle set out above.

The submission of collective disputes to compulsory arbitration (sections 284‑320 of the Code of Labour Procedure). The Committee notes that, according to the Government, these provisions were tacitly repealed by article 97 of the Constitution of the Republic enacted in 1992, which provides that “the State shall facilitate conciliatory solutions to labour disputes and social dialogue. Arbitration shall be optional.” In this respect, the Committee considers that strikes are one of the essential means available to workers and their organizations to promote their economic and social interests. Systems under which one of the parties may refer a dispute to compulsory arbitration seriously limit the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and are not compatible with Article 3 of the Convention (General Survey, op. cit., paragraphs 148 and 153). The Committee therefore requests the Government, in accordance with the provisions of the Constitution and with a view to avoiding any possible ambiguity of interpretation, to take the necessary measures to explicitly repeal sections 284‑320 of the Code of Labour Procedure, which provide for compulsory arbitration in collective disputes.

The requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code). The Committee notes that, in the view of the Government, strikes may only have as their origin conflicts of interest, such as those involved in a simple economic collective conflict relating to the claims of the workers, in contrast with legal conflicts, which must always be referred to the judicial authorities. In this respect, the Committee reminds the Government that trade union organizations, which are responsible for defending the socio-economic and occupational interests of workers, should be able to use strike action to support their positions in the search for solutions to problems posed by major economic and social policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living. The Committee requests the Government to take the necessary measures to amend sections 358 and 376 in accordance with the principle recalled above.

Section 362 of the Labour Code establishes the obligation to ensure a minimum service in the event of a strike in public services that are essential to the community, without the requirement to consult the employers’ and workers’ organizations concerned. The Committee notes that, according to the Government, minimum services are those in which a total stoppage would endanger the life, health or personal safety of the whole or part of the population and that the law does not provide that such minimum services shall be imposed without consulting the representative organizations of workers and employers concerned. According to the Government, in practice, when a strike occurs in these sectors, the labour administration authorities convoke the workers’ organizations and employers that are parties to the conflict to a meeting to define the essential services. The Committee recalls that workers’ organizations should be able, if they so wish, to participate in defining minimum services along with employers and the public authorities, and that any disagreement as to the number and duties of the workers concerned should be settled by an independent body and not unilaterally by the administrative authorities. Under these conditions, the Committee requests the Government to take the necessary measures to guarantee explicitly in the legislation the right of workers’ and employers’ organizations to participate in defining minimum services and, where disagreements arise as to the number and duties of the workers concerned, they should be settled by an independent body.

In view of the fact that the Committee has been making these comments for many years, without progress being achieved in practice, it requests the Government to take the necessary measures to bring its legislation into conformity with the Convention forthwith, in accordance with the principles set out above. The Committee draws the Government’s attention to the fact that the technical assistance of the Office is at its disposal.

Finally, the Committee notes that the Government did not reply to the comments from the ICFTU of 2005 referring to numerous violent acts, including the murder of trade unionists. The Committee requests the Government to send its observations thereon.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with regret that it has not received the Government’s report. It observes that the International Confederation of Free Trade Unions (ICFTU) sent comments on the application of the Convention. The Committee requests that the Government transmit its observations in this regard.

The Committee recalls that for many years in its comments it has been referring to:

–      the requirement of an excessively high number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

–      the imposition of excessive requirements to be able to hold office in the executive body of a trade union (sections 298(a) and 293(d) of the Labour Code);

–      the submission of collective disputes to compulsory arbitration (sections 284-320 of the Code of Labour Procedure);

–      the prohibition on workers from joining more than one union even if they have more than one part-time employment contract, whether at the enterprise, industry, occupation or trade or institution level (section 293(c) of the Labour Code);

–      the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code);

–      the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code), and the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community, without consulting the employers’ and workers’ organizations concerned on the definition of the minimum service (section 362 of the Labour Code).

The Committee asks the Government to take steps to amend the above provisions and to provide information in its next report on any measures adopted to comply with the requirements of the Convention.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

The Committee recalls that for many years it has been commenting on the following points:

-  the requirement of an excessively high number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

-  the imposition of excessive requirements to be able to hold office in the executive body of a trade union (sections 298(a) and 293(d) of the Labour Code);

-  the submission of collective disputes to compulsory arbitration (sections 284 to 320 of the Code of Labour Procedure);

-  the prohibition on workers from joining more than one union, even if they have more than one part-time employment contract, whether at the enterprise, industry, occupation or trade, or institution level (section 293(c) of the Labour Code);

-  the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code);

-  the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code), and the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community, without consulting the workers’ and employers’ organizations concerned on the definition of the minimum service (section 362 of the Labour Code).

The Committee observes that in its report the Government provides no specific information on these matters but merely enumerates and transcribes the articles of the Constitution and Labour Code that apply.

The Committee accordingly notes with regret that, despite the technical assistance provided by the Office, no progress has been made on the matters it has raised. It reminds the Government of the importance of taking measures to ensure that full effect is given to the Convention. It expresses the firm hope that such measures will be adopted in the near future and requests the Government to provide information on them in its next report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee recalls that for many years it has been commenting on the following points:

-  the requirement of an excessively high number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

-  the imposition of excessive requirements to be able to hold office in the executive body of a trade union (sections 298(a) and 293(d) of the Labour Code);

-  the submission of collective disputes to compulsory arbitration (sections 284 to 320 of the Code of Labour Procedure);

-  the prohibition on workers from joining more than one union, even if they have more than one part-time employment contract, whether at the enterprise, industry, occupation or trade, or institution level (section 293(c) of the Labour Code);

-  the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code);

-  the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code), and the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community, without consulting the workers’ and employers’ organizations concerned on the definition of the minimum service (section 362 of the Labour Code).

The Committee observes that in its report the Government provides no specific information on these matters but merely enumerates and transcribes the articles of the Constitution and Labour Code that apply.

The Committee accordingly notes with regret that, despite the technical assistance provided by the Office, no progress has been made on the matters it has raised. It reminds the Government of the importance of taking measures to ensure that full effect is given to the Convention. It expresses the firm hope that such measures will be adopted in the near future and requests the Government to provide information on them in its next report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the Government’s report.

The Committee recalls that for many years it has been commenting on the following points:

-           the requirement of an excessively high number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

-           the imposition of excessive requirements to be able to hold office in the executive body of a trade union (sections 298(a) and 293(d) of the Labour Code);

-  the submission of collective disputes to compulsory arbitration (sections 284 to 320 of the Code of Labour Procedure);

-  the prohibition on workers from joining more than one union, even if they have more than one part-time employment contract, whether at the enterprise, industry, occupation or trade, or institution level (section 293(c) of the Labour Code);

-  the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code);

-  the requirement that, for a strike to be called, its sole purpose must be directly and exclusively linked to the workers’ occupational interests (sections 358 and 376(a) of the Labour Code), and the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community, without consulting the workers’ and employers’ organizations concerned on the definition of the minimum service (section 362 of the Labour Code).

The Committee observes that in its report the Government provides no specific information on these matters but merely enumerates and transcribes the articles of the Constitution and Labour Code that apply.

The Committee accordingly notes with regret that, despite the technical assistance provided by the Office, no progress has been made on the matters it has raised. It reminds the Government of the importance of taking measures to ensure that full effect is given to the Convention. It expresses the firm hope that such measures will be adopted in the near future and requests the Government to provide information on them in its next report.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report has not been received. It recalls that in its previous direct request, it took note of observations made by the General Confederation of Labour (CGT), the Single Confederation of Workers (CUT) and the Trade Union Confederation of State Workers of Paraguay (CESITEP) objecting to a bill on the public service which, at the time, apparently had the approval of one chamber of Parliament.

