Interim Report - Report No 316, June 1999

Case No 1970 (Guatemala) - Complaint date: 16-JUN-98 - Closed

Allegations: Murders, physical assaults, death threats, raids on the home and attempted abduction of trade union officers and members -- anti-union dismissals -- obstruction of collective bargaining -- requirement of approval of collective agreements on working conditions

1. 533. The complaints are contained in communications from the General Confederation of Workers of Guatemala (CGTG) dated 16 June and 11 July 1998 and the Latin American Central of Workers (CLAT) dated 9, 23 and 29 October 1998 and 10 February 1999. In a communication dated 14 September 1998, the World Confederation of Labour (WCL) supported the complaints in question. The International Confederation of Free Trade Unions (ICFTU) presented allegations in a communication dated 20 January 1999.
2. 534. The Government sent its observations in communications dated 22 September 1998, and 29 January and 29 March 1999.
3. 535. 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. 536. In its communications dated 16 June and 11 July 1998, the General Confederation of Workers of Guatemala (CGTG) states that in the exercise of their trade union and labour rights, workers are subjected to mass dismissals, reprisals, intimidation, death threats, changes in their working conditions, isolation of unionized workers from non-unionized workers, non-observance of collective agreements and suppression of the most relevant clauses of collective agreements on conditions of work by the Ministry of Labour, which makes reservations in respect of them so that they are not complied with or applied.
2. 537. The complainant organization alleges that many workers have been dismissed from numerous enterprises for having carried out trade union activities. Specifically, they are as follows:
   • -- Santa Anita farm. The Santa Anita farm is located in the San Miguel Pochuta municipality, department of Chimaltenango. The 40 unionized workers were dismissed on 28 October 1993. The dismissed workers brought an action for reinstatement before the competent court; four-and-a-half years later they have still not been reinstated. The administration of justice has obviously been delayed with malicious intent, given that the legal time limits have not been observed, the reinstatement order was not issued within 24 hours of the complaint having been examined by the court, and now that four-and-a-half years have elapsed the problem of dismissal has still not been resolved, and the workers are consequently unable to negotiate a collective labour agreement. Among the workers dismissed was the entire executive committee of the trade union.
   • -- La Patria y Anexo farm. Two trade union members were dismissed, one on 23 August 1995 and the other on 14 March 1996. Two months later the court ordered their reinstatement; to date, two years and nine months after the first worker was dismissed and two years and two months after the second was dismissed, neither of them has been reinstated owing to delayed application of the law.
   • -- El Arco farm. Upon presenting a list of demands through judicial channels in order to sign a collective agreement on working conditions, the three founder members of the Standing Committee of United Workers of the El Arco farm were immediately dismissed on 7 August 1994; now that three years and ten months have elapsed, a court order for their reinstatement dated 14 December 1994 has still not been executed. Seven months later, an appeal chamber upheld the reinstatement order. Moreover, the home of trade union officer Francisco Ajtzoc Ajcac was entered in an arbitrary and violent manner by the employer, who threw his household belongings out into the street, with the result that this worker had to spend 15 days out in the open.
   • -- San Rafael Panan farm and Ofelia farm. Fifteen workers were dismissed for attempting to solve their labour problems by means of collective bargaining, having presented a list of demands to their employer (the names of the trade union officers and members affected have been communicated by the complainant organization). A competent judge has already issued orders for their immediate reinstatement, but they have not been complied with to date. The trade union comprises workers from both farms and although its legal personality has been recognized, owing to the dismissal of at least 40 per cent of its members it is unable to carry out the functions of a trade union, i.e. the negotiation and conclusion of a collective agreement on working conditions. On 29 December 1997 unidentified armed men attempted to abduct the disputes secretary of the trade union, David Urízar Valdez, at his home; a complaint was lodged against this act with the Director-General of the National Police, the Office of the Attorney-General and the Office of the Human Rights Procurator, but no investigation results have been forthcoming either from the National Police or the Office of the Attorney-General. There are thus no genuine investigations for effective penal prosecution, a situation which reinforces the system of impunity and officially encourages anti-union acts.
   • -- Santa Lucía La Mayor farm. The seven founding members of the trade union organization (referred to by name by the CGTG) were dismissed in two groups, one on 22 May 1995 and the other in October 1996, for having presented a list of demands with a view to negotiating and concluding a collective agreement on working conditions. The procedure established by law was not complied with, and the workers accordingly filed for reinstatement; the judge issued an order for their reinstatement, which was challenged by the employer; ultimately an action for protection of constitutional rights was brought. The workers have still not been reinstated.
   • -- El Tesoro farm. Ten workers were dismissed on 2 April 1997 after presenting a draft list of demands with a view to negotiating and concluding a collective agreement on working conditions; now that a year has elapsed the workers have not been reinstated and are unable to engage in collective bargaining. An order for reinstatement was issued, which the employer challenged on grounds of nullity; a decision has yet to be taken on this by the Court of Appeals in Mazatenango, Suchitepequez.
   • -- La Argentina farm. The trade union was enormously weakened by the dismissal of 25 unionized workers on 28 November 1996; the reinstatement order was challenged on grounds of nullity; the challenge was upheld and as a result the reinstatement order was revoked and an appeal is now pending. The trade union presented a draft collective agreement but no direct bargaining has taken place to date on the agreement. Judging from his evasive behaviour and delaying tactics, the employer refuses entirely to negotiate the draft collective agreement.
   • -- San Carlos Miramar farm. After refusing to accept changes that had been made in their working conditions, 14 trade union members were dismissed, two of whom were members of the executive committee. The Labour and Social Insurance Court of First Instance of Chimaltenango upheld the employer's petition to revoke the employment contracts of the 14 workers. The trade union also presented a first draft of a collective agreement with a view to bargaining, but after two years have elapsed no negotiations have taken place.
   • -- Rene S.A. Food Products Enterprise. The enterprise dismissed two officers of the Trade Union of Workers of the Rene S.A. Food Products Enterprise, who were reinstated as a result of intervention by the General Labour Inspectorate, but the enterprise ordered that they be isolated and separated from their fellow workers and kept them confined to the security guards' lodge with the security officers, so that they were unable to use the sanitary facilities or the factory canteen. The employer's strategy was aimed at making the workers desperate, to get them to resign and weaken the trade union movement.
