Informe provisional - Informe núm. 299, Junio 1995

Caso núm. 1786 (Guatemala) - Fecha de presentación de la queja:: 18-JUN-94 - Cerrado

398. In its 295th Report (November 1994, approved by the Governing Body at its 261st Session), the Committee asked the Government to accept a direct contacts mission concerning Cases Nos. 1512, 1539, 1595, 1778 and 1786 to enable it to obtain the necessary information and be able to examine the allegations in full knowledge of all the facts (see 295th Report, paragraph 12). In the same way, the Committee addressed an urgent appeal to the Government for it to transmit its observations on Case No. 1740 as a matter of urgency (see 295th Report, paragraph 13); the gathering of information on this case would logically also be one of the objectives of the above-mentioned direct contacts mission.

1. 398. In its 295th Report (November 1994, approved by the Governing Body at its 261st Session), the Committee asked the Government to accept a direct contacts mission concerning Cases Nos. 1512, 1539, 1595, 1778 and 1786 to enable it to obtain the necessary information and be able to examine the allegations in full knowledge of all the facts (see 295th Report, paragraph 12). In the same way, the Committee addressed an urgent appeal to the Government for it to transmit its observations on Case No. 1740 as a matter of urgency (see 295th Report, paragraph 13); the gathering of information on this case would logically also be one of the objectives of the above-mentioned direct contacts mission.
2. 399. The Government of Guatemala accepted the direct contacts mission in a communication dated 9 December 1994. The mission took place between 13 and 17 February 1995 and was headed by Mr. Enrique Marin Quijada, a professor of labour law at the Central University of Venezuela (see the mission report in Annex II).
3. 400. Guatemala has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 401. Since the report of the direct contacts mission contains a summary of the
   • allegations made in the six cases, the replies by the Government to some of
   • these and the conclusions of the Committee in its previous examinations of
   • Cases Nos. 1512, 1539 and 1595, the Committee will proceed directly to the
   • formulation of its conclusions, although it will not be able to take into
   • account in its examination of the cases the recent extensive communication of
   • the Government dated 16 May 1995 containing information on the alleged acts of
   • violence against unionists (whether or not there were denunciations, cases in
   • which further information was requested, cases for which investigations had
   • been set up, etc.).

B. B. The Committee's conclusions

• The Committee's conclusions
  402. 402 The Committee takes note of the report of Professor Enrique Marin on the direct contacts mission which he carried out in Guatemala between 13 and 17 February 1995 and would like to thank him for his report. The Committee observes with interest that "the mission was able to carry out a wide exchange of ideas with high Government and non-governmental authorities, employers' representatives and important workers' organizations, and obtain valuable information". In this context, the Committee notes that the mission met with high-level representatives of the Government and the social partners. In particular, the mission was received by His Excellency Mr. Ramon de Leon Carpio, President of the Republic, Mr. Aciscio Valladares, Public Prosecutor of the Nation, Mr. Jorge Mario Garcia Laguardia, Human Rights Commissioner, Mrs. Gladys Annabella Morfin, Minister of Labour and Social Insurance, Mr. Vicente Arranz Sanz, Chairman of the Presidential Commission on Human Rights, Mr. Oscar Barrios Castillo, Chief Justice of the Supreme Court, Mr. Ramses Cuestas Gomez, Attorney General of the Republic, as well as by various authorities and ministerial officials. It also met with the Coordinating Committee of Agriculture, Commercial, Industrial and Financial Associations (CAFIC), and with representatives of the following trade union organizations: the General Confederation of Workers of Guatemala (CGTG), Central Organization of Rural Workers (CTC), Confederation of Trade Union Unity of Guatemala (CUSG), Trade Union of Workers of Guatemala (UNSITRAGUA), and the Federation of Banking and Insurance Employees (FESEBS). Finally, the mission met with the head of the United Nations Mission for the Verification of Human Rights in Guatemala (MINUGUA) and with officials of this mission.
  403. 403 The Committee observes that the complaints refer mainly to: (1) the assassination, disappearance, abduction, assault, arrest of or death threats against a very large number of trade union officials and trade unionists; (2) obstacles to the establishment of trade union organizations; (3) numerous acts of anti-union discrimination; and (4) the violations of the right to collective bargaining.