The Committee recalls that the following provisions of the Bill respecting the public service are not compatible with the Convention or with the principles of freedom of association:

-  section 113(d), which provides that trade union officers and delegates may only be re-elected for a single consecutive period. In this respect, the Committee considers that, by virtue of Article 3 of the Convention, workers’ organizations enjoy the right to elect their representatives in full freedom and it is therefore for the workers’ organizations themselves to establish in their internal rules the duration of their mandate and the possibilities for re election of their trade union leaders;

-  section 113(f), which provides that, if the executive committee of the trade union does not convene the ordinary general assembly, those concerned may request the administrative labour authority to do so once the facts have been ascertained. With a view to preventing any act of interference by the authorities, the Committee considers that those concerned should be allowed to have recourse to the judicial authorities, and not to the administrative authority;

-  sections 117 and 128, which provide that decisions by the general assembly relating to the calling of a strike must be approved by the vote of two-thirds of the members present in the assembly and that the vote shall be approved by the administrative labour authority. In this respect, the Committee considers that the sections in question should be amended to require a simple majority of the votes cast and not two-thirds of the members present at the assembly. Furthermore, the presence of administrative officials to approve the ballot would only be admissible if explicitly requested by the members; and

-  section 131, which provides that when calling a strike workers who provide essential public services shall guarantee the regular operation of such services; the administrative authority of the organization or body concerned shall inform the trade union concerned of the names of the personnel necessary for this purpose. In this respect, the Committee considers that workers’ organizations should be consulted with a view to determining the number of persons and the posts which should be included in the minimum service and that, in the absence of agreement, any dispute should be resolved by an independent body.

In this respect, the Committee hopes that its comments will be taken into account in the final draft of the Public Service Bill. The Committee requests the Government to inform it of any developments in this regard.

The Committee again recalls that in its previous comments it referred to the Electoral Code No. 834/96, which regulates the electoral procedures of trade unions. In this connection, the Committee requests the Government to provide information in its next report on the application of this Code in practice and whether, under the terms of the Code, the registration of any trade union executive body has in practice been denied. If this is the case, the Committee requests the Government to provide information on the grounds on which the measure in question was taken and to provide it with a copy of the decisions issued in this respect.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report has not been received. It recalls that its previous observations referred to the following points:

-  the requirement of too high a number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

-  the imposition of excessive requirements to be able to hold office in the executive body of a trade union (sections 298(a) and 293(d) of the Labour Code);

-  the submission of collective disputes to compulsory arbitration (sections 284 to 320 of the Code of Labour Procedure);

-  the restriction on workers, even if they have more than one half-time employment contract, from being able to join more than one union, either at the enterprise, industry, occupation or trade, or institutional level (section 293(c) of the Labour Code);

-  the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code);

-  the requirement that, for a strike to be called, its sole purpose must be the direct and exclusive protection of the workers’ occupational interests (sections 358 and 376(a) of the Labour Code), and the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community, without consulting the workers’ and employers’ organizations concerned (section 362 of the Labour Code).

The Committee recalls that, during the mission which took place in Paraguay in October 2000, a draft Bill was prepared to amend or repeal the legislative provisions criticized by the Committee. In practical terms, the provisions of the draft Bill:

(1)  reduce from 300 to 50 the minimum number of workers to establish a branch trade union (section 292 of the Labour Code);

(2)  allow workers engaged in more than one occupation in various enterprises or sectors to join the trade unions corresponding to each of the categories of work that they perform and, at the same time, if they so wish, to join an enterprise union and a sectoral union (section 293(c) of the Labour Code);

(3)  make it necessary, to be a member of the executive body of a trade union, to be an active member of the union, unless the statutes allow other categories of members, and provide that the executive offices of the trade union are to be removed by a decision of the general assembly in accordance with the statutes of the trade union (sections 293(d) and 298(a) of the Labour Code);

(4)  oblige trade unions to comply with all requests for consultations or reports addressed to them by the competent labour authorities only in respect of their annual financial statements, as well as with requests for reports by the labour authorities in the event of denunciations by members concerning violations of the law or of the trade union’s statutes - the representatives of the Single Confederation of Workers (CUT), the Paraguayan Central of Workers (CPT), the General Confederation of Labour (CGT), and the Trade Union Confederation of State Workers of Paraguay (CESITEP) expressed a preference for establishing the sole possibility of requesting reports in the event of denunciations by members (section 290(f) and section 304(c) of the Labour Code);

(5)  define a strike as the temporary collective and concerted suspension of work, at the initiative of the workers and their organizations, to defend the interests of the workers, as set out in section 283 of the Code (the examination, defence, furtherance and protection of occupational interests, as well as the social, economic, cultural and moral improvement of members) (section 358 of the Labour Code);

(6)  add at the end of section 362 of the Labour Code a provision that, in the absence of agreement, the modalities for the provision of minimum services in the event of a strike and the number of workers who are to ensure such services shall be determined by the Ministry of Labour with the participation of the workers’ and employers’ organizations from the sector, with administrative decisions which are deemed to be excessive being subject to judicial review; furthermore, where the State is a party to the dispute, minimum services shall be determined by the judicial authority;

(7)  repeal sections 284 to 320 of the Code of Labour Procedure, respecting the submission of collective disputes to compulsory arbitration (the provisions in question are not currently applied on the grounds that article 97 of the Constitution only provides for voluntary arbitration); and

(8)  prohibit trade unions from being involved in matters relating purely to party politics and electoral movements which are unrelated to furthering and defending the interests of the workers (section 305(a) of the Labour Code).

The Committee expresses the firm hope that the draft text that was prepared will be adopted in the near future. The Committee trusts that the Government will provide information in the near future on any developments in this respect.

Furthermore, the Committee is addressing a request directly to the Government in relation to the comments of the CGT, the CUT and the CESITEP, in which they raise objections to a Bill respecting the public service which, in their view, is not compatible with the guarantees set out in the Convention.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report. The Committee also notes the observations made by the General Confederation of Labour (CGT), the Single Confederation of Workers (CUT) and the Trade Union Confederation of State Workers of Paraguay (CESITEP) objecting to draft legislation respecting the public service which is in the process of being approved by Parliament.

The Committee notes that some of the provisions of the Bill respecting the public service are not compatible with the Convention or with the principles of freedom of association. These are the following:

- section 113(d), which provides that trade union officers and delegates may only be re-elected for a single consecutive period. In this respect, the Committee considers that, by virtue of Article 2 of the Convention, workers’ organizations enjoy the right to elect their representatives in full freedom and it is therefore for the workers’ organizations themselves to establish in their internal rules the duration of their mandate and the possibilities for re‑election of their trade union leaders;

-  section 113(f), which provides that, if the executive committee of the trade union does not convene the ordinary general assembly, those concerned may request the administrative labour authority to do so once the facts have been ascertained. With a view to preventing any act of interference by the authorities, the Committee considers that those concerned should be allowed to have recourse to the judicial authorities, and not to the administrative authority;

-  sections 117 and 128, which provide that decisions by the general assembly relating to the calling of a strike must be approved by the vote of two-thirds of the members present in the assembly and that the vote shall be approved by the administrative labour authority. In this respect, the Committee considers that the sections in question should be amended to require a simple majority of the votes cast and not two-thirds of the members present at the assembly. Furthermore, the presence of administrative officials to approve the ballot would only be admissible if explicitly requested by the members; and

-  section 131, which provides that when calling a strike workers who provide essential public services shall guarantee the regular operation of such services; the administrative authority of the organization or body concerned shall inform the trade union concerned of the names of the personnel necessary for this purpose. In this respect, the Committee considers that the organizations of workers should be consulted with a view to determining the number of persons and the posts which should be included in the minimum service and that, in the absence of agreement, any dispute should be resolved by an independent body.

