Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 375, Juin 2015

1. 438. The Committee examined this case at its March 2014 meeting, when it presented an interim report to the Governing Body [see 371st Report, paras 655–669, approved by the Governing Body at its 320th Session (March 2014)].
2. 439. The Government sent its observations in a communication dated 19 June 2014.
3. 440. 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. Previous examination of the case

1. 441. In its previous examination of the case in March 2014, the Committee made the following recommendations [see 371st Report, para. 669]:
   • (a) The Committee requests the Government to take urgent steps to ensure that an investigation is conducted without delay into all the allegations made in this case and, if these are found to be true, that the necessary remedy measures are taken. The Committee requests the Government to keep it informed in this regard.
   • (b) Recalling that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements, the Committee requests the Government to do everything in its power to promote collective bargaining between the parties. The Committee requests the Government to keep it informed of developments in this regard.
2. 442. The complainants’ allegations referred to in recommendation (a) are reproduced below [see 371st Report, paras 658– 661]:
   • – In their communication of 31 October 2012, SITEPROPASA and UNI Global Union report that, on 25 September 2011, a meeting of the constituent assembly of the trade union was called, at which the procedures for registering the trade union with the administrative labour authority were initiated. On 26 September, the trade union was registered in accordance with Resolution No. 62/2011 of the Office of the Deputy Minister for Labour of Paraguay. The enterprise Prosegur Paraguay, SA was informed of this by telegram. The complainants allege that once the enterprise had been informed of the establishment of the trade union, it dismissed the following workers, who it identified as promoters and organizers within the trade union: Mr Víctor Fretes, Mr Pío Antonio Hermoza, Mr Carlos Denis and Mr Esteban González, the press and public relations secretary. The complainants state that it was not possible to bring a case before the courts requesting their reinstatement, as they did not possess reliable documentation to corroborate their status as union organizers.
   • – The complainants add that, on 23 December 2011, the trade union informed the employer of its intention to promote the negotiation of a collective agreement on working conditions and submitted a draft that had been approved by the assembly of the trade union. According to the complainants, the enterprise employed delaying tactics and the trade union turned to the administrative authority, requesting it to mediate. They state that, on 2 May 2012, representatives of the enterprise and the trade union signed an initial agreement establishing a period of two months at the end of which both parties would sign the collective agreement on working conditions, once the negotiations were complete. The complainant organizations allege that, once the period of two months had elapsed, the agreement was never signed owing to the enterprise’s unwillingness to continue with the negotiations.
   • – The complainants allege that, during the negotiating process, the following trade union members were dismissed: Mr Antonio Robledo, Mr Hermenegildo Areco, Mr Víctor Martínez, Mr Heriberto Ortiz and Mr Alfredo Ramírez. The complainants state that, in this context, the workers who were members of SITEPROPASA, satisfying all the legal requirements, decided to hold an eight-day strike from 18 to 26 July 2012 (the strike was extended to 4 August 2012). The complainants allege that the enterprise carried out acts of persecution and intimidation against the workers from the beginning of the strike. In particular, they state that several trade union leaders and members received telephone calls at home from employees of the enterprise, who informed their families that any worker who participated in the strike would be dismissed and would no longer be able to support their family. Furthermore, they allege that law enforcement officers were present at the picket line and marches, in order to intimidate the strikers.
   • – The complainants add that the enterprise recruited new workers during the strike, which was confirmed by the administrative labour authority. They indicate that, during the strike, a tripartite meeting was held at the Ministry of Labour, which was attended by the Minister for Labour herself and at which the workers were requested and advised to end their protest action. According to the complainants, the highest authorities of the Ministry undertook to continue mediating between the parties and to guarantee that the workers would not suffer reprisals. However, the complainants allege that from that moment the authorities abandoned the workers who were members of the trade union to their fate. The complainants state that the workers decided to end the strike on 27 July 2012 and that, when they returned to work on 30 July, they were summoned individually by the enterprise and, in the absence of an adviser or legal representative, were informed of the enterprise’s intention to have the strike declared unlawful (the enterprise submitted a request to the Fourth Circuit Labour Court of First Instance of the city of Asunción to that end), which would result in them being dismissed without pay. The complainants add that, in this context, the workers were pressured into signing an agreement that would terminate their employment contracts and which established the compensation to be paid, the notice period and other particulars, as if it were an unjustified dismissal or a justified withdrawal from service. The complainants allege that, in this way, the enterprise succeeded in dismissing 230 trade union members, and that those workers who had refused to sign the letters terminating their employment relationship were dismissed. The complainants state that it is worth noting that the enterprise subsequently withdrew on 20 August 2012 its request to have the strike declared unlawful. According to the complainants, a number of trade union leaders accepted compensation as “an agreement to terminate their employment relationship by mutual consent”, which many only accepted after having been subjected to undue pressure. The complainants also allege that, when those dismissed workers seek employment in other enterprises in the sector, to their surprise, and despite meeting all the necessary criteria, they are informed that they cannot be hired because Prosegur Paraguay, SA has published a list containing the names of the striking workers.