   • -- Copesgua S.A. and Pesca S.A. enterprises. In the middle of 1997, the enterprise took advantage of the "El Niño" phenomenon which slightly damaged the pier of the old port of Champerico, and applied to the local labour inspectorate of Quetzaltenango for authorization to suspend employment contracts, which was granted on condition that the enterprise did not carry out any definitive dismissals and that it resume work as soon as the pier was repaired. Nonetheless, the enterprise used this opportunity to dismiss over 700 workers, including all the members of the executive committee and consultative committee of the trade union, without following the established legal procedure. The enterprise subsequently resumed work under a new name, with a new non-unionized workforce hired as casual workers so that they would not be covered by the collective agreement in force at the time of this manoeuvre and in order to prevent these workers from subsequently organizing in trade unions and pushing for new collective bargaining.
   • -- Secretariat of Social Welfare of the President's Office. With the aim of improving their working conditions, the men and women employed by the Secretariat organized in a standing committee of workers in order to present their employer with a list of demands with a view to raising it to the status of a collective agreement, which they attempted to do through a labour court. However, the labour court neither examined the collective dispute nor ordered the precautions or issued the warnings or injunctions necessary to protect the right to organize and collective bargaining, but only issued a decree to the effect that the dispute would be registered only once the parties had provided proof of having exhausted the direct procedure. This situation made it possible for the executive secretary of the Secretariat of Social Welfare of the President's Office to design a "voluntary" retirement plan, with mass dismissals of those who did not accept the plan. To this end the administrative authorities of the Secretariat held the workers in a state of quasi-abduction, locking them up for over eight hours in rooms with two or three notaries in order to draw up retirement documents on pain of dismissal if they did not accept the voluntary retirement plan. In this way over 700 workers were dismissed, and their right to organize and bargain collectively was thus restricted.
3. 538. The complainant organization also objects to Decree No. 35-96 to amend the Act respecting the unionization and regulation of strikes by state workers (Decree No. 71-86). According to the complainant organization, this Decree regulates matters relating to the organization and strikes of workers employed by the State and its autonomous bodies and, in addition to restricting the exercise of the right to strike by workers in various activities, section 2 lays down the obligation to engage in the direct procedure in order to negotiate collective and other agreements; in other words, before bringing them before the jurisdictional authority, the workers must address their complaints and petitions directly to the public administration, failing which the Act stipulates that the judge shall not handle the case unless it is proved that the direct procedure has been exhausted. This being so, once an employer becomes aware of the workers' intention to associate, organize or present demands, and in the absence of any warning or injunction against dismissing workers without the previous authorization of the competent judge, the employer only has to identify the workers behind the labour movement and proceed with their immediate dismissal, since they do not enjoy any legal protection.
4. 539. The complainant organization also alleges that violations of the right to bargain collectively have taken place in the following enterprises or institutions:
   • -- Santo Tomás de Castilla National Port Enterprise. The Trade Union of Workers of the Santo Tomás de Castilla National Port Enterprise, located in the municipality of Puerto Barrios, department of Izabal, denounced the collective agreement in force and presented a new draft collective agreement for discussion and negotiation. In view of the employer's refusal to negotiate, however, a collective dispute was filed with the competent labour court, which the employer then challenged before the court; to date, after two years of judicial proceedings, no collective bargaining has taken place, neither has a conciliation tribunal been set up to continue the procedure in accordance with the law; the enterprise is unwilling to respect the right to collective bargaining.
   • -- Congress of the Republic of Guatemala. In 1995 the Trade Union of Workers of the Congress of the Republic presented the managing committee of this state body a draft collective agreement on working conditions for negotiation; several months passed before direct negotiation took place, in the course of which 22 clauses were approved, but when there was a change of deputies and of the managing committee of the Congress, the new deputies and managing committee decided to suspend the process of bargaining under way, going as far as to manipulate a group of workers, with whom they concluded a so-called collective agreement without involving the trade union, and with the approval of the General Labour Inspectorate of the Ministry of Labour and Social Insurance. The so-called agreement that has been approved is being used by the congress authorities to prevent further bargaining on the collective agreement referred to above. Nearly three years after the process was begun, it still has not been settled by the labour courts.
   • -- Municipality of Chiquimulilla, department of Escuintla. In the exercise of its right to negotiate the first collective agreement on working conditions with the above-mentioned municipality, the trade union presented a draft agreement and, faced with the mayor's refusal to engage in discussions and direct negotiations, the trade union filed an economic and social collective dispute with the competent labour court in order to continue the negotiation of the agreement. To date there is no indication that this agreement will be reached in the short term, since the head of the municipality has challenged the procedure by various means in order to prevent the workers from achieving their goals.
   • -- Camino Real Hotel. The Trade Union of Hotel, Restaurant and Allied Workers which is active in the Camino Real Hotel presented a draft collective agreement for the negotiation and conclusion of a new agreement in accordance with section 51(c), second paragraph, of the Labour Code. However, the enterprise challenged the procedure before the Ministry of Labour and Social Insurance, and the Vice-Minister of Labour and Social Insurance upheld the challenge, in favour of the employer; the trade union subsequently filed the dispute before the labour court in accordance with the law. Citing the decision of the Ministry of Labour, the Sixth Labour and Social Insurance Court declared the dispute inadmissible and ordered that the procedure be considered closed and the injunction lifted. In addition, the trade union officers are constantly harassed by the enterprise and accused of incompetence in order to discredit them with the members, and the general secretary of the trade union is currently in hospital after being stabbed by a suspicious stranger who did not steal anything from his victim.
   • -- Nueva California farm. The trade union presented a draft collective agreement to the employer, but two years later there are still no positive indications that it will be negotiated in the near future, in view of the employer's obstinate refusal to sit down to bargain with the trade union.
5. 540. Lastly, the complainant organization objects to the arbitrary manner in which the Ministry of Labour and Social Insurance approves collective agreements on conditions of work. According to the CGTG, the Ministry of Labour and Social Insurance withholds approval from parts of the collective agreement and any economic and social benefits that have a financial impact on the employer, making reservations in respect of them and thereby rendering them non-existent. By distorting its nature and raison d'être, the Ministry of Labour and Social Insurance has thus turned into a real obstacle in the way of collective bargaining, particularly in the case of agreements reached by trade unions of workers employed by the State, its autonomous bodies and municipalities, such as the agreements of the municipality of Esquipulas, the municipality of Puerto Barrios, the Autonomous Sports Confederation of Guatemala and the Comptroller-General of the Nation.
