Report in which the committee requests to be kept informed of development - Report No 340, March 2006

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

Allegations: The complainants allege that the free exercise 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 various enterprises and institutions

831. The Committee last examined this case at its meeting in March 2005 [see 336th Report, paras. 431-465].

1. 832. The Government sent new observations in communications dated 16 March, 25 April, 15 June, 5, 26 and 28 July, 8 and 31 August, 29 September and 29 November 2005, and 4 and 30 January 2006.
2. 833. 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. 834. At its meeting in March 2005, the Committee made the following interim recommendations regarding the allegations presented by the complainant [see 336th Report, para. 465]:
2. (a) As regards the allegations concerning dismissals in the municipality of Chiquimulilla in the Santa Rosa Department, the Committee requests the Government to reply without delay and in specific terms to these allegations and asks the CGTG to communicate the exact number and names of workers dismissed and to indicate whether the dismissals affected only trade union members or other municipality workers as well.
3. (b) As regards the allegations concerning the municipality of Puerto Barrios (refusal to reinstate workers dismissed despite having trade union immunity), the Committee requests the Government to forward a copy of the Appeal Court ruling as soon as it is handed down.
4. (c) As regards the allegations concerning the municipality of Pueblo Nuevo Viñas, the Committee requests the Government to take the necessary measures to ensure that the union’s general secretary and the two consultative council members are reinstated in their posts without loss of wages and to keep it informed in this regard. The Committee requests the Government to inform it of any administrative or judicial decisions regarding the other dismissals, and requests the CGTG to communicate the names of the workers concerned.
5. (d) As regards the new allegations concerning the Office of the Attorney-General of the Nation (illegal dismissals, disciplinary proceedings, dismissals without just cause in connection with reorganization, and transfers intended to force union members to resign), the Committee requests the Government to send its comments without delay, with details of the administrative or judicial rulings handed down on this matter.
6. (e) As regards the dismissal of Félix Alexander Gonzáles from the Office of the Attorney-General of the Nation, the Committee once again requests the Government to send a copy of the ruling handed down by the Second Chamber of the Appeals Court on this case.
7. (f) As regards the new allegations concerning the port enterprise Santo Tomás de Castilla (acts of anti-union discrimination against reinstated members of the executive committee), the Committee requests the Government to send its observations in this respect without delay.
8. (g) In relation to the alleged acts of anti-union discrimination directed against the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic, the Committee requests the Government to carry out an independent inquiry without delay into the alleged anti-union acts and to keep it informed in this regard. As regards the dismissal of two trade union officials, the Committee requests the Government to indicate whether Dilia Josefina Cobox Ramón and Edna Violeta Díaz de Reyes have taken legal action and, if so, to keep it informed of developments.
9. (h) As regards the alleged pressure applied to members of the Trade Union of Workers of Bocadelli S.A., the Committee requests the Government to keep it informed of developments in the judicial proceedings under way concerning the four union members in question.
10. (i) As regards the alleged supervision and interference by the State in the management of trade union funds, the Committee notes that the Government has not sent any information in this respect, and requests it once again to ensure that the functions of the Superintendent for Tax Administration are brought into line with the principles of the financial autonomy of trade union organizations and, in consultation with trade union confederations, to modify the legislation as necessary in this direction, and to keep it informed of measures taken in this respect.
11. (j) The Committee once again notes with regret that the Government has not sent its observations regarding the allegation concerning the state of indirect dismissal reported at the Industrial Agriculture Cecilia S.A. by 34 workers belonging to the trade union there, resulting from failure to pay salaries, assign tasks, etc., and requests the Government to send its comments in this respect without delay.
12. (k) The Committee notes that the Government has not sent any information regarding the measures adopted to bring about a peaceful settlement, through dialogue between the parties, in the dispute between the Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala (SINTRACOMUSAC) and the University, and begin appropriate investigations into the allegations of violence; the Committee once again requests the Government to keep it informed in this regard.
