Effect given to the recommendations of the committee and the Governing Body - Report No 348, November 2007

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

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

1. 96. The Committee last examined this case at its meeting in June 2007 and on that occasion requested the Government to: (1) confirm that the trade union official Ms Edna Violeta Díaz has been effectively reinstated in the post she formerly occupied; and (2) report specifically on the situation of the trade unionist Ms Cobox Ramón and on the situations of other members of the SITRASEC executive committee dismissed in 2004. Furthermore, the Committee requested the Government to send its observations on the following pending issues regarding: (a) practices contrary to collective bargaining in the University of San Carlos de Guatemala and the need for the authorities to take steps to ensure that the parties reach an agreement that puts an end to the existing collective dispute; (b) the allegations concerning illegal dismissals, disciplinary proceedings, dismissals without just cause on grounds of reorganization, and transfers intended to force workers belonging to UNSITRAGUA in the Office of the Attorney-General of the Nation to resign, in connection with which it had requested the Government to keep it informed of any pending judicial decisions and inform it as to whether the other dismissed or transferred workers had initiated legal or administrative proceedings and, if so, to inform it of the decisions taken; and (c) the alleged supervision and interference by the State in the management of trade union funds, in connection with which the Committee had requested the Government to ensure that the functions of the Superintendent for Tax Administration were brought into line with the principles relating to the financial autonomy of trade union organizations, and, in consultation with the trade union confederations, to modify the legislation as necessary in this regard, and to keep it informed of the measures taken [see 346th Report, paras 49–53].
2. 97. In its communications dated 13 February and 19 March 2007, the Government states, with regard to trade union official Ms Edna Violeta Díaz, that: (1) the National Civil Service Board, on 10 October 2005, upheld the complaint that had been filed, affirming that membership of the executive committee of the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic (SOSEP) does not constitute grounds for dismissal; and (2) SOSEP claimed to have examined the corresponding judgements without finding any instructions to reinstate Ms Díaz Reyes, however, it was aware of the ruling issued by the National Civil Service Board and was fully prepared to take the action indicated by this body. In these circumstances, while the Committee takes note of the willingness of SOSEP, it requests the Government to ensure that the trade union official Ms Edna Violeta Díaz has been reinstated in her post.
3. 98. With regard to the alleged supervision and interference by the State in the management of trade union funds, in connection with which the Committee had requested the Government to ensure that the functions of the Superintendent for Tax Administration were brought into line with the principles relating to the financial autonomy of trade union organizations, and, in consultation with the trade union confederations, to modify the legislation as necessary in this regard, and to keep it informed of the measures taken, in its communication of 29 March 2007, the Government attached a report from the Superintendent for Tax Administration stating that trade unions, as legal persons organized in accordance with the law, are recognized under the tax legislation in force as taxpayers. However, in view of the purposes for which trade unions are established, the tax laws grant them certain exemptions, but this does not exonerate them from the obligation to register as taxpayers with the Tax Administration. Trade unions are therefore under an obligation to register as taxpayers on the Unified Taxation Register, where they are assigned a taxpayer identification number. With regard to the exemptions available to trade unions, it should be specified that the Act governing the taxation of revenue stamps and special sealed paper for notarial records and the Act governing the extraordinary and temporary tax in support of the peace treaties establish that legally authorized non-profit-making associations and foundations are exempt from the above taxes provided that their income or assets come from donations or from ordinary or extraordinary membership fees and that they are used for the purposes for which the organization was created. For its part, the Taxation of Income Act, under the reform contained in Decree No. 18-2004, exempts the income and assets of associations and foundations from the payment of this tax provided that their income or assets come from donations or from ordinary or extraordinary membership fees and that they are used for the purposes for which the organization was created. That is to say, in order for the assets of associations and their income to benefit from the exemption established by law, they must comply with two legal requirements: first, the assets must come from ordinary or extraordinary membership fees or from donations, and second, the income must be used for the purposes for which the organization was created and under no circumstances may associations distribute, directly or indirectly, profits or goods among their members. The Value Added Tax Act, Decree No. 27-92 of the Congress of the Republic, does not exempt the purchases or sales carried out by trade unions or the services they provide, therefore, if they carry out any activities specified under this law, they must make out an invoice. It should be noted that as a result of the express repeal of article 9, paragraph (c) of Decree No. 26-95 of the Congress of the Republic, the Financial Products Act, tax must be paid on the interest credited to trade union accounts. It can therefore be concluded that trade unions must register on the Unified Tax Register and, if they carry out activities subject to taxation, for example, the sale of goods or provision of services, even when these benefit their members, they are under an obligation to draw up invoices and pay the corresponding taxes, and therefore, they must keep accounts and records of their taxable activities and operations. In accordance with the above, the second paragraph of article 46 of the Taxation of Income Act establishes that the taxpayers who are not obliged by law to keep complete accounts, apart from those persons who earn their income as employees and professionals, must keep at least daily accounts of income and expenditure and an inventory log, in which they must note their existing assets and debts at the beginning and end of the tax year. Finally, in accordance with the provisions of article 37 of Decree No. 27-92 of the Congress of the Republic, the Value Added Tax Act, all taxpayers must keep an up to date record of purchases made and services received and another of sales completed and services provided. The Committee takes note of this information and concludes from the Government’s statement that there has been no interference in the financial affairs of the trade unions.
4. 99. With regard to the allegations concerning illegal dismissals, disciplinary proceedings, dismissals without just cause on grounds of reorganization, and transfers intended to force members of UNSITRAGUA at the Office of the Attorney-General of the Nation to resign, in connection with which the Committee had requested the Government to keep it informed of any pending judicial decisions and inform it as to whether the other dismissed or transferred workers had initiated legal or administrative proceedings and, if so, to inform it of the decisions taken, the Committee takes note that in its communication dated 29 June 2007, the Government once again sent the observations that it had already made in relation to this case. In these circumstances, the Committee once again requests the Government to keep it informed of the pending judicial decisions and to inform it as to whether the other dismissed or transferred workers have initiated legal or administrative proceedings and, if so, to inform it of the decisions taken.
5. 100. Lastly, the Committee once again requests the Government to report specifically on the situation of the trade unionist Ms Cobox Ramón and the situations of the other members of the SITRASEC executive committee dismissed in 2004.