Definitive Report - Report No 199, March 1980

Case No 891 (Guatemala) - Complaint date: 13-OCT-77 - Closed

1. 64. Case No. 891 was examined by the Committee in May 1978, when it submitted an interim report to the Governing Body.
2. 65. Since this examination of the case by the Committee, no further communications have been received from either the complainants or the Government.
3. 66. Guatemala has ratified both 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

1. 67. The Latin American Central of Workers (CLAT), acting on behalf of its affiliated organisations, the National Central of Workers (CNT) and the Central American Confederation of Workers (CCT), alleged in October 1977 that for more than a year the Government had refused to grant legal status to the trade union of the "La Florida" bus consortium, although the union had complied with all the necessary legal formalities. Furthermore, the CLAP added, the firm had illegally dismissed the entire executive Committee of the union as well as 35 workers.
2. 68. In its reply, the Government denied the accusations made against it. First of all, it stated that in the Public Register of Trade Unions there was no recognised trade union organisation with legal status by the name of National Central of workers. It added that all applications for legal status and for the registration of union executives were examined in accordance with the statutory procedure, without discrimination. It stated that in accordance with the relevant law, an application for legal status from the trade union of "La Florida" consortium was being considered. As regards the dispute of the workers of "La Florida" urban bus company, the Government stated that the General Inspectorate of Labour took the action incumbent upon it by law and that the workers initiated proceedings in the courts whose final decision was awaited.

B. B. The Committee's conclusions

1. 69. In its examination of the case, the Committee noted that it was more than a year since the union of workers of the "La Florida" bus consortium had filed its application for the grant of legal status and that this considerable delay, which was unexplained by the Government, was in itself an impediment to the freedom to form workers' organisations which is one of the cornerstones of freedom of association. On the subject of the dismissal of all the members of the unions executive Committee and of other workers, the Committee stated that this was a serious step which, in view of its sweeping nature, might lead one to presume that it had been taken for anti-union reasons.
2. 70. In the circumstances the Governing Body, at its session in June 1978, at the recommendation of the Committee, drew the Government's attention to the considerations and principles established by the Committee concerning the legal requirements for the foundation of a trade union and requested it to communicate as soon as possible the decision taken by the authorities concerning the granting of legal status to the union of workers of the "La Florida" bus consortium. The Governing Body also emphasised the importance of a speedy procedure for the examination of complaints alleging anti-union practices and requested the Government to supply the texts of the judgements pronounced, and the grounds adduced therefore, in the case of the dismissal of all the members of the executive Committee of the union in question and of other workers.
3. 71. At its meetings in November 1978 and in February and May 1979, the- Committee postponed consideration of the case since it had not received the observations requested from the Government. At its session in November 1979, the Committee again postponed examination of the case for the same reasons and, as a result, the Governing Body informed the Government that at its next session, in accordance with its procedure, the Committee would present a report on the substance of the matter even if the Government's observations had not been received. The Committee has still not received this information.
4. 72. In the circumstances, and before examining the substance of the case, the Committee considers it necessary to recall the considerations which it set forth in its first report, and which it has reiterated on a number of occasions: the purpose of the whole procedure is to promote respect for trade union rights in law and in fact and the Committee is confident that, if it protects governments against unreasonable accusations, governments on their side will recognise the importance of formulating for objective examination detailed factual replies to such dot-ailed factual charges as may be put forward.
5. 73. The Committee regrets that the Government has not sent the observations which have repeatedly been requested and that, in view of the time that has elapsed, it is obliged to examine the case without these observations.
6. 74. As regards the allegations concerning the request for legal status from the union of the "La Florida" bus consortium, the Committee is obliged to recall that on previous occasions it has stated that the prescribing of formalities for the Constitution of trade unions was not incompatible with the principles of freedom of association. It has nevertheless emphasised that formalities as to publicity or other similar formalities must not be such as to be equivalent in practice to previous authorisation, or as to constitute such an obstacle to the establishment of an organisation that they amount in practice to outright prohibition. In two specific cases in which a considerable period of time had elapsed since two trade union organisations had applied for legal status, the Committee recalled that, while it is true that the founders of a trade union must comply with the formalities prescribed by legislation, these formalities should not be of such nature as to hamper freedom to form organisations.
7. 75. At the time of the present examination of the case, the Government has not informed the Committee whether a decision has been reached regarding the application for legal status by the union of the "La Florida" bus consortium. However, the time which has elapsed since the application was made and until the time the last communication was received from the Government is already sufficient to indicate that the proceedings regarding this request have been unduly slow, thus constituting, as the Committee notes in its previous report, an obstacle to the freedom to form a workers' organisation which is one of the cornerstones of freedom of association.
8. 76. As regards the dismissal of workers, the Committee notes that this measure affected all the members of the executive Committee of the trade union of the company. Since this was a general measure, and in the absence of other information, it can be presumed that it was adopted for anti.-union reasons. The Committee has considered that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment such as dismissal it has established that the existence in legislation of basic provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice. When examining a case concerning Guatemala which involved allegations of anti-union dismissal practices against members of unregistered trade unions, the Committee noted that Guatemalan legislation contained a number of provisions designed to protect workers against acts of anti-union discrimination but that there were grounds for doubting whether in fact adequate protection against such acts had been provided. In the present case the Committee reiterates its concern.

The Committee's recommendations

1. 77. In view of all these circumstances, the Committee recommends the Governing Body:
   • (a) to express its regret that, despite the requests made, the Government had not sent the information for which it had been asked; and that it was forced to examine the case without the benefit of the comments of the Government;
   • (b) to draw the attention of the Government to the principles and considerations set forth in paragraphs 74 and 75, particularly concerning the fact that unduly slow procedure constitutes an obstacle to the free establishment of trade union organisations;
   • (c) to draw the attention of the Government to the principles and considerations set out in paragraph 76 concerning protection against acts of anti-union discrimination;
   • (d) to urge the Government to keep the Committee informed on the outcome of the application for legal status from the union of the "La Florida" bus consortium and of the proceedings concerning the dismissal of the executive Committee of the said union and of other workers from the company.