13. (l) As regards the failure to implement the order to reinstate Byron Saúl Lemus Lucero in the Supreme Electoral Tribunal, in relation to which the Committee had requested the Government to take the measures at its disposal to rectify promptly the situation, the Committee once again requests the Government to keep it informed in this regard.
14. (m) 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, which have not yet communicated any information.
15. B. The Government’s new replies
16. 835. In its communications of 16 March, 25 April, 15 June, 5, 26 and 28 July, 8 and 31 August, 29 September and 29 November 2005, and 4 and 30 January 2006, the Government sent the following observations to the recommendations made by the Committee in its previous examination of the case.
17. 836. Subparagraph (a) of the Committee’s recommendations. As regards the dismissals of workers in the municipality of Chiquimulilla, Santa Rosa Department, according to the Government, the judge of the Labour Court ruled that there existed a collective labour agreement dated 8 March 2004, which mentions the withdrawal of the requests made by workers, and that there is no claim for reinstatement.
18. 837. Subparagraph (b) of the Committee’s recommendations. As regards the allegations concerning the refusal to reinstate workers having trade union immunity dismissed in the municipality of Puerto Barrios, the Government attaches a copy of the ruling handed down by the Second Labour and Social Security Appeals Court ordering the reinstatement as at 3 September 2004 of the dismissed workers, with payment of the salaries they had ceased to receive. The said workers were actually reinstated on 2 February 2005.
19. 838. Subparagraph (c) of the Committee’s recommendations. As regards the allegations concerning the dismissal of ten workers in the municipality of Pueblo Nuevo Viñas, including the union’s general secretary and the two consultative council members, the Government states that both the general secretary and the consultative council members were in fact reinstated in their same positions and with the same salary conditions. As regards the other seven workers, the Government states that they were not reinstated on account of their not falling within the scope of articles 209 and 380 of the Labour Code.
20. 839. Subparagraph (d) of the recommendations. As regards the allegations concerning illegal dismissals, disciplinary proceedings, dismissals without just cause in connection with reorganization, and transfers intended to force workers belonging to UNSITRAGUA to resign, the Government states that, according to the Office of the Attorney-General of the Nation, the said dismissals have not occurred and that in any case, if they did occur, it was for justified reasons. As regards the dismissal in connection with reorganization, this was accepted by the workers. In the case of Mr. Eliseo Rivera Castro and Ms. Laura Lili Alvarez, who challenged their dismissals, the Labour Justice Tribunals are currently determining their legal situation. As regards the allegation concerning the transfers, according to the Office of the Attorney-General, those transfers are provided for in the Collective Agreement on Working Conditions and were limited to a transfer within the headquarters of the Office of the Attorney-General.
21. 840. Subparagraph (e) of the Committee’s recommendations. As regards the dismissal from the Office of the Attorney-General of the Nation of Félix Alexander Gonzáles Barrios, who had asked to be reinstated, the Government once again states, in its communication of 16 March 2004, that his request was rejected since, in the view of the Second Chamber of the Labour and Social Security Appeals Court on 24 June 2003, he was dismissed with just cause. The Government submits a copy of the ruling handed down by the Second Chamber of the Labour and Social Security Appeals Court. The Government states, moreover, that the National Civil Service Board had rejected the appeal lodged by Mr. González Barrios against the dismissal on 8 October 2003 and that no appeals had been lodged against that decision.
22. 841. Subparagraph (f) of the Committee’s recommendations. As regards the allegations concerning acts of anti-union discrimination against the members of the executive committee of the Union of Dockers, Loaders, Unloaders and Other Workers of the port enterprise Santo Tomás de Castilla involving economic aspects and working conditions, the Government states that it commissioned a labour inspector to investigate the complaint, the inspector having ascertained that the workers are being provided with adequate protective equipment, that the exhausting tasks have been eliminated through the allocation of new tasks to the workers in a new cargo hold, that in regard to the payment of a lower rate, an additional item has, in compliance with an order handed down by the judicial authority, been created in the payslips and that they enjoy the benefits received by other workers. The inspector also indicated that he had not found proof of any other acts of anti-union discrimination.
