Interim Report - Report No 351, November 2008

Case No 2203 (Guatemala) - Complaint date: 31-MAY-02 - Closed

Allegations: Assaults and acts of intimidation against trade unionists in a number of enterprises and public institutions; destruction of the headquarters of the trade union at the General Property Registry; raiding and ransacking of the headquarters of the trade union at the company Industrias Acrílicas de Centroamérica SA (ACRILASA) and burning of documents; and the employers’ refusal to comply with judicial orders for the reinstatement of trade union members

1. 849. The Committee examined the substance of this case on four occasions (see 330th, 336th, 342nd and 348th Reports), the last of which was at its November 2007 meeting when it submitted an interim report to the Governing Body [see 348th Report, paras 696–710, approved by the Governing Body at its 300th Session]. The Government sent new observations in communications dated 2 January, 10 March and 3 September 2008.
2. 850. 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. 851. At its November 2007 meeting, the Committee made the following interim recommendations relating to the allegations presented by the complainant organization [see 348th Report, para. 710]:
   • (a) The Committee once again urges the Government to take the necessary steps to send its observations on all the pending allegations without delay.
   • (b) With regard to the allegations concerning assaults, death threats and acts of intimidation against trade unionists, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent its observations, and strongly requests the Government to refer these cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard.
   • (c) With regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the Labour Inspectorate, the Committee requests the Government to take the necessary measures without delay to sanction the entity responsible to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.
   • (d) With regard to the allegations concerning the dismissal of trade unionists at the company Industrias Acrílicas de Centroamérica SA and the violation of the collective agreement, the Committee once again urges the Government to send without delay any judicial decisions that are handed down on the dismissal of trade unionists, including the members of the executive committee, and on the violation of the collective agreement, as well as its observations on the allegations of pressure on union leaders and members to resign from their jobs or from the union.
   • (e) With regard to the allegations relating to the Municipality of El Tumbador concerning the reinstatement proceedings ordered by the judicial authority, the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios, and the request for measures to ensure that all wages owed to union leader Mr Gramajo are paid without delay, the Committee requests the Government to send information without delay on the proceedings still pending and to take the necessary measures to ensure that all wages owed to Mr Gramajo are paid without delay.
   • (f) With regard to the allegation concerning the dismissal of union leader Fletcher Alburez by the Ministry of Public Health in April 2001, the Committee requests the complainant organization to indicate whether Mr Alburez actually initiated ordinary reinstatement proceedings.
   • (g) With regard to the alleged unilateral imposition by the Supreme Electoral Tribunal of an organization manual (dealing with matters related to employees’ duties, posts and salary levels) and acts of anti-union discrimination in the application of the said manual, as well as the Tribunal’s refusal to meet union leaders and negotiate a collective agreement, the Committee once again requests the Government to meet the parties in order to find a solution to the problems that have arisen and to send its observations on the matter.

B. The Government’s reply

1. 852. In its communications of 2 January and 10 March 2008, the Government states that it is more than willing to continue to make strong efforts, as can be seen from the information it sends regularly, and that it intends to set up a tripartite commission to undertake the independent investigations suggested. The Government adds that, in order to give an up to date picture of developments, it is sending partial information on the follow-up to various proceedings, given that most of the cases are still before the courts on appeal or subject to applications for amparo (protection of constitutional rights), with the outcome pending because the State of Guatemala guarantees that due process must be followed in all cases and the parties involved must enjoy all the guarantees of the right to defence.
2. 853. The Government refers to an allegation relating to attacks on union headquarters, in particular the alleged raiding at the headquarters of the trade union at the company Industrias Acrílicas de Centroamérica SA (ACRILASA) and burning of documents. The Government states that, following a request for information made to the Office of the Special Investigator into Crimes against Journalists and Trade Unionists, it was shown that there were no related complaints in its archives and requests that more information, such as the names of the complainants and the date of the complaint, be provided. The Government respectfully requests the Committee on Freedom of Association to request the complainant organization to provide information additional to that which has already been submitted.
3. 854. In its communication of 3 September 2008, the Government refers to allegations related to the Supreme Electoral Tribunal (unilateral imposition of an organization manual) and states that the judicial authority declared null and void the abovementioned measure at the first and second instance and that a Conciliation Tribunal has been set up.