• Violent deaths, disappearance, abduction, assault, arrest of and death threats against trade unionists
  404. 404 The Committee notes that the mission report emphasizes "the very complex situation in Guatemala concerning the war and the efforts being made to achieve peace. There have been important achievements in the search for a more complete state organization, in the context of a transition regime and a climate of poverty; and although there is a continued policy to promote human rights, this has not prevented many serious violations, many of which remain unpunished". Another part of the mission report points out that "The high state authorities responsible for the vigilance of human rights are extremely concerned about the frequency and seriousness of the violations, which occur despite their efforts to prevent them and believe that the situation as compared with ten years ago is favourable, although progress now has become slow and difficult (...), the number of denunciations made to the (Human Rights) Commissioner rose considerably in 1994, which indicates a greater awareness of this means of redress and perhaps greater confidence by the population, although some of these denunciations (1,806 out of a total of 13,431) were not within the competence of the Commission. Furthermore, there has been a marked increase in the number of bodies which receive denunciations of violations of human rights". In this general context in which the exercise of trade union rights must be set, the Committee observes that, according to the information contained in the report of the direct contacts mission, the situation of human rights in the trade union world would not appear to have worsened in recent years as regards violent deaths and disappearances, although this is not true as concerns death threats.
  405. 405 The Committee also takes note of the "large majority of crimes which have gone unpunished" and of the "lack of capacity by the State to investigate punishable acts". The Committee observes in this connection that the Government has provided only very little conclusive information on the allegations of assassination and other acts of violence against trade unionists and that the authorities interviewed pointed out that: (1) the majority of these acts occurred long before the present period of government (while they did acknowledge that violations of human rights and trade union rights have also occurred during the current Government); (2) some allegations do not contain the necessary details to enable a reply to be given; (3) that for the moment no positive results have been achieved from the complainant trade union organizations which had been requested to provide additional information (names, dates, places, etc); (4) a climate of fear exists in the country which is detrimental to the giving of evidence; and (5) there were deficiencies in the judicial organization up to July 1994, since information on trials was not centralized (it could be obtained only from each court or tribunal). The Committee notes with interest that the Attorney General of the Republic has undertaken to open inquiries on all the denunciations pending before the Committee, if such inquiries have not already been initiated, and that "as a result of the direct contacts mission and on the express wish of the President of the Republic, a liaison committee had been set up by the Presidential Commission on Human Rights (COPREDEH) on labour matters in the sphere of human rights, which logically included trade union matters. The purpose of the committee was to monitor all the cases submitted to the Committee on Freedom of Association, and coordinate action by the Ministry of Labour, the Office of the Attorney General and the national police. In this way, the Minister of Labour would be able to pass on automatically to the liaison committee the complaints received".
  406. 406 The Committee deeply deplores the many violent deaths of trade union officials and trade unionists, as well as the disappearances, abductions, arbitrary arrests, acts of aggression and death threats which have occurred since the presentation of the complaints (1990), and expresses its deep concern at the situation of impunity (only in one of the assassinations to which the Government refers does it appear that the authors have been identified) and insists on the absolute need to open judicial inquiries on all the cases before the Committee with a view to ascertaining the facts and punishing the guilty parties. In this connection, the Committee recalls the commitment made by the Attorney General of the Republic to open inquiries on all the cases placed before the Committee and asks the Government to keep it informed in this respect.
  407. 407 Although it is aware of the difficult situation affecting Guatemala and of the Government's policy for the promotion of human rights, the Committee recalls that "the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against these organizations' leaders and members and that it is for governments to ensure that this principle is respected" (see 291st Report, Case No. 1700 (Nicaragua), para. 310, and 294th Report, Case No. 1761 (Colombia), para. 726). Furthermore, in the event of assaults on the physical or moral integrity (death threats) of individuals, the Committee believes that steps should be taken immediately to "institute an independent judicial inquiry with a view to clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts" (see 268th Report, Case No. 1341 (Paraguay), para. 378(e)). When judicial investigations into the murder and disappearance of trade unionists have not been successful the Committee considers it indispensable that measures be taken to identify, bring to trial and convict the guilty parties and points out that such a situation means that serious violations of trade union rights may occur in conditions of impunity for the guilty parties, which reinforces the climate of violence and insecurity and thus has an extremely damaging effect on the exercise of trade union rights (see 283rd Report, Cases Nos. 1434 and 1477 (Colombia), para. 246(a); 283rd Report, Cases Nos. 1478 and 1484 (Peru), para. 72; 284th Report, Case No. 1538 (Honduras), para. 743; 284th Report, Case No. 1572 (Philippines), para. 832, and 284th Report, Case No. 1598 (Peru), para. 968). The Committee also believes that "justice delayed is justice denied" (see 265th Report, Cases Nos. 988 and 1003 (Sri Lanka), para. 14 and 284th Report, Case No. 1508 (Sudan), para. 427).