6. 541. In its communications dated 8 September, 9, 23 and 29 October 1998 and 10 February 1999, the Latin American Central of Workers (CLAT) alleges the following:
   • -- According to inquiries made by the assistant public prosecutor of the Office of the Attorney-General, head of agency No. 7, there are no records or files to indicate the status of the investigation of the following murders: Cesario Chanchavac (30 October 1992); Carlos Lijuc (12 June 1994); Manuel de Jesús Alonso (30 October 1994); Pablo A. Guerra (3 October 1995); José F. Vivas (5 January 1996); Carlos H. Solorzano G. (30 May 1996); Ismael Mérida M. (26 July 1996) and Luis A. Bravo P. (5 October 1996).
   • -- On Friday 2 October 1998, Sofía Miguelina Alvarez Rojas, an officer of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport, was murdered at her home. In addition, death threats were received by Rolando Quinteros and Mario Garza, secretary-general and executive secretary of the same trade union.
   • -- On 17 October 1998, Oswaldo Monzón Lima, secretary-general of the Trade Union of Pilots in Fuel and Allied Transport, received a death threat from his employer in Colonia Jacarandas.
   • -- On 23 and 24 September 1998, Juan Gutiérrez García, an officer of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá farm, received a death threat. According to the CLAT, this trade union officer was dismissed for having set up a trade union, and unionized workers were isolated, harassed and pressured to withdraw from the organization, blacklists containing the names of unionized workers were distributed and two trade union members were threatened with death for having demanded that they be paid their wages in accordance with the law.
   • -- On 12 January 1999 Robinson Manolo Morales Canales, organization secretary of the Trade Union of Workers of the Municipality of Zacapa (SINTRAMUZAC) was murdered in the departmental capital of Zacapa. Hugo Rolando Duarte Cordón and José Alfredo Chacón Ramírez were also murdered on 28 January 1999. There is a list of persons who have received death threats, containing the names of the following workers: José Angel Urzúa, Maximiliano Alvarez Gonzaga, Elmer Salguero García, Herminio Franco Hernández, Everildo Revolario Torres, Feliciano Izep Zuruy, José Domingo Guzmán and Zonia de Alvarez. According to the CLAT, the United Nations Mission for the Verification of Human Rights in Guatemala (MINUGUA), referring to the situation of violation of human rights in Zacapa, stated that the verification recently carried out by MINUGUA reveals sufficient indications of participation of municipal officials in extrajudicial executions and other violations of human rights.
   • -- In the Santa Fe and La Palmera Farms (municipality of El Asintal), trade union officers and workers have been subjected to various forms of pressure (death threats, dismissals, etc.) for having set up a trade union and presented a statement of demands to the judicial authority.
7. 542. In its communication dated 20 January 1999, the ICFTU alleges that the trade unionists Hugo Rolando Duarte and José Alfredo Chacón Ramírez were murdered in 1998 and that the trade union leader Manuel Morales Canales was murdered on 12 January 1999; these three men belonged to the Workers' Union of the Municipality of Zacapa.

B. The Government's reply

1. 543. In its communication dated 22 September 1998, the Government stated the following:
   • Dismissals
     • -- El Arco, Santa Lucía La Mayor and La Argentina farms. These are cases which occurred several years before the present Government took office in January 1996, and it is therefore striking that it is only now that complaints are being made about them; the current administration's policy has been one of constant dialogue, various discussions have been held with trade union organizations and the above-mentioned cases were never mentioned. It is therefore surprising that a complaint is being made to the Committee on Freedom of Association before domestic procedures have been used. In any case, it may be inferred from the content of the complaint that the case was brought to the attention of the courts but unfortunately no evidence was given in support of this assertion or enabling a judgement to be made on the reasons why the judicial decisions, if they were indeed handed down, were not complied with.
     • -- Ofelia farm. According to the Government, the most outstanding aspect of this case is the complaint presented concerning the worker David Urízar, which, independently of what may have been done by other public authorities, was handled by the Vice-Minister of Labour. It appears that the employer obtained the authorization of the court to terminate his employment relationship, which it in fact did; as the worker was living in housing on the farm, he was requested to vacate it, which he has not yet done to date. The worker stated that on 29 December of the previous year there had been an attempt to abduct him on the orders of the owner of the farm. When inquiries were made other workers stated that they were not aware of what had happened, and the employer presented his passport showing that he had been abroad for the whole month of December and part of January.
     • -- El Tesoro farm. It appears from the complaint itself that this case is currently being handled by the courts, and is pending a decision. When the final decision is known it will be communicated to the Committee.
     • -- San Carlos Miramar farm. According to the Government, this case has already been settled by the courts, and an attempt is being made here to discuss judicial principles, which are certainly not a matter for the Committee on Freedom of Association.
     • -- Rene S.A. Food Products Enterprise. This case concerns events which occurred in previous years, and according to the complaint itself the intervention by the General Labour Inspectorate was timely and effective. The Government points out that the collective agreement on working conditions was discussed and approved on 16 April this year and that the General Labour Inspectorate has received no complaints of any kind recently.
     • -- Copesgua S.A. and Pesca S.A. enterprises. According to the Government, as a result of natural phenomena the port installations of Champerico sustained serious damage which made it impossible to work in them, with similar effects in the coastal area, and the enterprise therefore applied for authorization, in accordance with the law, for a total collective suspension of contracts of employment, since it was unable to continue its activities. This is thus a situation caused by natural phenomena. The Government is not aware that the same enterprise was converted into another, as the complaint asserts. According to the Zone Two local labour inspectorate, the employers have stated that they are willing to resume work once the situation has been normalized.
     • -- The Secretariat of Social Welfare of the President's Office. The Government states that under Government Agreement No. 818-97 of 27 November 1997, a temporary voluntary retirement programme was established by mutual consent. Those workers who wished to join the programme did so. Admittedly, in the course of applying the programme there had been a series of misunderstandings and disagreements with the senior official of the Secretariat. This was an undeniable fact. In order to resolve these disagreements, long before the complaint in question was presented, the Government decided to replace the Secretary, who is no longer employed in the Secretariat of Social Welfare or any other government agency. The current Secretary has adopted a stance of dialogue with the workers and it is with great satisfaction that it can now be said that the few problems which, as pointed out above, were caused by a single person have now subsided, and the atmosphere is now one of harmony and appropriate labour relations.