C. The Committee’s conclusions

1. 855. Noting that the Government has stated that it intends to establish a tripartite committee to carry out independent investigations in relation to this case and that certain questions are before the national tribunals, the Committee deeply regrets that the Government’s reply refers particularly to only two of the various pending issues in this case, despite the fact that many of the cases involve serious allegations referring to events which took place years ago, including acts of violence against trade unionists, acts of anti-union discrimination and interference. The Committee regrets the lack of government cooperation so far regarding the present case, and once again urges it to take the necessary steps without delay to send its observations regarding all the pending recommendations and to implement the objective to which the Government has referred of setting up a tripartite commission to undertake the independent investigations recommended by the Committee on Freedom of Association.
2. 856. As to the allegations relating to attacks on union headquarters, in particular the alleged raid on the headquarters of the trade union at the company ACRILASA and burning of documents, the Committee notes that, according to the Government, the Office of the Special Investigator into Crimes against Journalists and Trade Unionists has stated that there are no complaints in its archives relating to the allegations, and therefore, the complainant organization must provide more details, such as the names of the complainants and the date of the complaint. The Committee recalls that the allegation in question was presented by the Guatemalan organization UNSITRAGUA in 2002, and the organization stated that it had begun a criminal action against a representative of the enterprise [see 330th Report, para. 797]. The Committee also observes that UNSITRAGUA is a member of the National Tripartite Committee, which regularly meets at the Ministry of Labour. Under these circumstances, the Committee invites the Government to enter into contact with UNSITRAGUA in order to provide a detailed reply regarding the case relating to the alleged raid on the headquarters of the trade union at the company ACRILASA and burning of documents.
3. 857. On the other hand, the Committee regrets that the complainant organization has not transmitted the information requested of it with regard the dismissal of the trade union leader Mr Fletcher Alburez and once again urges that it do so.
4. 858. The Committee notes the Government’s statements on the allegations relative to the Supreme Electoral Tribunal and in particular those relating to the organizational manual imposed unilaterally upon the workers and used in order to commit acts of anti-union discrimination. The Committee notes in particular that a Conciliation Tribunal has been set up and requests the Government to keep it informed without delay in this respect. The Committee reiterates its previous recommendations on the refusal of the Supreme Electoral Tribunal to meet the union leaders in order to negotiate a collective agreement and requests the Government to implement them as a matter of urgency.
5. 859. As to the other allegations, given the Government’s failure to reply, the Committee reiterates its previous recommendations and urges it to send full and detailed information in this regard.

The Committee's recommendations

1. 860. In the light of its foregoing interim conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee once again urges the Government to take the necessary steps to send without delay full and detailed information regarding all the pending recommendations and to implement the objective to which the Government has referred of setting up a tripartite commission to undertake the independent investigations suggested.
   • (b) With regard to the allegations concerning assaults, death threats and acts of intimidation against trade unionists, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent full observations, and strongly requests the Government to refer these cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard. The Committee invites the Government to enter into contact with UNSITRAGUA with a view to providing a detailed reply regarding the case relating to the alleged raid, in 2002, on the headquarters of the trade union at the company ACRILASA and burning of documents.
   • (c) With regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the Labour Inspectorate, the Committee once again requests the Government to take the necessary measures without delay to sanction the entity responsible, to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.
   • (d) With regard to the allegations concerning the dismissal of trade unionists at the company ACRILASA and the violation of the collective agreement, the Committee once again urges the Government to send without delay any judicial decisions that are handed down on the dismissal of trade unionists, including the members of the executive committee, and on the violation of the collective agreement, as well as its observations on the allegations of pressure on union leaders and members to resign from their jobs or from the union.
   • (e) With regard to the allegations relating to the Municipality of El Tumbador concerning the reinstatement proceedings ordered by the judicial authority, the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios, and the request for measures to ensure that all wages owed to union leader Mr Gramajo are paid without delay, the Committee requests the Government to send information without delay on the proceedings still pending and to take the necessary measures to ensure that all wages owed to Mr Gramajo are paid without delay.
   • (f) With regard to the allegation concerning the dismissal of union leader Mr Fletcher Alburez by the Ministry of Health in April 2001, the Committee urges the complainant organization to indicate whether Mr Alburez actually initiated ordinary reinstatement proceedings.
   • (g) With regard to the alleged unilateral imposition by the Supreme Electoral Tribunal of an organization manual (dealing with matters related to employees’ duties, posts and salary levels) and acts of anti-union discrimination in the application of the said manual, the Committee requests the Government to keep it informed without delay of the results of the Conciliation Tribunal which has been recently set up to deal with these issues. As for the alleged refusal of the Tribunal to meet the union leaders in order to negotiate a collective agreement, the Committee one again requests the Government as a matter of urgency to meet the parties in order to find a solution to the problems that have arisen and to send its observations on the matter.