  408. 408 More specifically, and without taking account of the recently received government communication of 16 May 1995, the Committee observes that for now the Government has only provided information on some allegations and has stated that:
       • - a judicial inquiry or an inquiry by the Public Ministry has been opened into the assassination of the trade unionists Carlos Enrique Cardenas Segastume, Dinora Gossep Perez Valdez, Oscar Oswaldo Luna Aceituno, Federico Tay Osorio, Federico Tay Vicente, German Alfred de Leon Parajon, Manuel de Jesus Alonso, Rene Cabrera Estrada (only in this last mentioned case has it been possible to identify the author of the crime, which - according to the Government and the ICFTU - was the result of personal problems);
       • - the trade unionist Mauricio Raxcaco Enriquez was beaten and threatened; he fled the country in 1991;
       • - the trade unionists Amilcar Mendez and Jose Gil were threatened with death and COPREDEH was informed of their case;
       • - the trade unionist Armando Sanchez did not appear to make a denunciation despite the request to do so by the Office of the Attorney General;
       • - Debora Guzman was arrested, assaulted and threatened on 6 October 1994; COPREDEH received the denunciation and proceeded to coordinate inquiries with the Office of the Attorney General of the Republic and the Directorate General of the National Police.
  409. Furthermore, the Government had informed the Committee (see 284th Report, para. 720) on the judicial inquiries into the murders of Jose Orlando Pantaleon, Jose Leon Segura de la Cruz and Carlos Humberto Rivera, stating that the courts had ordered a temporary stay of proceedings because they did not find sufficient evidence to bring to trial the persons accused of the murders. In the same way, the Committee notes that according to the mission report, MINUGUA and COPREDEH have set up a unit for the protection of persons who have been threatened, and which has already carried out some important work.
  409. 409 In these circumstances, the Committee regrets that it has not received all the information requested from the Government concerning the deaths and the other alleged acts of violence and urges it to reply as a matter of urgency to the list of allegations contained in Annex I and to take the necessary measures to guarantee the safety of trade unionists who have been threatened with death and to determine the whereabouts of those who have disappeared.
• Obstacles to the establishment of trade union organizations
  410. 410 The Committee notes with interest that, according to the mission report "the allegations concerning obstacles to the establishment and functioning of trade unions were fully answered and, in most cases, the replies were positive. Furthermore, the mission learned that significant efforts had been made in the Ministry of Labour to speed up the process for granting legal personality to trade unions and their registration in the respective register - although opinions differ concerning the results obtained - on the basis of new regulations, the provisions of which should be analysed". The Committee notes that since 1993 the procedure for the recognition of the legal personality, approval of statutes and registration of trade union organizations has been simplified, that the average length of the process has been reduced from 400 to 55 days and that the number of organizations registered in 1993-94 totalled 116. The Committee also notes that "the mission had reason to believe that in fact the Ministry of Labour had indeed endeavoured to reduce the number of stages and time of the procedure for the establishment of trade unions". However, the Committee shares the view expressed by the mission that "the reduction in the number of stages in the procedure for the establishment of trade unions was a positive development but that further steps should be taken in this direction, with account being taken of the provisions of the Freedom of Association and Protection of the Right to Organize Convention, No. 87". The Committee asks the Government to take measures to this end within the framework of its current policy for the promotion of trade union organizations with a view to ensuring workers the right to organize freely.
