Interim Report - Report No 371, March 2014

Case No 2203 (Guatemala) - Complaint date: 31-MAY-02 - Closed

Allegations: Assaults and acts of intimidation against trade union members in a number of enterprises and public institutions; destruction of the headquarters of the trade union operating at the General Property Registry; raiding, ransacking and burning of documents at the headquarters of the union operating at Acrylic Industries of Central America SA (ACRILASA) and anti-union dismissals and the employers’ refusal to comply with judicial orders to reinstate trade union members

1. 523. The Committee has examined the substance of this case on seven occasions [see 330th, 336th, 342nd, 348th, 351st, 359th and 364th Reports], the last of which was at its June 2012 meeting, when it submitted an interim report to the Governing Body [see 364th Report, paras 502– 518, approved by the Governing Body at its 315th Session].
2. 524. The Government sent its observations in communications dated 23 and 30 July, and 12 August 2013.
3. 525. 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. 526. At its June 2012 meeting, the Committee made the following interim recommendations regarding the allegations presented by the complainant organizations [see 364th Report, para. 518]:
   • (a) While noting the efforts recently made by the Government to submit information in relation to its previous requests, the Committee deeply regrets that the Government’s reply remains incomplete despite the fact that the allegations refer to events which took place several years ago and include acts of violence against trade unionists, acts of discrimination and anti-union interference, and firmly urges the Government to provide information on the pending issues in the very near future.
   • (b) With regard to the significant obstacles and delays to the collective bargaining process between the Supreme Electoral Tribunal and UNSITRAGUA, as well as the obstacles to the exercise of the right to strike by the trade union, the Committee requests the Government to keep it informed of the outcome of the compulsory arbitration and to send it information concerning the allegation of delays to the right to strike contained in UNSITRAGUA’s latest communication, in particular with regard to the alleged refusal by the Supreme Electoral Tribunal to uphold the workers’ right to strike during the whole of the electoral period.
   • (c) With regard to the allegations relating to the Municipality of El Tumbador concerning the reinstatement proceedings ordered by the judicial authority and the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios, the Committee deplores this excessive delay and firmly expects that proceedings to reinstate the dismissed workers will be completed in the very near future. The Committee requests the Government to keep it informed of the future ruling on this matter.
   • (d) Noting that the Government has not provided any information concerning wages owed to the union leader Mr Gramajo, the Committee urges the Government once again to take steps to ensure that all outstanding wages are paid without delay and to keep it informed in this regard.
   • (e) With regard to the alleged unilateral imposition by the Supreme Electoral Tribunal of an organization manual (dealing with matters related to employees’ duties, posts and salary levels), the Committee requests the complainant organizations to indicate whether all the issues regarding the organization manual have been resolved.
   • (f) As to the remaining allegations, in the absence of the Government’s observations, the Committee reiterates its previous recommendations which are reproduced below and urges the Government to send the information and take the actions requested:
     • – with regard to the allegations concerning assaults, death threats and acts of intimidation against trade unionists, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent full observations, and strongly requests the Government to refer these cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard. The Committee again invites the Government to enter into contact with UNSITRAGUA with a view to providing a detailed reply regarding the case relating to the alleged raid in 2002 involving the burning of documents at the headquarters of the trade union at the ACRILASA company; and
     • – with regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the labour inspectorate, the Committee once again requests the Government to take the necessary measures without delay to sanction the entity responsible, to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.

