Report in which the committee requests to be kept informed of development - Report No 370, October 2013

Case No 2768 (Guatemala) - Complaint date: 14-JAN-10 - Closed

Allegations: Unilateral amendment by the authorities of the statutes of two trade unions, anti-union discrimination in hiring, impediments to the right to organize through the signature of civil contracts for professional services, and an anti-union dismissal

1. 445. The Committee last examined this complaint at its March 2012 meeting when it presented an interim report to the Governing Body [see 363rd Report, approved by the Governing Body at its 313th Session (March 2012), paras 620–644].
2. 446. The complainant organization sent additional information in relation to the complaint in communications dated 10 May 2012, and 21 February and 6 March 2013.
3. 447. The Government sent its observations in communications dated 18 April, 6 June, 31 October and 23 November 2012, and on 21 March 2013.
4. 448. 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. 449. At its March 2012 meeting, the Committee made the following recommendations [see 363rd Report, para. 644]:
   • (a) Regarding the unilateral amendment by the authorities of the statutes of two trade unions, the Committee requests the Government to take the necessary measures to ensure that the statutes of the two trade unions mentioned above include the reference to their affiliation with (the new or original) UNSITRAGUA, to consult them in order to determine which of the two federations is the one with which they wish to be affiliated, and to keep it informed in this respect.
   • (b) Regarding the alleged instances of discrimination in hiring, and while expressing its deep concern at the seriousness of the allegations concerning issues that affect people’s private lives, the Committee expresses its fear that the use of polygraph tests during hiring interviews may lead to anti-union discriminations, and therefore requests the Government to indicate the conclusions reached and actions taken by the authorities as a result of the reports of the use of polygraphs for anti-union purposes.
   • (c) Regarding the failure to recognize trade union rights as a result of the signature of civil contracts, the Committee urges the Government to fully respect Conventions Nos 87 and 98, and in particular to guarantee the trade union rights of the many workers contracted under “State budget line 029”.
   • (d) Regarding the dismissal of Ms Lesbia Guadalupe Amézquita Garnica, the Committee requests the Government to send without delay its observations on this matter, including the comments of concerned parties including the FES, and to indicate whether Ms Amézquita Garnica has lodged a complaint in relation with these events. The Committee also requests the Government to provide information concerning the criminal proceedings allegedly requested by the FES.

B. Additional information from the complainant organization

1. 450. In its communication of 10 May 2012, the complainant organization provides additional information regarding the actions taken by Ms Lesbia Guadalupe Amézquita Garnica following her dismissal. On 24 June 2010, the worker filed a written complaint before the General Labour Inspectorate to denounce the anti-union nature of her dismissal and filed a judicial action before the labour court against the foundation Friedrich Ebert Stiftung (FES) in August 2010, requesting the annulment of her dismissal and her reinstatement.
2. 451. In communications of 21 February and 6 March 2013, the complainant organization indicates that, in a ruling dated 25 October 2012, the First Labour and Social Security Court upheld the worker’s claim, ordering her reinstatement and the back payment of the wages and other benefits owed to her for the period following her dismissal. The worker also indicates that she was reinstated on 5 March 2013 and that she received the payment of all the benefits mentioned in the court ruling under an out-of-court agreement with the FES. The complainant organization considers that the violation denounced before the Committee on Freedom of Association has been remedied and that it is no longer necessary to continue with the examination of this allegation.

C. The Government’s reply

1. 452. The observations sent by the Government deal with issues different to those pending in this case.

D. The Committee’s conclusions

1. 453. As regards the dismissal of Ms Lesbia Guadalupe Amézquita Garnica, the Committee notes the information provided by the complainant organization indicating that, following a ruling of the First Labour and Social Security Court and an out-of-court agreement with the FES, the worker was reinstated and received the back payment of the wages and benefits owed to her. The Committee also notes that the complainant organization considers that the violation denounced has been remedied and that it is no longer necessary to continue with the examination of this allegation. Taking into account this information, the Committee will not pursue its examination of this allegation.
2. 454. As regards the other pending issues, the Committee regrets that, despite the time that has elapsed since its last examination of the case, the Government has not sent the requested information and requests the Government to be more cooperative in the future. The Committee therefore reiterates its previous recommendations:
   • – Regarding the unilateral amendment by the authorities of the statutes of the Union of Independent Traders of the Cahabón Municipal Market and the Trade Union of Workers of the National Institute of Forensic Sciences, the Committee yet again requests the Government to take the necessary measures to ensure that the statutes of the two trade unions mentioned above include the reference to their affiliation with (the new or original) UNSITRAGUA, to consult them in order to determine which of the two federations is the one with which they wish to be affiliated, and to keep it informed in this respect.
   • – Regarding the alleged instances of discrimination in hiring, and while expressing its deep concern at the seriousness of the allegations concerning issues that affect people’s private lives, the Committee expresses its fear that the use of polygraph tests during hiring interviews may lead to anti-union discriminations, and therefore once again requests the Government to indicate the conclusions reached and actions taken by the authorities as a result of the reports of the use of polygraphs for anti-union purposes.

The Committee’s recommendation

1. 455. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • While it regrets the lack of information from the Government on the issues pending, the Committee yet again reiterates its previous recommendations:
     • – Regarding the unilateral amendment by the authorities of the statutes of the Union of Independent Traders of the Cahabón Municipal Market and the Trade Union of Workers of the National Institute of Forensic Sciences, the Committee yet again requests the Government to take the necessary measures to ensure that the statutes of the two trade unions include the reference to their affiliation with (the new or original) UNSITRAGUA, to consult them in order to determine which of the two federations is the one with which they wish to be affiliated, and to keep it informed in this respect.
     • – Regarding the alleged instances of discrimination in hiring, and while expressing its deep concern at the seriousness of the allegations concerning issues that affect people’s private lives, the Committee expresses its fear that the use of polygraph tests during hiring interviews may lead to anti-union discriminations, and therefore once again requests the Government to indicate the conclusions reached and actions taken by the authorities as a result of the reports of the use of polygraphs for anti-union purposes.