  411. 411 In particular, the Committee notes with interest that legal personality has been granted to the following trade union organizations, the establishment of which, according to the allegations, had encountered obstacles: the Street Vendors' National Front Trade Union; the Trade Union of Customs Workers; the Trade Union of Workers of the State Enterprise of Puerto Quetzal; the Trade Union of Workers of the Forestry Commission; and the Trade Union of Workers of the La Mariposa SA bottling enterprise. Furthermore, the Committee notes in connection with the allegation concerning the establishment of the Trade Union of Workers of the Guatemalan Red Cross that this matter calls for no further consideration since the Guatemalan Red Cross has ceased to exist due to financial reasons. The Committee also notes that, according to the Government, no request for the registration of trade unions has been made in the enterprises Manufacturera Integridad SA, Koram SA, Bocco & Cia. Ltd., Disenos Panamericanos SA, Confecciones Isobal SA, Transporte Urbano Union, Bolivar, EGA, La Fe and La Morena.
  412. 412 Furthermore, the Committee notes that, according to information given to the mission by the authorities, the application for legal personality made by the Trade Union of Workers of the Ministry of Government is now at the final stage and that the Ministry of Government believed "that the establishment of this trade union was a positive development if its activities remained within the scope of the law and its statutes".
  413. 413 Finally, at its meeting in November 1992 (see 294th Report, Case No. 1595, para. 585(f)), the Committee noted that the Government had stated that the members of the Executive Committee of the Workers' Union of Hotel Ritz Continental had in 1990 presented an official document dissolving the union after 22 workers had left the union and it requested the complainant organizations to provide details of the reasons why, and the circumstances in which, the resignation of the workers took place and to provide a copy of the document of dissolution of the trade union. In this connection, the Committee notes that according to information from the Government the dissolution did not materialize because the representatives of the trade union had not presented themselves to the administrative authorities.
• Acts of anti-union discrimination
  414. 414 Before examining the allegations, the Committee would like to refer to the provisions of the Labour Code as regards anti-union discrimination, which are reproduced below:
• Section 209. Workers may not be dismissed for participating in the establishment of a trade union and shall enjoy the right of non-removability from the time that notice is given to the General Labour Inspectorate that they are establishing a trade union and they shall enjoy such protection up to 60 days after the publication of the trade union's statutes in the Official Gazette.
• In the event of failure to comply with the provisions of this section, the worker(s) concerned shall be reinstated within 24 hours and the official responsible shall be sanctioned with a fine of 1,000 quetzales (5.63 quetzales = US$1); furthermore, payment shall be made of the wages not received by the workers concerned. (...)
• Section 379. From the time when the statement of demands is handed to the competent judge, the dispute shall be deemed to have begun, so that neither of the parties may take reprisals against the other party or obstruct the other party in the exercise of his rights. If any person is guilty of a contravention of this provision, he shall be liable to a fine of between 1,000 and 5,000 quetzales and to detention of between 15 and 30 days, according to the extent of the reprisals taken and the number of persons affected thereby. In addition, he shall be bound to pay compensation forthwith for any loss caused provided that this shall not exempt him from any penal liabilities incurred. (...)
• Section 380. If work contracts are terminated without completion of the procedures established in this section, the judge shall apply the sanctions to which reference is made in the previous section and shall order the immediate reinstatement of the worker(s) dismissed and in the event of non-compliance with the order shall double the sanction. In the event that such non-compliance continues, he shall order the arrest of the person responsible to comply with the detention to which reference is made in the previous section, without this exonerating that person from the obligation of reinstating the worker(s) concerned. (...)
  415. 415 The Committee believes that the legal system for protection against anti-union discrimination is in conformity with the provisions of Convention No. 98 and observes that in 1994 the Committee of Experts considered this legislation as a case of progress. However, according to the mission report, in practice acts of anti-union discrimination frequently occur and in many cases legislation is not respected. As regards the reasons for this situation, the conclusions of the mission report indicate the following:
• The allegations concerning acts of anti-union discrimination have helped highlight the existence of complex problems concerning the illegal dismissals and refusals to reinstate dismissed workers. Such events which concern labour matters often give rise to problems concerning trade unions and matters of public order and of a civilian and criminal kind which are of national concern. The use made of illegal and often collective dismissals may give rise to strong and wasteful legal proceedings or the occupation of enterprises, with or without the intervention of the police, or other situations. The measures suggested to overcome this situation are of a legislative and administrative kind. From the legislative point of view, the mission was told that there was a need to give powers of sanction to the Labour Inspectorate, without waiting for the intervention of a judge; and that at all events there was a need to reform and speed up the judicial procedure in the event of dismissals, to ensure the immediate reinstatement of a worker or the application of sanctions, as provided for in section 380 of the Labour Code; or in the event of a summons being served on an employer. Some persons consulted believed, however, that the legislation was clear, but that it had been distorted by judicial interpretations. (...) From an administrative point of view, all the sectors agreed on the need to increase the number of labour and social insurance courts and that they should incorporate courts of conciliation and arbitration on a permanent basis, in accordance with the provisions of section 294 of the Labour Code. Furthermore, representatives of the workers' organizations and officials of the Human Rights Commission said that more effective action could be carried out by the Labour Inspectorate, even within the current legal framework.