   • Legislation
     • -- Decree No. 35-96. This is a subject which has already been resolved by the ILO's supervisory bodies, which considered that this legislation was in accordance with the Conventions and Recommendations of the International Labour Organization, and one which moreover was examined and resolved by the Constitutional Court, and it is therefore pointless to continue referring to it.
   • Collective bargaining
     • -- Santo Tomás de Castilla National Port Enterprise. The Government points out that this allegation refers to the "employer's unwillingness to respect the right to collective bargaining", citing the fact that the employer has not availed himself of the procedural remedies offered by the law to claim his rights. This is a particular interpretation of the procedural behaviour of the opposite side, and cannot be used to justify a complaint such as this one. In any case, the situation noted in other replies to the allegations has again occurred here, namely this is a case which has been referred to the courts.
     • -- Congress of the Republic. The Government states that this complaint is pointless since, as is clear from the attached documentation and the complaint itself, a collective agreement on conditions of work has been discussed, negotiated and approved in this body, and is currently in force and, as far as is known, applied by both parties. In accordance with national legislation, it was approved by the General Labour Inspectorate, which confers full validity on it, and it can therefore be said that the problem referred to in the complaint does not exist.
     • -- Municipality of Chiquimulilla. The Government states that it is clear from the complaint that it consists of challenges having been filed, which is in conformity with the legislation in force, and, as the Committee on Freedom of Association will understand without further explanation, this cannot be seen as a violation of workers' rights. It is a matter of concern for the Government that in some instances the complaint is that the laws are not observed while in others it is that persons have availed themselves of legal means of airing their differences. Neither in Guatemala nor in any other country of the world can the act of going to court and availing oneself of legal remedies be a reason for complaint, and hence the complaint in question is entirely without justification.
     • -- Camino Real Hotel. According to the Government, the complainant organization is referring to a case which has already been settled by the courts, which upheld the decision taken by the ministerial office, so that this is only a matter of disagreement with the decision and not, as it is claimed, of deliberate or illegal impairment of workers' rights. What the case amounts to is that the collective agreement on conditions of work was denounced once the statutory time limit for doing so had elapsed, with the result that it was not considered to have been denounced, and this legal standpoint was upheld by the Court of Administrative Disputes. It is clear in this case that it is not the Ministry's or the Court's fault that the persons concerned denounced the agreement after the time limit; likewise, this situation, for which the persons concerned are entirely responsible, can in no case be considered as a violation of workers' rights.
     • -- Nueva California farm. This case has already been examined by the competent bodies of the ILO (see 307th Report, para. 279) and it is therefore inadmissible to refer to it here.
   • 544. The Government concludes by making a number of general remarks on the case, stating that it is surprising that cases are brought before the International Labour Organization without having been referred to the Ministry itself, although they could have been. As pointed out above, the policy of the current administration has been one of open, frank and permanent dialogue, as may be attested by the trade union organizations.
2. 545. In its communications dated 29 January and 29 March 1999, the Government states the following:
   • -- Murder of Sofía Miguelina Alvarez Rojas. This was an utterly regrettable occurrence; according to confidential information provided by the National Police which cannot be made public in order to avoid jeopardizing the investigation, the following persons are suspects: Sandra Patricia Mejía Araiz, Delfino de Jesús Monzón Santos and Abel de Jesús Osorio Rodríguez. The National Police has interviewed several persons, including the executive secretary of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport, who stated that members of the trade union had been threatened by Sandra Patricia Mejía Araiz and her husband Justo Rufino Reyes Santos, while the general secretary of the union said that the suspects in the case are still Mr. and Mrs. Mejía Reyes, who had had a confrontation with the deceased and had signed a non-aggression pact in a court of the capital. From the investigation and statements made by witnesses it may be deduced that what in fact occurred was a dispute between the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport and the Unidad R.L. Cooperative over taxi stations at the airport and tourist services. To conclude, although it is not justifiable, this was a commercial dispute and not a labour or trade union issue, and it is obvious that trade union problems and activities normally occur between employers and workers, which rules out any possibility of placing this case in a trade union context, and we therefore request that it be closed.
   • -- Threats against Oswaldo Monzón Lima. The Public Prosecutor's Office of the Attorney-General of the Department of Escuintla is examining a complaint filed by José Oswaldo Monzón Lima on 21 October 1998 against Mario Ortiz Barranco for coercion and threats under No. 9858-98. On 11 November 1998 the case was referred to the First Criminal Court, which classified the act as an offence.
   • -- Murder of Luis Armando Bravo Pérez. This case is being processed by the Commission for Historical Clarification and has already been examined by the Committee on Freedom of Association.
   • -- Murder of Pablo Antonio Guerra Pérez. Pablo Antonio Guerra, a member of the consultative council of the Trade Union of Workers of the Municipality of Esquipulas, died on 3 October 1995 after being hit by a vehicle. The District Prosecutor's Office of the Attorney-General of the Department of Chiquimula is processing the case, registered under No. 1265-95, in which Max Leonardo Molina is accused of the crime of culpable homicide. Mr. Molina is free on bail on condition that he remain at the disposal of the trial judge. On 12 March 1996 the prosecutor petitioned the second court of first instance to dismiss the case as there were not sufficient grounds to open proceedings. On 13 March 1996 the judge turned down the petition of the Office of the Public Prosecutor, citing insufficient grounds to open proceedings. On 2 May 1996 a petition to begin proceedings was brought by the Office of the Attorney-General and an accusation brought against Max Raúl Leonardo Molina. On 31 May the accused was granted bail on condition that he remain at the disposal of the trial judge and the decision was taken to begin proceedings. On 9 June 1996 the defence petitioned for dismissal of the case on the grounds that it was an accident. The court declared that a decision would be taken on the petition of the defence when the full court met to examine the case concerning culpable homicide or accidental death. To date, a judicial decision is pending as to whether oral proceedings will be opened or the case will be dismissed, as culpability is involved.
