Rapport définitif - Rapport No. 114, 1970

1. 50. The Committee examined this case previously at its November 1968 Session, when it presented to the Governing Body certain conclusions, contained in paragraphs 231-255 of its 108th Report, which was approved by the Governing Body at its 173rd Session (November 1968).
2. 51. In that report the Committee submitted its final recommendations on one aspect of the case, namely the allegations relating to the detention of some leaders of a trade union. Still awaiting examination is another aspect of the case, concerning allegations of the taking over of the same trade union, in connection with which the Government was asked for additional information. The paragraphs which follow will deal only with this second aspect of the case.
3. 52. In a communication dated 11 June 1969 the Government supplied the additional information that had been requested.
4. 53. Paraguay has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations concerning the Taking Over of a Trade Union
  54. 54 Briefly, the complainants had alleged z that the labour authorities had taken over the trade union of the San Antonio Cold Store, entrusting its administration to three members of the Paraguayan Federation of Labour, dismissing its executive and disqualifying its officers for five years. It is alleged that at an assembly convened to appoint new officers, persons not belonging to the trade union had imposed the approval of a report and a list of candidates. The reply of the Government showed that the taking over had been decided because of the strikes declared without prior compliance with any of the requirements of the Labour Code. These strikes, declared by the workers without the knowledge of the union's officers, proved, according to the Government, that the union had lost authority over its members. The Government maintained that the administrative labour authorities did not interfere in the affairs of the union, that the assembly had been convened with all the required formalities and that the members attending it had elected their officers freely and democratically.
  55. 55 Bearing in mind, inter alia, that the taking over had ended in January 1967, the Committee, on the basis of the considerations set out in paragraphs 245-254 of its 108th Report, made the following recommendations to the Governing Body in paragraph 255 (b) of the said report:
      • (i) to emphasise once again the importance that it has always attached to the provision contained in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in accordance with which workers' and employers' organisations shall have the right to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes and that the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof;
      • (ii) to request the Government to be good enough to state as soon as possible whether there is a measure in force, as the complainants say, depriving the former members of the executive of the union of civil rights and to indicate the legal provisions on which any such measure is based.
  56. 56 In its communication of 11 June 1969 the Government supplied the information summarised below. On 30 November 1966 the National Labour Directorate by a resolution decided that the former members of the San Antonio Cold Store trade union were to be disqualified for not having rendered account of their management and for negligence and maladministration of the union's funds. Article 387 of the Labour Code states: " Non-observance of the legal obligation incumbent on the officials of a trade union to give an account of the administration of the funds entrusted to them shall render the person or persons guilty thereof liable to dismissal from office and to exclusion from any trade union post of leadership for five years ". The administrative authority is empowered to take such a decision. By another decision taken in December 1968, this measure was repealed. The Government supplies the text of both resolutions. It appears from these documents that in their report the administrators had arrived at the conclusion that " the union funds had been administered to a large extent without the knowledge of the officers of the executive committee of the union ", that certain cash accounts were not backed by the relevant documents, that loans had been granted to the members at the officers' discretion and that by a decision of the Secretary-General and the Treasurer the union had sold merchandise to its members charging them 24 per cent above the cost price of the goods, thus turning itself into a commercial undertaking. The union's funds were not placed with any banking organisation. Moreover, according to the statutes of the trade union concerned, the executive committee was not empowered to grant loans to members. The preamble of the resolution adopted in November 1966 stated that these facts constituted grave irregularities in the activities of the executive committee under express provisions of the Labour Code. For these reasons the persons concerned were dismissed from office and disqualified for five years. The preamble of the resolution repealing this sanction stated that it was felt that the corrective purpose of the measure had been fulfilled.
  57. 57 It should be pointed out that the sanction of article 387 of the Labour Code, to which the Government refers may be applied summarily by the competent administrative authority in accordance with article 388 of the Code after hearing the person accused and after consideration of the evidence furnished by the prosecution and defence. An appeal against this decision may be lodged through the administrative disputes procedure.
  58. 58 The detailed information submitted by the Government shows that the sanction of dismissal and disqualification imposed on the officers of the union was based on charges of specific irregularities in the administration of the union's affairs, and that against the sanction of dismissal and disqualification provided for in article 387 of the Labour Code (which was applied to this case and which refers to a breach of the legal obligation to give account of the administration of union funds), an appeal may be made through a procedure which enables the persons concerned to put their case before a tribunal.
  59. 59 In previous cases the Committee had expressed the opinion that dismissal from trade union office by an administrative authority was a procedure which might lead to abuse or infringe the generally recognised right of organisations freely to elect their representatives and to organise their own administration and activities. This principle has been embodied in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Paraguay. On the other hand, the Committee considered that the principles laid down in Article 3 of Convention No. 87 do not prevent the control of internal acts of a trade union, should such acts constitute a breach of legal or statutory provisions. However, the Committee also considered that it was of the utmost importance, in order to guarantee an impartial and objective procedure, for such control to be exercised by the relevant judicial authority.
  60. 60 In the present case the measure taken by the authorities consisted in the collective dismissal of the members of the executive, who were also disqualified from holding trade union office. The charges formulated against them were grave and, according to the information submitted by the Government, had been proved. Nevertheless, the conclusions which the dismissal of its officers may entail for a trade union on the one hand, and the gravity of the acts alleged in this case and of the sanction on the other, show how important it is that measures taken in such cases should be backed by every guarantee capable of protecting the free exercise of trade union rights.
  61. 61 Under the legislation of Paraguay, cases of breach of labour legislation are heard by the labour administrative authorities, who are also empowered to apply sanctions. An appeal may be made against the decision through the administrative disputes procedure (article 32 of the Procedural Labour Code). As for the sanction applied in this case, the law expressly provides for certain guarantees in defence of the accused person before a resolution is taken by the administrative authorities.

B. B. The Committee's conclusions

1. 62. In the Committee's opinion it is of paramount importance that in such circumstances measures for the dismissal, suspension or disqualification of trade union officials as a penalty provided by law should not become enforceable except on the basis of a firm sentence on the part of the competent judicial authority or, in any case, after the period allowed for the submission of an appeal has elapsed without such an appeal having been made. Moreover, although knowledge of the law is normally taken for granted, it would be desirable when notifying the persons concerned of the administrative resolution, to inform them at the same time that they may submit an appeal through the administrative disputes procedure.
2. 63. In the present case the question of an appeal to their judicial authorities does not seem to have been raised.