Interim Report - Report No 334, June 2004

Case No 2259 (Guatemala) - Complaint date: 25-MAR-03 - Closed

Allegations: The complainants allege that the free exercising of the right to freedom of association has been violated through the supervision and interference of the State in managing union funds. UNSITRAGUA further alleges that numerous anti-union acts and dismissals have taken place in contravention of legislation and the collective agreement in force at the following enterprises and institutions: the Office of the Attorney-General of the Nation, the Supreme Electoral Tribunal, the Ministry of Public Health and Social Aid, the Secretariat of Public Works of the First Lady of the Republic of Guatemala, Industrial Agriculture Cecilia S.A., Finca Eskimo S.A., a subsidiary of Agropecuaria Omagua S.A., the University of San Carlos of Guatemala, the port enterprise Santo Tomás de Castilla, fincas Louisiana, Eskimo, Mariana and Pamaxán, all owned by Agropecuaria Hopy S.A. and Agroindustrias Chinook S.A., which are in turn the Guatemalan subsidiaries of the multinational banana company Chiquita Brand, and Bocadeli de Guatemala S.A.

1. 527. The complaints are contained in communications from the Trade Union of Workers of Guatemala (UNSITRAGUA) dated 25 March, 28 and 30 April, 17 July, 4 and 5 September and 2 October 2003. The World Confederation of Labour, in a communication dated 9 May 2003, expressed its support for the complaint. In a communication dated 16 May 2003, the Latin American Central of Workers (CLAT) also expressed its support for the complaint. In a communication dated 5 April 2004, the General Confederation of Workers of Guatemala (CGTG) sent new allegations. In communications dated 19 and 30 April 2004, UNSITRAGUA sent new allegations.
2. 528. The Government sent its observations in communications dated 3 September, 17 October and 2 December 2003 and 9 January 2004.
3. 529. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 530. In its communications of 25 March and 17 July 2003, the complainants (UNSITRAGUA, together with the National Trade Union and People’s Coordinating Body (CNSP), the General Confederation of Workers of Guatemala (CGTG), the Unified Trade Union Confederation of Guatemala (CUSG), the Federation of Workers’ Trade Unions of the Ministry of Public Health and Social Aid (FESITRAMSA), the Federation of Bank and Insurance Employees (FESEBS) and the Trade Union of Food and Allied Workers (FESTRAS)) allege that the free exercising of the right to freedom of association has been violated through the supervision and interference of the State in managing union funds. The complainants state that, since 1947, trade unions have been exempt from paying taxes, particularly so as to avoid their finances being supervised and the possibility of using taxation pressure to legitimize repression or harassment of trade unions. This exemption from taxation is provided for in the Labour Code as regards both the property of a trade union, as a legal person distinct from its members, and trade union members, who subsidize it principally through their union dues, which may be offset against income tax (section 210). Under legislation, trade unions are exempt from fulfilling any form of State or municipal taxation requirement in respect of their real estate, revenues or income of any kind. In this respect, the complainants consider that the word "fulfil" refers not only to the obligation to pay but also to the formal duties of those who pay taxes, something which is specifically denied to trade unions by law.
2. 531. In 2002, the Committee on the Application of Standards of the International Labour Conference noted with satisfaction the repeal, by means of Legislative Decree No. 13?2001, of the regulations contained in section 211 of the Labour Code, which allowed the Ministry of Labour to exercise strict supervision over trade unions, particularly with regard to the management of union funds. However, the Government has now overturned this reform, placing trade unions under the control and supervision of the Superintendent for Tax Administration (SAT), a decentralized, non-judicial institution. Before the SAT was established, all taxation matters were dealt with by the Ministry of Public Finances through the Directorate of Tax Inspection and the Directorate of Internal Revenues. This change has resulted, among other things, in: taxation regulations which have never previously been applied to trade unions being applied in place of the regulations contained in the Labour Code; trade unions becoming taxpayers; unions being placed on a separate register from the Public Register of Trade Unions; unions being obliged to keep accounts in duplicate and issue receipts for all contributions they receive; their finances and property being subject to supervision; and the possibility of union leaders being prosecuted for alleged tax offences (this would create an alternative offence, allowing penal action to be used as a means of coercion in labour disputes). The complainants allege that the powers accorded to the SAT by legislation could also allow searches to be made of trade union premises, and their archives, books and other documentation related to their activities to be registered. Furthermore, the SAT’s extensive powers are reinforced by a system of penal and administrative sanctions. This gives rise to the risk of state interference in the work, archives, premises and property of trade unions to an even greater degree than that permitted by the old section 211 of the Labour Code.
3. 532. With regard to demands from the Ministry of Labour and Social Provision and sanctions for having refused the control of trade union finances and property by the tax administration, the complainants state that, for some time, the authorities in the Ministry have maintained at meetings with the trade union movement that trade unions must register as contributors on the SAT’s register of contributors, obtain a tax identification number, keep formal accounts and make the declarations required by taxation laws, in order to avoid sanctions being imposed. In this regard, the complainants refer to Government Decree No. 315-2003, from the President of the Republic, which authorizes the SAT to exonerate trade unions completely, at their request, from fines, interest and charges incurred for failing to register on the unified taxation register, as well as for failing to prepare accounts, authorize documents or present at the correct time the declarations required by specific laws on taxation. The Decree further establishes that the SAT shall be able to verify the information that trade unions provide, for which purpose trade unions must facilitate access to all information and documentation concerning matters which give rise to tax obligations. This Decree, in the complainants’ opinion, legitimizes and reinforces state interference in the activities of trade unions.