23. 842. With respect to subparagraph (g) of the recommendations concerning the alleged acts of anti-union discrimination against members of the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic, in regard to which the Committee had requested the Government to carry out an independent inquiry without delay into the alleged anti-union acts and to indicate whether the dismissed workers Dilia Josefina Cobox Ramón and Edna Violeta Díaz Reyes had taken legal action, the Government states that, having consulted the seven competent labour tribunals, it was established that the dismissed workers have not undertaken any legal action.
24. 843. Subparagraph (h) of the Committee’s recommendations. As regards the alleged pressure applied to members of the Union of Workers of Bocadelli S.A., the Government states that the action was filed in the Second Jurisdictional Labour and Social Security Court, which confirmed the judgement ordering the company Bocadelli de Guatemala to repay to the workers, Damacio Salguero López, Edgar Giovanni Lara García, Julio César Rodas Maldonado and Miguel Angel Morayata Arélalo, the amounts deducted from their salaries under the headings of preventive fund, added value and weekly rest day. In addition, a fine was imposed on the company and it was ordered to refrain in future from making any kinds of deduction not provided for under the law.
25. 844. Subparagraph (j) of the recommendations. As regards the allegations concerning the state of indirect dismissal reported at the Agrícola Industrial Cecilia S.A. company by 34 workers on account of failure to pay salaries and assign tasks, the Government states that the Fourth Chamber of the Labour and Social Security Appeals Court dismissed the indirect dismissal incident put forward by the workers on 4 November 2003 (the Government attaches a copy of the corresponding decision).
26. 845. Subparagraph (k) of the Committee’s recommendations. With regard to the measures adopted to bring about a peaceful settlement, through dialogue between the parties, in the dispute between the Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala (SINTRACOMUSAC) and the University, the Government states that the members of the University and of the Union were invited to a meeting with the members of the Tripartite Commission on International Labour Affairs to explain their problem. During the course of that meeting, which took place on 9 June 2005, the representative of SINTRACOMUSAC stated that the trade union organization had, since its foundation, been subjected to repression and its members threatened, and that they were not permitted to sell handmade products on the University premises. For his part, the representative of the University denied that version and invited the Union to enter into discussions with the University regarding the siting of the points of sale, with a lease contract. The Government states that the parties undertook to reach a direct agreement and that the Tripartite Commission would be kept informed of the results achieved.
27. 846. Subparagraph (l) of the recommendations. As regards the failure to implement the order to reinstate Mr. Byron Saúl Lemus Lucero issued by the Supreme Electoral Tribunal, the Government states that, on 8 September 2003, the Third Chamber of the Labour and Social Security Appeals Court annulled the reinstatement decision. Mr. Lemus Lucero applied for amparo on 25 November 2003 and, on 29 September 2004, the Chamber of Amparo of the Supreme Court of Justice turned down his application. The Government attaches a copy of that legal decision.

C. The Committee’s conclusions

1. 847. The Committee takes note of the Government’s observations in response to the recommendations made by the Committee in its previous examination of the case.
2. 848. As regards subparagraph (a) of the recommendations relating to allegations concerning dismissals in the municipality of Chiquimulilla in the Santa Rosa Department, the Committee notes that according to the Government, the judge of the first-level Labour Court has informed that, under the collective agreement of 8 March 2004, the workers concerned have withdrawn their requests and that there is no claim for reinstatement currently pending.
