Interim Report - Report No 373, October 2014

Case No 3035 (Guatemala) - Complaint date: 14-MAY-13 - Closed

Allegations: The complainant organization alleges the refusal by the authorities of the Ministry of Labour and Social Welfare to register a trade union of firefighting personnel, dismissals, transfers and pressure on members to leave the trade union

1. 369. The complaint is contained in a communication dated 14 May 2013, presented by the Trade Union of Workers of Guatemala (UNSITRAGUA).
2. 370. At its June 2014 meeting [see 372nd Report, para. 6], since there has been no reply from the Government, despite the time that has elapsed since the presentation of the complaint, the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session, it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. In a document handed to the ILO mission headed by the Director of the International Labour Standards Department, which visited the country from 8 to 11 September 2014, the Government indicates that it is analysing the information submitted by various public institutions and is awaiting information to be provided by the Public Prosecution Service. To date, the Government has not sent any substantial information.
3. 371. 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 complainant’s allegations

1. 372. In its communication of 14 May 2014, the complainant organization reports that the Ministry of Labour and Social Welfare refused to register the Union of Workers of the Voluntary Fire Brigade of Guatemala (SGTBCVBG) and that the establishment of that organization triggered a series of dismissals and anti-union acts. In this regard, the complainant indicates that: (i) on 5 September 2012, the statutes and the founding charter of the SGTBCVBG were submitted and duly notified to the General Directorate for Labour and to the General Inspectorate of Labour and Social Welfare; (ii) that same day, the trade union immunity of the founders of the organization came into force, as notified on 6 September 2012; (iii) on 17 September 2012, the authorities of the Voluntary Fire Brigade of Guatemala (CVBG) dismissed six founders and members of the SGTBCVBG, three of whom were members of the interim executive committee (Ms Lesbia Corina Queme Roma, secretary for women; Mr Adolfo Martín Enríque Suchite, secretary for records and agreements, and Mr Jonathan Raúl Girón Kunse, secretary for labour and disputes) and three of whom were founding members (Mr Luis Alberto Pérez Soberanis, Mr Raúl Heriberto Gonzalez Archila and Mr Marlon Gabriel López Chupina); (iv) as a result of a complaint submitted by Mr Marlon Gabriel López Chupina before the Ministry of Labour and Social Welfare, the Office of the Labour Ombudsman and the Office of the Human Rights Prosecutor, the following day the CVGB set aside the dismissal of the aforementioned worker, bringing the number of dismissed SGTBCVBG officials and members down to five; (v) those dismissals, supposedly due to “restructuring”, violated the Act on the Voluntary Fire Brigade and the Act on Civil Service, also neglecting the proceedings before the Ministry of Labour and Social Welfare, and the required authorization from the competent judge; (vi) as a result of the complaint submitted before the Ministry of Labour and Social Welfare in relation to the dismissals, on 28 September 2012, the labour inspectorate declared the dismissals illegal, on the grounds that they violated trade union immunity; (vii) during the visit of the inspectorate, the authorities of the CVBG falsely claimed that they had not been aware of the process to establish a union on the day of the dismissals; (viii) four of the five persons dismissed had to file a complaint before the Public Prosecution Service in order to recover their personal belongings, which had remained inside the CVBG building; (ix) however, the computer and the digital camera containing the information on the process to establish the trade union disappeared; (x) three other founding members (Mr René Galicia, interim secretary general; Mr Felix Montenegro, founder, and Mr Fernando Esquivel, interim organization secretary) were suddenly and illegally transferred to another workplace; (xi) on 19 September 2012, the First Commander in Chief, Mr César González, called together the 12 founding members of the trade union to pressure them into giving up the process to establish the SGTBCVBG and a lawyer on the employer’s side fraudulently presented the withdrawals of 11 members to the Ministry of Labour and Social Welfare; (xii) these acts were denounced before the Ministry of Labour and Social Welfare on 16 October 2012, but the complaint was not processed; (xiii) in the following days, Ms Teresa Rivas, who was not one of the founding members but joined the union shortly afterwards and publicly supported it, was threatened by a group of five armed people; (xiv) most of the fire brigades in the capital and in the departments received visits from confederates of the Commander González to dissuade the personnel from becoming members of the union; (xv) on 21 March 2013, the department for the protection of workers of the Ministry of Labour and Social Welfare transferred the file of the SGTBCVBG to the General Directorate for Labour and recommended “the legal registration and approval of the trade union on the grounds that it fulfils all the legal requirements”; (xvi) however, in a ruling of 2 May 2013, the General Directorate for Labour dismissed the application for registration of the SGTBCVBG, against which the SGTBCVBG lodged an appeal for annulment; and (xvii) the founders of the trade union submitted a complaint against the Director-General of Labour for breach of confidentiality in handling the case, the contents of which had been shared with the management of the CVBG from the start.