   • -- Murder of Manuel de Jesús Alonso. In these proceedings, Manuel Paredes Chub, Orlando Cabrera Franco and David Pineda Acevedo were accused of planning the crime and Abelardo Cacao and Carlos Ical of carrying it out. On 10 May 1996 the second judge of the Criminal Court of First Instance ordered a stay of proceedings, and the Office of the Attorney-General was notified of this on 16 May 1996. Attention is drawn in this case to the fact that the judicial investigation has already been carried out and the case was therefore closed; moreover, it concerns an event which occurred two years before the present Government took office. Therefore, as there is no institutional responsibility, the case should be closed.
   • -- Death threats against Juan Gutiérrez García, officer of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá farm, and other members of the trade union. The Ministry of Labour and Social Insurance instituted proceedings in this case before the competent courts. The complaint was filed on 7 August 1998 against the legal representative of Agropecuaria Atitlán S.A. for violation of labour legislation and is pending a decision by the jurisdictional authority.

C. The Committee's conclusions

1. 546. The Committee notes that the allegations of the complainant organizations in this case concern murders, physical assault, death threats, raids on homes and attempted abduction of trade union officers and members, as well as numerous anti-union dismissals and obstruction of the negotiation of collective labour agreements. The complainant organizations also object to a provision of Decree No. 35-96 concerning the regulation of strikes by state workers, as well as the practice of arbitrary approval of collective agreements on working conditions by the Ministry of Labour and Social Insurance.
2. 547. First of all, the Committee observes that several times in its reply the Government cites the fact that some of the alleged acts occurred several years before the present Government took office and that there is therefore no "institutional responsibility" in this matter. In this respect, the Committee recalls that "faced with allegations against one government for violations of trade union rights, ... a successive government in the same State cannot, for the mere reason that a change has occurred, escape the responsibility deriving from events that occurred under a former government. In any event, the new Government is responsible for any continuing consequences which these events may have. Where a change of regime has taken place in a country, the new government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 18).
   • Murders, physical assaults, death threats and raids on the home and attempted abduction of trade union officers and members
3. 548. The Committee notes with concern that between the last months of 1998 and the first months of 1999 five trade union officers or members were murdered and more than ten trade union officers or members received death threats. The Committee profoundly deplores these acts and recalls that "freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed" (see Digest, op. cit., para. 46). The Committee requests the Government to carry out the necessary inquiries without delay to identify and punish the guilty parties, and recalls that "the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights" (see Digest, op. cit., para. 55).
4. 549. With regard to the allegation concerning the impossibility of determining whether judicial proceedings are under way concerning the murders of trade union members Cesario Chanchavac (30 October 1992), Carlos Lijuc (12 June 1994), Manuel de Jesús Alonso (30 October 1994), Pablo A. Guerra (3 October 1995), José F. Vivas (5 January 1996), Carlos H. Solorzano G. (30 May 1996), Ismael Mérida M. (26 July 1996) and Luis A. Bravo P. (5 October 1996), the Committee notes that the Government states that: (1) the case of Luis A. Bravo is being processed by the Commission for Historical Clarification; (2) Pablo A. Guerra died after being hit by a vehicle, the perpetrator of the homicide has been detained and the case is pending a judicial decision as to whether oral proceedings should be opened or the case should be dismissed, as culpability is involved; (3) in the case of Manuel de Jesús Alonso the judicial authorities ordered a stay of proceedings in May 1996. In this respect, the Committee regrets that the Government has not communicated information on the existence of judicial proceedings concerning the murders of trade union members Cesario Chanchavac, Carlos Lijuc, José Vivas, Carlos Solorzano and Ismael Mérida. In these circumstances, the Committee urges the Government to ensure that judicial inquiries are held into the murders in question without delay and to keep it informed in this regard, and of the inquiries under way into the murders of Luis A. Bravo and Pablo A. Guerra.
5. 550. As regards the allegation concerning the murder of Sofía Miguelina Alvarez Rojas, an officer of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport, as well as the death threats made against the general secretary and executive secretary of the trade union, Rolando Quinteros and Mario Garza, the Committee notes that the Government states that: (1) according to the National Police, it has been determined that there are three suspects in the case of the murder of the trade union officer; (2) it is to be deduced from the investigation and the statements of witnesses that what occurred was a dispute between the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport and the Unidad R.L. Cooperative over taxi stations in the airport; and (3) it is a commercial dispute and not a labour or trade union issue. In this respect, the Committee deplores the murder of the trade union officer in question and regrets the fact that the Government has not communicated its observations on the alleged death threats against the general secretary and the executive secretary of the trade union. In these circumstances, the Committee urges the Government to take the necessary measures without delay to carry out a judicial inquiry into these allegations concerning death threats and to keep it informed in this regard. In addition, bearing in mind the fact that one officer of the trade union in question has already been murdered, the Committee requests the Government to take steps to provide protection to officers Rolando Quinteros and Mario Garza.
6. 551. As regards the allegation concerning death threats against Oswaldo Monzón Lima, secretary-general of the Trade Union of Pilots in Fuel and Allied Transport on 17 October 1998 by his employer in Colonia Jacarandas, the Committee notes that the Government states that the Office of the Public Prosecutor of the Attorney-General of the Department of Escuintla is handling the complaint filed by the trade union officer in question and that on 11 November 1998 the case was referred to the First Criminal Court which classified the act as an offence. The Committee requests the Government to keep it informed of the final outcome of the judicial proceedings and that in the event that the death threats against Oswaldo Monzón Lima are found to have occurred, to take steps to provide adequate security for this trade union leader and to ensure that such acts do not recur in future.
7. 552. As regards the allegation concerning the raid on the home and attempted abduction of David Urízar Valdez, disputes secretary of the Trade Union of Workers of the San Rafael Panan and Ofelia farms on 29 December 1997, the Committee notes that the Government states that: (1) the employer obtained the authorization to terminate the employment relationship of the trade union member in question and that since he was living in housing on the farm, he was requested to vacate it, which he has not done to date; and (2) the worker stated that on 29 December 1997 an attempt had been made to abduct him on the order of the owner of the farm, but in the course of the inquiries into this case the employer had presented his passport which showed that he had been abroad the entire month of December and part of January. In these circumstances, observing that the complainant organization has informed it that a complaint has been filed with the National Police, the Office of the Attorney-General and the Office of Human Rights of the Procurator, the Committee requests the Government to keep it informed of the outcome of the inquiries carried out by these institutions.
