Interim Report - Report No 348, November 2007

Case No 2203 (Guatemala) - Complaint date: 31-MAY-02 - Closed

Allegations: Assaults, death threats and acts of intimidation against trade unionists in a number of enterprises and public institutions; destruction of the headquarters of the trade union at the General Property Registry; raiding and ransacking of the headquarters of the trade union at the company Industrias Acrílicas de Centro América SA (ACRILASA) and burning of documents; surveillance of the UNSITRAGUA headquarters; anti-union dismissals; violation of the collective agreement on working conditions; refusal to bargain collectively; pressure on workers to leave their union; and the employers’ refusal to comply with judicial orders for the reinstatement of trade union members. The enterprises and institutions concerned are: Industrial Santa Cecilia, ACRILASA, Municipality of El Tumbador, La Torre Estate, Ministry of Public Health, Chevron-Texaco and the Supreme Electoral Tribunal

696. The Committee last examined this case at its May–June 2006 meeting and submitted an interim report to the Governing Body [see 342nd Report, paras 499–517, approved by the Governing Body at its 296th Session]. The Government sent additional observations in communications dated 21 September and 26 October 2006 and 30 April and 31 October 2007.

1. 697. Guatemala 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. 698. At its May–June 2006 meeting, the Committee made the following provisional recommendations relating to the allegations presented by the complainant organization [see 342nd Report, para. 517]:
2. (a) In general terms, the Committee requests the Government to take the necessary steps to send its observations on all the pending allegations without delay.
3. (b) With regard to the allegations concerning assaults, death threats and acts of intimidation against trade unionists as well as attacks on union headquarters, the Committee deeply regrets the lack of Government observations and again requests the Government to refer these cases to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard.
4. (c) With regard to the allegations concerning employer interference in union elections at the General Property Registry, which has been confirmed by the Labour Inspectorate, the Committee requests the Government to take the necessary measures to sanction the entity responsible and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.
5. (d) With regard to the allegations concerning Industrias Acrílicas de Centroamérica, the Committee again requests the Government to send without delay any judicial decisions that are handed down on the dismissal of trade unionists, including the members of the executive committee, and on the violation of the collective agreement, as well as its observations on the allegations of pressure on union leaders and members to resign from their jobs or from the union.
6. (e) The Committee notes that the judicial authority ordered the reinstatement of trade union officials Bartolón Martinez and Castillo Barrios (municipality of El Tumbador) but that the mayor of the municipality lodged an appeal and then requested a partial nullification of the proceedings on the grounds of procedural errors which was accepted by the judicial authority. The Committee requests the Government to keep it informed of developments in the proceedings remaining before the judicial authority.
7. (f) With regard to the allegation concerning the dismissal of union leader Fletcher Alburez by the Ministry of Public Health in April 2001, the Committee reminds the complainant organization that Mr. Alburez is entitled to submit an ordinary appeal to the judicial authority and requests the Government to provide information as to whether such an appeal has been lodged.
8. (g) With regard to the allegations concerning the alleged unilateral imposition by the Supreme Electoral Tribunal of an organization manual (dealing with matters related to employees’ duties, posts and salary levels) and acts of anti-union discrimination in the application of the said manual, as well as the Tribunal’s refusal to meet union leaders and negotiate a collective agreement, for which purpose the Government had been requested to meet the parties in order to find a solution to the problems that have arisen, the Committee again requests the Government to send its observations on the matter without delay.
9. B. The Government’s reply
10. 699. In its communications of 21 September and 26 October 2006 and 30 April and 31 October 2007, the Government provided the following observations.
11. 700. With regard to the allegation concerning the dismissal of trade union official Fletcher Alburez, the Government indicates that it responded to this allegation in the observations it sent in October 2005.
12. 701. With regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the Labour Inspectorate, the Government reports that, following an investigation into the matter and consultations with the trade unions at the workplace, it was not possible to confirm that acts of interference had been committed. The Government has enclosed the report of a labour inspection which, on the basis of the information provided, must have been conducted in 2006 (no exact date is given).
13. 702. With regard to the allegations concerning the Municipality of El Tumbador relating to the pressure on union members to leave their union and on union officials not to continue with the reinstatement processes ordered by the judicial authority, the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios and the request for measures to ensure that all wages owed to union leader Mr Gramajo are paid without delay, the Government indicates that it requested the First Court of Labour and Social Welfare of the Municipality of Malacatán, in the department of San Marcos, to provide information on the collective dispute and that, according to the Court, although it had issued an order to reinstate Byron Clodomiro Gramajo, he had not yet been reinstated and therefore the reinstatement proceedings were still under way. Finally, with regard to the unilateral introduction by the Supreme Electoral Tribunal of an organization manual, the Government refers to the state of the appeals and preliminary issues related to the manual in question.

