Interim Report - Report No 338, November 2005

Case No 2298 (Guatemala) - Complaint date: 17-SEP-03 - Closed

Allegations: Metropolitan Gas Enterprise and other enterprises belonging to the TOMZA Corporation: The complainants allege the illegal dismissal of 13 trade unionists following reorganization of the trade union; the enterprise demanded that workers withdraw from the trade union under threat of dismissal; at the beginning of the dispute four trade union officers received death threats. Guatemalan Telecommunications Enterprise: According to the allegations, the President of the Republic announced that the enterprise would be closed, disregarding the fact that court proceedings were under way concerning a collective labour dispute relating to refusal to negotiate a new collective agreement; in order to weaken this workers’ movement and destroy the trade union, the enterprise decided to implement a voluntary retirement plan for all the workers, but in fact they are being obliged to resign on the pretext that they will be paid all of their employment benefits. Municipality of Retalhuleu: According to the allegations, the municipality has failed to comply with the minimum wage in the case of 20 workers and with the provisions of the collective agreement

870. The complaints are contained in communications from the Trade Union Confederation of Guatemala (CUSG) dated 12 May and 17 September 2003 and the Trade Union of Workers of the Guatemalan Telecommunications Enterprise (SUNTRAG) dated 4 March 2004. The CUSG sent additional information in communications dated 10 October 2003 and 6 February 2004.

1. 871. The Government sent its observations in communications dated 9 January and 29 April 2004 and 16 March 2005.
2. 872. 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. The complainants’ allegations

