Effect given to the recommendations of the committee and the Governing Body - Report No 343, November 2006

Case No 2017 (Guatemala) - Complaint date: 05-MAR-99 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 78. The Committee last examined these cases at its March 2006 meeting [see 340th Report, paras. 98-100] and on that occasion made the following recommendations:
   • (a) with respect to the allegations concerning the Banco de Crédito Hipotecario Nacional (anti-union dismissals and suspensions), the Committee recalled that the Government had provided information about action being taken by the negotiating committee in respect of these allegations and requested the Government to keep it informed of the progress made by that committee;
   • (b) with respect to the allegations relating to the Tamport S.A. company (dismissals due to the company’s closure), the Committee requested the Government to inform it of the final results of the legal proceedings under way;
   • (c) with regard to the dispute at the La Aurora National Zoological Park, the Committee noted that the judicial authority had confirmed the arbitrator’s decision which had been appealed by the company. It also noted that the arbitrator’s decision was at that time in the implementation phase, waiting for the joint commission, established in accordance with the arbitrator’s decision, to issue the respective report; the Committee requested the Government to keep it informed of the report of the joint commission mentioned;
   • (d) with regard to the dismissals from the La Exacta and/or San Juan El Horizonte farm, in respect of which reinstatement had been ordered, the Committee requested the Government to keep it informed of the reinstatement proceedings under way;
   • (e) with regard to the murder of Mr. Baudillo Amado Cermeño Ramírez in December 2001, the Committee requested the Government to send it the ruling handed down in that respect;
   • (f) with regard to the allegations concerning the kidnapping of and assaults and threats against the trade unionist of the Santa María de Lourdes farm, Mr. Walter Oswaldo Apen Ruiz, and his family, the Committee requested the Government to send its observations and to ensure that the safety of the trade union member, which had been threatened, was guaranteed; and
   • (g) with regard to the allegations relating to the murder of trade union members Efraín Recinos, Basilio Guzmán, Diego Orozco and José García Gonzáles, the injuries to 11 workers and the detention of 45 workers of the La Exacta and/or San Juan El Horizonte farm, the Committee urged the Government to send information in this respect without delay.
2. 79. In a communication dated 29 May 2006, the Trade Union of Workers of Guatemala (UNSITRAGUA) indicates in respect of the allegations concerning the Banco de Crédito Hipotecario Nacional of Guatemala, that the present authorities of the Bank have increased their actions of repression and intimidation against the trade union leaders and the rank and file members of the trade union organization, which can be summarized as follows: (a) in March 2005, the executive committee of the trade union was informed by the general manager of the Bank of the closure of 29 of the institution’s agencies and of the dismissal of 102 workers. When the trade union leaders expressed their disagreement with the measure and requested that the workers concerned be placed in other jobs, the general manager convened a general assembly of workers both affiliated and not affiliated to the trade union, during which he made a whole series of pejorative and anti-union comments against the trade union leadership; (b) in June 2005, the authorities of the Banco de Crédito Hipotecario Nacional of Guatemala began a campaign to make the workers leave the trade union, threatening that if they did not renounce their trade union membership they would be dismissed. It should be noted that all the disaffiliations that occurred as a result of that campaign were submitted to the general management of the Bank and not to the executive committee of the trade union, as per the statutes of the trade union organization. The head of the Human Resources Department ordered that trade union dues should not be deducted from the wages of the workers concerned, without the disaffiliations having been recognized and approved according to the procedures established in the statutes of the trade union organization; (c) in July 2005, the authorities of the Banco de Crédito Hipotecario Nacional of Guatemala took a series of actions against the trade union which contravened the prevailing collective agreement, including: (1) no longer sending copies of the hearings notified to the workers affiliated to the trade union, in order to prevent it from advising them; (2) refusing the trade union access to the labour records of their affiliates; (3) not informing the trade union of the hiring and departures of personnel; (4) initiating disciplinary actions against the trade union leaders, maintaining that “they must inform the Bank” of the activities they carry out during their union leave; (5) the authorities of the Bank issuing the trade union leaders with veiled death threats; (d) on 15 July 2005, the general manager of the Bank prohibited the trade union from using the institution’s vehicle, which had been assigned for the trade union to use; (e) on 19 July 2005, after the trade union had transmitted some complaints to the ILO, the three telephone lines that had been assigned to the trade union for its use were blocked by order of the general manager of the Bank; (f) on 25 July 2005, a funeral wreath was laid at the headquarters of UNSITRAGUA, together with a number of death notices threatening the trade union leaders with death; (g) on 14 March 2006, in view of the refusal of the trade union’s executive committee to report to the general management of the Bank on the activities they carried out during their union leave, disciplinary administrative proceedings were initiated against the trade union leaders and resulted in them being suspended without pay. The aim of this measure is to establish a case against the trade union leaders in order to ask the courts for authorization to dismiss them; nevertheless, the sanctions are being imposed without any legal foundation; (h) on 23 March 2006, taking as a pretext a trade union sports bulletin inviting the workers to participate in sporting activities to celebrate the 43rd anniversary of the foundation of the trade union, the general manager of the Bank issued a new publication in which he threatened, without having any grounds, to initiate penal action against the leaders of the trade union, a threat which was preceded by all manner of pejorative statements about the leaders of the trade union; (i) at present a further two disciplinary administrative proceedings are being brought against the leaders of the trade union, based on the premise that they should either inform the general management of the activities they carry out during their union leave or should no longer be granted it. Although the Ministry of Labour and Social Welfare was asked to intervene to ensure that freedom of association was maintained, it referred this matter to the Tripartite Committee on International Labour Affairs (which has not yet begun to process the case) and to the Alternate Conflict Resolution Unit.