8. 553. As regards the allegation concerning the death threats against Juan Gutiérrez García, an officer of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá farm and other members of the trade union organization for having demanded payment of their wages, the Committee notes that the Government states that the Ministry of Labour and Social Insurance instituted proceedings in this case before the competent courts on 7 August 1998 which are pending a decision by the jurisdictional authority. The Committee requests the Government to keep it informed of the outcome of the judicial inquiries under way.
9. 554. In addition, the Committee observes that the Government has not sent observations on the allegations concerning: (1) municipality of Zacapa: the murders of Robinson Manolo Morales Canales, organization secretary of the Trade Union of Workers of the Municipality of Zacapa (SINTRAMUZAC), on 12 January 1999, Hugo Rolando Duarte Cordón and José Alfredo Chacón Ramírez, on 28 January 1999, and the death threats against José Angel Urzúa, Maximiliano Alvarez Gonzaga, Elmer Salguero García, Herminio Franco Hernández, Everildo Revolorio Torres, Feliciano Izep Zuruy, José Domingo Guzmán and Zonia de Alvarez; (2) Santa Fe and La Palmera farms: death threats against trade union officers for having presented a list of demands to the judicial authorities; (3) Camino Real Hotel: harassment by the management of the enterprise of trade union officers and physical assault (stabbing) of the general secretary of the trade union; and (4) El Arco farm: raid on the home of trade union officer Francisco Ajtzoc Ajcac by the employer. The Committee regrets that the Government has not communicated its observations in this respect. The Committee urges the Government to communicate its observations on these allegations without delay.
   • Anti-union dismissals
10. 555. The Committee notes with concern the large number of allegations concerning dismissals and other acts of anti-union discrimination affecting numerous trade union officers, members and workers in the exercise of their trade union activities, as well as the fact that, according to the complainant, in many cases court orders for the reinstatement of trade union members are ignored. In this respect, the Committee emphasizes that "the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association" and that "no one should be subjected to anti-union discrimination because of his or her legitimate trade union activities and the remedy of reinstatement should be available to those who were victims of anti-union discrimination" (see Digest, op. cit., paras. 702 and 755).
11. 556. The Committee observes that according to the allegations, dismissals often occur after trade union activities have been carried out (establishment of trade unions, presentation of lists of demands, etc.) and recalls that "the existence of basic legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice. Thus, for example, it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he has been the victim. This shows the full importance of Article 3 of Convention No. 98, which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize" (see Digest, op. cit., para. 740). The Committee accordingly emphasizes the need to take the necessary steps to strengthen protection against acts of anti-union discrimination so that workers' organizations do not run the risk of disappearing. In this respect, the Committee recalls that "since inadequate safeguards against acts of anti-union discrimination, in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts" (see Digest, op. cit., para. 700).
12. 557. The Committee notes the allegations concerning: (1) the dismissal on 7 August 1994 of the three founders members of the Standing Committee of United Workers of the El Arco farm after they presented a list of demands through judicial channels in order to conclude a collective labour agreement and non-compliance with a court order for their reinstatement issued on 14 December 1994; (2) the dismissal on 22 May 1995 and in October 1996 of the seven founder members of the trade union organization in the Santa Lucía La Mayor farm after presenting a list of demands with a view to negotiating and concluding a collective agreement on working conditions (according to the complainant organization, the judicial authorities ordered the workers' reinstatement but the employer challenged this measure); and (3) the dismissal on 28 November 1996 of 25 members of the trade union in the La Argentina farm (according to the complainant organization a judicial appeal was filed in relation to the reinstatement of the dismissed workers). In this respect, the Committee notes that the Government states that these are cases which have been filed with the courts and that no proof has been provided of the fact that the judicial decisions referred to by the complainant organization were handed down and were not complied with. The Committee regrets that the Government has not communicated specific information on these allegations, which in some cases refer to proceedings initiated over four years ago. In these circumstances, the Committee urges the Government to verify the result of the judicial proceedings referred to and, if the orders for reinstatement of workers dismissed for their trade union activities referred to by the complainants are found to exist, to take the necessary steps to ensure that they are carried out immediately.
13. 558. As regards the allegation concerning the dismissal on 2 April 1997 of ten workers employed in the El Tesoro farm after presenting a list of demands, the Committee notes that the Government states that this case is being handled by the courts, pending a decision. In this respect, the Committee hopes that the judicial authorities will hand down a decision in the near future and requests the Government to send it a copy of the decision as soon as it is issued and to ensure that it is implemented.
14. 559. As regards the allegation concerning the dismissal of 14 trade union members for refusing to accept the changes imposed on their working conditions in the San Carlos Miramar farm and the impossibility of negotiating a draft collective agreement for the last two years, the Committee notes that the Government states that, as pointed out by the complainant organization, the case of the dismissals has already been settled by the judicial authorities, which upheld the employer's request to cancel the employment contracts of the four workers in question. In this respect, the Committee requests the Government to communicate its observations with regard to the impossibility of negotiating a draft collective agreement presented two years ago.
15. 560. As regards the allegation concerning the dismissal of two officers of the trade union in the Rene S.A. Food Products Enterprise and their subsequent reinstatement as a result of the intervention of the General Labour Inspectorate, but with the enterprise's order to isolate them and separate them from their fellow workers, keeping them confined to the security guards' lodge, the Committee notes that the Government states that in this case the intervention by the General Labour Inspectorate was timely and effective, that a collective agreement on working conditions has been concluded and that no complaints of any kind have been received recently. In this respect, observing that the Government has not communicated specific information on the working conditions of the trade union officers who were reinstated, the Committee requests the Government to ensure that the two officers in question are not isolated or subjected to inhuman measures and to keep it informed in this regard.
16. 561. As regards the allegation concerning the dismissal of more than 700 workers, including all the members of the executive committee and the consultative committee of the trade union of the Copesgua S.A. and Pesca S.A. enterprises following slight damage to the pier of the old port of Champerico, with the result that the employer applied for authorization to suspend contracts of employment, and its subsequent resumption of work under a new name and hiring of a non-unionized workforce, the Committee notes that the Government states that: (1) as a result of natural phenomena the port installations of Champerico had sustained serious damage which made it impossible to work there, but that the enterprise had, in accordance with the law, applied for authorization for a total collective suspension of contracts of employment since it was unable to continue its activities; (2) it is not aware that the enterprise was converted into a new enterprise; and (3) the enterprise has informed the Government that it is willing to resume work once the situation has been normalized. The Committee requests the Government to carry out an inquiry into the allegation to the effect that a new non-unionized workforce was hired and to keep it informed in this regard.