  416. 416 In these circumstances, and in the light of the many allegations of mass dismissals for trade union activities, the Committee concludes that with a view to guaranteeing existing legal protection against acts of anti-union discrimination, the judicial procedure should be amended to speed it up and make it more effective and the number of labour and social welfare courts and conciliation and arbitration courts should be increased. The Committee requests the Government to take steps to amend legislation and practice in this respect.
  417. 417 As regards the specific allegations of anti-union discrimination, the Committee notes the information provided by the Government to the mission and in particular that: the workers dismissed in the La Torre farm were reinstated in their workplaces and paid their outstanding wages; workers in the La Abundancia farm reached an extra judicial arrangement with the enterprise; the intervention of the Labour Inspectorate resulted in the settlement of the disputes in the Municipality of Santa Cruz Verapaz; the transfer of the Este Oeste SA enterprise was permitted by legislation and that workers were paid their wages and benefits as prescribed by the wage agreement in force; the mass dismissals in the Ministry of Urban and Rural Development were due to the abolition of this Ministry for budgetary reasons and that workers had been paid their legal benefits; the dismissals in the Municipality of Palin were authorized by the courts; the ESDEE enterprise closed down its operations in 1994 and the legal benefits were paid to its workers.
  418. 418 Furthermore, the Committee observes that concerning a large number of allegations of anti-union dismissals, the Government merely states that no denunciations have been made. In this respect, the Committee notes that the non-presentation of denunciations does not necessarily mean that acts of anti-union discrimination have not occurred, especially bearing in mind that the judicial system functions very slowly and has shown itself incapable of providing the necessary protection. However, since it is aware that in practice the possibilities for the reinstatement of unlawfully dismissed trade unionists are almost non-existent in the case of dismissals which occurred a number of years ago, the Committee will limit its examination to allegations concerning events which took place from 1 January 1993.
  419. 419 The Committee notes that from this date a number of cases of alleged discrimination have been placed before the courts (sometimes on the initiative of the Labour Inspectorate requesting the imposition of penal sanctions) or in which the administrative conciliation process had been exhausted, leaving the way open to judicial proceedings. The cases concerned are the following: dismissals in the International Textile Corporation SA, dismissals and other acts of anti-union discrimination in the M.J. SA, and L&L SA, Unicasa SA, Welly SA enterprises, the Nueva California farm, the El Salto farm, the Bolivia farm, the Medellin farm, the Municipality of El Estor and the La Mariposa bottling enterprise. The Committee also observes that the Government has requested details from the complainants concerning the dismissals in Disenos y Maquilas SA, and reports that no denunciations have been made concerning the dismissal of trade unionists in the Municipality of Coban and in the La Argentina farm. Furthermore, the Government confirms that the COCAPSA enterprise did not comply with the court order for the reinstatement of the workers dismissed and does not refer to the reinstatement of the workers of Agropecuaria Los Angeles SA, which had been ordered by the judicial authority. The Committee also notes that the Government has not sent its observations on the recommendations made in Case No. 1595 (see 294th Report, para. 585) which remain pending and are reproduced below:
• Noting with interest the Government's statement that the Union of Peasant Workers of the La Patria farm and the enterprise have reached an agreement on the reinstatement of the dismissed workers in their jobs, the Committee requests the Government to transmit a copy of that agreement and to indicate whether these workers were indeed reinstated in their jobs. (...)