In this respect, the Committee hopes that its comments will be taken into account in the final draft of the Public Service Bill. The Committee requests the Government to inform it of any developments in this regard.

The Committee recalls that in its previous comments it referred to the Electoral Code No. 834/96, which regulates the electoral procedures of trade unions. In this connection, the Committee requests the Government to provide information in its next report on the application of this Code in practice and whether, under the terms of the Code, the registration of any trade union executive body has in practice been denied. If this is the case, the Committee requests the Government to provide information on the grounds on which the measure in question was taken and to provide it with a copy of the decisions issued in this respect.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report. The Committee also notes that at the Government’s request a technical assistance mission visited Paraguay from 11 to 13 October 2000.

The Committee recalls that the divergencies between the provisions of the national legislation and the guarantees set forth in the Convention related to:

-  the requirement of too high a number of workers (300) to establish a branch trade union (section 292 of the Labour Code);

-  the imposition of excessive requirements to be able to hold office in the executive body of a trade union (sections 298(a) and 293(d) of the Labour Code);

-  the submission of collective disputes to compulsory arbitration (sections 284 to 320 of the Code of Labour Procedure);

-  the restriction on workers, even if they have more than one part-time employment contract, from being able to join more than one union, either at the enterprise, industry, occupation or trade, or institutional level (section 293(c) of the Labour Code);

-  the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Labour Code);

-  the requirement that, for a strike to be called, its sole purpose must be the direct and exclusive protection of the workers’ occupational interests (sections 358 and 376(a) of the Labour Code), and the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community, without consulting the workers’ and employers’ organizations concerned (section 362 of the Labour Code).

The Committee notes with interest that the representatives of the Government and the technical assistance mission prepared a draft Bill to amend or repeal the legislative provisions criticized by the Committee and that the representatives of the most representative organizations of workers are in agreement with the proposed changes. In practical terms, the provisions of the draft Bill:

(1)  reduce from 300 to 50 the minimum number of workers to establish a branch trade union (section 292 of the Labour Code);

(2)  allow workers engaged in more than one occupation in various enterprises or sectors to join the trade unions corresponding to each of the categories of work that they perform and, at the same time, if they so wish, to join an enterprise union and a sectoral union (section 293(c) of the Labour Code);

(3)  to be a member of the executive body of a trade union, it is necessary to be an active member of the union, unless the statutes allow other categories of members, and the executive officers of the trade union are to be removed by decision of the general assembly, in accordance with the statutes of the trade union (sections 293(d) and 298(a) of the Labour Code);

(4)  trade unions will be obliged to comply with all requests for consultations or reports addressed to them by the competent labour authorities only in respect of their annual financial statements, as well as with requests for reports by the labour authorities in the event of denunciations by members concerning violations of the law or of the trade union’s statutes - the representatives of the central trade unions: Single Confederation of Workers (CUT), Central Paraguayan of Workers (CPT), General Confederation of Labour (CGT) and Trade Union Confederation of State Workers of Paraguay (CESITEP) expressed a preference for establishing the sole possibility of requesting reports in the event of denunciations by members - (section 290(f) and section 304(c) of the Labour Code);

(5)  trade unions are prohibited from being involved in matters relating purely to party politics and electoral movements which are unrelated to furthering and defending the interests of the workers, as well as in religious matters (section 305(a) of the Labour Code);

(6)  a strike is defined as the temporary collective and concerted suspension of work, at the initiative of the workers and their organizations, to defend the interests of the workers, as set out in section 283 of the Code (the examination, defence, furtherance and protection of occupational interests, as well as the social, economic, cultural and moral improvement of members) (section 358 of the Labour Code);

(7)  at the end of section 362 of the Labour Code, a provision is added that, in the absence of agreement, the modalities for the provision of minimum services in the event of a strike and the number of workers who are to ensure such services shall be determined by the Ministry of Labour with the participation of the workers’ and employers’ organizations from the sector, with administrative decisions which are deemed to be excessive being subject to judicial review; furthermore, where the State is a party to the dispute, minimum services shall be determined by the judicial authority; and

(8)  sections 284 to 320 of the Code of Labour Procedure respecting the submission of collective disputes to compulsory arbitration are repealed (the provisions in question are not currently applied on the grounds that article 97 of the national Constitution only provides for voluntary arbitration).

The Committee hopes that the draft text in question will be submitted to the legislative authority in the near future. The Committee requests the Government to provide information on any developments in this respect, and on the outcome of the meeting which it was agreed to hold in a Protocol of Agreement signed during the technical assistance mission between the Government and the social partners, in which an undertaking was given to meet in order to examine the possible amendments to the legislation to bring it into conformity with the provisions of the Convention.

Furthermore, the Committee is addressing a request directly to the Government in relation to the observations made by the CGT, the CUT and the CESITEP objecting to draft legislation respecting the public service which, in their view, is not compatible with the guarantees set out in the Convention. The Committee also examines in the direct request an issue relating to the electoral procedure which has to be followed by trade unions.

Finally, the Committee notes that the technical assistance mission also dealt with matters raised in relation to its examination of the application of Convention No. 98. The Committee proposes to address these issues during its regular examination of the application of Convention No. 98 next year.

[The Government is asked to report in detail in 2001.]

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report and in particular that the questions it had raised have been brought before the legislature and judiciary. In this regard, the Committee recalls that its previous comments referred to various provisions of the Labour Code, as follows:

1. The restriction that a worker, including if he or she holds more than one part-time employment contract, may join only one union, in either the enterprise, industry, occupation or trade (section 293(c)). In this connection, the Committee considers that workers must be able to be members of the unions for each one of the categories in which they work, when they engage in more than one occupation in various enterprises or sectors, and also if they so wish, to be members of a trade union at the enterprise or industry level.

2. The requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c)). Regarding this question, the Committee considers that such a requirement should be limited to annual financial reports or members' complaints of breaches of the law or their rules.

3. The requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (sections 358 and 376(a)), without specifying whether this also covers economic and social interests of workers, and the prohibition for trade unions to become involved in political issues (section 305(a)). On this matter, the Committee once again reminds the Government that trade unions responsible for defending workers' socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living.

4. The obligation to ensure a minimum service in the event of a strike in public services which are essential to the community without the participation of workers' organizations in defending such service (section 362). On this subject, the Committee recalls that workers' organizations should be able, if they so wish, to participate in defining such service, along with employers and the public authorities.

The Committee expresses the firm hope that, in conformity with the principles of freedom of association mentioned above, the Government will take measures to ensure the application of the Convention, including the necessary amendments to the legislation. The Committee requests the Government to provide information in its next report on all measures adopted or envisaged in this respect.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report.

1. The Committee has been commenting for many years on the need for public servants, be they from the central administration or from decentralized units, to enjoy the guarantees provided under the Convention. The Committee had already noted that by virtue of Act No. 496 of 24 August 1995 public sector workers are covered by the Labour Code and enjoy the right to form trade unions and to strike, until the adoption of an Act specifically governing the subject, and that a draft of the Status of Civil Servants and Public Employees which allows these workers to form trade unions has been prepared. In this connection the Committee notes the Government's indication that the Statute in question has been submitted to Congress with a favourable opinion from the Parliamentary Committee. The Committee hopes that it will shortly be adopted and asks the Government to inform it in its next report on all progress in this regard.

