Interim Report - Report No 355, November 2009

Case No 2341 (Guatemala) - Complaint date: 13-MAY-04 - Closed

Allegations: Interference in the internal affairs of the Trade Union of Portuaria Quetzal; dismissals in the Municipality of Comitancillo (department of San Marcos) in violation of a court reinstatement order; dismissal of a member of the Trade Union of the Supreme Electoral Tribunal; harassment and issuing of a warrant for the arrest of an official of the Education Workers’ Trade Union of Guatemala; failure by the Crédito Hipotecario Nacional Bank to recognize the results of trade union elections; use of threats and intimidation against the executive committee of the trade union

1. 766. The Committee last examined this case at its June 2008 meeting [see 350th Report of the Committee, paras 858–872, approved by the Governing Body at its 302nd Session].
2. 767. The Government sent further observations in communications dated 27 October 2008, received in the Office on 3 December 2008.
3. 768. 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. Previous examination of the case

1. 769. In its previous examination of the case, the Committee made the following recommendations [see 350th Report, para. 872]:
2. – Concerning the allegations relating to the enterprise Portuaria Quetzal and the municipality of Comintacillo, the Committee regrets that the Government has not sent the information requested and reiterates its previous recommendations, as follows:
3. – With regard to the alleged interference by the Labour Inspectorate in the extraordinary general assembly of the Portuaria Quetzal Trade Union, during which trade union leaders were removed from their position in the absence of a quorum, the Committee requests the Government to send its observations without delay on any administrative or judicial decision taken, particularly with regard to the fact that the decisions of the trade union assembly were challenged by 113 of the 600 members.
4. – The Committee once again requests the Government to inform it of the outcome of the appeal for trade union immunity that was lodged in connection with the dismissal of 18 employees of the municipality of Comitancillo, as soon as it learns of the decision handed down.
5. – The Committee requests the complainant organizations to send additional information on the alleged warrant for the arrest of Mr Jovial Acevedo, SecretaryGeneral of the STEG (file number, court, etc.), to enable the Government to communicate its response.
6. – With respect to the new allegations by UNSITRAGUA dated 17 May 2007, the Committee regrets that the Government has not replied and urges it to send its observations without delay on the allegations relating to: (1) the non-recognition by Crédito Hipotecario Nacional Bank of the union officials chosen by the union’s general assembly on 15 December 2006, despite an administrative decision establishing that the employer was not legally entitled to challenge the trade union elections; (2) the provisional decision handed down by the Supreme Court of Justice on an appeal by the bank for the protection of constitutional rights, to suspend the abovementioned administrative decision on a provisional basis; and (3) the refusal to grant trade union leave to the union official Héctor Alfredo Orellana Aroche, on the basis of the provisional decision handed down by the Supreme Court of Justice. The Committee also requests the Government to send the text of the ruling handed down by this Court.
7. B. The Government’s reply
8. 770. In its communication of 27 October 2008, received by the ILO on 3 December 2008, the Government states in respect of the 18 employees dismissed by the municipality of Comitancillo (San Marcos) that: (1) the Fourth Court of Labour and Social Welfare rejected the reinstatements and other legal entitlements claimed; (2) the employees in question lodged an appeal for the protection of their constitutional rights (amparo) to the Chamber of Amparo and Antejuicios (preliminary proceedings for judicial misconduct) of the Supreme Court of Justice, which overruled it; (3) the 18 employees lodged an appeal with the Constitutional Court and, on 14 November 2006, this Court ruled in favour of the employees and quashed the sentence of the Chamber of Amparo and Antejuicios; it also instructed the Fourth Court of Labour and Social Welfare to hand down the corresponding ruling (this has not yet been issued; when it is issued it will be sent to the Committee on Freedom of Association).

C. The Committee’s conclusions

1. 771. Firstly, the Committee must deplore the fact that despite the time that has elapsed since the last examination of the case (June 2008) the Government has only sent observations concerning one of the pending allegations. The Committee urges the Government to be more cooperative with the procedure in future, particularly given that this case was presented a number of years ago.
2. 772. With regard to the dismissal of 18 employees from the municipality of Comitancillo (San Marcos), the Committee notes the information sent by the Government and, in particular, the Constitutional Court sentence in favour of these employees and that this Court has instructed the Fourth Court of Labour and Social Welfare to hand down the corresponding ruling. The Committee deplores the long delay that has occurred owing to the various procedures and appeals, and recalls that justice delayed is justice denied. It asks the Government to send the ruling handed down in this matter by the Fourth Court of Labour and Social Welfare.
3. 773. In respect of the remaining allegations, the Committee deeply deplores finding itself obliged for a second time, in view of the lack of response from the Government or the complainant organizations, to reiterate its earlier recommendations [see the following paragraph, clause (b)].

The Committee's recommendations

1. 774. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With respect to the dismissal of 18 employees from the municipality of Comitancillo (San Marcos), the Committee deplores the long delay that has occurred owing to the various procedures and appeals, recalls that justice delayed is justice denied and asks the Government to send the ruling handed down in this matter by the Fourth Court of Labour and Social Welfare.
   • (b) As to the remaining allegations, the Committee deeply deplores finding itself obliged for a second time, in view of the lack of response from the Government or the complainant organizations, to reiterate its earlier recommendations as follows:
     • – With regard to the alleged interference by the Portuaria Quetzal enterprise in the extraordinary general assembly of the Portuaria Quetzal Trade Union, during which trade union leaders were removed from their position in the absence of a quorum, the Committee requests the Government to send its observations without delay on any administrative or judicial decision taken, particularly with regard to the fact that the decisions of the trade union assembly were challenged by 113 of the 600 members.
     • – The Committee requests the complainant organizations to send additional information on the alleged warrant for the arrest of Mr Jovial Acevedo, Secretary-General of the STEG (file number, court, etc.), to enable the Government to communicate its response.
     • – With respect to the allegations by UNSITRAGUA dated 17 May 2007, the Committee regrets that the Government has not replied and urges it to send its observations without delay on the allegations relating to: (1) the non-recognition by Crédito Hipotecario Nacional Bank of the union officials chosen by the union’s general assembly on 15 December 2006, despite an administrative decision establishing that the employer was not legally entitled to challenge the trade union elections; (2) the provisional decision handed down by the Supreme Court of Justice on an appeal by the bank for the protection of constitutional rights, to suspend the abovementioned administrative decision on a provisional basis; and (3) the refusal to grant trade union leave to the union official Héctor Alfredo Orellana Aroche, on the basis of the provisional decision handed down by the Supreme Court of Justice. The Committee also requests the Government to send the text of the ruling handed down by this Court.
   • (c) On a more general note, the Committee urges the Government to be more cooperative with the procedure in future, particularly given that this case was presented a number of years ago.