• The Committee requests the Government to conduct an investigation into the alleged anti-union dismissals at the El Trapichito and El Naranjo farms and, should these dismissals be related to legitimate trade union activities, to ensure that the workers concerned are reinstated in their posts. It requests the Government to keep it informed in this respect.
• The Committee once again requests the Government to keep it informed of the decisions handed down in the legal proceedings concerning the dismissal of several trade union leaders of the Workers' Union of the San Juan de Dios Hospital and in the administrative procedures concerning the dismissal of the Secretary-General of the Trade Union of Bakers of Chiquimula, the dismissal of 20 members of the Trade Union of Shipping Workers of Santo Tomas de Castilla. (...)
  420. 420 As regards the allegations mentioned in the previous paragraphs, the Committee notes that most of these cases concern mass dismissals on trade union grounds such as the establishment of trade unions, trade union membership or the carrying out of trade union activities. The Committee notes that in some cases it was the Labour Inspectorate itself which initiated punitive proceedings against the enterprises, and that some of the alleged events occurred in 1993 and 1994, thus corroborating in many cases the lack of diligence and efficiency in the protection of trade unions against acts of discrimination due to trade union membership or activities. The Committee therefore requests the Government to report on the above-mentioned dismissals and on the steps being taken by the national authorities, and in all the cases in which there have been anti-union dismissals, irrespective of whether or not judicial action has been taken, to adopt as rapidly as possible the necessary measures to enable trade union officials and members who have been dismissed for their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the said enterprises of the corresponding legal sanctions. The Committee draws the Government's attention to the principle that no one should be dismissed for trade union membership or activities and to the importance of redressing all acts of anti-union discrimination.
  421. 421 In the same way, the Committee requests the complainants to provide the details requested by the Government concerning the dismissals in Disenos y Maquilas SA.
  422. 422 Finally, the Committee observes that the Government states, as regards the alleged surveillance of the IUF premises by persons unknown on 23 August 1993, that a request has been made for an inquiry by the Office of the Attorney General. The Committee requests the Government to keep it informed in this respect.
• Collective bargaining
  423. 423 As regards the allegation of non-compliance with provisions of collective agreements, the Committee notes that according to the Government, the Hotel El Dorado enterprise has discontinued the change made to work schedule shifts which was contrary to the collective agreement and which had been criticized by the complainants, and that the employer in the Agroport enterprise has fled the country, making it impossible to take action to ensure the application of the respective collective agreement. Furthermore, the Committee notes that according to the Government, the employer and workers in the Imperial Food Products SA enterprise told the Labour Inspectorate that the collective agreement had not given rise to any violations and that their problems had been resolved by the direct method.
  424. 424 The Committee also notes that as regards the La Mariposa bottling enterprise, the Government states that the collective agreement with the ad hoc committee was concluded before the trade union obtained its legal personality and that it was agreed to negotiate an agreement with this trade union - set up in September 1993 - as from September 1994; as regards the alleged favouritism shown to members of the ad hoc committee (which according to the complainants resulted in wage increases only for its members), the Government states that this agreement did not infringe workers' rights. Given the contradiction between the allegations and the Government's reply, the Committee recalls that "the Collective Agreements Recommendation, 1951 (No. 91), stresses the role of workers' organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only when no such organization exists. In these circumstances, direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, might be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted" (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 985, para. 608).
  425. 425 The Committee also notes that the allegations concerning the management of the National Committee for the Blind and Deaf Mutes of Guatemala and the Autonomous Sports Confederation of Guatemala are now before the judicial authority; the Committee therefore requests the Government to keep it informed of the outcome of these judicial proceedings.
  426. 426 Finally, the Committee proposes that the Government and the social partners set up a national tripartite committee, the usefulness of which is accepted by all parties although details still have to be worked out on the methods of its operation. The Committee also encourages the initiative taken during the mission to resolve the problems of communication between the national authorities, providing a more satisfactory reply to allegations concerning matters of freedom of association. The Committee recalls that ILO technical assistance is available to the Government with respect to all these matters.

The Committee's recommendations

1. 427. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee takes note of the report of Professor Enrique Marin on the direct contacts mission which he carried out in Guatemala between 13 and 17 February 1995 and thanks him for his report, and expresses its gratitude to the authorities and the social partners for their full cooperation.