2. In its earlier observation the Committee commented on Decree No. 16769/93, which regulates in a detailed and meticulous manner the electoral process, and it noted that the Supreme Court of Justice had declared this Decree unconstitutional. In this connection the Committee notes the Government's indication that the Decree in question is not in force, since not only was it declared inapplicable by the Supreme Court, but the field is now regulated by the new Electoral Code, No. 834/96. The Committee requests the Government to provide it with a copy of the new Electoral Code.

3. The Committee also commented on certain provisions of the Code of Labour Procedure (sections 284, 291, 293, 302 and 308) regarding referral of collective dispute to compulsory arbitration, and the dismissal of workers who stop work before conciliation and compulsory arbitration procedures have been suspended. In this connection, the Committee notes the Government's information to the effect that: (i) compulsory arbitration is not applicable by virtue of section 97 of the National Constitution, which provides that arbitration as a means of solving conflicts is optional; consequently, dialogue and consultation have been established with the most representative organizations in the country; and (ii) the new draft Code of Labour Procedure was being studied. The Committee expresses the hope that the new Code will shortly be adopted and that it will not include the provisions on which the Committee has commented. The Committee requests the Government to inform it in its next report on all progress achieved in this respect.

4. Lastly, the Committee once again regrets that the Government does not refer to its comments on: (i) the requirement of 300 workers as the minimum number to form a trade union (section 292); and (ii) the requirement of being an active worker in the enterprise and an active worker of the trade union in order to be eligible for trade union office (section 298(a) and 293(d) of the Labour Code). The Committee once again requests the Government to take measures to amend the provisions mentioned above so as to reduce the number of workers necessary to form a trade union, and allow workers to elect their representatives freely.

The Committee requests the Government to inform it in its next report on all measures adopted in compliance with the requirements of the Convention.

The Committee is also addressing a direct request to the Government.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes with regret that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the Government's report and recalls that its previous comments concerned:

-- the restriction that a worker may join only one union, in either his enterprise, industry, occupation or trade, or institution (section 293(c) of the Labour Code of 1993);

-- the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Code);

-- the ban on trade union involvement in political matters (section 305(a) of the Code);

-- the requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (section 358(a) and 376(a) of the Code);

-- the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community (section 362 of the Code) without the participation of workers' organizations in identifying such service.

1. The Committee regrets that the Government has not replied to its comments on section 293(c) of the Code on the restriction that a worker may join only one union, in either his enterprise, industry, occupation or trade, or institution, nor on sections 290(f) and 304(c) of the Code on the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities.

In regard to the first matter, the Committee reiterates its view that workers must be able, should they so wish, to be members of the unions for each one of the categories in which they work, when they engage in more than one occupation in various enterprises or sectors, and also if they so wish, to be members of a trade union at the enterprise or industry level. With regard to the second matter, the Committee reiterates that such a requirement should be limited to members' complaints of breaches of the law or of their rules.

2. With regard to the scope of section 305(a) of the Code, the Committee notes that, according to the information provided by the Government, the law is clear and does not make a distinction in prohibiting trade involvement in political activities. On this matter, the Committee reminds the Government once again that those legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 133).

3. With regard to the requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (sections 358(a) and 376(a) of the Code), the Committee notes the Government's indication that sympathy strikes and general strikes (allowed by sections 366 of the Code) are in the same situation as the main strike, namely, unless the sole purpose of the main strike "is the direct protection of the workers' occupational interests", the sympathy strikes and general strikes can also be declared illegal.

4. On this subject, the Committee once again reminds the Government that trade union organizations responsible for defending workers' socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see op. cit., paragraph 165).

5. With regard to the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community (section 362 of the Code) without the participation of workers' organizations in defining such a service, the Committee recalls in the absence of a reply from the Government that workers' organizations should be able, if they so wish, to participate in defining such service, along with employers and the public authorities.

The Committee once again asks the Government to inform it in its next report of all measures it has adopted to comply fully with the provisions of the Convention in relation to the above-mentioned points.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the Government's report and Act No. 496 of 25 August 1995 which amends, extends and repeals various provisions of the existing Labour Code (Act No. 213/93) and recalls that its previous comments referred to: -- the exclusion from the scope of the new Labour Code, 1993, of public servants, be they from the central administration or from decentralized units (section 2 of the Code); -- the requirement of 300 workers as the minimum number to form a trade union (section 292); -- the requirement of being an active worker in the enterprise and an active worker of the trade union in order to be eligible for trade union office (sections 298(a) and 293(d), respectively); -- the restriction on the free election of trade union representatives (Decree No. 16769, which contains detailed and meticulous regulation of the trade union electoral process); -- the referral of collective disputes to compulsory arbitration and the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted (sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure). With regard to the exclusion from the scope of the Labour Code, 1993, of public servants, the Committee notes with interest that section 412 (transitional provision) of Act No. 496 of 25 August 1995 extends application of the Labour Code provisions relating to the right to form trade unions and to strike to workers in the public sector until such time as a special law governs the subject. Similarly it notes with interest that the Bill on the Status of Civil Servants and Public Employees, section 44(m) and (n), allows civil servants and public employees to form trade unions and to participate in strikes with the restrictions laid down in the Constitution and by the law, respectively, in accordance with article 45(d), (e) and (f), and that the National Constitution and the Labour Code will regulate matters pertaining to the right to form trade unions, to conclude collective labour agreements and to the right to strike and that section of the Labour Code amended in 1995 abrogates Act No. 200 on the status of public officials, sections 31 and 36 of which allowed public servants to form associations only for cultural and social purposes. The Committee expresses the firm hope that in the near future the Act on the Status of Civil Servants and Public Employees will be approved allowing public servants to form associations for the promotion and defence of their professional interests in accordance with Article 2 of the Convention. With regard to Decree No. 16769 which restricts free election of trade union representatives and was declared unconstitutional by the Supreme Court, as it is contrary to article 96 of the National Constitution and is therefore null and void, the Committee again asks the Government to inform it on the adoption of any text expressly repealing this instrument. In regard to sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure which refers collective disputes to compulsory arbitration and provides for the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted, the Committee also notes with interest that, according to information from the Government, first, sections 284 and 291 are no longer applicable since they are contrary to article 97 of the National Constitution which lays down arbitration as optional. Secondly, it also notes with interest that according to the Government's report, sections 293, 302 and 308 of the Code, relating to conciliation and arbitration procedures, apply only when the parties have opted for arbitration; otherwise they are not valid since their application would be unconstitutional as arbitration is voluntary. The Committee requests the Government to inform it also on the adoption of any text repealing or amending these provisions. The Committee regrets to note that the Government has not replied to its comments on section 292 of the Code relating to the requirement of 300 workers as the minimum number to form a trade union, nor on articles 298(a) and 293(d) of the Code on the requirement of being an active worker in the enterprise and an active member of the trade union in order to be eligible for trade union office, respectively, and it therefore once again asks the Government, in consultation with workers and management, to take measures to amend legislation in order to reduce to a reasonable level the excessive number of workers required to form a trade union and to allow workers to elect their leaders freely. On this matter, the Committee reminds the Government that provisions which require all candidates for trade union office to belong to the occupation, enterprise, or production unit represented by the organization or to be actually employed in this occupation at the time of their candidature are contrary to the guarantees laid down in the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 117). The Committee again asks the Government to inform it in its next report of the measures adopted to bring legislation into conformity with the Convention and of progress in the approval of the Act on the Status of Civil Servants and Public Employees mentioned by the Government and to send it a copy of the new law once it is approved.

