Report in which the committee requests to be kept informed of development - Report No 291, November 1993

1. 312. The complaints in this case are contained in communications from the Latin American Central of Workers (CLAT), dated 23 March and 15 April 1993. In a communication dated 3 June 1993, the International Union of Food and Allied Workers' Associations (IUF) made a complaint with similar allegations. The Government furnished its observations in a communication dated 15 June 1993.
2. 313. Paraguay has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 314. The Latin American Central of Workers (CLAT) alleges that the promulgation of Legislative Decree No. 16.769 of 18 March 1993, establishing standards governing the election of leaders of workers' organizations infringed the provisions of Convention No. 87. The CLAT attaches the texts of the Decree in question which has more than 50 sections. More specifically, the CLAT states that under the Legislative Decree in question:
   • - the appointment of the leaders of trade union organizations must be endorsed by at least 5 per cent of the valid votes cast in the last election;
   • - the final list of candidates must be established by the D'Hondt system (with posts being distributed by simple majority);
   • - the same rules would apply as regards the election of leaders of second and third degree organizations;
   • - provision must be made in the internal rules of trade union organizations for the setting up of an electoral body (an electoral committee or court), which shall be the internal, free and independent authority responsible for the proper application of the electoral process;
   • - candidates for election must be members of the trade union, may not be members of any other trade unions which are affiliated with the higher-level organization, no trade union sanction must be currently in force against them, and they must not have been found guilty of misappropriation of trade union funds or of electoral fraud;
   • - there must be no financial support from enterprises, employers' associations or other groups, for specific candidates, or support from external sources or interference by political parties, religious bodies, state agents or other groups outside the field of workers' activities;
   • - etc.
2. 315. The CLAT states that the Decree stipulates that its provisions shall apply to first, second and third-level workers' organizations and establishes a time-limit of 120 days for such organizations to amend their internal rules and elect their bodies in accordance with the prescribed standards, and that once this time-limit has elapsed legal personality will be granted only to those organizations whose representatives have been elected in accordance with its provisions. Finally, the complainant organization points out that the Supreme Court of Justice issued a precautionary measure which has temporarily suspended the implementation of the Decree. The complainant organization adds that the provisions in the Decree were adopted in an arbitrary manner by Paraguayan authorities, and that they attempt in a subtle way to divert the peoples' attention to paralyse those organizations which represent and defend workers' interests.
3. 316. Furthermore, the CLAT points out that the Government has suspended the process initiated for the adoption of the draft Labour Code, which was approved democratically and by common accord by all the sectors, and drafted with technical assistance from the ILO.
4. 317. In its communication of 3 June 1993, the International Union of Food and Allied Workers' Associations (IUF) states that Decree No. 16.769 establishing standards for the election of trade union leaders infringes the National Constitution and the international labour Conventions ratified by Paraguay, including Convention No. 87. More specifically, the IUF states that this Decree violates article 96 of the National Constitution, which guarantees the right to freedom of association, and section 283 of the Labour Code, which establishes that trade union organizations shall be entitled to draw up their own constitutions and administrative rules, to elect their bodies and representatives in full freedom and to organize their administration and lawful activities.