B. The Government’s reply

1. 527. In a communication dated 23 July 2013, the Government provides information sent by the judiciary concerning the allegations of delays in collective bargaining between the Supreme Electoral Tribunal and the Trade Union of Workers of Guatemala (UNSITRAGUA), and of obstacles to the exercise of the right to strike by the workers of the aforementioned tribunal. In this regard, the Government indicates that, as a result of the request submitted by the Trade Union of Workers of the Supreme Electoral Tribunal on 20 April 2009, the Fifth Court of Labour and Social Welfare declared the strike legal on 9 February 2011, but that on 23 February 2011 the Labour and Social Welfare Appeals Court overturned the ruling and ordered the dispute to be submitted to compulsory arbitration. The Government also reports that, under a ruling of the First Chamber of Labour and Social Welfare of 12 April 2013, which was implemented by the Fourth Court of Labour and Social Welfare, the collective agreement on conditions of work of the Supreme Electoral Tribunal entered into force on 8 May 2013.
2. 528. In a communication dated 30 July 2013, the Government provides information regarding the allegations of anti-union dismissals in the municipality of El Tumbador, indicating in particular that on 14 December 2012 the courts ruled in favour of the union official, Mr Castillo Barrios. The Government also provides information on several rulings concerning the dismissal of other union officials in the municipality of El Tumbador, whose names do not appear in the allegations submitted by the complainant organization. In both the abovementioned communication and in another communication of 12 August 2013, the Government again sends information regarding aspects of the complaint already covered by the Committee in its previous reports (allegations regarding the company Chevron-Texaco and the situation of the union official, Mr Gustavo Santiesteban, who is a worker at the General Property Registry).

C. The Committee’s conclusions

1. 529. The Committee observes that, while the Government did send certain observations, its reply remains incomplete, despite the fact that the pending allegations refer to events which took place several years ago and include serious acts of violence against union members, and acts of anti-union discrimination and interference. The Committee urges the Government to provide information on all the pending issues in the very near future.
2. 530. With regard to the allegations concerning assaults, death threats and acts of intimidation against union members, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent observations since the last examination of the case. The Committee observes that since that examination, a complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), was submitted by several Workers’ delegates to the 101st Session (2012) of the International Labour Conference under article 26 of the ILO Constitution. The Committee notes that at its March and October 2013 meetings, the Governing Body of the ILO decided, in view of the signing on 26 March 2013 of a Memorandum of Understanding between the Government of Guatemala and the Chairperson of the Workers’ group of the ILO Governing Body, to defer its decision on the appointment of a Commission of Inquiry to its March 2014 session.
3. 531. The Committee observes that in the abovementioned Memorandum of Understanding the Government of Guatemala undertakes, among other things, to: institute independent and expeditious judicial inquiries as soon as possible to determine responsibilities and punish those who planned and carried out the murders of trade union members; and guarantee the security of workers through effective measures to protect trade union members and officials from violence and threats so that they can pursue their union activities. The Committee firmly expects that the commitments undertaken by the Government in the Memorandum of Understanding signed in March 2013 will be translated into actions and tangible results with respect to the allegations of violence and threats contained in this case, and urges the Government to refer these allegations as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard.
4. 532. In addition, the Committee again invites the Government to enter into contact with UNSITRAGUA with a view to providing a detailed reply regarding the case relating to the alleged raid in 2002 involving the burning of documents at the headquarters of the trade union operating at the enterprise ACRILASA.
5. 533. With regard to the obstacles and significant delays to the collective bargaining process between the Supreme Electoral Tribunal and UNSITRAGUA, as well as the obstacles to the union’s exercise of the right to strike, the Committee takes note of the information provided by the Government, according to which, on 23 February 2011 the Labour and Social Welfare Appeals Court overturned the ruling declaring the strike legal and ordered the dispute to be submitted to compulsory arbitration; and, under a ruling of 12 April 2013, the collective agreement on conditions of work of the Supreme Electoral Tribunal entered into force on 8 May 2013. While the Committee welcomes the entry into force of the collective agreement, it observes with regret that, according to the information provided by the judiciary, this only came about 12 years after the beginning of the aforementioned collective dispute. The Committee also notes with regret that, according to the same sources, the Court of First Instance took 22 months to rule on the legality of the strike.
6. 534. The Committee recalls that, while it considers that officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 578], the prohibition or restriction of the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., para. 596]. The Committee therefore urges the Government to take all the necessary measures to significantly expedite the judicial procedures to determine the lawfulness of strikes and, in general, to settle collective disputes involving public officials exercising authority in the name of the State.
7. 535. As regards the allegations in relation to the municipality of El Tumbador concerning the reinstatement proceedings for dismissed workers ordered by the judicial authority and the dismissal of several union officials, the Committee notes that the Government reports that under a decision of 14 December 2012, the courts ruled in favour of the union official, Mr Castillo Barrios. The Committee notes with regret, however, that the Government has not provided information in relation to the dismissal of Mr César Augusto León Reyes, Mr José Marcos Cabrera, Mr Víctor Hugo López Martínez, Mr Cornelio Cipriano Salic Orozco and Mr Romeo Rafael Bartolón Martínez. The Committee deplores these excessive delays and firmly expects that proceedings to reinstate the dismissed workers will be completed in the very near future. The Committee requests the Government to keep it informed of future rulings on this matter and to provide evidence of the reinstatement of the aforementioned workers, or, if reinstatement is not possible due to the time elapsed, the payment of adequate compensation which would constitute a sufficiently dissuasive sanction.
8. 536. As regards the remaining allegations, in the absence of observations from the Government, the Committee yet again reiterates its previous recommendations, which are set out in the first part of this report, and urges the Government to send the information and take the actions requested without delay.

