Report in which the committee requests to be kept informed of development - Report No 378, June 2016

Case No 2673 (Guatemala) - Complaint date: 28-OCT-08 - Closed

Allegations: Transfer of trade union leaders without their consent in violation of the collective agreement in force

1. 326. The Committee examined this case at its March 2010 meeting and presented an interim report to the Governing Body [see 356th Report, paras 779–793, approved by the Governing Body at its 307th Session (March 2010)].
2. 327. The Government replied to the requests for information in communications dated 24 May 2010 and 24 September 2015.
3. 328. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 329. At its March 2010 meeting, the Committee made the following interim recommendations relating to the allegations made by the complainant organization [see 356th Report, para. 793]:
   • (a) With regard to the allegations concerning the transfer on 18 September and 25 January 2009 of several USIGEMIGRA trade union leaders, taking into account that these transfers were decided without the consent of the trade union leaders concerned, in violation of section 9 of the collective agreement in force, the Committee requests the Government to take the necessary steps to cancel these transfers.
   • (b) Taking into account the problems existing on the country’s border and the particular characteristics of work in customs, which may require transfer measures in certain cases, the Committee invites the complainant organization and the Directorate General for Migration, in the context of the conciliation and mediation proposed by the Ministry of Labour and the Human Rights Prosecutor, to endeavour to find a negotiated solution to the dispute, including the issue of the composition of the joint board when decisions affecting the trade union are taken. The Committee requests the Government to keep it informed in this regard and to provide the final outcome of the amparo appeals pending and reminds the Government that it may avail itself of technical assistance from the Office in respect of these allegations.
   • (c) With regard to the allegations concerning the intimidation of Lucrecia Cuellar Castillo, a member of the union’s advisory board who was forced to leave the union and her position as trade union leader, the Committee requests the Government to carry out an investigation into this matter and to keep it informed of the outcome thereof.

B. The Government’s reply

1. 330. In its communication of 24 May 2010, the Government affirms that the decisions to transfer trade union leaders who are the subject of the present complaint were taken, in accordance with the terms of the three collective agreements in force at the Directorate-General for Migration, by the joint body (joint board or round table) responsible for decisions on staff movements within the institution and that the transfers were therefore legal. The Government also refers to the existence of inter-union disputes within the Directorate-General for Migration.
2. 331. In its communication of 24 September 2015, the Government states that: (i) the transfers of Rubén Darío Balcarcel López, Mayra Leticia Vásquez Rodríguez, Moisés Flores Morán, Mario Rolando Oxom Rey, Jorge Raymundo Orozco Miranda, Humberto Fidel Joachin López, César Augusto López González, Miguel Roberto López Pedroza, Lucrecia Rufina Cuellar Castillo, Marco Vinicio Hernández González, Víctor Hugo Mérida Gómez and Ada Elizabeth Samaoya Pérez, all members of USIGEMIGRA, were rendered inoperative since the aforementioned workers subsequently joined the other two unions at the Directorate-General for Migration (the Union of Migration Workers (STM) and the Union of Workers of the Directorate-General for Migration at the Ministry of the Interior (SITRAMMIG), a union affiliated to the STM), both represented in the joint body responsible for staff movements within the directorate; (ii) there are no amparo appeals pending in relation to those transfers; (iii) under section 51 of the Labour Code, which provides that the collective agreement must be negotiated with the union that has the greatest number of workers directly affected by the negotiations, the current collective agreement in force at the institution was signed by the STM and SITRAMMIG; (iv) the 16th Labour and Social Welfare Court found on 17 February 2011 that the economic and social collective dispute supported by USIGEMIGRA had been deprived of substance through the entry into force of the collective labour agreement signed by the STM and SITRAMMIG; and (v) with regard to the alleged acts of intimidation against Ms Lucrecia Cuellar, the Public Prosecutor’s Office stated that no complaints relating to that person had been registered.

C. The Committee’s conclusions

1. 332. With regard to the transfers of the USIGEMIGRA trade union leaders, the Committee notes the Government’s statement that the transfers of 12 workers who were members of the complainant organization were rendered inoperative since the workers concerned joined the other two unions at the Directorate-General for Migration and that there are no amparo appeals pending in relation to those transfers. The Committee notes that nine of the 12 workers referred to by the Government (Humberto Fidel Joachin López, Jorge Raymundo Orozco Miranda, César Augusto López González, Miguel Roberto López Pedroza, Lucrecia Rufina Cuellar Castillo, Moisés Flores Morán, Mayra Leticia Vásquez Rodríguez, Rubén Darío Balcarcel López and Mario Rolando Oxom Rey) form part of the list of the 12 USIGEMIGRA leaders whose transfers are the subject of the present complaint. However, the Committee observes that the Government has not sent any information with regard to the transfers of the union leaders Víctor Manuel Valladares, Carlos Adán García Caniz and Mary Gregoria Gutiérrez García. Recalling that in its previous examination of the case it asked the Government to take the necessary steps to cancel the transfers objected to by the complainant organization, the Committee requests the Government to send information as soon as possible on the employment situation of these three individuals.
2. 333. Moreover, the Committee notes the Government’s indication that the transfers of 12 workers who were members of USIGEMIGRA were rendered inoperative since the workers concerned joined the other two unions at the Directorate-General for Migration, namely the STM and SITRAMMIG, both organizations being represented in the joint body responsible for decisions on staff movements within the institution. Recalling that no person should be prejudiced in his or her employment by reason of membership of a trade union, even if that trade union is not recognized by the employer as representing the majority of workers concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 776], the Committee expects that the Government will ensure that all workers at the Directorate-General for Migration are able to exercise freely their right to freedom of association, regardless of the trade union organization to which they belong.
3. 334. With regard to the alleged acts of intimidation against Ms Lucrecia Cuellar, while noting that the Public Prosecutor’s Office stated that no complaints relating to that person had been registered, the Committee regrets that the Government has not conducted an investigation into this allegation. Recalling 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 trusts that the Government will give full effect to this principle in the future.

The Committee’s recommendation

1. 335. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
2. Recalling that in its previous examination of the case it had asked the Government to take the necessary steps to cancel the transfers objected to by the complainant organization, the Committee requests the Government to send information as soon as possible on the employment situation of union leaders Víctor Manuel Valladares, Carlos Adán García Caniz and Mary Gregoria Gutiérrez García.