1. 873. In its communications dated 12 May and 17 September 2003, the Trade Union Confederation of Guatemala (CUSG) alleges that 13 trade unionists (mentioned by name) were dismissed from enterprises belonging to the TOMZA group after 92 workers met to reorganize the Trade Union of Gas Bottling, Transport, Distribution and Maintenance Workers; furthermore, five workers were compelled under threat to sign their resignations; once they have received their benefits, they do not have the right to be reinstated. However, as regards the allegations of dismissal, the CUSG reports that prior to the dismissals a collective dispute had been referred to the courts (and consequently, according to the law, no worker can be dismissed without court authorization). In addition, the officers of the new trade union executive committee, Julio César Montugar, Juan Carlos Aguilar, Francisco Velásquez and Agustín Sandoval Gómez, received death threats (the latter was threatened by three persons armed with guns). Complaints were filed with the competent authorities concerning the abovementioned acts (the relevant documents are attached).
2. 874. The CUSG alleges further that the municipality of Retalhuleu violated the provisions of labour law on the minimum wage (by not paying 20 workers), as well as 24 provisions of the collective agreement concerning financial benefits, the joint committee, vacancies, etc. without the mayor or members of the municipal corporation seeking a solution to these problems, or agreeing to meet with the trade union.
3. 875. In its communication of 10 October 2003, the CUSG provides additional information and reports that the judicial authority ordered the immediate reinstatement of the workers dismissed by the Metropolitan Gas (Guategas) enterprise of the TOMZA group, but that the latter refused to comply with this order despite various requests by the authority responsible for enforcing the court order. The enterprises of the TOMZA group have subjected the trade union members who were not dismissed to constant threats, intimidation, harassment and persecution. They have been ordered to withdraw from the trade union under threat of dismissal; truck drivers and sales assistants have been kept at the workplace to carry out maintenance work, changing their working conditions completely, as well as other acts aimed at demoralizing the workers.
4. 876. In its communication dated 6 February 2004, and in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 3 June 2004 in support of the complaint, the CUSG emphasizes that the slowness and lack of coercive power of the labour courts and Ministry of Labour led the workers to give up the struggle they had started after having been manipulated by the director-general of the TOMZA SA corporation, who took advantage of conciliatory efforts aimed at reaching a prompt settlement of the dispute; no agreement was reached because the corporation maintained its stance of getting rid of all the staff and disorganizing the trade union. The director-general of the corporation began talks directly with the trade union officers, and the latter were manipulated to the extent that they were compelled to issue a (paid) press communiqué drafted and paid for by the director-general, as a prerequisite for solving the problem of reinstatement and payment of benefits to the dismissed workers. Driven to despair, the workers accepted the conditions dictated by the enterprise, by publishing the (paid) press communiqué, and accepting payment of 40 per cent of their unpaid wages, non-recognition of the trade union by the enterprise and payment of their compensation and/or employment benefits in return for resigning from the enterprise, while the director-general undertook to subsequently rehire a group of selected workers in order to make the international community believe that the problem had been solved. The CUSG sends relevant documents.
5. 877. In addition, in a communication dated 4 March 2004, the Trade Union of Workers of the Guatemalan Telecommunications Enterprise (SUNTRAG) alleges that the President of the Republic of Guatemala announced in the national printed media that the Guatemalan Telecommunications Enterprise (GUATEL) would be closed, disregarding the fact that the enterprise is involved in a socio-economic collective dispute for having refused to negotiate a new collective agreement on conditions of work and social welfare, in proceedings currently before the Third Labour and Social Welfare Court of the first economic zone.
6. 878. Moreover, the manager of GUATEL decided to introduce a voluntary retirement scheme so that all of the workers employed in GUATEL would adhere to it for the sole purpose of weakening the workers’ movement (a circular addressed to the entire staff is attached). The retirement scheme is not in fact voluntary, since the workers are being obliged to resign on the pretext that they will be paid all of their employment benefits; moreover, the retirement scheme has not received the authorization of the court handling the socio-economic labour dispute (in these circumstances, any termination of an employment contract requires court authorization, according to the legislation); in addition, these workers received the promise that they would be rehired, with different conditions of work and lower remuneration. A comparison of the list of persons who have already adhered to the retirement scheme with the names on the GUATEL payroll in 2003 and 2004 shows that the aim is to destroy the Trade Union of Workers of GUATEL for the sole purpose of curtailing freedom of association. GUATEL has illegally ceased its activities up to now with the aim of demoralizing the workers. Moreover, the enterprise has failed to pay wages and stopped giving work, although no court has authorized a lockout. Lastly, it does not have any intention of negotiating a new collective agreement on conditions of work and social welfare and the existing agreement is not being applied.
7. 879. According to SUNTRAG, 260 workers have adhered to the voluntary retirement scheme; it attaches a circular issued by the management of the enterprise on 26 February 2004, reproduced below:
8. The entire staff of the enterprise is hereby informed of the following:
9. Based on a detailed financial analysis of the institution carried out by the management, it has been determined that revenue to date is not sufficient to pay the workers’ wages for the second half of the month of February; projections of revenue indicate that this can be paid around the third week of March this year.
10. This Administration has found GUATEL to be in a critical financial situation as a result of several years of mismanagement and wastage of resources, which now prevents this institution from meeting its labour and other obligations. Accordingly, the Council of Ministers, based on the report presented by management on 24 February, decided to authorize the Ministry of Public Finance to provide as a loan the necessary resources to be used exclusively for paying employment benefits under the voluntary retirement scheme for the entire staff of GUATEL.
11. As a result, and based on the resolution adopted by the Board of Directors yesterday, the abovementioned voluntary retirement programme must be adhered to by all the staff of the institution, beginning on 1 March this year, without exception.
12. All the staff will be notified by the Human Resources Directorate of the day and time when they will be called in to sign the documents giving effect to the voluntary retirement programme in order to begin the procedure for payment of the employment benefits due.
13. Voluntary retirement benefits will be paid upon presentation of the inventory form indicating that all of the property and documentation (both hard-copy and electronic) entrusted to staff have been received by the inventory officer.
14. B. The Government’s reply
15. 880. In its communications of 9 January and 29 April 2004 and 16 March 2005, the Government states that a complaint was filed against the TOMZA corporation by the officers of the trade union of that corporation with the judicial authority, which on 8 July 2003 allowed the socio-economic collective dispute. The TOMZA corporation filed an appeal for nullity on grounds of violation of the law and of procedure against the decision of 8 July 2003, stating that there was a collective agreement on conditions of work in force and that proceedings could not be brought against the enterprise under the abovementioned collective dispute.
16. 881. On 5 November 2003, the Ministry of Labour and Social Welfare, at the request of the judicial authority, informed the Sixth Judge that the collective agreement on conditions of work between the TOMZA corporation and its workers had not been denounced and was still in force; on 11 November 2003, the judicial authority rejected the socio-economic collective dispute.
17. 882. On 29 January 2004, the parties were summoned before a conciliation board, at which the complainants (the trade union officers) requested a conciliation board for 10 February 2004, which they then did not attend, informing the judicial authority that they would abandon the action and filing notice of abandonment of proceedings on behalf of the workers’ assembly. On 25 February 2004, the judicial authority approved the abandonment of proceedings and hence the case is closed.
18. 883. As regards the allegations concerning the municipality of Retalhuleu, the Government states in its communication of 9 January 2004 that the labour inspectorate undertook conciliation concerning violation of the collective agreement and withholding of wages, but since conciliation was not possible in some cases, the workers were informed of their right to seek redress in the courts. Moreover, the Fourth Chamber of the Court of Appeals of Mazatenango upheld the appeal filed by the workers against the judgement in the first instance which had declared the strike illegal and accordingly revoked that ruling, rejecting the proceedings concerning an illegal strike brought by the employer. The Government adds in its communication of 16 March 2005 that the dispute has been settled, enclosing an agreement between the Trade Union of Workers of the Municipality of Retalhuleu and the municipality, concluded with the assistance of the mediation board of the Ministry of Labour and Social Welfare. The agreement also provides for the reinstatement of 119 dismissed workers, which has been verified; the parties undertake to work in harmony and abstain from reprisals, and to refer any future disputes to the negotiating committee of the Ministry of Labour so that a solution can be found to any future problems through dialogue.