B. The Government’s reply

1. 443. In a communication dated 19 June 2014, the Government sent its observations, including the reports and decisions of the labour administrative authority, as well as the comments of the Prosegur Paraguay, SA enterprise on the allegations made by the complainants. The documents submitted relate to the following matters: the registration of the Trade Union of Workers and Employees of Prosegur Paraguay, SA (including Resolution No. 62 of 5 October 2011 and Resolution No. 1068 of 20 September 2012, Opinion No. 2320/11 of 30 December 2011 and Opinion No. 2655/11 of 15 November 2011, and the record of 29 November 2011); the dismissal of workers prior to the conclusion of negotiations (including form No. 2450/05 concerning the complaint of the failure to provide work made by Mr Heriberto Albino Ortiz and others dated 23 May 2012, the notification papers dated 23 and 25 May 2012, and the minutes of the meeting held on 29 May 2012 with the acting mediator); the registration of the collective agreement on conditions of work (CCCT) signed on 26 October 2012 (including Decision No. 1362 of 10 December 2012 and Decision No. 382 of 15 February 2013 issued by the labour administrative authority, and the text of the collective agreement); the declaration of 17 July 2012 concerning strike action from 18 to 26 July 2012 by the Trade Union of Workers and Employees of Prosegur Paraguay, SA (SITEPROPASA) (including the text of the declaration and the minutes of the tripartite meetings held on 17, 18 and 25 July 2012); the summary administrative procedure for the replacement of the striking workers (including Decision No. 407/12 of 28 August 2012 and Decision No. 1240/12 of 16 November 2012); and the dismissal of the workers who took part in the strike (including the response to the reinstatement claim submitted by a number of workers).
2. 444. The enterprise considers that the points made in the complaint do not correspond to the reality of the situation and states that it has respected the legislation in force, as well as adopting a conciliatory attitude. Moreover, in support of these statements, it points out that it pays the most competitive wages in the sector in Paraguay; a collective agreement is in force; and harmonious labour relations are ensured in the enterprise, the workers enjoying all the rights conferred by the legislation and the collective agreement. The enterprise also emphasizes that, despite there being no trade union at the enterprise, the collective agreement was negotiated and signed by the representatives of almost the entire workforce, who had endorsed their representative status.
3. 445. With regard to the delay in the negotiation of the collective agreement relating to conditions of work, the Government sent information showing that the CCCT of 26 October 2012 between Prosegur Paraguay, SA and the representatives of the workers is in force. This agreement was approved, certified and registered by the labour administrative authority by means of Decision No. 1362 of 10 December 2012. Further to a request made by the enterprise dated 21 December 2012, the abovementioned decision was amended by Decision No. 382 of 15 February 2013 in order to reflect the fact that the agreement had been signed between the enterprise and representatives of all the non-unionized workers.
4. 446. With regard to the strike held in 2012, the Government sent a copy of the records of the tripartite meetings held on 17, 18 and 25 July 2012 as a result of the notification of strike action by SITEPROPASA and the subsequent extension thereof. The meetings were attended by representatives of the labour administrative authority, the enterprise and SITEPROPASA, but no consensus was reached. The enterprise indicates that there had been peaceful negotiations that year with a company trade union with a view to the adoption of a collective agreement, which was subsequently approved. The enterprise points out that it had been agreed that the parties would negotiate the terms of the collective agreement during May and June and that they would sign it, with the approved provisions, in July. However, instead of signing the final instrument, a minority of the workers at the office of Prosegur Paraguay, SA (20 per cent) belonging to the said union announced a strike, on the grounds that the enterprise was supposedly refusing to sign the collective agreement.