4. 533. The complainants underline the fact that trade union finances are an extremely sensitive issue, given that economic problems could lead to a trade union being left without the minimum resources needed to fund its union activities. The complainants also state that there is a regulation applicable only to trade unions, in accordance with Convention No. 87, which sets out mechanisms for control, supervision, sanctions and registration under the charge of union members or the labour authorities, and which has been applied until the new legislation was adopted.
5. 534. In communications dated 9 and 16 May 2003, the World Confederation of Labour (WCL) and the Latin American Central of Workers (CLAT), respectively, supported the complainants in this aspect of their complaint.
6. 535. In its communications of 28 and 30 April 2003, UNSITRAGUA alleges that the worker Mr. Félix Alexander Gonzáles, a member of the Trade Union of Workers of the Office of the Attorney-General of the Nation, was dismissed from his post without cause on 8 January 2003, in contravention of various provisions of the current collective agreement on working conditions, in particular section 12(c), under which the process should have been open to evidence, giving the worker the opportunity to submit appropriate evidence in his defence, and section 50, under which the appointing authority should have sought authorization from an examining magistrate for labour and social provision before the dismissal took place. The worker is still unemployed and deprived of his fundamental labour rights. The complainant sent new observations in this regard in a communication dated 2 October 2003, stating that the court which heard the case ruled against reinstating Mr. Félix Alexander Gonzáles, which contravenes legislation and the collective agreement in force. The only recourse available in the face of such a ruling is to lodge an appeal for constitutional protection (amparo), which, given the high costs involved, is beyond the means of both the worker and his union.
7. 536. UNSITRAGUA further alleges that the worker Mr. Byron Saúl Lemus Lucero, a member of the Trade Union of Workers of the Supreme Electoral Tribunal, was dismissed without cause on 7 March 2003. The Supreme Electoral Tribunal has been summoned by the union in connection with a socio-economic labour dispute following its refusal to negotiate a new agreement, as laid down in sections 379 and 380 of the Labour Code. [Section 380 of the Labour Code lays down that, as of the summons being issued, the termination of any contract of employment at the enterprise where the dispute has arisen must be authorized by a judge.] The worker subsequently began legal action which resulted in a ruling that he be reinstated in his post. However, on 17 April 2003, the Supreme Electoral Tribunal refused to implement this ruling.
8. 537. UNSITRAGUA further alleges that the worker Mr. Luis Rolando Velásquez, a member of the Trade Union of Workers of the National Hospital for Orthopaedics and Rehabilitation, was dismissed without cause on 26 February 2003. The Ministry of Public Health and Social Aid was summoned by the union to appear before the labour courts in connection with a socio-economic labour dispute for its refusal to negotiate with workers. The dismissal was appealed before the labour court, which was aware of the labour dispute and which, instead of ordering the worker’s reinstatement within 24 hours, as laid down in law, conducted proceedings in a manner quite at odds with due process by holding a previous audience with the State of Guatemala, which delayed proceedings unnecessarily. The worker is still unemployed and deprived of his fundamental labour rights.
9. 538. UNSITRAGUA also alleges that the workers Ms. Rosa María Trujillo de Cordón, Ms. Xiomara Eugenia Paredes Peña de Galdamez and Ms. Zoila Jacqueline Sánchez De García, members of the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic of Guatemala and all former employees of the Secretariat, were dismissed from their posts on 1 April 2003 in a reorganization (a reason not provided for in legislation). The workers were not permitted to have the leaders of their union present at the meeting during which they were informed of their dismissal. Although they have appealed to the National Civil Service Authority to be reinstated, no response has yet been received from this body, which has hindered progress in exhausting administrative channels and therefore the opportunity of having recourse to ordinary justice. The workers are still unemployed and deprived of their fundamental labour rights. The complainant also alleges that, although the union has existed for more than a year, it has still not been recognized by the Secretariat.
10. 539. UNSITRAGUA alleges that, on 4 January 2003, 34 workers at Industrial Agriculture Cecilia S.A., all members of the trade union at the company, notified their employer that they considered themselves to have been subject to constructive dismissal under section 79 of the Labour Code, on the basis that their salaries had not been paid for almost two years, work was not being assigned to them and the management was failing to comply with the majority of its obligations. [Section 79 states that "The following, among others, are just grounds for workers to assume their contracts of employment to have been terminated, without any responsibility on their part: (a) if the appropriate salaries are not paid in full by the management (...).] The enterprise has now been summoned to appear before the Court of Quetzaltenango as a result of its refusal to negotiate a new collective agreement on working conditions with the union, in accordance with sections 379 and 380 of the Labour Code. The judge hearing the case, far from ordering the workers’ immediate reinstatement as laid down in law, conducted proceedings as and when convenient to her, with the result that, almost five months after the case was presented, the workers’ reinstatement has still not been ordered. A complaint was raised with the Supreme Court of Justice regarding this matter, but as yet it is not known whether the judge has been sanctioned in any way.
11. 540. On 18 January 2003, the enterprise Finca Eskimo S.A., a subsidiary of Agropecuaria Omagua S.A., after being summoned to negotiate a collective agreement on working conditions, dismissed 16 workers belonging to the union at the enterprise, citing the termination of a fixed-term contract, despite the fact that the workers were carrying out duties of a permanent nature. The dismissals were appealed before the Examining Magistrate for Labour and Social Provision and the Family of the Izabal Department. The complainant sent new observations in a communication dated 2 October 2003, stating that the Second Chamber of the Court of Appeal for Labour and Social Provision had revoked the reinstatement orders given in favour of the workers.