END OF REPETITION

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee is also addressing a direct request on certain points to the Government.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report and recalls that its previous comments concerned:

-- the restriction that a worker may join only one union, in either his enterprise, industry, occupation or trade, or institution (section 293(c) of the Labour Code of 1993);

-- the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the Code);

-- the ban on trade union involvement in political matters (section 305(a) of the Code);

-- the requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (section 358(a) and 376(a) of the Code);

-- the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community (section 362 of the Code) without the participation of workers' organizations in identifying such service.

1. The Committee regrets that the Government has not replied to its comments on section 293(c) of the Code on the restriction that a worker may join only one union, in either his enterprise, industry, occupation or trade, or institution, nor on sections 290(f) and 304(c) of the Code on the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities.

In regard to the first matter, the Committee reiterates its view that workers must be able, should they so wish, to be members of the unions for each one of the categories in which they work, when they engage in more than one occupation in various enterprises or sectors, and also if they so wish, to be members of a trade union at the enterprise or industry level. With regard to the second matter, the Committee reiterates that such a requirement should be limited to members' complaints of breaches of the law or of their rules.

2. With regard to the scope of section 305(a) of the Code, the Committee notes that, according to the information provided by the Government, the law is clear and does not make a distinction in prohibiting trade involvement in political activities. On this matter, the Committee reminds the Government once again that those legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 133).

3. With regard to the requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (sections 358(a) and 376(a) of the Code), the Committee notes the Government's indication that sympathy strikes and general strikes (allowed by sections 366 of the Code) are in the same situation as the main strike, namely, unless the sole purpose of the main strike "is the direct protection of the workers' occupational interests", the sympathy strikes and general strikes can also be declared illegal.

On this subject, the Committee once again reminds the Government that trade union organizations responsible for defending workers' socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living (see op. cit., paragraph 165).

5. With regard to the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community (section 362 of the Code) without the participation of workers' organizations in defining such a service, the Committee recalls in the absence of a reply from the Government that workers' organizations should be able, if they so wish, to participate in defining such service, along with employers and the public authorities.

The Committee once again asks the Government to inform it in its next report of all measures it has adopted to comply fully with the provisions of the Convention in relation to the above-mentioned points.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report and Act No. 496 of 25 August 1995 which amends, extends and repeals various provisions of the existing Labour Code (Act No. 213/93) and recalls that its previous comments referred to:

-- the exclusion from the scope of the new Labour Code, 1993, of public servants, be they from the central administration or from decentralized units (section 2 of the Code);

-- the requirement of 300 workers as the minimum number to form a trade union (section 292);

-- the requirement of being an active worker in the enterprise and an active worker of the trade union in order to be eligible for trade union office (sections 298(a) and 293(d), respectively);

-- the restriction on the free election of trade union representatives (Decree No. 16769, which contains detailed and meticulous regulation of the trade union electoral process);

-- the referral of collective disputes to compulsory arbitration and the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted (sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure).

With regard to the exclusion from the scope of the Labour Code, 1993, of public servants, the Committee notes with interest that section 412 (transitional provision) of Act No. 496 of 25 August 1995 extends application of the Labour Code provisions relating to the right to form trade unions and to strike to workers in the public sector until such time as a special law governs the subject. Similarly it notes with interest that the Bill on the Status of Civil Servants and Public Employees, section 44(m) and (n), allows civil servants and public employees to form trade unions and to participate in strikes with the restrictions laid down in the Constitution and by the law, respectively, in accordance with article 45(d), (e) and (f), and that the National Constitution and the Labour Code will regulate matters pertaining to the right to form trade unions, to conclude collective labour agreements and to the right to strike and that section of the Labour Code amended in 1995 abrogates Act No. 200 on the status of public officials, sections 31 and 36 of which allowed public servants to form associations only for cultural and social purposes.

The Committee expresses the firm hope that in the near future the Act on the Status of Civil Servants and Public Employees will be approved allowing public servants to form associations for the promotion and defence of their professional interests in accordance with Article 2 of the Convention.

With regard to Decree No. 16769 which restricts free election of trade union representatives and was declared unconstitutional by the Supreme Court, as it is contrary to article 96 of the National Constitution and is therefore null and void, the Committee again asks the Government to inform it on the adoption of any text expressly repealing this instrument.

In regard to sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure which refers collective disputes to compulsory arbitration and provides for the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted, the Committee also notes with interest that, according to information from the Government, first, sections 284 and 291 are no longer applicable since they are contrary to article 97 of the National Constitution which lays down arbitration as optional. Secondly, it also notes with interest that according to the Government's report, sections 293, 302 and 308 of the Code, relating to conciliation and arbitration procedures, apply only when the parties have opted for arbitration; otherwise they are not valid since their application would be unconstitutional as arbitration is voluntary. The Committee requests the Government to inform it also on the adoption of any text repealing or amending these provisions.

The Committee regrets to note that the Government has not replied to its comments on section 292 of the Code relating to the requirement of 300 workers as the minimum number to form a trade union, nor on articles 298(a) and 293(d) of the Code on the requirement of being an active worker in the enterprise and an active member of the trade union in order to be eligible for trade union office, respectively, and it therefore once again asks the Government, in consultation with workers and management, to take measures to amend legislation in order to reduce to a reasonable level the excessive number of workers required to form a trade union and to allow workers to elect their leaders freely. On this matter, the Committee reminds the Government that provisions which require all candidates for trade union office to belong to the occupation, enterprise, or production unit represented by the organization or to be actually employed in this occupation at the time of their candidature are contrary to the guarantees laid down in the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 117).

The Committee again asks the Government to inform it in its next report of the measures adopted to bring legislation into conformity with the Convention and of progress in the approval of the Act on the Status of Civil Servants and Public Employees mentioned by the Government and to send it a copy of the new law once it is approved.

The Committee is also addressing a direct request on certain points to the Government.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which concerned:

- the restriction that a worker may join only one union, in either his enterprise, industry, occupation or trade, or institution (section 293(c) of the new Labour Code);

- the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the new Code);

- the ban on trade union involvement in political matters (section 305(a) of the new Code);

- the requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (section 358(a) and 376(a) of the new Code);

- the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community (section 362 of the new Code).

1. With regard to the provision that a worker may join only one union, in either his enterprise, industry, occupation or trade, or institution (section 293(c)), the Committee considers that workers must be able, should they so wish, to be members of the unions for each one of the categories in which they work, when they engage in more than one occupation in various enterprises or sectors, and also if they so wish, to be members of a trade union at the enterprise or industry level.

2. With regard to the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c)), the Committee considers that such a requirement should be limited to members' complaints of breaches of the law or of their rules.

3. With regard to the ban on trade union involvement in political matters (section 305(a)), the Committee is therefore of the view that both legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 133). The Committee requests the Government to specify the scope of this provision.

4. With regard to the requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (section 358(a) and 376(a)), taking into consideration that section 366 of the new Labour Code allows sympathy strikes and general strikes to be called, the Committee requests the Government to indicate how these provisions are applied in practice so that it can determine whether they are in conformity with the Convention, and especially as regards the possibility of using strike action to support workers' demands in seeking solutions to economic and social policy questions.

