Report in which the committee requests to be kept informed of development - Report No 295, November 1994

Case No 1734 (Guatemala) - Complaint date: 04-OCT-93 - Closed

1. 375. The complaint in this case is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 4 October 1993. The Government sent its observations in a communication of 7 September 1994.
2. 376. Guatemala has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 377. In its communication of 4 October 1993, the ICFTU alleges that the "Atlantida" SA food and beverage enterprise, located in the Department of Puerto Barrios Izabel, has systematically maintained an anti-trade union policy. Specifically, out of 200 workers engaged there on 8 December 1992, 30 decided to establish a trade union, and submitted to the appropriate labour tribunals the necessary documentation. The enterprise responded by first dismissing the eight leaders of the union and later the rest of the workers who established the trade union. Various procedures have been undertaken to have these workers reinstated, without effect. On the one hand, the Ministry of Labour has contended that it has no coercive power to oblige the enterprise to comply and, on the other, the courts in the judiciary have simply stated that the legal procedures must be followed. The real problem is that there is already a solidarist association at this enterprise, and this is the third time that a union has been dissolved. This situation has been the subject of a complaint to the General Labour Inspectorate, to the courts and to Human Rights Prosecutor's Office.
2. 378. The complainant also denounces the fact that for over two years the "Camisas Modernas" SA in-bond enterprise has been carrying out a campaign of harassment and exclusion against the founding members of the Trade Union of Workers of the Camisas Modernas SA in-bond enterprise (SINTRACAMOSA) and its leaders, most of whom are women. The complainant adds that in 1992 a solidarist association was established with the aim of thwarting the activities of the trade unionists, that the enterprise announced that it might close with a view to resuming operations in another country without trade union problems, and that this caused a great deal of concern among the workers.

B. The Government's reply

1. 379. Regarding the dismissals in the "Atlantida" SA food and beverage enterprise, the Government states in its communication of 7 September 1994 that the workers indicated by the complainants had indeed been dismissed, but that the dismissals were not of an anti-trade union nature but were authorized by the Labour and Social Welfare Courts after they had found evidence of serious misconduct.
2. 380. As to the campaign of harassment and exclusion of the founding members of the Trade Union of Workers of the Camisas Modernas SA in-bond enterprise (SINTRACAMOSA) and its leaders, the Government states that legal proceedings have been initiated against the enterprise at the Sixth Court of Labour and Social Welfare and that it will keep the Committee informed of the outcome.

C. The Committee's conclusions

1. 381. The Committee observes that the allegations made in this case refer to the dismissal of trade union leaders and various workers for establishing a trade union in a food and beverage enterprise and to acts of anti-union discrimination and the establishment of a solidarist association with the aim of thwarting trade union activities at a shirt enterprise.
2. 382. Concerning the dismissals at the "Atlantida" SA food and beverage enterprise, the Committee, while noting the Government's observation that the dismissals were not of an anti-trade union nature but were authorized by the Labour and Social Welfare Courts after they had found evidence of serious misconduct, regrets that the Government replies only in general terms, simply referring to serious misconduct. The Committee therefore requests the Government to provide it with the text of the decisions handed down by the courts in each of these cases.
3. 383. The Committee must draw the attention of the Government on the one hand to the importance that it attaches to the principle according to which workers and employers should in practice be able to form and join organizations of their own choosing in full freedom and, on the other, 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 Committee on Freedom of Association, 3rd edition, 1985, paras. 222 and 538, respectively).
4. 384. As regards the allegations concerning the activities of solidarist associations aimed at thwarting trade union activities, the Committee has already examined allegations of this type in a case concerning Guatemala (see 259th Report, Case No. 1459, para. 305), in which: "the Committee draws the Government's attention to Article 2 of the Right to Organize and Collective Bargaining Convention (No. 98), ... which provides that workers' organizations must enjoy adequate protection against any acts of interference by employers or employers' organizations and that measures designed to promote the establishment of workers' organizations under the domination of employers or employers' organizations or to support workers' organizations by financial and other means, with the object of placing such organizations under the control of employers or employers' organizations, are specifically assimilated to such acts of interference".
5. 385. As regards the campaign of harassment and exclusion of the founding members of the Trade Union of Workers of the Camisas Modernas SA in-bond enterprise (SINTRACAMOSA) and its leaders, the Committee notes the Government's observation that legal proceedings have been initiated against the enterprise at the Sixth Court of Labour and Social Welfare and that it will keep the Committee informed of the outcome.
6. 386. On this point, the Committee recalls that the Committee of Experts, in its comments in 1994, noted with satisfaction that Decree No. 64-92 of 2 December 1992 provides in section 24 (a) for an increase to between one thousand five hundred (1,500) and five thousand (5,000) quetzales of the fine for infringements of the Labour Code, including the fine imposed on employers who oblige or try to oblige workers to relinquish membership of their union or to join a union (section 62(c)).
7. 387. The Committee expresses the hope that with the increase in these fines the protection against acts of anti-union discrimination will, in practice, be greater. The Committee requests the Government to keep it informed of the outcome of the legal proceedings initiated against the enterprise Camisas Modernas SA.

The Committee's recommendations

1. 388. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Regarding the dismissals at the "Atlantida" SA food and beverage enterprise, the Committee requests the Government to send it the text of the relevant decisions handed down by the courts in each of these cases.
   • (b) As regards the allegations concerning the activities of solidarist associations aimed at thwarting trade union activities, the Committee draws the Government's attention to Article 2 of the Right to Organize and Collective Bargaining Convention (No. 98), which provides that workers' organizations must enjoy adequate protection against any acts of interference by employers or employers' organizations and that measures designed to promote the establishment of workers' organizations under the domination of employers or employers' organizations or to support workers' organizations by financial and other means, with the object of placing such organizations under the control of employers or employers' organizations, are specifically assimilated to such acts of interference.
   • (c) As regards the campaign of harassment and exclusion against the founding members of the Trade Union of Workers of the Camisas Modernas SA in-bond enterprise (SINTRACAMOSA) and its leaders, the Committee requests the Government to keep it informed of the outcome of the legal proceedings initiated against the enterprise.