12. 541. The Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala (SINTRACOMUSAC) is a union of workers in the informal economy who have been making and selling their products and craft articles on the Central Campus of the Autonomous University of Guatemala for more than ten years. UNSITRAGUA alleges that the university has refused to recognize the union and negotiate collectively with it to establish conditions for it to carry out its activities on university premises, which, since they are owned by the State, are areas for public use. The union approached the General Labour Inspectorate, which has so far not taken any steps. On 22 April 2003, eight university police officers confiscated the products and tools of union members without a court order. The union members affected included its general secretary, Mr. Ernesto Vladimir Paniagua Alvarez, who, when he attempted to talk to the police officers, was threatened with weapons and truncheons. The complainant alleges that such situations are a threat not only to workers’ freedom of association but also to their physical integrity. In a communication dated 11 November 2003, sent in relation to Case No. 2295, the complainant alleges that on 28 October a worker belonging to the union was physically assaulted by members of the university police, who also confiscated and destroyed her working materials and tools. Subsequently, Mr. Fidel Ernesto Díaz Morales, a union official, was also assaulted and threatened when he attempted to distribute a flier around the university highlighting the constant persecution and harassment suffered by members of the union. The fliers were confiscated and he was threatened to prevent him from making his accusations known to the university community. A complaint was made to the Public Ministry but no investigation has been carried out yet.
13. 542. On 6 April 2003 the Union of Dockers, Loaders, Unloaders and Other Workers at the port enterprise Santo Tomás de Castilla was formed. On 30 April of the same year, Santo Tomás de Castilla, a state-owned firm, dismissed the union’s entire provisional executive committee, which had been elected by the general assembly for a two-year period. The officials affected are: Mr. Manuel Hernández Barrientos, the general secretary; Mr. Rolando Antonio Izales, the organization and publicity secretary; Mr. Agripino de María Villeda Lopez, the labour and disputes secretary; Mr. Alex Rolando Avila Pérez, the minutes and agreements secretary; and Mr. Adiel Yanes Barrera, the treasurer.
14. 543. In its communications dated 4 and 5 September 2003, UNSITRAGUA alleges that around 600 workers have been dismissed from the Louisiana, Eskimo, Mariana and Pamaxán plantations, all owned by Agropecuaria Omagua S.A., Agropecuaria Hopy S.A. and Agroindustrias Chinook S.A., which in turn are the Guatemalan subsidiaries of the multinational banana company Chiquita Brand. The workers dismissed included members of the following unions: the Agropecuaria Laurel S.A. Workers’ Union; the Agroganadera Sur Tropical S.A. Workers’ Union; the Union of Rural Workers of Finca Mariana S.A. and other enterprises which fall within the same economic area of Entre Ríos, Puerto Barrios District, Izabal Department; and the Union of Rural Workers of Finca Pamaxán and annexes. These dismissals are part of a systematic policy to reduce costs by moving production to independent producers on the country’s south coast, where working conditions are greatly inferior to those at the plantations mentioned above, and where there is no trade union presence. The dismissals took place at the point when the unions were preparing their respective complaints regarding the expiry of the time limits of the current collective agreements for proposing fresh negotiations with employers.
15. 544. UNSITRAGUA further alleges that the enterprise Bocadeli de Guatemala S.A. has, since beginning its operations, introduced a series of unfair salary reductions. The actions, both administrative and judicial, taken by the Union of Workers of Bocadeli de Guatemala S.A. and other enterprises which are part of the same economic entity led to repressive measures on the part of the management, which exerted various forms of pressure on workers belonging to the union, including threats of dismissal, not providing them with sufficient products to sell and refusing to grant the regular loans they receive, in order to make workers sign documents resigning from the union and retracting their allegations of illegal reductions in their salaries. Copies of such documents are attached to the complaint. In particular, the complainant alleges that Mr. Manuel Natividad Lemus Zavala, the union’s general secretary, has been constantly threatened with dismissal and been assigned a supervisor, which places him in a state of constant harassment.

B. The Government’s reply

1. 545. In a communication dated 3 September 2003, with reference to the allegation of violations of the free exercising of the right to freedom of association through the supervision and interference of the State in managing union funds, the Government explains the general nature of tax exemptions for trade unions. It states that section 210 of the Labour Code does indeed exempt trade unions from all forms of state or municipal tax which could be levied on their real estate, revenues or income of any kind (including income tax and capital gains tax). All other forms of taxation, such as road tax or value added tax (VAT), are excluded from this regulation, so that if a trade union’s activities render it liable to pay such taxes it must necessarily be included on the unified taxation register. The Government further points out that current legislation exempts trade unions from stamp duty and that exemption or otherwise from other forms of tax is based on the State’s general policy on taxation.
2. 546. With regard to the obligation to register for tax, the Government states that the obligation to register is a general requirement for all associations, foundations and other non-profit organizations, and is not aimed specifically at trade unions. This obligation has been in force since 1964 as a prerequisite for exemption from income tax. It is intended not to control the general operation of organizations but to guarantee that persons who are not exempt shall not use such exemptions fraudulently. The annual sworn declaration has the same purpose, so that, unless an organization’s non-profit aims are misrepresented, tax will not be levied in any case. The only things required for registration are a certificate of legal personality issued by the Ministry of Labour and Social Provision and a photocopy of the residence permit(s) of its representative(s).