5. With regard to the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community (section 362 of the new Labour Code), the Committee recalls that workers' organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities.

The Committee asks the Government to inform it in its next report of all measures it has adopted to comply fully with the provisions of the Convention in relation to the above-mentioned points.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee recalls that, in substance, its previous comments referred to: - the exclusion from the scope of the new Labour Code, 1993, of public servants, be they from the Central Administration or from Decentralized Units (section 2); - the requirement of 300 workers as the minimum number to form a trade union (section 292 of the new Code); - the requirement of being an active worker in the enterprise and an active member of the trade union in order to be eligible for trade union office (sections 298(a) and 293(d) of the new Code, respectively); - the restriction on the free election of trade union representatives (Decree No. 16769 which contains detailed and meticulous regulation of the trade union electoral process); - the referral of collective disputes to compulsory arbitration and the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted (sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure). The Commission notes with interest that according to the information provided by the Government, Decree No. 16769 which restricts free election of trade union representatives was declared unconstitutional by the Supreme Court of Justice, and is therefore null and void. The Committee requests the Government to inform it on the adoption of any derogating text. On the exclusion of public servants from the scope of the new Labour Code of 1993, the Committee duly notes that, according to the information supplied by the Government, the new Act for public servants is before the Parliament and that the Committee's comments on the right to organize of workers in public services have been taken into account. In regard to Act No. 200 which lays down the status of public officials, particularly in regard to sections 31 and 36 (which are contrary to the Convention), the Commission notes with interest the information from the Government that although the Act is still in force, its provisions are contrary to the national Constitution (articles 96 and 98) and that, consequently, they are null and void and without legal force. The Committee hopes that in preparing the Act for public servants the provisions of the Convention have been taken into account and that the Act will repeal Act No. 200, particularly sections 31 and 36, in order to bring the law into full conformity with the practice and the requirements of the Convention. Although the Committee has noted with interest that article 97 of the new Constitution stipulates that arbitration is optional, it requests the Government once again to inform it whether sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure (on compulsory arbitration and dismissal of workers who have stopped work during the process) have been repealed, so that effect is given to the voluntary nature of arbitration. With regard to the requirement that a minimum number of 300 workers is needed to form a trade union (section 292 of the new Code) and the requirement to be an active worker in the enterprise and an active member of the trade union in order to take up trade union office (sections 298(a) and 293(d) of the new Code, respectively), the Committee requests the Government once again to take measures, in consultation with its social partners, to amend legislation for the purpose of reducing the minimum number of workers needed to establish a trade union and to allow workers to elect their representatives in full freedom. The Committee requests the Government to inform it in its next report of the measures adopted to bring legislation into conformity with the requirements of the Convention and also on the progress in approving the special Act for public servants and to send a copy of the new Act once it is adopted. The Committee is also sending a request directly to the Government on various points.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and recalls that its previous comments referred to:

- the restriction that a worker may join only one union, in either his enterprise, industry, occupation or trade, or institution (section 293(c) of the new Labour Code);

- the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c) of the new Code);

- the ban on trade union involvement in political matters (section 305(a) of the new Code);

- the requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (section 358(a) and 376(a) of the new Code);

- the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community (section 362 of the new Code).

1. With regard to the provision that a worker may join only one union, in either his enterprise, industry, occupation or trade, or institution (section 293(c)), the Committee considers that workers must be able, should they so wish, to be members of the unions for each one of the categories in which they work, when they engage in more than one occupation in various enterprises or sectors, and also if they so wish, to be members of a trade union at the enterprise or industry level.

2. With regard to the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c)), the Committee considers that such a requirement should be limited to members' complaints of breaches of the law or of their rules.

3. With regard to the ban on trade union involvement in political matters (section 305(a)), the Committee is therefore of the view that both legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 133). The Committee requests the Government to specify the scope of this provision.

4. With regard to the requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (section 358(a) and 376(a)), taking into consideration that section 366 of the new Labour Code allows sympathy strikes and general strikes to be called, the Committee requests the Government to indicate how these provisions are applied in practice so that it can determine whether they are in conformity with the Convention, and especially as regards the possibility of using strike action to support workers' demands in seeking solutions to economic and social policy questions.

5. With regard to the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community (section 362 of the new Labour Code), the Committee recalls that workers' organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities.

The Committee asks the Government to inform it in its next report of all measures it has adopted to comply fully with the provisions of the Convention in relation to the above-mentioned points.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and recalls that, in substance, its previous comments referred to:

- the exclusion from the scope of the new Labour Code, 1993, of public servants, be they from the Central Administration or from Decentralized Units (section 2);

- the requirement of 300 workers as the minimum number to form a trade union (section 292 of the new Code);

- the requirement of being an active worker in the enterprise and an active member of the trade union in order to be eligible for trade union office (sections 298(a) and 293(d) of the new Code, respectively);

- the restriction on the free election of trade union representatives (Decree No. 16769 which contains detailed and meticulous regulation of the trade union electoral process);

- the referral of collective disputes to compulsory arbitration and the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted (sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure).

The Commission notes with interest that according to the information provided by the Government, Decree No. 16769 which restricts free election of trade union representatives was declared unconstitutional by the Supreme Court of Justice, and is therefore null and void. The Committee requests the Government to inform it on the adoption of any derogating text.

On the exclusion of public servants from the scope of the new Labour Code of 1993, the Committee duly notes that, according to the information supplied by the Government, the new Act for public servants is before the Parliament and that the Committee's comments on the right to organize of workers in public services have been taken into account. In regard to Act No. 200 which lays down the status of public officials, particularly in regard to sections 31 and 36 (which are contrary to the Convention), the Commission notes with interest the information from the Government that although the Act is still in force, its provisions are contrary to the national Constitution (articles 96 and 98) and that, consequently, they are null and void and without legal force.

The Committee hopes that in preparing the Act for public servants the provisions of the Convention have been taken into account and that the Act will repeal Act No. 200, particularly sections 31 and 36, in order to bring the law into full conformity with the practice and the requirements of the Convention.

Although the Committee has noted with interest that article 97 of the new Constitution stipulates that arbitration is optional, it requests the Government once again to inform it whether sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure (on compulsory arbitration and dismissal of workers who have stopped work during the process) have been repealed, so that effect is given to the voluntary nature of arbitration.

With regard to the requirement that a minimum number of 300 workers is needed to form a trade union (section 292 of the new Code) and the requirement to be an active worker in the enterprise and an active member of the trade union in order to take up trade union office (sections 298(a) and 293(d) of the new Code, respectively), the Committee requests the Government once again to take measures, in consultation with its social partners, to amend legislation for the purpose of reducing the minimum number of workers needed to establish a trade union and to allow workers to elect their representatives in full freedom.

The Committee requests the Government to inform it in its next report of the measures adopted to bring legislation into conformity with the requirements of the Convention and also on the progress in approving the special Act for public servants and to send a copy of the new Act once it is adopted.

The Committee is also sending a request directly to the Government on various points.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the provisions on freedom of association in the new Labour Code of 29 October 1993, and the conclusions of the Committee on Freedom of Association concerning Case No. 1705 (291st Report, paragraphs 312-326, approved by the Governing Body at its 258th Session, November 1993).

1. With regard to the provision that a worker may join only one union, in either his enterprise, industry, occupation or trade, or institution the Committee considers that this requirement restricts the trade union rights of workers, who must be able, should they so wish, to be members of both a branch union and an enterprise union, or other union, when they engage in more than one occupation in various enterprises or sectors.