C. The Committee’s conclusions

1. 703. The Committee takes note of the Government’s observations. The Committee regrets, however, that once again the Government has not responded to some of the recommendations that remain pending. The Committee reminds the Government that it is important for its own reputation to formulate detailed replies to the allegations brought by complainant organizations, so as to allow the Committee to undertake an objective examination [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 24]. In these circumstances, the Committee once again urges the Government to take the necessary measures to send its observations on all the pending allegations without delay.
2. 704. With regard to subparagraph (b) of the Committee’s previous recommendations, which refer to allegations of assaults, death threats and acts of intimidation against trade unionists as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government once again has not sent its observations, and strongly requests the Government to refer these cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard.
3. 705. With regard to subparagraph (c) of the recommendations relating to employer interference in union elections at the General Property Registry, which was confirmed by the Labour Inspectorate, the Committee notes that, according to the Government, further to an investigation into the matter and consultations with the trade unions at the workplace, it had not been possible to confirm that acts of interference had been committed. The Committee notes that the Government has enclosed the report of a labour inspection which, on the basis of the information provided, must have been conducted in 2006 (no exact date is given). In this regard, the Committee recalls that, in the allegations it presented in 2002, UNSITRAGUA referred to acts of interference (the distribution of ballot papers for the election of union executives and measures to prevent the union’s new executive board from taking up its duties) and to the destruction of the headquarters of the trade union in the workplace. For its part, in its observations dated 27 September and 30 December 2002, the Government reported that the General Labour Inspectorate had received 16 complaints and that, after analysing the complaints and concluding that there had been a violation of labour rights, labour inspectors had given evidence of those violations [see 330th Report, para. 804]. The Committee recalls that, although it had called at that time for the necessary measures to sanction the entity responsible and to ensure that similar acts did not occur in future, since then the Government has not reported on the effective application of those measures. In this regard, while it takes note of the 2006 findings, bearing in mind that the interference was actually confirmed by the Labour Inspectorate in 2002, the Committee again reiterates its previous recommendation and requests the Government to take without delay the necessary measures to sanction the entity responsible for the acts confirmed by the Labour Inspectorate, to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.
4. 706. With regard to subparagraph (d) of the recommendations concerning the dismissal of trade unionists at the company Industrias Acrílicas de Centroamérica SA and the violation of the collective agreement, the Committee recalls that, during its previous examination of the case, it requested the Government to send without delay any judicial decisions handed down on the dismissal of trade unionists and on the violation of the collective agreement and its observations on the allegations of pressure on union leaders and members to resign from their jobs or from the union. The Committee notes with regret that the Government has not sent any observations in this respect. The Committee reiterates how important it is to conclude judicial proceedings as swiftly as possible, as justice delayed is justice denied, and again urges the Government to send the judicial decisions in question and its observations on the pressure on union leaders and members to resign from their jobs or from the union.
5. 707. With regard to the allegations relating to the Municipality of El Tumbador concerning the reinstatement proceedings ordered by the judicial authority, the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios and the request for measures to ensure that all wages owed to union leader Mr Gramajo are paid without delay, the Committee took note during its previous examination of the case that the judicial authority had declared partially null the proceedings carried out until that time concerning Mr Martínez and Mr Barrios and asked to be kept informed of developments in the proceedings resulting from the declaration of partial nullity. The Committee regrets that the Government has not provided information in this regard other than information relating to the reinstatement of Mr Gramajo supplied by a court in the Municipality of Malacatón which, in the Committee’s understanding, refers to issues other than those dealt with in the present case (it refers to different municipalities and to the reinstatement of the worker in lieu of payment of outstanding wages). The Committee therefore requests the Government to send information without delay on the proceedings still pending and to take the necessary measures to ensure that all wages owed to Mr Gramajo are paid without delay.
6. 708. With regard to the allegation concerning the dismissal of union leader Fletcher Alburez by the Ministry of Public Health in April 2001, in respect of which the Committee had requested the Government to indicate whether Mr Alburez had exercised his right to submit an ordinary appeal to the judicial authority, the Committee notes the Government’s statement to the effect that it sent its reply in October 2005. Nevertheless, the Committee notes that, in its reply, the Government reported that Mr Alburez had submitted an application for protection of constitutional rights (amparo), which was rejected, but did not indicate whether he had initiated ordinary reinstatement proceedings. In these circumstances, and in the absence of additional information from the Government, the Committee requests the complainant organization to indicate whether Mr Alburez actually initiated ordinary reinstatement proceedings.
7. 709. With regard to the alleged unilateral imposition by the Supreme Electoral Tribunal of an organization manual (dealing with matters related to employees’ duties, posts and salary levels) and acts of anti-union discrimination in the application of the said manual, as well as the Tribunal’s refusal to meet union leaders and negotiate a collective agreement, the Committee while taking note of the Government’s indications on the status of the appeals and preliminary issues related to the manual in question, recalls that it requested the Government to meet the parties in order to find a solution to the problems that had arisen and to send its observations on the matter. The Committee requests the Government to send the requested information without delay.