3. 547. With regard to required accounts and authorized invoices, the Government states that all non-profit organizations, including trade unions but without it being a special provision for them, are obliged to maintain accounts of income and outgoings and full inventories for the purpose of basic tax inspection, and not for control to be exercised over their internal operations. These records are not authorized by the SAT, which simply attaches a sticker detailing the amount of exemption from stamp duty on presentation of the records. Since trade unions are not exempt from paying VAT if their activities incur it, for example if they have shops selling consumer goods, which is not generally the case, they must keep the relevant record books showing stock in and out, which can be easily obtained. As regards invoices, the Government states that, as a general rule, any non-profit organization may be asked for authorized invoices in certain circumstances, and that authorization is a simple matter. Donations received, as with donations made to trade unions, are expenses which may be offset against the donor’s income tax; the aim is to ensure that the said donors declare their expenses in the proper manner, as otherwise it would be simple to "invent" receipts so as to avoid tax liability on the part of persons not exempt from payment of such tax. Invoices are also required for VAT, from which trade unions are not exempt, as has already been stated.
4. 548. With regard to the tax sanctions imposed for failure to comply with the formal obligations mentioned above, the Government states that these sanctions are a general requirement laid down in legislation, without any particular reference to trade unions. It insists that, in the case of income tax, these obligations are derived not from any supposed characteristics of contributors but from the purposes of tax control already mentioned; in the case of VAT, they are derived from the characteristics of contributors but only in so far as they determine which transactions are taxable.
5. 549. The Government reports that many trade unions have complied with their formal obligations in this area, especially as regards donations. Many others have failed to comply with them and, when they decided to fulfil them spontaneously, the appropriate sanctions were imposed. It was for this reason that the Ministry of Labour and Social Provision, with the prior agreement of trade union confederations and the SAT, promoted the Government Decree on exoneration from fines and sanctions. In this respect, the Government explains that, with the aim of achieving conciliation, the President of the Republic, bearing in mind that various trade unions had expressed a desire to rectify omissions stemming from breaches of the type described in laws on taxation, and that these organizations did not have sufficient funds to enable them to bear the relevant sanctions, gave authorization to the SAT so that trade unions with legal personality recognized by the Ministry of Labour could, at their own request, be completely exonerated from fines, interest and charges incurred through having failed to register on the unified taxation register, submit accounts, authorize documents or present the declarations required by laws on taxation at the proper time. This exoneration was in force from the issuing of Government Decree No. 315-2003 on 19 May 2003 until the last working day of July 2003.
6. 550. The Government insists that the tax obligations in question do not violate Conventions Nos. 87 and 98, since their purpose is not to control the functioning of trade union rights or to obstruct the exercising of those rights; instead they form a basic general control for all non-profit organizations, intended to avoid tax advantages being transferred to third parties. In the case of taxes from which non-profit organizations are not exempt, such as VAT, these obligations are imposed as for any general tax. Lastly, the Government recalls that trade unions must exercise their rights within the law and points out that control over illicit activities cannot be considered interference, since that would be to attribute complete impunity to such organizations.
7. 551. As regards the proceedings against the worker Mr. Félix Alexander Gonzáles, the Government reports that the Second Chamber of the Court of Appeal has ruled (without right of appeal) in favour of the Office of the Attorney-General of the Nation and against the worker’s reinstatement. The Court of Appeal considers that serious misconduct on the part of Mr. Gonzáles was demonstrated at the hearing. With regard to the allegation of violations of the collective agreement on working conditions, the Government categorically states that such claims are false.
8. 552. With regard to Mr. Byron Saúl Lemus Lucero, who was dismissed by the Supreme Electoral Tribunal, the Government reports that he was dismissed as a disciplinary measure by resolution No. 0007-2003, issued by the Tribunal on 21 January 2003, and that this resolution came into effect through Decree No. 092-2003 of 7 March 2003, with no responsibility attaching to the Supreme Electoral Tribunal and as a result of misconduct on the part of the worker in discharging his duties.
9. 553. In connection with the dismissal of Mr. Luis Rolando Velásquez, the Government states that the worker in question was reported to the authorities by the Director of the National Hospital for Orthopaedics and Rehabilitation on 9 October 2002 for having given rise to proper grounds for dismissal. Under section 79 of the Civil Service Bill, the terms of his contract gave him five days to exercise his right to defence, which he did within the given time. The relevant authorities decided that he had not disproved the charges against him and, consequently, the appointing authority, exercising the power invested in it by law, issued a decree of dismissal on the grounds that it had been clearly demonstrated at the hearing that the worker in question had given rise to just cause for dismissal.
10. 554. With regard to the Secretariat of Public Works of the First Lady of the Republic of Guatemala, the Government reports that on 1 April 2003 Ms. Rosa María Trujillo de Cordón, Ms. Xiomara Eugenia Paredes Peña de Galdamez and Ms. Zoila Jacqueline Sánchez De García were dismissed as a result of reorganization. The files of these workers were reviewed and in no case had the Secretariat been summoned to appear before the courts, since it was free to dismiss workers for the reasons established in law without the need for judicial authorization. The Government also states that, under section 223(d) of the Labour Code, only members of the executive committee of a properly constituted trade union enjoy immunity from dismissal. It further points out that workers must exhaust administrative channels, through the National Office of the Civil Service, and legal channels before having recourse to other courts. The Government also reports that the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic of Guatemala was registered on 12 October 2001 (registration No. 1465).