2. With regard to the requirement that trade unions must comply with all requests for consultations or reports from the labour authorities (sections 290(f) and 304(c)), the Committee considers that such a requirement should be limited to members' complaints of breaches of the law or regulations.

3. With regard to the ban on trade union involvement in political matters (section 305(a)), the Committee considers that if this provision was construed as a ban on all political activity, it would be incompatible with the principles of freedom of association.

4. With regard to the requirement that for a strike to be called, its sole purpose must be the direct protection of the workers' occupational interests (section 358(a) and 376(a)), the Committee recalls that, as it pointed out in its 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 165, trade union organizations ought in principle to be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends.

5. With regard to the obligation to ensure a minimum service in the event of a strike in public services which are essential to the community (sections 362 and 376(c) of the new Labour Code), the Committee considers that workers' organizations should be involved in determining the minimum service.

6. With regard to the restriction on the free election of representatives (Decree No. 16769), the Committee points out that an excessively meticulous and detailed regulation of the trade union electoral process is contrary to Article 3 of the Convention.

The Committee asks the Government to take steps to ensure that workers may elect their representatives in full freedom.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information supplied by the Government representative at the Conference Committee in 1993 and the discussions held in the same Committee. The Committee also notes the provisions on freedom of association in the new Labour Code of 29 October 1993. The Committee recalls its previous comments referred to:

- the recognition of the right of public servants to associate only for cultural and social reasons, but not to promote and defend their occupational interests (Act No. 200, section 31);

- the ban on adopting collective resolutions against measures taken by the competent authories (Act No. 200, section 36);

- the ban on strikes and work stoppages in too wide a range of public services which are not essential in the strict sense of the term (sections 358(c), 360 and 367 of the former Labour Code of 1961);

- the requirement of three-quarters of the workers actively employed in an enterprise, or two-thirds of the members of a union in order to call a strike (section 353 of the former Labour Code);

- referral of collective disputes to compulsory arbitration and the dismissal of workers who have stopped work before the conciliation and compulsory arbitration procedures have been exhausted (sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure);

- the ban on subsidies or economic assistance for trade unions from foreign organizations (section 285 of the former Labour Code).

The Committee notes with satisfaction that the new Labour Code of 1993, by virtue of the National Constitution of 1992, repeals (Article 412) the Labour Code of 1961 thus nullifying a number of legal provisions on which the Committee has been commenting for several years.

The new Labour Code abolishes the ban on strikes in public services (sections 358(c), 360 and 367 of the former Labour Code); reduces the number of union members required to call a strike to an absolute majority (sections 363 and 298(e) and the penultimate paragraph of the new Code); abolishes the ban on subsidies or economic assistance to unions from foreign organizations (section 285 of the former Labour Code). It also allows sympathy strikes and general strikes (section 366 of the new Code).

With regard to recognition of the right of public servants to associate only for cultural and social purposes, and the ban on adopting collective resolutions against measures taken by the competent authorities, the Committee had already noted with interest that the new Constitution of 1992 establishes the right of association and the right to strike of workers in both the private and public sectors (articles 96 and 98, respectively).

The Committee notes with satisfaction that the new Labour Code (section 291) allows public service unions to represent their members before the competent authorities in order to defend their common interests (subsection (b)), to go to the relevant institutional authority with members' requests or a complaint from any member concerning treatment (subsection (c)), and to negotiate working conditions and collective labour agreements (subsection (k)). In addition, the Committee observes that section 2 of the new Labour Code excludes from the scope of the Code employees of the State in both the Central Administration and Decentralized Agencies, who come under special legislation.

The Government trusts that Act No. 200 is no longer in force, particularly sections 31 and 36 (which are contrary to the Convention), asks the Government to state whether it has been repealed and hopes that the provisions of the Convention will be taken into account when the special legislation on public servants is drafted.

While noting with interest that under article 97 of the new Constitution arbitration is optional, the Committee asks the Government to state whether sections 284, 291, 293, 302 and 308 of the Code of Labour Procedure (concerning compulsory arbitration and the dismissal of workers who have stopped work during the procedure) have been repealed.

With regard to the requirement of a minimum of 300 workers to constitute industrial unions (section 292 of the Code), the Committee considers that this number is too high and may make it difficult for workers in this sector to form unions.

With regard to the provision that only members of the enterprise and active members of a union may hold union office (sections 298(a) and 293(d)), in the Committee's opinion provisions of this kind may prevent qualified persons, such as pensioners or full-time union officers, from carrying out union duties. For the purpose of bringing legislation which restricts union office into conformity with the principle of free election of representatives, it is necessary at least to make these provisions more flexible by admitting as candidates persons who have previously been employed in the occupation or enterprise concerned and by exempting from the active membership requirement a reasonable proportion of the officers of an organization (see 1984 General Survey on Freedom of Association and Collective Bargaining, para. 117).

The Committee asks the Government to take steps, in consultation with the social partners, to amend the legislation so as to reduce the minimum number of workers required to form industrial unions and enable workers to elect their representatives in full freedom.

The Committee asks the Government in its next report to inform it of the steps taken to bring the legislation into line with the requirements of the Convention, and of developments in the preparation and adoption of special legislation for public servants, and reminds the Government that it may request ILO technical assistance on these matters.

The Committee raises a number of other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes with regret that the Government's report has not been received. However, it notes the information supplied by a Government representative to the Conference Committee in 1992, and the adoption of the new national Constitution of June 1992, containing provisions which might improve the application of the Convention.

The Committee recalls that its previous comments referred to the following points:

- the recognition of the right of public servants to associate only for cultural and social reasons, but not to defend their professional interests (Act No. 200, section 31);

- the prohibition from adopting collective resolutions against measures taken by the competent authorities (Act No. 200, section 36);

- the prohibition of strikes in public services which are not essential in the strict sense of the term (section 358(c) and section 360 of the Labour Code);

- the requirement of three-quarters of the members to call a strike (section 353 of the Labour Code);

- the submission of collective disputes to compulsory arbitration (section 284 of the Code of Labour Procedure), and the dismissal of workers who have ceased work during the procedure (section 291 of the Code of Labour Procedure); and

- the prohibition on trade unions from receiving subsidies or economic assistance from foreign or international organizations (section 285 of the Labour Code).

The Committee notes with interest that the new national Constitution, of June 1992, recognizes the right of association and to strike of workers in both the private and public sectors (sections 96 and 98).

The Committee also notes, from the information provided by the Government, that the preliminary draft of the Labour Code extends the right to organize to public servants and employees in the public sector, and that Act No. 200/70 is liable to disappear since a draft text to update the above Act will be submitted to the national Parliament since the new Constitution has been promulgated, in order to prevent contradictions with the provisions of the Constitution in this respect. With reference to its other comments, the Committee notes the indication given by the Government that sections 353 and 360 of the Labour Code (restrictions on the right to strike), section 285 of the Labour Code (the prohibition on trade unions from receiving external assistance) and section 284 of the Code of Labour Procedure (compulsory arbitration) have been eliminated from the preliminary draft of the Labour Code.

The Committee hopes that in the new Labour Code and in the draft text of the conditions of service of the public service, account will be taken of the comments that the Committee has been making for several years, as well as of the changes proposed by the ILO through its technical assistance and that, in this way, the law will be brought into conformity with the principles and provisions of the Convention. The Committee requests the Government to supply information in its next report on the measures taken to this effect.

[The Government is asked to provide full particulars at the 80th Session of the Conference.]

