Interim Report - Report No 330, March 2003

Case No 2103 (Guatemala) - Complaint date: 26-SEP-00 - Closed

Allegations: the complainants allege various anti-union acts (compulsory resignations of union members, dismissals, suspensions and transfers of union officers and members) in the Office of the Auditor General.

1. 756. The Committee last examined this case at its meeting in November 2001 [see the Committee’s 326th Report, paras. 288 to 301, approved by the Governing Body at its meeting in November 2001].
2. 757. The Government sent partial observations in communications dated 10 January, 27 September and 30 December 2002.
3. 758. 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. Previous examination of the case

1. 759. At its meeting in November 2001, when it examined allegations of anti-union discrimination in the Office of the Auditor General, the Committee made the following recommendations [see the 326th Report, para. 301]:
2. The Committee regrets that the Government, contrary to the desire to cooperate expressed during the direct contacts mission in April 2001, has not responded to any of the complainants’ allegations in this case and urges the Government to cooperate fully with the Committee in the future.
3. With respect to the compulsory resignations involving the termination of membership of 200 union members and the dismissal of five members, the Committee requests the Government to ensure that investigations are made to determine whether the resignations and dismissals were effected for anti-union reasons. Should the anti-union nature of these acts be confirmed, the Committee requests the Government to take the necessary steps to have those who were dismissed reinstated in their posts without loss of pay and so that the workers forced to resign be offered reinstatement in their posts without loss of pay, and ensure that such acts are not repeated in future. The Committee requests the Government to keep it informed in this respect.
4. As regards the dismissal proceedings and the failure to assign duties to the members of the SITRACGC and Unidad Laboral executive committees, the Committee requests the Government to urge the Office of the Auditor General to desist from the actions described and to assign duties by common agreement in such a way that union activities are not affected. The Committee requests the Government to keep it informed in this respect.
5. With regard to the transfer and subsequent suspension without pay of Mr. Sergio René Gutiérrez Parrilla, in reprisal for exercising the right of petition, the Committee requests the Government to take the necessary steps to ensure that investigations are made and, should the transfer and subsequent suspension prove to be the consequence of legitimate union activities, rescind the transfer and, should the suspension have been made effective, undertake compensation with the payment of outstanding wages. The Committee requests the Government to keep it informed in this respect.
6. Concerning the dismissal of Ms. Ivana Eugenia Chávez Orozco and Mr. Otoniel Antonio Zet Chicol, the Committee requests the Government, in compliance with the legal ruling, to reinstate the workers concerned in their posts. The Committee requests the Government to keep it informed in this respect.
7. B. The Government’s reply
8. 760. In its communication dated 7 January 2001, the Government states that it has been established, from information provided by the General Directorate of Labour, that both complainants refuse to accept resignations from persons who no longer wish to belong to these unions, in order to maintain the highest possible membership and thus maximize union resources. The Government indicates that, because of this, the only course of action for members is to present their resignations to the General Directorate of Labour without a signature or date of receipt by the unions’ executive committees. Nine people whose resignations were not accepted have even lodged an appeal for constitutional protection (amparo).
9. 761. In its communication dated 27 September 2002, the Government states that the Labour Inspectorate informed the Government on 22 September 2000 that it had visited the Office of the Auditor General, in order to begin investigating the case, and that, during this visit, a second hearing had been fixed for 28 September 2000. No representative of the Office of the Auditor General attended that hearing and, on the same day, the Auditor General argued that there was a conflict of jurisdiction, on the grounds that the General Labour Inspectorate was not competent to hear the case submitted by the union officers, since there were already mechanisms in place under criminal and labour law for them to be decided in the country’s courts. According to the Auditor General, the General Labour Inspectorate was interfering in matters which should be dealt with by the courts.
10. 762. The Government adds that officers of the complainant unions had asked, in a memo dated 8 April 2002, that the necessary proceedings be started. A labour inspector was assigned to continue work on the case and, on 20 May 2002, the inspector visited the Office of the Auditor General; during this visit the appropriate legal measures were drawn up; these were to be implemented within 24 hours. On 21 May 2002, a hearing was held in the offices of the General Labour Inspectorate to establish whether or not the measures had been implemented. At this hearing, the Office of the Auditor General again, for the third time, claimed that there was a conflict of jurisdiction in the case, as a consequence of which, in accordance with the Law on conflicts of jurisdiction, the case was suspended and referred to the Tribunal for Conflicts of Jurisdiction of the Supreme Court of Justice. The Tribunal for Conflicts of Jurisdiction issued a resolution on 31 May 2002, in which it stated that: “with regard to the application made, the Tribunal has already given a ruling on the case, within the same proceedings.” According to the Government, the purpose of raising these conflicts of jurisdiction was to delay the case. The case was referred back to the General Labour Inspectorate from the Supreme Court of Justice on 1 August 2002. It has yet to be confirmed whether or not the Office of the Auditor General has implemented the measures. Once this has been done, further measures will be taken.
11. 763. In its communication of 30 December 2002, the Government stated that the new Auditor General approached the unions in order to initiate a process of implementation of the recommendations of the Committee on Freedom of Association in the short run.