B. The Government's reply

1. 318. In its communication dated 8 June 1993, the Government states that the complaint was made by a transnational organization which is not registered with the labour administration authorities. One of the most precious principles of international law is the right of peoples to self-determination, and thus interference in the internal affairs of a country which has established all the institutions for the defence of human rights is not only unjustified but raises a preliminary issue, and therefore the ILO should refrain from considering any kind of action in this particular case.
2. 319. The Government states that Decree No. 16.769 is the subject of an appeal before the Supreme Court of Justice, and that if this Court confirms the legality of the text and the requirement for trade union organizations to legitimize their bodies by means of a universal, secret and direct vote by their members, the ILO would be drawn into a matter which is not even remotely connected with freedom of association. It points out that the Labour Code in force empowers the labour administration authorities to supervise the application of the constitutions of trade unions and the legitimacy of persons claiming to represent them, as is categorically stated in the preamble of the Decree. At the same time, under the Constitution, the first standard which must be observed in determining the legality of legal texts is the National Constitution, which prescribes that all organizations, including trade unions, shall elect their leaders by direct, secret and universal vote of their members.
3. 320. In the light of the above, the labour administration authority has requested all occupational associations, within a very reasonable period of time which has not yet elapsed, to hold elections to bring their activities into line with the provisions of the Constitution. Since the effectiveness of any standard requires the establishment of penalties to be applied in the event that it is not observed, the labour administration authority has been authorized to revoke the legal personality of associations which fail to comply with this provision. The reason for this provision is easy to understand since many persons, claiming to be opponents or to be in exile have made it their business to swindle and embezzle the people under the guise of promoting trade unionism. For an elementary reason of moral probity, the labour administration authority cannot be a party to such anomalies, and thus it has been clearly established in the Decree that the present trade union leaders may during the course of the reorganization of their unions carry out acts for the administration and preservation of their assets, but under no circumstances may they dispose of such assets, which would be tantamount to the embezzlement of legitimately elected trade union leaders.

C. The Committee's conclusions

1. 321. First of all, in reply to the Government's statements concerning the non-admissibility of the present complaints, the Committee would like to point out that the complainant organizations have member trade union organizations in Paraguay, and thus the present complaints are totally admissible in accordance with the rules of procedure approved by the Governing Body.
2. 322. As regards the allegations concerning Decree No. 16.769 establishing standards for the election of trade union leaders, the Committee notes that according to the Government, the Decree in question is currently on appeal before the Supreme Court of Justice, that the promulgation of the Decree was intended to ensure that the trade union organizations could elect their leaders through a direct, secret and universal vote by their members, and that, inter alia, the objective of these measures was to put a stop to the numerous cases in which the promotion of trade unionism had been used as a cover for numerous cases of fraud. However, the Committee notes that the regulations contained in the Decree go well beyond these objectives.
3. 323. As regards the objective of ensuring that trade union organizations can elect their leaders through a direct, secret and universal vote by their members, the Committee considers that the imposition through an Act of this kind of vote does not raise any problems regarding the principles of freedom of association. However, the Committee regrets that Decree No. 16.769 should have been adopted arbitrarily and that the text, in violation of the provisions of Article 3 of Convention No. 87 (which establishes that workers' organizations shall have the right to draw up their constitutions and rules and to elect their representatives in full freedom), regulates in no less than 50 sections, and in an extremely detailed and meticulous manner, every aspect of the election of trade union officials. In addition, the Decree implies the cancellation of the legal personality of trade union organizations that do not conform to the provisions of the Decree, which is a serious violation of Convention No. 87.
4. 324. In these circumstances, the Committee points out to the Government that an excessively meticulous and detailed regulation of the trade union electoral process is an infringement of the right of such organizations to elect their representatives in full freedom, as established by Article 3 of Convention No. 87. The Committee therefore invites the Government to take the necessary measures to review the text of the above-mentioned Decree, in consultation with workers' organizations, with a view to guaranteeing the independence of trade union organizations, and to repeal all provisions that imply an interference in the right of trade unions freely to elect their leaders, and in particular those provisions mentioned by the complainant organizations. The Committee accordingly requests the Government to keep it informed of the outcome of the appeal filed with the Supreme Court of Justice in this respect.
5. 325. As regards the allegation that the Government suspended the procedure under way for the adoption of the draft Labour Code, the Committee notes that during the discussions of the Committee on the Application of Standards at the 80th Session of the International Labour Conference, the Government stated that the Bill for the integrated reform of the Labour Code was in its final phase and being examined by the Chamber of Deputies, that it had been approved by the Senate and that discussion on the Bill had not been suspended but simply delayed. The Committee requests the Government to keep it informed of developments in this report.