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee recalls that its previous comments referred to the importance of clear recognition being given in the legislation to the right to organise and to collective bargaining of workers in public bodies and autonomous enterprises producing goods or supplying services for the public, and of recognising expressly the right of public servants to associate not only for cultural and social purposes (section 31 of Act No. 200) but also for the purposes of furthering and defending their social and economic interests. The Committee also emphasised the need to repeal section 36 of Act No. 200, which prohibits public servants from adopting collective resolutions against the measures taken by the competent authorities. In connection with these matters, the Committee notes that the Committee on Freedom of Association has once again been called upon to examine allegations concerning the refusal to grant legal personality to an organisation of public employees (see 281th Report, Case No. 1546, paragraphs 97 to 106, approved by the Governing Body in March 1992).

The Committee also recalls that it commented on sections 353 (the requirement of three-quarters of the members to call a strike) and 360 (services in which strikes are prohibited, despite the fact that not all of these services affect the life, personal safety and health of the population, in particular transport, basic commodities, fuel for transport and banks) of the Labour Code; sections 284 (submission of collective disputes to compulsory arbitration) and 291 (dismissal of the workers who have ceased work during the procedure) of the Code of Labour Procedure; and section 285 of the Labour Code (prohibition on trade unions from receiving subsidies or economic assistance from foreign or international organisations).

The Committee notes the Government's statement in its report that the new Labour Code will provide for national legislation to be brought in line with the international Conventions, and repeal all laws that restrict or suppress international achievements in the labour, political and social fields.

The Committee has been informed that the authorities have requested technical assistance from the International Labour Office in drafting a bill on freedom of association, with a view to bringing the legislation into conformity with the Convention.

Since the questions raised are of great importance and the Committee has been pressing them for many years, the Committee expresses the firm hope that at its next meeting it will be able to note tangible results with regard to bringing the legislation into conformity with the Convention, particularly as regards the freedom of association of public servants and employees.

[The Government is asked to provide full particulars at the 79th Session of the Conference.]

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's report.

For many years, the Committee has been making comments on the importance of clear recognition being given in the legislation to the right to organise and to collective bargaining of workers in public bodies and autonomous enterprises producing goods or supplying services for the public, and of recognising expressly the right of public servants to associate not only for cultural and social purposes (section 31 of Act No. 200) but also for the purposes of furthering and defending their occupational and economic interests. The Committee has also emphasised the need to repeal section 36 of Act No. 200, which prohibits public servants from adopting collective resolutions against the measures taken by the competent authorities.

The Committee wishes to refer in this connection to the conclusions of the Committee on Freedom of Association in its 259th and 275th Reports, in its examination of Case No. 1341 (Paraguay) in its November 1988 and November 1990 meetings, in which it requested the Government to amend Act No. 200 regarding the public service (sections 31 and 36) so as to include specific legal provisions on the right to organise of public employees and to introduce machinery for the settlement of collective disputes in the public service in which the persons concerned will have confidence. Furthermore, the Committee on Freedom of Association requested the Government to adopt specific provisions, by introducing adequate conciliation and arbitration procedures, to compensate for the fact that doctors and nurses have no right to strike.

The Committee also wishes to recall that it made comments on sections 353 (the requirement of three-quarters of the members to call a strike) and 360 (services in which strikes are prohibited, despite the fact that not all of these services affect the life, personal safety and health of the population, in particular transport, basic commodities, fuel for transport and banks) of the Labour Code, and sections 284 (submission of collective disputes to compulsory arbitration) and 291 (dismissal of the workers who have ceased work during the procedure) of the Code of Labour Procedure, as well as section 285 of the Labour Code (prohibition on trade unions from receiving subsidies or economic assistance from foreign or international organisations).

The Committee notes the Government's statement in its report that the drafting committee for the new text of the Labour Code has taken account of the Committee's comments on the right to organise and to collective bargaining of workers in public bodies, and on the right of public servants to associate for the purposes of furthering and defending their occupational and economic interests. The Committee requests the Government to send it the text of the draft in question and to state whether its comments have also been taken into account on the right to strike of public servants and public employees who do not act in their capacity as agents of the public authority and who do not provide an essential service in the strict sense of the term, as well as on the prohibition on trade unions from receiving subsidies or economic assistance from foreign or international organisations.

The Committee also notes that, in reply to its request for information, the Government states that judicial appeal against decisions by the Ministry of Justice and Employment to dissolve a trade union (section 308 of the Labour Code) has a suspensive effect.

The Committee expresses the firm hope that in the very near future the law and practice will be modified in order to bring them into full conformity with the Convention. The Committee requests the Government to supply information in its next report on the measures that have been adopted in this respect. The Committee recalls that the Office remains at the Government's disposal for any assistance that it may wish to request.

[The Government is asked to report in detail for the period ending 30 June 1991.]

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee takes note of the information provided by the Government in its report.

The Committee wishes to recall that in the comments it has been making for a number of years, it has pointed out the need to clarify the legal situation and adopt adequate measures to dissipate any doubts with regard to the right to organise and to collective bargaining of workers in public bodies and autonomous enterprises producing goods or supplying services for the public, and to recognise expressly the right of public servants to associate not only for cultural and social purposes (section 31 of Act 200) but also for the purposes of furthering and defending their occupational and economic interests. The Committee has also drawn the Government's attention to the need to repeal section 36 of Act No. 200, which prohibits public servants from adopting collective resolutions against the measures taken by the competent authorities.

The Committee also notes that the Committee on Freedom of Association made recommendations to the Governing Body, in November 1988, concerning Case No. 1341 (Paraguay), regarding the denial to public employees of the right to organise in trade unions and the restrictions on their freedom to negotiate their conditions of employment collectively. The Committee joins the Committee on Freedom of Association in requesting the Government to amend Act No. 200 on the conditions of employment of public servants (sections 31 and 36) so as to include specific legislative provisions guaranteeing the right to organise of public employees and to introduce machinery for the settlement of collective disputes in the public service, in which the persons concerned will have confidence. As regards the ban on strikes by doctors and nurses employed in a public hospital, the Committee joins the Committee on Freedom of Association in requesting the Government to adopt specific provisions to compensate, by introducing adequate conciliation and arbitration procedures, for the fact that there is no right to strike in this essential service (see the 259th Report, paragraph 516(e) and (f), approved by the Governing Body at its 241st Session, November 1988).

The Committee also wishes to recall the comments it has made on sections 353 (the requirement of three-quarters of the members to call a strike) and 360 (services in which strikes are prohibited) of the Labour Code, and sections 284 (submission of collective disputes to compulsory arbitration) and 291 (dismissal of the workers who have ceased work during the procedure) of the Code of Labour Procedure, as well as section 285 of the Labour Code (prohibition on trade unions from receiving subsidies or economic assistance from foreign or international organisations).

The Committee notes with regret from the Government's last report, that the proposals for the amendment and repeal of sections 31 and 36 of Act No. 200 have not yet been approved and that no further action has been taken on the comments on sections 353 and 360 of the Labour Code and sections 284 and 291 of the Code of Labour Procedure.

The Committee requests the Government to indicate whether the judicial appeal available in cases where the Ministry of Justice and Employment decides to dissolve a trade union (section 308 of the Labour Code), has a suspensive effect and, if not, what measures it envisages taking to remedy this situation.

In these circumstances, the Committee expresses the firm hope that the legislation and practice will be amended in the near future so as to be in full conformity with the Convention. The Committee urges the Government to provide information in its next report on all measures taken to give full effect to the Convention. [The Government is asked to supply full particulars to the Conference at its 76th Session.]