C. The Committee’s conclusions

1. 764. The Committee recalls that when, at its meeting in November 2001, it examined allegations of anti-union discrimination in the Office of the Auditor General, it requested the Government to keep it informed on the following matters: (i) the compulsory resignations involving the termination of membership of more than 200 members and the dismissal of five members (the Committee asked the Government to ensure that investigations carried out to determine whether the resignations and dismissals had been effected for anti-union reasons and, if the anti-union nature of these acts was confirmed, to take the necessary steps to have those who had been dismissed reinstated in their posts with payment of any wages owed, and to ensure that workers who had been forced to resign were offered reinstatement in their posts without loss of pay, and to ensure that such acts were not repeated in the future); (ii) the dismissal proceedings and the failure to assign duties to the members of the SITRACGC and Unidad Laboral executive committees (the Committee requested the Government to urge the Auditor General’s Office to abandon the dismissal actions and proceed by common agreement with the assignment of duties in such a way that the performance of union activities would not be affected); (iii) the alleged transfer and subsequent suspension without pay of Mr. Sergio René Gutiérrez Parrilla, in reprisal for exercising the right of petition (the Committee requested the Government to take the necessary steps to have investigations carried out and, if the transfer and subsequent suspension proved to be the result of legitimate union activities, to ensure that the transfer was rescinded or, if the suspension had already taken effect, to provide compensation and pay any outstanding wages); and (iv) the dismissals of Ms. Ivana Eugenia Chávez Orozco and Mr. Otoniel Antonio Zet Chicol (the Committee requested the Government comply with the court ruling and reinstate the workers concerned in their posts).
2. 765. In this respect, the Committee takes note of the Government’s statement concerning the alleged compulsory resignations involving the termination of membership of more than 200 members, to the effect that it has been established that the unions are refusing to accept resignations from persons who no longer wish to belong to the unions and that, because of this, the workers in question were presenting their resignations to the General Directorate of Labour (as permitted by the legislation). The Committee requests the Government to provide greater detail on the reasons for the resignation of their trade union membership of these 200 workers.
3. 766. The Committee notes that the Government does not refer to the alleged dismissals of five members (Ms. Silvia Elizabeth Lara Sierra, Ms. Ligia del Carmen Jiménez Baldizón, Mr. Francisco Ramiro Miranda Montenegro, Mr. Walter Daniel Godoy Vargas and Mr. César Soto García) in this context, and again strongly urges the Government to carry out urgent investigations and, should the anti-union nature of these actions be confirmed, to take measures to reinstate the workers concerned in their posts and pay any outstanding wages.
4. 767. Furthermore, the Committee observes that, with regard to the allegations that had remained pending, the Government states, in general terms, that: (1) the General Labour Inspectorate carried out inspections in the Office of the Auditor General and that, on more than one occasion, the Office appealed to the judicial authorities, claiming that the Inspectorate was not competent to hear the case, the sole aim of this being to delay the proceedings; (2) the General Labour Inspectorate had drawn up a number of measures to be implemented by the Office of the Auditor General and that it remains to be confirmed whether or not the Office has actually done so. The Committee observes that the General Labour Inspectorate has drawn up measures to be implemented by the Office of the Auditor General in relation to the alleged acts (the Government does not specify to which acts it is referring, or what the result of the measures has been), and that a new Auditor General has been nominated who is willing to comply in the short run with the recommendations of the Committee on Freedom of Association. The Committee urges the Government to send complete observations on the pending allegations and to implement without delay the recommendations made in the previous examination of the case.

The Committee's recommendations

1. 768. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • The Committee urges the Government to implement without delay the recommendations made in the previous examination of the case and to send complete observations on the following pending allegations concerning the Office of the Auditor General:
     • (i) with regard to the allegations of forced resignations of more than 200 trade union members, the Committee requests the Government to provide greater details on the reasons for these resignations;
     • (ii) with regard to the dismissals of the five members named in the conclusions, the Committee again strongly urges the Government to carry out urgent investigations and, should the anti-union nature of these actions be confirmed, to take the necessary measures to reinstate the workers concerned in their posts with the payment of any outstanding wages;
     • (iii) with regard to the dismissal proceedings and the failure to assign duties to the members of the SITRACGC and Unidad Laboral executive committees, the Committee again requests the Government to urge the Auditor General’s Office to abandon the dismissal actions and proceed by common agreement with the assignment of duties in such a way that the performance of union activities is not affected;
     • (iv) with regard to the alleged transfer and subsequent suspension without pay of Mr. Sergio René Gutiérrez Parrilla, in reprisal for exercising the right of petition, the Committee again requests the Government to take the necessary steps to ensure that investigations are carried out and, should the transfer and subsequent suspension prove to be the result of legitimate union activities, to ensure that the transfer is rescinded or, if it has already taken effect, to provide compensation and pay any outstanding wages; and
     • (v) with regard to the dismissals of Ms. Ivana Eugenia Chávez Orozco and Mr. Otoniel Antonio Zet Chicol, the Committee again requests the Government to comply with the court ruling and reinstate the workers concerned in their posts without loss of pay.