17. 562. As regards the allegation concerning the design of a voluntary retirement plan and the threat of mass dismissals of those who did not accept the plan, after a standing committee of workers was set up in the Secretariat of Social Welfare of the President's Office in order to present a list of demands with a view to raising it to the status of a collective agreement, the Committee notes that the Government states that: (1) under Government Agreement No. 818-97 of 27 November 1997 a temporary voluntary retirement programme was established by mutual consent and that the workers wishing to adhere to the programme had done so; (2) in the course of applying the programme there had been a series of misunderstandings and disagreements with the senior official of the Secretariat, but the Government had replaced this person; and (3) the current Secretary had adopted a stance of dialogue with the workers and that the atmosphere was now one of harmony and appropriate labour relations. In this respect, the Committee hopes that in future when voluntary retirement programmes are carried out, the trade union organizations in the sector will be consulted.
18. 563. As regards the allegations concerning: (1) the dismissal of 15 workers in the San Rafael Panan and Ofelia farms after presenting a list of demands and failure to comply with a court reinstatement order; (2) the dismissal on 28 October 1993 of the 40 unionized workers, including all the members of the executive committee of the trade union, in the Santa Anita farm; (3) the dismissals on 23 August 1995 and 14 March 1996 of two trade union members in the La Patria y Anexo farm and non-compliance with a court reinstatement order; (4) the dismissal of trade union officers and workers in the Santa Fe and La Palmera farms for having established a trade union and presented a list of demands to the judicial authority, the Committee regrets that the Government has not provided information on these allegations of anti-union discrimination -- some of which allegedly occurred over five years ago -- and urges it to send its observations as soon as possible.
    • Difficulties in and obstruction of negotiation of collective agreements
19. 564. As regards the allegation concerning the impossibility for the Trade Union of Workers of the Congress of the Republic to negotiate a draft collective agreement on conditions of work presented in 1995, a collective agreement having been concluded in the meantime without involving the trade union, the Committee notes that the Government states that an agreement on working conditions had been discussed, negotiated and approved in Congress and was now in force and applied by both parties. In this respect, the Committee observes that it is clear from the collective agreement attached by the Government to its reply that the parties to the agreement are "the legislative body of the Republic of Guatemala" and "the ad hoc workers' committee" set up solely to engage in the current round of collective bargaining and the workers of the legislative body. Noting that according to the complainant, the workers' trade union did not participate in the negotiation of the collective agreement, the Committee requests the Government to provide it with information concerning the representativeness of the trade union and the ad hoc workers' committee so that it will be able to examine this allegation in full knowledge of the facts.
20. 565. As regards the allegations concerning the refusal to negotiate and obstruction of the negotiation of collective agreements on working conditions by filing challenges and other documents with the courts, on the part of the authorities of the municipality of Chiquimulilla, the Santo Tomás de Castilla National Port Enterprise, the Camino Real Hotel and the Nueva California farm, the Committee observes that the Government states the following: (1) in the case of the municipality of Chiquimulilla, the authorities filed challenges, acting in accordance with the legislation in force; (2) in the case of the Santo Tomás de Castilla National Port Enterprise, the authorities of the enterprise availed themselves of the legal remedies afforded by law; (3) in the case of the Camino Real Hotel, the collective agreement on working conditions was denounced after the time limit for doing so had elapsed, with the result that it was not considered to have been denounced, and a decision was issued to this effect by the Court of Administrative Disputes; and (4) in the case of the Nueva California farm, the case had already been examined by the Committee on Freedom of Association at its meeting in May 1997.
21. 566. In this respect, the Committee recalls that "it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties" and that "the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided" (see Digest, op. cit., paras. 815 and 816). In these circumstances, the Committee requests the Government to ensure that these principles are respected and that every effort is made to promote and encourage among employers' and workers' organizations the full development and use of procedures for voluntary negotiation, with a view to regulating conditions of employment by means of collective agreements.
    • Approval of collective agreements on working conditions
22. 567. As regards the allegation to the effect that the Ministry of Labour and Social Insurance withholds approval of any social and economic clauses of collective agreements which have a financial impact on employers, making reservations in respect of them and thereby rendering them non-existent (the complainant organization refers to the cases of the municipality of Esquipulas, the municipality of Puerto Barrios, the Autonomous Sports Confederation of Guatemala and the Comptroller-General of the Nation), the Committee regrets that the Government has not sent its observations on this matter and requests it to send them as soon as possible.
    • Decree No. 35-96 regulating strikes by state workers
23. 568. As regards the CGTG's objection to the provision of the Decree in question which makes it compulsory to engage in the direct procedure for the negotiation of a collective agreement, so that workers must address their complaints and petitions directly to the public administration before bringing them before the judicial authorities, the Committee notes that the Government states that this subject has already been examined by the supervisory bodies of the ILO and that it was pointed out that the legislation was in conformity with ILO Conventions and Recommendations. In this respect, the Committee would recall that in its analysis of the application of Convention No. 98 by Guatemala, the Committee of Experts on the Application of Conventions and Recommendations examined the Decree in question and considered that "section 2(b) which provides that where proof of having exhausted direct means is not provided, there will be no follow-up to the settlement of the dispute in question, thereby obliging a judge ex officio to adopt the measures necessary for proving this state of affairs" does not violate the Convention (see Report III (Part 1A) of 1998, p. 239 of the English version). In these circumstances, the Committee will not pursue its examination of this allegation.

The Committee's recommendations

1. 569. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee recalls that faced with allegations against one government for violations of trade union rights, a successive government in the same State cannot, for the mere reason that a change has occurred, escape the responsibility deriving from events that occurred under a former government. In any event, the new government is responsible for any continuing consequences which these events may have. Where a change of regime has taken place in a country, the new government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor.