11. 555. With regard to the dismissal of 16 workers at Finca Eskimo S.A., whose reinstatement was ordered by the Examining Magistrate for Labour and Social Provision and the Family of the Izabal Department but not carried out by the Second Chamber of the Court of Appeal, the Government states that there has been a change of management at the enterprise in question and that the new enterprise has assumed liability for the workers, a form of takeover provided for in legislation. In the event that no workers are contracted by the enterprise, the task of the Ministry is to declare administrative channels exhausted so that they can have recourse to the appropriate labour courts.
12. 556. As regards the allegations concerning the workers belonging to the Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala, the Government states that these workers were engaged in commercial activity on the university campus on various study days and that the university only allows the sale of their products inside its buildings. If the university wishes, it may change the points of sale, and this is precisely what occurred in this dispute. The General Labour Inspectorate was requested by the workers affected to mediate in the dispute. However, during this process the workers abandoned their action. Everything has been placed on file so that it can be shown that at no stage has the Inspectorate denied the workers concerned the right of petition. If called upon to intervene, the Inspectorate would basically provide a mediation and conciliation service, rather than fulfilling a supervisory role, since the university has at no point contracted the services of the workers, who in turn are not providing a service to the university as employees, and therefore no labour relation exists between them.
13. 557. With respect to the workers at the port enterprise Santo Tomás de Castilla, the Government reports that the Ministry of Labour intervened in this matter and the enterprise informed it that the services provided by the workers would be carried out by a private firm, that all the workers would be taken on by the new enterprise and that the workers were no longer its responsibility. Administrative channels were subsequently declared to have been exhausted and it will be the appropriate judge who decides whether reinstatement is required.
14. 558. In a communication dated 17 October 2003, the Government sent its observations regarding the allegations that around 600 workers had been dismissed from the Louisiana, Eskimo, Mariana and Pamaxán plantations, all owned by Agropecuaria Omagua S.A., Agropecuaria Hopy S.A. and Agroindustrias Chinook S.A., which in turn are the Guatemalan subsidiaries of the multinational banana company Chiquita Brand. The Government reports that the Ministry of Labour intervened in the face of these mass dismissals through the labour inspector for Izabal. The employer stated that the plantations in question were no longer productive and that it had the power to dismiss the workers provided that it assumed the responsibility of paying unemployment benefit. In such cases, the role of the General Labour Inspectorate is to take the steps necessary to reinstate workers if an enterprise is summoned to court, to verify that unemployment benefit is paid and to monitor the situation of union officials, who cannot be dismissed. In this case, it is known that union officials reached a conciliation agreement with the management. If no conciliation can be achieved with the intervention of the Ministry, then administrative channels have been exhausted and examination of the case passes to the appropriate courts. The Government states that the employer fulfilled all its labour obligations and that the workers received four additional salary payments, as well as compulsory payments and compensation. The Government states that the management uprooted the banana plantation to plant African palms, since they have more uses and are less problematic than banana palms, and recontracted the workers it considered necessary for the new process.
15. 559. With regard to the allegations concerning Bocadeli de Guatemala S.A., the Government reports that the General Labour Inspectorate, after establishing that the enterprise was not making the proper payments for Sundays, breaks, holidays, Christmas bonuses or annual bonuses, cautioned the enterprise to pay the amounts owed to the workers retroactively. The enterprise stated that, as it had been summoned to appear before the Second Court of Labour and Social Provision, it would wait until the court hearing the case had made its ruling before making any payments. Following a second caution, the conciliatory administrative channels were declared exhausted, opening the way for workers to take the appropriate legal action. The case was passed to the sanctions department on 15 July 2003.

C. The Committee’s conclusions

1. 560. The Committee observes that this complaint refers to allegations of violations of the free exercising of the right to freedom of association through the supervision and interference of the State in managing union funds, together with anti-union dismissals in contravention of legislation and the collective agreement in force.
2. 561. As regards the allegation of state interference in managing union funds, the Committee observes that, according to the complainants, placing trade unions under the control and supervision of the Superintendent for Tax Administration (SAT), a decentralized, non-judicial institution, will result, among other things, in: taxation regulations which have never previously been applied to trade unions being applied in place of the regulations contained in the Labour Code; trade unions becoming taxpayers; unions being placed on a separate register from the Public Register of Trade Unions; unions being obliged to keep accounts in duplicate and issue receipts for all contributions they receive; their finances and property being subject to supervision; and the possibility of union leaders being prosecuted for alleged tax offences. It is alleged that the SAT’s extensive powers are reinforced by a system of penal and administrative sanctions and that the powers accorded to it by legislation could also allow searches to be made of trade union premises, and their archives, books and other documentation related to their activities to be registered.
3. 562. The Committee observes that the Government, for its part, states that, although trade unions are exempt from all forms of state or municipal tax which could be levied on their real estate, revenues or income of any kind (section 210 of the Labour Code), all other forms of taxation, such as road tax or value added tax (VAT) are excluded from this regulation. The Government maintains that both the obligation to register for tax, and the annual sworn declaration, accounts required and authorized invoices, are requirements common to all non-profit organizations, without any specific reference to trade unions, intended as a basic tax control and not as interference in the internal functioning of organizations. As regards taxation sanctions, the Government states that they are a general requirement laid down in legislation, without any particular reference to trade unions. The Committee notes that, by means of Government Decree No. 315-2003, the President of the Republic authorized the SAT to exonerate trade unions completely, at their request, from fines, interest and charges incurred for failing to comply with specific laws on taxation. The Committee also observes that this Decree further establishes that the SAT shall be able to verify the information that trade unions provide, for which purpose trade unions must facilitate access to all information and documentation concerning matters giving rise to tax obligations. This Government Decree, in the complainant’s opinion, legitimizes and reinforces state interference in the activities of trade unions.