3. 849. As regards subparagraph (b) of the Committee’s recommendations relating to the allegations concerning the refusal to reinstate workers having trade union immunity dismissed in the municipality of Puerto Barrios, the Committee observes that the Government attaches a copy of the decision by the Second Labour and Social Security Appeals Court ordering the reinstatement, as at 3 September 2004, of the dismissed workers, with payment of the salaries they had ceased to receive, and that the said workers were actually reinstated on 2 February 2005.
4. 850. As regards subparagraph (c) of the recommendations relating to the allegations concerning the dismissal of ten workers in the municipality of Pueblo Nuevo Viñas, including the union’s general secretary and the two consultative council members, the Committee takes note of the Government’s information to the effect that both the general secretary and the consultative council members were in fact reinstated in their same positions and with the same salary conditions, but that the other seven workers were not reinstated on account of their not falling within the scope of articles 209 and 380 of the Labour Code, which refer, respectively, to the trade union immunity of founders and to the trade union immunity that protects workers following presentation of the list of claims.
5. 851. The Committee regrets to note that the CGTG has not communicated the names of the workers from the municipality of Pueblo Nuevo Viñas affected by the dismissal, as it had been requested to do in the previous examination of the case. Under these circumstances, the Committee does not have sufficient information to continue its examination of the allegations.
6. 852. As regards subparagraph (d) of the recommendations relating to the allegations concerning illegal dismissals, disciplinary proceedings, dismissals without just cause in connection with reorganization, and transfers intended to force workers belonging to UNSITRAGUA in the Office of the Attorney-General of the Nation to resign, the Committee notes the Government’s statement that, according to the Office of the Attorney-General of the Nation, the dismissals occurred for justified reasons in some cases, to the reorganization of the entity, accepted by the workers, in others, and that in two cases in which the workers challenged their dismissals the legal situation of those workers is awaiting a decision by the court. The Committee also notes that, according to the Office of the Attorney-General, those transfers are provided for in the Collective Agreement on Working Conditions and were limited to a transfer within the premises of the headquarters of the Office of the Attorney-General. The Committee requests the Government to keep it informed regarding the pending legal decisions and to inform it whether the other dismissed or transferred workers have initiated legal or administrative proceedings and, if so, to inform it of the decisions taken.
7. 853. As regards subparagraph (e) concerning the dismissal from the Office of the Attorney-General of the Nation of Félix Alexander Gonzáles Barrios, in respect of which the Committee had requested the Government to send it a copy of the ruling handed down by the Second Chamber of the Appeals Court, the Committee notes that, according to the decision of the Appeals Court, a copy of which the Government attaches, the request for reinstatement was rejected because the dismissal was considered to have been effected with just cause.
8. 854. As regards subparagraph (f) of the recommendations concerning acts of anti-union discrimination against the members of the executive committee of the Union of Dockers, Loaders, Unloaders and Other Workers of the port enterprise Santo Tomás de Castilla involving economic aspects and working conditions, the Committee notes that, according to the Government, the labour inspector commissioned to investigate the complaint ascertained that the workers are being provided with adequate protective equipment, that the exhausting tasks have been eliminated through the allocation of new tasks to the workers in a new cargo hold, that in regard to the payment of a lower rate, an additional item has, in compliance with an order handed down by the judicial authority, been created in the payslips and that they enjoy the benefits received by other workers.
9. 855. As regards subparagraph (g) of the recommendations concerning alleged acts of anti-union discrimination against members of the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic, in regard to which the Committee had requested the Government to carry out an independent inquiry without delay into the alleged anti-union acts and to indicate whether Dilia Josefina Cobox Ramón and Edna Violeta Díaz de Reyes had taken legal action, the Committee takes note of the information provided by the Government to the effect that the dismissed workers have not undertaken any legal action. The Committee regrets to note, however, that the Government does not state whether it has initiated an independent inquiry into the alleged acts of anti-union discrimination, as had been requested in the previous examination of the case, and requests it to do so without delay and to keep it informed in that regard.