The Committee's recommendations

1. 710. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again urges the Government to take the necessary steps to send its observations on all the pending allegations without delay.
   • (b) With regard to the allegations concerning assaults, death threats and acts of intimidation against trade unionists, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent its observations, and strongly requests the Government to refer these cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard.
   • (c) With regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the Labour Inspectorate, the Committee requests the Government to take the necessary measures without delay to sanction the entity responsible to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.
   • (d) With regard to the allegations concerning the dismissal of trade unionists at the company Industrias Acrílicas de Centroamérica SA and the violation of the collective agreement, the Committee once again urges the Government to send without delay any judicial decisions that are handed down on the dismissal of trade unionists, including the members of the executive committee, and on the violation of the collective agreement, as well as its observations on the allegations of pressure on union leaders and members to resign from their jobs or from the union.
   • (e) With regard to the allegations relating to the Municipality of El Tumbador concerning the reinstatement proceedings ordered by the judicial authority, the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios, and the request for measures to ensure that all wages owed to union leader Mr Gramajo are paid without delay, the Committee requests the Government to send information without delay on the proceedings still pending and to take the necessary measures to ensure that all wages owed to Mr Gramajo are paid without delay.
   • (f) With regard to the allegation concerning the dismissal of union leader Fletcher Alburez by the Ministry of Public Health in April 2001, the Committee requests the complainant organization to indicate whether Mr Alburez actually initiated ordinary reinstatement proceedings.
   • (g) With regard to the alleged unilateral imposition by the Supreme Electoral Tribunal of an organization manual (dealing with matters related to employees’ duties, posts and salary levels) and acts of anti-union discrimination in the application of the said manual, as well as the Tribunal’s refusal to meet union leaders and negotiate a collective agreement, the Committee once again requests the Government to meet the parties in order to find a solution to the problems that have arisen and to send its observations on the matter.