4. 563. In this regard, the Committee recalls that the Committee of Experts has stated that there is no infringement of the right of organizations to organize their administration if, for example, the supervision is limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association); similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity. [See General Survey of the Committee of Experts, 1994, para. 125.]
5. 564. Furthermore, the Committee recalls that, in general, trade union organizations appear to agree that legislative provisions requiring, for instance, financial statements to be annually presented to the authorities in prescribed form and the submission of other data on points which may not seem clear in the said statements, do not per se infringe trade union autonomy. In this respect, the Committee has observed that measures of supervision over the administration of trade unions may be useful if they are employed only to prevent abuses and to protect the members of the trade union themselves against mismanagement of their funds. However, it would seem that measures of this kind may, in certain cases, entail a danger of interference by the public authorities in the administration of trade unions and that this interference may be of such a nature as to restrict the rights of organizations or impede the lawful exercise thereof, contrary to Article 3 of Convention No. 87. It may be considered, however, to some extent, that a guarantee exists against such interference where the official appointed to exercise supervision enjoys some degree of independence of the administrative authorities and where that official is subject to the control of the judicial authorities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 442].
6. 565. The Committee observes that, on the one hand, section 1 of Decree No. 1-98, establishing the Superintendent for Tax Administration, makes provision for the SAT to enjoy operational, economic, financial, technical and administrative autonomy. Furthermore, section 161 of the Taxation Code (Decree No. 6-91) provides for administrative contention actions to be brought against rulings of revocation or reinstatement handed down from the Taxation Administration or the Ministry of Public Finances, to be heard in the appropriate Chamber of the Court of Administrative Contention, preferably by magistrates who specialize in matters of taxation. On the other hand, section 93 of the Taxation Code lays down that, after a non-extendible period of three days has elapsed, counting from the day following receipt of notification by the contributor that documentation or information concerning tax, accounts or finances must be presented, any action or omission which obstructs or hinders the supervisory activity of the Taxation Administration shall constitute resistance to the supervisory activity of the Taxation Administration.
7. 566. Although it notes that the decisions of the administrative authority may be appealed through legal channels, the Committee underlines the fact that problems of compatibility with Convention No. 87 arise when administrative authorities are permitted to inspect at any time minute books, accounts or other documents kept by organizations, carry out investigations and demand information, in particular when administrative actions do not stem from complaints made by union members.
8. 567. In these circumstances, while noting that the system of taxation supervision is applied equally to all non-profit organizations, the Committee concludes that the current regulations allow the authorities, by carrying out inspections without reasonable notice, to have excessive knowledge of and control over the internal management and range of activities of trade unions, in contravention of Article 3 of Convention No. 87, and requests the Government to ensure that the functions of the SAT are adjusted in line with the various principles mentioned above concerning the financial autonomy of trade unions, and, in consultation with trade union centrals, to modify legislation as necessary in this direction and to keep it informed of measures taken in this respect.
9. 568. With regard to the allegation concerning the Office of the Attorney-General of the Nation (dismissal without cause of Mr. Félix Alexander Gonzáles, a union member, in violation of various provisions of the collective agreement in force), the Committee takes note of the Government’s statement that the Second Chamber of the Court of Appeal ruled in favour of the Office of the Attorney-General of the Nation and against the worker’s reinstatement, on the grounds of serious misconduct on the part of Mr. Gonzáles. The Government also categorically denies that there have been violations of the collective agreement. The Committee requests the Government to send it a copy of the court’s ruling and also requests the complainants to provide further information in this regard.
10. 569. With regard to the allegation concerning the Supreme Electoral Tribunal (dismissal without cause of Mr. Byron Saúl Lemus Lucero, a union member, when the Tribunal had been summoned to appear in connection with a collective dispute), the Committee notes that, according to the complainant, the Supreme Electoral Tribunal refused to implement the reinstatement order. The Committee observes that the Government has not sent any information on the failure to implement the reinstatement order. The Committee requests the Government to take the measures at its disposal to rectify the situation and to keep it informed in this respect.
11. 570. With regard to the allegation concerning the Ministry of Public Health and Social Aid (dismissal without cause of Mr. Luis Rolando Velásquez, a member of the Trade Union of Workers of the National Hospital for Orthopaedics and Rehabilitation, when the Ministry had been summoned to appear before the courts in connection with a collective dispute), the Committee observes that, according to the complainant, UNSITRAGUA, the judge hearing the case for reinstatement conducted proceedings in a manner quite at odds with due process by holding a previous audience with the State of Guatemala, which delayed proceedings unnecessarily. The Committee notes that, according to the Government, the appointing authority issued a decree of dismissal on the grounds that it had been clearly demonstrated that there was just cause for dismissal which merited such a sanction, after Mr. Velásquez had exercised his right to defence. The Committee notes that judicial proceedings have been instigated in this respect, following the administrative proceedings mentioned by the Government in its observations, and requests the Government to take the necessary steps to ensure that the process will not be delayed unnecessarily and to keep it informed of the results of the proceedings.
12. 571. With regard to the allegations concerning the Secretariat of Public Works of the First Lady of the Republic of Guatemala (dismissal of Ms. Rosa María Trujillo de Cordón, Ms. Xiomara Eugenia Paredes Peña de Galdamez and Ms. Zoila Jacqueline Sánchez De García, all union members, on the grounds of reorganization, without allowing them to have their union officials present at the meeting during which they were informed of their dismissal), the Committee notes that the Government confirms the dismissals in question and indicates that, since the Secretariat has not been summoned to appear before the courts, it is able to dismiss workers for the reasons established in law. Given that the complainant itself states that the reorganization was given as grounds for dismissal, the Committee will not proceed with examining these allegations unless the complainant sends new information showing the anti-union nature of the dismissals. With regard to the alleged non-recognition of the union by the Secretariat, the Committee observes that the Government confines itself to stating that the union was registered on 12 October 2001. In this regard, the Committee requests the Government to ensure that the Secretariat of Public Works recognizes the union and to keep it informed in this respect.