   • (b) As regards the alleged acts of violence, the Committee:
   • (i) urges the Government to ensure that judicial inquiries are carried out without delay into the murders of trade union members Cesario Chanchavac, Carlos Lijuc, José Vivas, Carlos Solorzano and Ismael Mérida and to keep it informed in this regard, and of the inquiries under way into the murders of trade union members Luis A. Bravo and Pablo A. Guerra;
   • (ii) urges the Government to take the necessary steps without delay to ensure that a judicial inquiry is carried out into the alleged death threats against the general secretary and executive secretary of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport, Rolando Quinteros and Mario Garza, and to keep it informed in this regard. In addition, bearing in mind the fact that an officer of the trade union in question has already been murdered, the Committee requests the Government to take steps to provide protection to officers Rolando Quinteros and Mario Garza;
   • (iii) requests the Government to keep it informed of the final outcome of the judicial proceedings concerning the death threats against Oswaldo Monzón Lima, secretary-general of the Trade Union of Pilots in Fuel and Allied Transport, by his employer in Colonia Jacarandas, and if the death threats are found to have taken place, to take steps to provide adequate security for this trade union leader and to ensure that such acts do not recur in future;
   • (iv) requests the Government to keep it informed of the outcome of the judicial proceedings under way concerning the death threats against Juan Gutiérrez García, officer of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá farm and other members of the trade union for having demanded payment of their wages;
   • (v) requests the Government to keep it informed of the outcome of inquiries carried out by the National Police, the Office of the Attorney-General and the Office of the Human Rights Procurator concerning the alleged raid on the home and attempted abduction of David Urízar Valdez;
   • (vi) urges the Government to communicate without delay its observations on the following allegations: (1) municipality of Zacapa: the murders of Robinson Manolo Morales Canales, organization secretary of the Trade Union of Workers of the Municipality of Zacapa (SINTRAMUZAC), on 12 January 1999, Hugo Rolando Duarte Cordón and José Alfredo Chacón Ramiréz on 28 January 1999, and the death threats against José Angel Urzúa, Maximiliano Alvarez Gonzaga, Elmer Salguero Garcíam, Herminio Franco Hernández, Everildo Revolorio Torres, Feliciano Izep Zuruy, José Domingo Guzmán and Zonia de Alvarez; (2) Santa Fe and La Palmera farms: death threats against officers of the trade union for having presented a list of demands to the judicial authorities; (3) Camino Real Hotel: harassment of trade union officers by the enterprise and physical assault (stabbing) of the secretary-general of the trade union; and (4) El Arco farm: raid on the home of trade union officer Francisco Ajtzoc Ajcac by the employer.
   • (c) As regards the alleged acts of anti-union discrimination and other matters, the Committee:
   • (i) urges the Government to verify the result of the judicial proceedings concerning: (1) the dismissal on 7 August 1994 of the three founder members of the Standing Committee of United Workers of the El Arco farm after presenting a list of demands to the judicial authorities with the aim of concluding a collective agreement and non-compliance with a court reinstatement order issued on 14 December 1994; (2) the dismissal on 22 May 1995 and in October 1996 of the seven founder members of the trade union organization in the Santa Lucía La Mayor farm after presenting a list of demands with the aim of negotiating and concluding a collective agreement on working conditions (according to the complainant organization, the judicial authorities ordered the workers' reinstatement but the employer challenged this measure); and (3) the dismissal on 28 November 1996 of 25 members of the trade union in the La Argentina farm (according to the complainant organization an appeal has been lodged with the courts in relation to the reinstatement of the dismissed workers), and, if the court orders for the reinstatement of workers dismissed for their trade union activities referred to by the complainants are found to exist, requests the Government to take the necessary steps to ensure that they are carried out immediately;
   • (ii) hopes that the judicial authorities will hand down a decision in the near future concerning the dismissal on 2 April 1997 of ten workers of the El Tesoro farm after presenting a draft list of demands, and requests the Government to send it a copy of the decision as soon as it is issued and to ensure that it is implemented;
   • (iii) requests the Government to send its observations concerning the impossibility of negotiating a draft collective agreement presented two years ago in the San Carlos Miramar farm;
   • (iv) requests the Government to ensure that the two trade union officers reinstated in the Rene S.A. Food Products Enterprise are not isolated or subjected to inhuman measures; the Committee requests the Government to keep it informed in this regard;
   • (v) requests the Government to carry out inquiries into the allegation concerning the recruitment of a new non-unionized workforce in the Copesgua S.A. and Pesca S.A. enterprise following the total collective suspension of contracts of employment;
   • (vi) hopes that in future, when voluntary retirement programmes such as the one carried out in the Secretariat of Social Welfare of the President's Office are implemented, the trade union organizations in the sector will be consulted;
   • (vii) urges the Government to send its observations on the allegations concerning: (1) the dismissal of 15 workers in the San Rafael Panan and Ofelia farms after presenting a list of demands and non-compliance with a court reinstatement order; (2) the dismissal on 28 October 1993 of the 40 unionized workers, including all the members of the executive committee of the trade union, in the Santa Anita farm; (3) the dismissal on 23 August 1995 and on 14 March 1996 of two trade union members in the La Patria y Anexo farm and non-compliance with a court reinstatement order; (4) the dismissal of trade union officers and workers in the Santa Fe and La Palmera farms for having established a trade union and presented a list of demands to the judicial authority; the Committee regrets that the Government has not forwarded its observations although some of the allegations relate to events that occurred many years ago;
     • (viii) as regards the allegation concerning the impossibility for the Trade Union of Workers of the Congress of the Republic to negotiate a draft collective agreement on conditions of work presented in 1995, a collective agreement having been concluded in the meantime without involving the trade union, noting that according to the complainant, the workers' trade union did not participate in the negotiation of the collective agreement, the Committee requests the Government to provide it with information concerning the representativeness of the trade union and the ad hoc workers' committee so that it will be able to examine this allegation in full knowledge of the facts;
   • (ix) with regard to the allegations concerning refusal to negotiate and obstruction of negotiation of collective agreements on working conditions by filing challenges and other documents with the courts, on the part of the authorities of the municipality of Chiquimulilla, the Santo Tomás de Castilla National Port Enterprise, the Camino Real Hotel and the Nueva California farm, recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties, and that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided, and requests the Government to ensure that these principles are respected and that every effort is made to encourage and promote among employers' and workers' organizations the full development and use of voluntary bargaining procedures, with a view to regulating conditions of employment by means of collective agreements; and
   • (x) requests the Government to send its observations as soon as possible concerning the allegation to the effect that the Ministry of Labour and Social Insurance withholds approval of all economic and social benefits clauses of collective agreements which have a financial impact on employers, making reservations in respect of them and thereby rendering them non-existent.