5. 447. As regards the replacement of the striking workers, the information supplied by the Government shows that, in the context of the summary administrative procedure ordered by the Office of the Deputy Minister of Labour and Social Security by means of Decision No. 407/12 of 28 August 2012, it was not established that services had been provided during the strike by workers who did not belong to the permanent workforce of the enterprise. Decision No. 1240 of 16 November 2012 ruled that, since there was insufficient evidence to warrant the imposition of penalties for alleged infringements of the labour laws, the summary administrative procedure against the enterprise should be dismissed.
6. 448. As regards the dismissal of the workers who took part in the strike, the enterprise explains that, on 27 July 2012, the trade union assembly decided to end the strike and that the workers opted individually to continue their employment contracts or negotiate the termination thereof with the enterprise. The enterprise adds that it paid the maximum compensation provided for under the labour legislation to the 175 workers who chose the second option. The contract termination agreements were settled and formalized the following day, in the presence of notaries and other work colleagues, according to the order of arrival of the workers. The enterprise states that it is untrue that legal or union advisers were not permitted to be present during the formalization of the agreements. Moreover, the information supplied by the Government includes a report dated 24 April 2014 from the Department for the Registration of Employers and Workers, in which there is no mention of the dismissal of workers from the enterprise.
7. 449. With regard to the request submitted by the enterprise to the Fourth Circuit Labour Court of First Instance on 26 July 2012 to have the strike declared unlawful, the enterprise states that the request was submitted after all the possibilities for reopening negotiations in relation to the collective agreement had been exhausted. The enterprise indicates that once the dispute had been settled it withdrew its request, thereby showing that the dispute was forgotten and that it was keen to restore harmonious labour relations.
8. 450. The enterprise declares that it has not committed any act of anti-union persecution before, during or after the abovementioned strike, nor has it engaged in any “blacklisting”, let alone any bribery of officials.

C. The Committee’s conclusions

1. 451. The Committee recalls that the present case is concerned with allegations that the Prosegur Paraguay, SA enterprise: (1) dismissed four founding members of the trade union when the enterprise was informed of the establishment thereof; (2) refused to comply with the initial agreement for negotiating a collective agreement relating to conditions of work; (3) dismissed five trade union members during the negotiation process; (4) replaced striking workers and carried out acts of intimidation against them (the complainants allege that the workers received phone calls at home informing their families that they would lose their jobs for taking part in the strike, and that law enforcement officers were present during the picketing and marches carried out by the strikers); (5) terminated the employment of 230 trade union members (who accepted compensation) who had taken part in the strike, after informing them that the strike would be declared unlawful and they would be dismissed without pay; and (6) sent a list containing the names of the striking workers to other enterprises in the sector, thereby preventing them from finding employment.
2. 452. The Committee notes the observations sent by the Government and the comments from the enterprise in reply to the complainants’ allegations. In particular, the Committee takes note of the documents submitted in relation to: the registration of the Trade Union of Workers and Employees of Prosegur Paraguay, SA (SITEPROPASA); the dismissal of workers prior to the conclusion of negotiations; the registration of the collective agreement on conditions of work (CCCT) signed on 26 October 2012; the declaration of 17 July 2012 concerning strike action from 18 to 26 July 2012 by SITEPROPASA; the summary administrative procedure for the replacement of the striking workers; and the dismissal of the workers who took part in the strike.
3. 453. The Committee observes, with regret, that the Government’s reply does not address the allegations made concerning the dismissal of four founding members of the trade union when the enterprise was informed of its establishment. The Committee therefore firmly urges the Government once again to provide information on the urgent steps that it requested the Government to take to ensure that an investigation is conducted into the allegations of dismissal and, if these prove to be true, that the necessary remedial measures are taken.