B. The Committee’s conclusions

1. 373. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it was requested to do so through an urgent appeal at its June 2014 meeting. The Committee requests the Government to be more cooperative in the future.
2. 374. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 375. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
4. 376. The Committee observes that this complaint refers to the alleged refusal by the authorities of the Ministry of Labour and Social Welfare to register a union of firefighting personnel and, as a result of the creation of that trade union, dismissals and transfers, and pressure on members to leave the trade union.
5. 377. Regarding the refusal by the authorities of the Ministry of Labour and Social Welfare to register the SGTBCVBG, the Committee observes that the complainant organization alleges that the SGTBCVBG presented its request for registration in September 2012, in compliance with the legal requirements; that in May 2013, despite the favourable opinion of the department for the protection of workers of the Ministry of Labour and Social Welfare, a ruling of the General Directorate for Labour rejected the application for registration, against which the candidate union lodged an immediate appeal for annulment. In this regard, the Committee firstly recalls that it has pointed out on a number of occasions that the functions exercised by firefighters do not justify their exclusion from the right to organize. They should therefore enjoy the right to organize [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 231]. In addition, the Committee recalls that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately [see Digest, op. cit., para. 295]. The Committee therefore urges the Government to examine without delay the appeal for annulment lodged by the candidate union and to ensure that its decision fully complies with the aforementioned principles. The Committee requests the Government to keep it informed without delay in this regard.
6. 378. As regards the allegations of interference by the employer (the CVBG) in the establishment of the SGTBCVBG, through pressure on members to leave the trade union, the Committee observes that the complainant in particular denounces the direct pressure exerted on 19 September 2012 by the First Commander in Chief of the CVBG to obtain the withdrawal of 12 founding union members which, on that same day, led to the presentation by the employer’s lawyer of the alleged withdrawal of 11 of these 12 persons to the Ministry of Labour and Social Welfare. The Committee also takes note of the allegations by the complainant that the corresponding complaint by the candidate trade union had not been received by the Ministry of Labour and Social Welfare.
7. 379. Recalling that acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize [see Digest, op. cit., para. 786], and that the freedom to join a trade union is incompatible with any kind of pressure to make workers give up their union membership, the Committee urges the Government to conduct immediately an inquiry into the alleged pressure on SGTBCVBG members to resign their membership and, where appropriate, that the outcome of the inquiry be taken into account in the decision by the labour authorities regarding the registration of that organization. The Committee requests the Government to keep it informed without delay in this regard.
8. 380. As regards the allegations of the dismissal of five founding members of the SGTBCVBG and the transfer of three other founding members, the Committee recalls that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 835]. The Committee therefore urges the Government to initiate immediately an inquiry into the aforementioned dismissals and transfers and, if they are found to be of an anti-union nature, to proceed without delay to the reinstatement of the corresponding workers in their positions. The Committee requests the Government to keep it informed without delay in this regard.

The Committee’s recommendations

1. 381. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets to note that, despite several requests and an urgent appeal, the Government has failed to provide any information on the allegations and requests it to be more cooperative in the future.
   • (b) The Committee urges the Government to examine without delay the appeal for annulment lodged by the candidate trade union with regard to the refusal of its registration and to ensure that its decision fully complies with the principles of freedom of association with regard to the establishment and registration of trade unions mentioned in the conclusions. The Committee requests the Government to keep it informed without delay in this regard.
   • (c) The Committee urges the Government to conduct immediately an inquiry into the alleged pressure on SGTBCVGB members to resign their membership and, where appropriate, that the outcome of the inquiry be taken into account in the decision by the labour authorities regarding the registration of that organization. The Committee requests the Government to keep it informed without delay in this regard.
   • (d) The Committee urges the Government to institute immediately an inquiry into the dismissals and transfers of founding union members and, if they are found to be of an anti-union nature, to proceed without delay to the reinstatement of the corresponding workers in their positions. The Committee requests the Government to keep it informed without delay in this regard.