10. 856. As regards subparagraph (h) of the recommendations concerning the alleged pressure applied to members of the Union of Workers of Bocadelli S.A., the Committee notes the Government’s statement that the Second Jurisdictional Labour and Social Security Court confirmed the judgement ordering the company Bocadelli de Guatemala to repay to the workers Damacio Salguero López, Edgar Giovanni Lara García, Julio César Rodas Maldonado and Miguel Angel Morayata Arélalo the amounts unduly deducted from their salaries under the headings of preventive fund, added value and weekly rest day, that a fine was imposed on the company for having made those deductions, and that the company was ordered to refrain in future from making any kinds of deduction not provided for under the law.
11. 857. As regards subparagraph (i) concerning the alleged supervision and interference by the State in the management of trade union funds, the Committee regrets to note once again that the Government has not sent any information in this respect, and requests it once again to ensure that the functions of the Superintendent for Tax Administration are brought into line with the principles of the financial autonomy of trade union organizations and, in consultation with the trade union confederations, to modify the legislation as necessary in this direction, and to keep it informed of measures taken in this respect.
12. 858. As regards subparagraph (j) of the recommendations relating to the allegations concerning the state of indirect dismissal reported at the Agrícola Industrial Cecilia S.A. company by 34 workers on account of failure to pay salaries and assign tasks, the Committee takes note of the Government’s statement that the Fourth Chamber of the Labour and Social Security Appeals Court dismissed the indirect dismissal incident, reported by the workers, on 4 November 2003 (the Government attaches a copy of the corresponding decision).
13. 859. As regards subparagraph (k) of the Committee’s recommendations relating to the measures adopted to bring about a peaceful settlement through dialogue between the parties, in the dispute between the Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala (SINTRACOMUSAC) and the University, the Committee takes note of the Government’s statement that at a meeting held on 9 June 2005 between the members of the Tripartite Commission on International Labour Affairs, of the University and of the Union, the parties undertook to reach a direct agreement, and that the Tripartite Commission would be kept informed of the results achieved. The Committee requests the Government to keep it informed in regard to the direct agreement to be reached.
14. 860. As regards subparagraph (l) of the recommendations concerning the failure to implement the order to reinstate Mr. Byron Saúl Lemus Lucero issued by the Supreme Electoral Tribunal, the Government states that on, 8 September 2003, the Third Chamber of the Labour and Social Security Appeals Court annulled the reinstatement decision and that the Chamber of Amparo of the Supreme Court of Justice, on 29 September 2004, turned down the application for amparo that Mr. Lemus Lucero had presented on 25 November 2003.

The Committee's recommendations

1. 861. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegations concerning illegal dismissals, disciplinary proceedings, dismissals without just cause in connection with reorganization, and transfers intended to force workers belonging to UNSITRAGUA in the Office of the Attorney-General of the Nation to resign, the Committee requests the Government to keep it informed regarding the pending legal decisions and to inform it whether the other dismissed or transferred workers have initiated legal or administrative proceedings and, if so, to inform it of the decisions taken.
   • (b) As regards the alleged acts of anti-union discrimination against members of the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic (Dilia Josefina Cobox Ramón and Edna Violeta Díaz de Reyes), the Committee requests the Government to carry out an independent inquiry without delay and to keep it informed in that regard.
   • (c) As regards the alleged supervision and interference by the State in the management of trade union funds, the Committee once again requests the Government to ensure that the functions of the Superintendent for Tax Administration are brought into line with the specific principles of the financial autonomy of trade union organizations and, in consultation with the trade union confederations, to modify the legislation as necessary in this direction, and to keep it informed of measures taken in this respect.
   • (d) In regard to the undertaking by the Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala (SINTRACOMUSAC) and the University to resolve, by means of a direct agreement, the conflict between them, reached during the meeting held on 9 June 2005 within the framework of the Tripartite Commission on International Labour Affairs, the Committee requests the Government to keep it informed in regard to the direct agreement to be reached.