4. 454. As regards the alleged dismissals of Mr Antonio Robledo, Mr Hermenegildo Areco, Mr Víctor Martínez, Mr Heriberto Ortiz and Mr Alfredo Ramírez during the negotiations for the collective agreement on conditions of work, the Committee observes that, even though the Government does not address the allegations made, the documents that it sent contain references to the complaint of the failure to provide work made on 23 May 2012 by Mr Heriberto Ortiz and others. The Committee further observes that, in the record of the meeting of 17 July 2012 (3 p.m.) between representatives of the labour administrative authority, the National Confederation of Workers (CONAT) and SITEPROPASA, at which no representative of the enterprise was present, it is noted that “… while the negotiations for the CCCT were still in progress, a number of workers were dismissed, including Mr Antonio Robledo, Mr Hermenegildo Areco, Mr Víctor Martínez, Mr Heriberto Ortiz and Mr Alfredo Ramírez; it was requested that they be reinstated once the required procedures had been completed …”. The Committee requests the Government to keep it informed of the outcome of the administrative procedure referred to above and to send a copy of any decision taken.
5. 455. As regards recommendation (b) in the previous examination of the case, and more specifically the delays in collective bargaining with the trade union SITEPROPASA since September 2011, the Committee notes that, according to the information supplied by the Government, the CCCT in force is the one that was signed on 26 October 2012 between the enterprise and the representatives of the workers, was approved, certified and registered by the labour administrative authority by means of Decision No. 1362 of 10 December 2012, and was subsequently amended by Decision No. 382 of 15 February 2013 in order to reflect the fact that the CCCT had been signed between the enterprise and representatives of all the non-unionized workers. The Committee observes that the complainants’ allegation is not concerned with the collective agreement signed with representatives of the workers but with the fact that the enterprise had been previously negotiating with SITEPROPASA. In a request from the enterprise dated 21 December 2012, relating to an administrative decision (No. 1362 of 10 December 2012), which is included in the documents sent by the Government, it is stated that “… the representatives of the workers were appointed by an official letter dated 26 October 2012, in accordance with sections 326 and 327 and related provisions of the Labour Code; moreover, other workers on other dates endorsed the actions of the representatives through documents that were attached to this file …”. The Committee also observes that these (non-union) representatives were appointed after the end of the strike and the series of dismissals alleged by the complainants. The Committee wishes to recall that the Collective Agreements Recommendation, 1951 (No. 91), provides that: “For the purpose of this Recommendation, the term “collective agreements” means all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more representatives workers’ organisations, or in the absence of such organisations, the representatives of the workers duly elected and authorised by them, in accordance with national laws and regulations, on the other.” In this respect, the Committee has emphasized that the said Recommendation stresses the role of workers’ organizations as one of the parties in collective bargaining. Direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted. [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 945].
6. 456. With regard to the replacement of the striking workers, the Committee notes that, according to the Government’s information, in the context of the summary administrative procedure ordered by the Office of the Deputy Minister of Labour and Social Security, it was not established that services had been provided during the strike by workers who did not belong to the permanent workforce of the enterprise, and hence it was decided to dismiss the procedure against the enterprise. This being the case, the Committee will not pursue its examination of this allegation.
7. 457. As regards the alleged termination of the employment contracts of 230 workers who took part in the strike, the Committee notes the enterprise’s statement that on 27 July 2012 the trade union assembly decided to end the strike and that the workers opted individually to continue their employment contracts or negotiate the termination thereof with the enterprise; 175 workers (not 230 as alleged in the complaint) chose the second option (according to the enterprise, the termination of employment agreements were settled and formalized the following day, in the presence of notaries and other work colleagues; moreover, the enterprise denies that legal or union advisers were not permitted to be present during the formalization of the agreements). The Committee observes that the documents sent by the Government include the response to a court action for reinstatement brought by a number of workers (Mr Mario Arturo Lomaquiz Godoy and others), alleging deceit or extortion on the part of the enterprise. The Committee requests the Government to keep it informed of the outcome of these proceedings and to send a copy of any ruling issued.
8. 458. In this respect, as regards the alleged acts of persecution against the striking workers, the Committee notes the enterprise’s statement that it has not committed any act of anti-union persecution or engaged in any “blacklisting”. The Committee urges the Government to carry out an administrative investigation into these allegations without delay, and, in the event that acts of anti-union discrimination have occurred, to impose the sanctions provided by legislation.