Report in which the committee requests to be kept informed of development - Report No 351, November 2008

Case No 2568 (Guatemala) - Complaint date: 28-MAY-07 - Closed

Allegations: Dismissals and threats following the establishment of a committee to form a

trade union and bargain collectively at the enterprise Agroindustrias Albay Arrocera de Guatemala SA

1. 898. The complaint is contained in a communication from the National Federation of Workers (FENATRA) of 28 May 2007 and a communication from the Latin American Central of Workers (CLAT) dated 11 June 2007. The Government sent its observations in a communication dated 3 August 2007.
2. 899. 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. The complainants’ allegations

1. 900. In its communication of 28 May 2007, the FENATRA alleges that eight workers from the enterprise Agroindustrias Albay Arrocera de Guatemala SA formed an ad hoc committee with a view to establishing a trade union and bargaining collectively with the company, and that on 9 May 2007 they initiated collective dispute proceedings on the grounds that the company was not complying with legal standards in respect of the minimum wage, social security and occupational safety, and was not paying the required labour benefits. On 11 May 2007, the judge ruled that there should be no reprisals against the workers concerned. FENATRA adds that the company’s response was to dismiss the workers concerned, and from 24 May 2007 onwards did not allow them to enter company premises and failed to pay them their final week’s wages. FENATRA also refers to a complaint made to the labour inspectorate by seven workers, according to which the company had denied them access to the workplace, and yet another complaint made to the Human Rights Ombudsman by a woman worker (a member of the ad hoc committee) alleging that threats were made by the company owner to force her to quit her job, as otherwise “something might happen to her family”.
2. 901. In its communication dated 11 June 2007, the CLAT presented a complaint to the Committee on Freedom of Association relating essentially to the same allegations as those made by FENATRA, and requested the reinstatement in their posts of Emerilda Yanes, Marta Azucena Vélez, Angela Folgar and the five remaining members of the union executive.

B. The Government’s reply

1. 902. In its communication of 3 August 2007, the Government states that the Second Labour and Social Security Court reported that it had given a ruling which stipulated, among other things, that the representatives of the workers’ coalition behind the action against the company had to show convincingly the number of workers supporting the movement, and set a deadline for them to do so; in the event that they failed to do so, the measures ordered in their favour by the court would be annulled. As they failed to meet these requirements, the court on 21 June 2007 annulled the various measures it had ordered in favour of the workers.
2. 903. The Government adds that the judicial authority, in a related subsidiary collective dispute concerning the women workers Graciela Elizabeth Pérez García, Mauricia Morales Ochoa, Marta Azucena Véliz García, Wendy Roxana Donis Folgar, Zaida Amapola Morataya Luna, Angela Rosa de María Folgar Martínez, Everilda Yanes Lémus and Claudia Janethe Salguero Caballeros, initiated reinstatement proceedings and finally, because the defendant had failed to follow due procedure, ordered immediate reinstatement of the workers concerned. That has not been implemented because the enterprise had appealed.

C. The Committee’s conclusions

1. 904. The Committee notes that this case refers to the dismissal of eight women workers at the company Agroindustrias Albay Arrocera de Guatemala SA following the establishment of an ad hoc committee to set up a trade union and bargain collectively, and to the contravention of the court order of 9 May 2007 prohibiting reprisals such as dismissal (according to the complainants, the company owner had threatened the workers to force them to quit their jobs).
2. 905. The Committee notes the Government’s statements to the effect that, in the absence of any solid evidence from the ad hoc committee regarding the number of workers who support it, the judge on 21 June 2007 annulled the measures that had been ordered in its favour. The Committee notes that, according to the Government, the court ordered the reinstatement of the eight workers, although reinstatement did not actually take place because they had brought an action against the company.
3. 906. The Committee regrets that, although the dismissals of the workers who had formed a committee to set up a union occurred in May 2007, the Government is unable to say whether or not a final ruling on the case has been handed down (see communication of August 2007), and states that the company appealed against the court order to reinstate the eight dismissed workers.
4. 907. The Committee recalls in this regard that measures taken against workers because they attempt to constitute organizations or to reconstitute organizations of workers outside the official trade union organization would be incompatible with the principle that workers should have the right to establish and join organizations of their own choosing without previous authorization [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 338]. The Committee is bound to emphasize in this case that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., para. 820].
5. 908. Under these circumstances, and taking into account the time which has, to its regret, passed since May 2007, the Committee requests the Government to explain the basis for the reinstatement ruling and take any measures in its power to ensure that the company concerned complies with the judicial decision in favour of the eight women workers, pending a final ruling on the matter which should be consistent with the rights conferred by Conventions Nos 87 and 98. The Committee also requests the Government to ensure that the dismissed workers are paid their wages for the days actually worked, and to inform it of the action taken in response to the complaint brought before the Human Rights Ombudsman concerning alleged threats by the company owner against workers to force them out of their jobs.

The Committee's recommendations

1. 909. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Taking into account the considerable time that has passed since the trade unionists were dismissed in May 2007, the Committee requests the Government to explain the basis for the reinstatement ruling and take any measures in its power to ensure that the company concerned complies with the judicial decision in favour of the eight women workers in question, pending a final ruling on the matter which should be consistent with the rights conferred by Conventions Nos 87 and 98. The Committee also requests the Government to ensure that the dismissed workers are paid their wages for the days actually worked, and to inform it of the action taken in response to the complaint brought before the Human Rights Ombudsman concerning alleged threats by the company owner against workers to force them to quit their jobs.
   • (b) The Committee requests the Government to keep it informed of developments.