Informe provisional - Informe núm. 300, Noviembre 1995

Caso núm. 1823 (Guatemala) - Fecha de presentación de la queja:: 17-FEB-95 - Cerrado

Allegations: Refusal to grant legal personality to a trade union in the process of establishment

1. 428. The complaint is contained in a communication from the Trade Union of Workers of the General Labour Inspectorate (STIGT) dated 17 February 1995. This organization sent additional information in a communication dated 22 March 1995. The Government replied in a communication dated 16 May 1995.
2. 429. Guatemala has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and their Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 430. In its communications of 17 February and 22 March 1995, the Trade Union of Workers of the General Labour Inspectorate (in the course of establishment) alleges that since it was set up in February 1993, the Ministry of Labour and Social Insurance has refused to grant it legal personality and approve its by-laws. First the Ministry objected to the wording of the by-laws; subsequently its objections concerned matters of substance, thus delaying the process and requiring the organization to draft a new set of by-laws.
2. 431. The complainant organization adds that in a resolution dated 16 March 1995 the Director-General of Labour excluded from membership in the trade union the body of inspectors making up the General Labour Inspectorate, since they were workers in positions of trust.
3. 432. The complainant organization adds that under agreement No. 05-94 of 29 November 1994, changes were made to the functions of 18 labour inspectors, who were precisely the founder members of the trade union (including the executive board), depriving them of the main functions of inspecting and visiting work centres, carrying out investigations and revising documents and conditions of work in enterprises, and who subsequently became workers with the responsibility of mediating in collective disputes. This was thus an anti-union reprisal.
4. 433. The complainant organization also alleges the dismissal of Mrs. Sandra Elizabeth Barrera López and Mrs. Malbina Dioderet Barrera Donís, who were members of the trade union.

B. The Government's reply

1. 434. In its communication of 16 May 1995, the Government states in connection with the alleged delays in the granting of legal personality to the complainant organization that these delays are due first to the lack of interest of the labour inspectors themselves, members of the trade union, in complying with the legal requirements which were not met, which resulted in a resolution to the effect that such requirements would firstly have to be satisfied. In this respect it is significant to note that the resolution requiring compliance with these prior requirements was issued by the General Directorate of Labour on 6 September 1993, which was partially complied with on 19 September 1994 and that a new set of draft by-laws (which was one of the prior requirements) was presented on 24 January 1995. Second, the Government emphasizes the fact that the delay in the conclusion of the process is in the interest of the inspectors themselves, since it implies the non-removability of all the members of the trade union being established, whereas once the legal personality is granted, non-removability would be restricted to members of the Executive Committee and the Advisory Council, in accordance with the provisions of the Labour Code.
2. 435. The Government adds that it should be noted that the status of the employees in positions of trust is currently being examined; in this respect, the representatives of the trade union being established made an application for reconsideration to the Ministry of Labour and following the respective legal procedures this application will be examined shortly in accordance with the law. Although no errors or illegal acts have been committed in this connection, the parties concerned are free, if they so desire, to make use of all the administrative and judicial remedies available to them to prove otherwise. The Ministry of Labour will act in strict accordance with the law and will respect any decisions taken by the competent authorities if the case is placed before other national bodies.
3. 436. As regards the dismissal of the Deputy General Inspector of Labour, Sandra Elizabeth Barrera López, and Inspector Malbina Dioderet Barrera Donís de Spiegeler, the Government points out that both these persons renounced the benefits which they might have derived from the protection granted by legislation as regards appeals lodged against the Ministry and it was this circumstance which permitted their removal from office.

C. The Committee's conclusions

1. 437. As regards the refusal to grant legal personality to and approve the statutes of the complainant organization since February 1993, the Committee notes that the Trade Union of Workers of the General Labour Inspectorate has been refused legal personality precisely because of its affiliation of labour inspectors who are considered workers in positions of trust (resolution of the Director-General of Labour of 16 March 1995).
2. 438. In this connection, the Committee considers that the denial of the right to organize of workers in the labour inspectorate by the Director-General of Labour constitutes a violation of Article 2 of Convention No. 87, which states that "workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization". In this connection the Committee has pointed out that "public servants, like all other workers, without distinction whatsoever have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests" (see 238th Report, Case No. 1189 (Kenya), para. 260(a)) and that "all public employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of the Convention) should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members". (See 291st Report, Case No. 1706 (Peru), para. 484.) In these circumstances, given that Article 2 of Convention No. 87 was violated in this case, the Committee urges the Government to grant legal personality immediately to the Trade Union of Workers of the General Inspectorate of Labour.
3. 439. As regards the dismissal of two members, the Committee notes that according to the Government the legislation in force protected them against dismissal and that their removal from their posts could only be made because they had previously renounced legal protection. The Committee requests the Government to indicate the reasons why these two members renounced legal protection against this removal from office.
4. 440. Finally, as regards the change in functions of 18 inspectors who were founder members of the trade union, the Committee notes that the Government has not denied that only the founder members were subject to this measure, and thus in the context of the establishment of a trade union in which a change of functions is made, everything points to the conclusion that this was an act of anti-union discrimination. Therefore, given that these measures were taken for the exercise of legitimate trade union rights, the Committee draws the attention of the Government to the principle that no person should be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 538) and asks it, in consultation with the 18 inspectors concerned, to revoke the change in functions which was made and to keep it informed of any measures taken in this respect.

The Committee's recommendations

1. 441. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to grant legal personality immediately to the Trade Union of Workers of the General Labour Inspectorate.
   • (b) The Committee requests the Government to indicate the reasons why the two trade union members renounced legal protection against their removal from office.
   • (c) As regards the change in functions of 18 inspectors who were founder members of the trade union, bearing in mind that there is substantial evidence to indicate that this was an act of anti-union discrimination, the Committee requests the Government, in consultation with the 18 inspectors, to revoke the change in their functions and to keep it informed of any measures taken in this respect.