3. 80. As to the allegations concerning the enterprise Tamport S.A., UNSITRAGUA alleges that the case is being examined by the Seventh Labour and Social Welfare Court of the First Economic Zone under illegal work stoppage incident No. 270-2000, and is in the execution phase, only pending the sale of the seized property at public auction. Nevertheless, on 28 November 2005, the court suspended the execution on the grounds of the death of Ms. Dora Elizabeth Tanchez Portillo, who had acted in the case through a judicial representative. Nevertheless, in deciding that suspension, the court omitted to apply article 1722 of the Civil Code, which governs such situations. In the present case, the proceedings had been initiated and had entered the execution phase during the lifetime of Ms. Tanchez Portillo; in other words, the execution of the case constitutes a pending rather than a new matter. Despite this, the court procedurally dissociated the judicial representative and imposed an unnecessary suspension on the case, maintaining that the female workers should initiate new proceedings to appoint a new legal representative, an aim which, in addition to not being in keeping with the law, considerably defers the execution phase. This case was put before the Tripartite Committee on International Labour Affairs, but in spite of this, to date it has not yet begun to process it.
4. 81. With respect to the La Exacta enterprise (San Juan El Horizonte farm), UNSITRAGUA indicates that the Government has shown no interest whatsoever, either as regards ensuring the reinstatement of the workers or investigating and criminally prosecuting those responsible for the murders of the dead trade unionists. The case in question was addressed to the Tripartite Committee on International Labour Affairs, but to date it has not been dealt with at all.
5. 82. In communications dated 10 and 29 May and 28 June 2006, the Government states in relation to the dispute at the La Aurora Zoological Park that on 11 August 2005 the Workers’ Union of the La Aurora National Zoological Park and the La Aurora National Park definitively signed a collective agreement on working conditions before the competent jurisdictional body. As to the allegations relating to the La Exacta farm, the Government indicates that information was requested from the District Prosecutor of the Government Prosecutor’s Office of the municipality of Coatepeque of the department of Quetzaltenango, which stated that in October 1996 the competent judge ordered the provisional closure of the case in favour of the trade unionists due to the offences of triple murder, injuries and abuse of authority, as well as coercion and usurpation. In 2001 the Government Prosecutor’s Office requested that the investigation be reopened, which the first instance judge allowed. At present, the case is in the investigation phase, the examining magistrate having summoned the trade unionists pending the first declaration in respect of the offences mentioned. By a communication of 21 September 2006, the Government states that the trade unionist Walter Oswaldo Apen Ruiz quit his job with the municipality of Tecún Umán.
6. 83. The Committee notes the information communicated by the Government on the allegations relating to the dispute at the La Aurora Zoological Park and to the criminal proceedings of the workers of the La Exacta farm as well as Mr.Walter Oswaldo Apen Ruiz’s departure from his job with the municipality of Tecún Umán. The Committee regrets that the Government has not sent any information relating to the other pending questions and requests it to do so without delay, including those relating to the kidnapping, assaults and threats against the trade unionist Walter Oswaldo Apen Ruiz, as well as its observations on the additional information sent by UNSITRAGUA on 29 May 2006.