The Committee’s recommendations

1. 537. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee again regrets that the Government’s reply remains incomplete, despite the fact that the pending allegations refer to events which took place several years ago and include serious acts of violence against union members, and acts of anti-union discrimination and interference. The Committee urges the Government to provide information on all the pending issues in the very near future.
   • (b) With regard to the allegations concerning assaults, death threats and acts of intimidation against union members, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent observations since the Committee’s last examination of the case. The Committee firmly expects that the commitments undertaken by the Government in the Memorandum of Understanding signed in March 2013 will be translated into actions and tangible results with respect to the allegations of violence and threats contained in this case, and urges the Government to refer these allegations as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard.
   • (c) The Committee again invites the Government to enter into contact with UNSITRAGUA with a view to providing a detailed reply regarding the case relating to the alleged raid in 2002 involving the burning of documents at the headquarters of the trade union operating at the enterprise ACRILASA.
   • (d) With regard to the obstacles and significant delays to the collective bargaining process between the Supreme Electoral Tribunal and UNSITRAGUA, as well as the obstacles to the union’s exercise of the right to strike, the Committee urges the Government to take all the necessary measures to significantly expedite the judicial procedures to determine the lawfulness of strikes and, in general, to settle collective disputes involving public officials exercising authority in the name of the State.
   • (e) As regards the allegations in relation to the municipality of El Tumbador concerning the reinstatement proceedings for dismissed workers ordered by the judicial authority and the dismissal of several union officials, the Committee notes with regret that the Government has not provided information in relation to the dismissal of Mr César Augusto León Reyes, Mr José Marcos Cabrera, Mr Víctor Hugo López Martínez, Mr Cornelio Cipriano Salic Orozco and Mr Romeo Rafael Bartolón Martínez. The Committee deplores these excessive delays and firmly expects that proceedings to reinstate the dismissed workers will be completed in the very near future. The Committee requests the Government to keep it informed of future rulings on this matter and to provide evidence of the reinstatement of the aforementioned workers, or, if reinstatement is not possible due to the time elapsed, the payment of adequate compensation which would constitute a sufficiently dissuasive sanction.
   • (f) As regards the remaining allegations, in the absence of observations from the Government, the Committee yet again reiterates its previous recommendations, which are reproduced below, and urges the Government to send the information and take the actions requested without delay:
     • – noting that the Government has not provided any information concerning wages owed to the union leader Mr Gramajo, the Committee urges the Government once again to take steps to ensure that all outstanding wages are paid without delay and to keep it informed in this regard; and
     • – with regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the labour inspectorate, the Committee once again requests the Government to take the necessary measures without delay to sanction the entity responsible, to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.