13. 572. The Committee regrets that the Government has not sent its observations with regard to the allegation concerning the state of constructive dismissal reported at Industrial Agriculture Cecilia S.A. by 34 workers belonging to the union there, resulting from failure to pay salaries, duties not being assigned, etc., and requests it to send its comments in this respect without delay.
14. 573. With regard to the allegations concerning Finca Eskimo S.A., a subsidiary of Agropecuaria Omagua S.A. (dismissal of 16 workers belonging to the union, on the grounds of the termination of a fixed-term contract, despite the fact that the workers were carrying out duties of a permanent nature, when the enterprise had been summoned to appear before the courts), the Committee notes that, according to the Government, there has been a change of management provided for in law at the enterprise and that the case is proceeding through legal channels. The Committee also notes that, according to information received recently from the complainant, UNSITRAGUA, the Second Chamber of the Court of Appeal for Labour and Social Provision has revoked the reinstatement orders. The Committee requests the Government to send it a copy of the ruling handed down by the Court of Appeal in this respect.
15. 574. With regard to the allegation concerning the failure to recognize and refusal to negotiate with the Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala (SINTRACOMUSAC) by the university, the Committee observes that, according to UNSITRAGUA, on two occasions university police officers have, without a court order, confiscated products and tools from union members, including the union’s general secretary, Mr. Ernesto Vladimir Paniagua Alvarez, who was threatened with weapons and truncheons. Furthermore, the Committee notes that, according to the complainant, Mr. Fidel Ernesto Díaz Morales, a union official, was also assaulted and threatened when he attempted to distribute around the university fliers describing the constant persecution to which union members are subjected. The Committee notes that, according to the Government, this dispute arose as a result of the university’s decision to alter the points of sale within the university campus, where the union’s members engage in commercial activity. The Government also states that the General Labour Inspectorate initially intervened in a conciliatory capacity but that the workers concerned later abandoned their action. The Government stresses that there is no labour relation between the parties, since the university has not contracted the services of the workers, who in turn do not provide a service to the university as employees. Whilst it observes that there is no labour relation which could be the subject of collective bargaining, the Committee requests the Government to take the measures necessary to resolve the dispute peacefully through dialogue between parties, to begin appropriate investigations into the allegations of violence and to keep it informed in this respect.
16. 575. As regards the alleged dismissal by the port enterprise Santo Tomás de Castilla of the entire provisional executive committee of the Union of Dockers, Loaders, Unloaders and Other Workers at the port enterprise Santo Tomás de Castilla (Mr. Manuel Hernández Barrientos, Mr. Rolando Antonio Izales, Mr. Agripino de María Villeda López, Mr. Alex Rolando Avila Pérez and Mr. Adiel Yanes Barrera), the Committee notes the Government’s statement that the enterprise informed it that the services provided by the workers would be carried out by a private firm, that all the workers would be taken on by the new enterprise and that therefore the workers were no longer its responsibility. According to the Government, it will be the appropriate judge who determines whether reinstatement is required. The Committee requests the Government, in the event that legal action is brought in this respect, to inform it of the ruling as soon as it is handed down, in order to discover whether the dismissals involve all workers or only the members of the union’s provisional executive committee. If no legal action is brought, the Committee requests the Government to carry out an independent investigation to establish the true reasons for the dismissals and to keep it informed in this respect.
17. 576. With regard to the dismissal of around 600 workers from the Louisiana, Eskimo, Mariana and Pamaxán plantations, all owned by Agropecuaria Omagua S.A., Agropecuaria Hopy S.A. and Agroindustrias Chinook S.A., which in turn are the Guatemalan subsidiaries of the multinational banana company Chiquita Brand, the Committee notes that, whilst the complainant, UNSITRAGUA, states that these dismissals are part of a systematic policy to reduce costs by moving production to the country’s south coast, where working conditions are greatly inferior and where there is no trade union presence, the Government reports that, according to the employer, the plantations in question were no longer productive and it had the power to dismiss the workers provided that it assumed the responsibility of paying unemployment benefit. Furthermore, the General Labour Inspectorate verified that the appropriate unemployment benefits were paid and monitored the situation of union officials, who had reached a conciliatory agreement with the management. The Committee also notes the Government’s statement that the management has uprooted the banana plantation to plant African palms, since they have more uses and are less problematic than banana palms, and recontracted the workers it considered necessary for the new process.