C. The Committee’s conclusions

1. Allegations concerning the Metropolitan Gas Enterprise and other enterprises belonging
2. to the TOMZA corporation
3. 884. The Committee observes that the complainants allege the illegal dismissal of 13 trade unionists following reorganization of the trade union, despite the fact that a collective dispute had been filed with the judicial authority prior to the dismissals; the judicial authority ordered the reinstatement of the dismissed workers but the enterprise did not comply with the order and demanded that the workers withdraw from the trade union under threat of dismissal; the trade union officers were subsequently manipulated by the director-general of the corporation and signed a press communiqué accepting payment of 40 per cent of their unpaid wages, non-recognition of the trade union and payment of compensation in return for resigning from the enterprise; at the beginning of the dispute four trade union officers received death threats.
4. 885. The Committee notes the information provided by the Government according to which: (1) the judicial authority rejected the socio-economic dispute filed by the trade union officers after it was informed that the collective agreement on conditions of work signed by the trade union had not been denounced; (2) the trade union officers, on behalf of the assembly, filed notice of abandonment of all the actions that had been brought, which was approved by the judicial authority on 4 March 2004. While taking note of the abandonment of proceedings, the Committee regrets that the Government has not sent observations on the alleged non-compliance by the enterprise with the reinstatement orders issued by the judicial authority, on the alleged manipulation of the trade union officers, or on the alleged threats of dismissal against workers who did not withdraw from the trade union. Given that there can be no judicial ruling on these issues after the abandonment of proceedings by the trade union officers, the Committee will not continue its examination of these allegations. However, the Committee cannot fail to note with regret that the preliminary reinstatement orders of the judicial authority were not carried out. The Committee trusts that the Government will take steps to ensure compliance with the preliminary reinstatement orders issued by the judicial authority.
5. 886. The Committee observes that the Government has not replied to the allegations concerning the death threats allegedly received by trade union officers Julio César Montugar, Juan Carlos Aguilar, Francisco Velásquez and Agustín Sandoval Gómez. The Committee notes nonetheless that according to the documentation forwarded by the complainants, these cases have been referred to the competent authority. The Committee emphasizes the seriousness of these allegations and requests the Government to ensure that an independent inquiry is promptly carried out into the matter and to inform it of the outcome of such inquiry. The Committee emphasizes that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 47].
6. Allegations concerning the municipality of Retalhuleu
7. 887. The Committee observes that according to the allegations the municipality has failed to pay the minimum wage in respect of 20 workers and has not complied with the provisions of the collective agreement. The Committee notes the information provided by the Government to the effect that the dispute which arose in the municipality has been settled with the assistance of the mediation board of the Ministry of Labour and Social Welfare. The Committee observes with interest that the agreement concluded also provides for reinstatement of 119 dismissed workers (which was carried out); the parties undertake to work in harmony and abstain from reprisals, and to refer any future disputes to the negotiating committee of the Ministry of Labour so that a solution can be found to any future problems through dialogue.
8. Allegations concerning the Guatemalan Telecommunications Enterprise
9. 888. The Committee observes that according to the allegations, the President of the Republic announced that the enterprise would be closed, disregarding the fact that a collective dispute on conditions of work concerning refusal by the enterprise to negotiate a new collective agreement was pending before the judicial authority. In addition, the enterprise, with the aim of weakening the workers’ movement and destroying the trade union, decided to implement a voluntary retirement scheme for all the workers, but in fact the workers were being obliged to resign, with payment of all their employment benefits (the complainants attach a circular in support of their allegations) and the legislation is being infringed, since once a collective dispute has been referred to the judicial authority, any termination of a contract requires court authorization. Moreover, the workers have received a promise that they will be rehired with different conditions and lower wages, and the enterprise is currently involved in a stoppage of its activities despite the fact that no judicial authority has authorized this.
10. 889. The Committee regrets that the Government has not sent its observations on these allegations and urges it to do so without delay.

The Committee's recommendations

1. 890. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee observes that the Government has not replied to the allegations concerning the death threats allegedly received by trade union leaders Julio César Montugar, Juan Carlos Aguilar, Francisco Velásquez and Agustín Sandoval Gómez, and that, according to the allegations, these cases have been referred to the competent authority. The Committee emphasizes the seriousness of these allegations and requests the Government to ensure that an independent inquiry is promptly carried out and to inform it of the outcome of such inquiry.
   • (b) Concerning the allegations regarding the Guatemalan Telecommunications Enterprise, the Committee regrets that the Government has not sent its observations on the allegations and urges it to do so without delay.