18. 577. With regard to the allegations concerning Bocadeli de Guatemala S.A., the Committee notes that according to UNSITRAGUA, this enterprise: (1) has, since beginning its operations, introduced a series of unfair salary reductions; (2) the actions, both administrative and judicial, taken by the Union of Workers of Bocadeli de Guatemala S.A. and other enterprises which are part of the same economic entity led to repressive measures on the part of the management, which exerted various forms of pressure on workers belonging to the union, including threats of dismissal, not providing them with sufficient products to sell and refusing to grant the regular loans they receive, in order to make workers sign documents resigning from the union and retracting their allegations of illegal reductions in their salaries; (3) threats against Mr. Manuel Natividad Lemus Zavala, the union’s general secretary, who has been constantly threatened with dismissal and been assigned a supervisor, which places him in a state of constant harassment. The Committee observes that the complainant refers in general terms to threats, dismissals and other actions, along with pressure on workers to sign documents resigning from the union and retracting their allegations of illegal reductions in their salaries (a copy of these documents was annexed to the complaint). The Committee notes that the complainant refers specifically to Mr. Manuel Natividad Lemus Zavala, the general secretary of the union, who, it is alleged, has been constantly threatened with dismissal and been assigned a supervisor, which places him in a state of constant harassment. The Committee observes that the Government confines itself to reporting the enterprise’s statement that the question of the amounts owed to the workers, which prompted the workers’ action and the subsequent reaction from the enterprise, is being dealt with by the courts and that it will await their ruling before taking any measures, but does not respond to the allegations made. This being the case, the Committee requests the Government to respond specifically to the allegations of anti-union actions, including those concerning pressure placed on Mr. Manuel Natividad Lemus Zavala.
19. 578. The Committee notes the recent communication from the General Confederation of Workers of Guatemala (CGTG), dated 5 April 2004, in which it sent new allegations concerning massive and selective dismissals in the municipality of Chiquimulilla. The Committee further notes the recent communications of UNSITRAGUA, dated 19 and 30 April 2004, in which it sent new allegations relating to the dismissal of 40 workers, the delay in the transmission of a set of claims to the Secretariat of Public Works of the First Lady of the Republic of Guatemala and the dismissal of a member of the executive committee of the Secretariat’s trade union and requests the Government to send its observations in this respect.
20. 579. The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, on the questions at issue.

The Committee's recommendations

1. 580. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the alleged supervision and interference of the State in managing union funds, the Committee, taking into account the observed violations of Convention No. 87, requests the Government to ensure that the functions of the SAT are adjusted in line with the various principles mentioned above concerning the financial autonomy of trade unions, and, in consultation with trade union confederations, to modify legislation as necessary in this direction and to keep it informed of measures taken in this respect.
   • (b) With regard to the dismissal of Mr. Félix Alexander Gonzáles from the Office of the Attorney-General of the Nation, the Committee requests the Government to send it a copy of the ruling of the Honourable Second Chamber of the Court of Appeal, and also requests the complainants to provide further information in this regard.
   • (c) With regard to the failure to implement the order to reinstate Mr. Byron Saúl Lemus Lucero in the Supreme Electoral Tribunal, the Committee requests the Government to take the measures at its disposal to rectify the situation and to keep it informed in this respect.
   • (d) With regard to the delay in the proceedings appealing for the reinstatement of Mr. Luis Rolando Velásquez at the National Hospital of Orthopaedics and Rehabilitation, the Committee requests the Government to take the necessary steps to ensure that the process will not be delayed unnecessarily and to keep it informed of the results of the proceedings.
   • (e) With regard to the dismissal of Ms. Rosa María Trujillo de Cordón, Ms. Xiomara Eugenia Paredes Peña de Galdamez and Ms. Zoila Jacqueline Sánchez De García, the Committee invites the complainant to send new information showing the anti-union nature of the dismissals. With regard to the alleged non-recognition of the union by the Secretariat of Public Works of the First Lady of the Republic of Guatemala, the Committee requests the Government to ensure that the Secretariat of Public Works recognizes the union and to keep it informed in this respect.
   • (f) The Committee regrets that the Government has not sent its observations with regard to the allegation concerning the state of indirect dismissal reported at Industrial Agriculture Cecilia S.A. by 34 workers belonging to the union there, resulting from failure to pay salaries, duties not being assigned, etc., and requests it to send its comments in this respect without delay.
   • (g) With regard to the dismissal of 16 workers from Finca Eskimo S.A., a subsidiary of Agropecuaria Omagua S.A., the Committee requests the Government to send it a copy of the ruling handed down by the Court of Appeal in this respect.
   • (h) With regard to the allegation concerning the failure to recognize and refusal to negotiate with the Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala (SINTRACOMUSAC) by the university, the Committee, observing that strictly speaking there is no labour relation obliging the employer to bargain collectively, requests the Government to take the measures necessary to resolve the dispute peacefully through dialogue between parties, to begin appropriate investigations into the allegations of violence and to keep it informed in this respect.
   • (i) As regards the alleged dismissal of the provisional executive committee of the union at the port enterprise Santo Tomás de Castilla, the Committee requests the Government, in the event that legal action is brought in this respect, to inform it of the ruling as soon as it is handed down, in order to discover whether the dismissals involve all workers or only the members of the union’s provisional executive committee. If no legal action is brought, the Committee requests the Government to carry out an independent investigation to establish the true reasons for the dismissals and to keep it informed in this respect.
   • (j) With regard to the allegations concerning Bocadeli de Guatemala S.A., the Committee requests the Government to respond specifically to the allegations of anti-union actions, including those concerning pressure placed on Mr. Manuel Natividad Lemus Zavala.
   • (k) The Committee requests the Government to send its observations regarding the new allegations concerning massive and selective dismissals in the municipality of Chiquimulilla sent by the General Confederation of Workers of Guatemala in its recent communication dated 5 April 2004, and regarding the new allegations sent by UNSITRAGUA in its recent communications dated 19 and 30 April 2004 relating to the dismissal of 40 workers, the delay in the transmission of a set of claims to the Secretariat of Public Works of the First Lady of the Republic of Guatemala and the dismissal of a member of the executive committee of the Secretariat’s trade union.
   • (l) The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, on the questions at issue.