   • (b) The Committee deeply regrets the many violent deaths of trade union officials and trade unionists, as well as the disappearances, abductions, arbitrary arrests, assaults and death threats which have occurred since the presentation of the complaints (1990), expresses its deep concern at the situation of impunity (only in one of the assassinations to which the Government refers do the authors seem to have been identified) and insists on the absolute need for judicial inquiries to be opened on all cases pending before the Committee with a view to clarifying the facts and punishing the guilty parties. In this respect, the Committee recalls the commitment made by the Attorney General of the Republic to open investigations on all the cases presented to the Committee and requests the Government to keep it informed in this respect.
   • (c) Regretting that it has not received all the information requested from the Government concerning the violent deaths and other alleged acts of violence, the Committee urges it to reply as a matter of urgency to the list of allegations contained in Annex I and to take the necessary measures to guarantee the safety of trade unionists under threat of death and to determine the whereabouts of those who have disappeared. The Committee proposes to examine the Government's communication of 16 May 1995, which contains additional information on the alleged acts of violence, at its next meeting.
   • (d) Although it takes note that "the mission had reason to believe that in fact the Ministry of Labour had indeed endeavoured to reduce the number of stages and time of the procedure for the establishments of trade unions", the Committee believes that it would be appropriate to go further in this direction and requests the Government to take measures to this end within its current policy for the promotion of trade union organization.
   • (e) Believing that the judicial procedure should be amended to speed it up and make it more effective and that the number of labour and social welfare courts and conciliation and arbitration courts should be increased, the Committee requests the Government to take measures to amend the legislation in this respect.
   • (f) The Committee asks the Government to provide information on the dismissals and other acts of anti-union discrimination (indicating the steps taken by the national authorities) in the following enterprises or institutions: International Textile Corporation SA, M.K. SA, L&L SA, Unicasa SA, Welly SA, Nueva California farm, El Salto farm, Bolivia farm, Medellin farm, Municipality of El Estor, La Mariposa bottling enterprise, Municipality of Coban, La Argentina farm, COCAPSA and Agropecuaria Los Angeles SA.
   • (g) The Committee repeats its previous recommendations on some of the dismissals:
     • noting with interest the Government's statement that the Union of Peasant Workers of the La Patria farm and the enterprise have reached an agreement on the reinstatement of the dismissed workers in their jobs, the Committee requests the Government to transmit a copy of that agreement and to indicate whether these workers were indeed reinstated in their jobs (...). The Committee requests the Government to conduct an investigation into the alleged anti-union dismissals at the El Trapichito and El Naranjo farms and, should these dismissals be related to legitimate trade union activities, to ensure that the workers concerned are reinstated in their posts. It requests the Government to keep it informed in this respect. The Committee once again requests the Government to keep it informed of the decisions handed down in the legal proceedings concerning the dismissal of several trade union leaders of the Workers' Union of the San Juan de Dios Hospital and in the administrative procedures concerning the dismissal of the Secretary-General of the Trade Union of Bakers of Chiquimula, the dismissal of 20 members of the Trade Union of Shipping Workers of Santo Tomas de Castilla.
   • (h) The Committee asks the Government in all the cases in which there have been anti-trade union dismissals, and irrespective of whether judicial proceedings have or have not been taken, to take as rapidly as possible the necessary measures to enable the trade union officials and members who have been dismissed because of their legitimate trade union activities to be reinstated in their workplaces and to apply the corresponding legal sanctions against the enterprises.
   • (i) The Committee requests the complainants to provide the details requested by the Government concerning the dismissals in Disenos y Maquilas SA.
   • (j) Noting that the Government states, as regards the alleged surveillance of the UITA premises by persons unknown on 23 August 1993, that it has requested an inquiry be carried out by the Office of the Attorney General, the Committee requests the Government to keep it informed in this respect.
   • (k) Noting that the allegations concerning collective bargaining by the management of the National Committee for the Blind and Deaf Mutes of Guatemala and the Autonomous Sports Confederation of Guatemala are now before the judicial authorities, the Committee requests the Government to inform it of the outcome of these judicial proceedings.
   • (l) The Committee suggests that the Government and the social partners set up a national tripartite committee. The Committee also encourages the initiatives taken in particular to provide a more satisfactory reply to the allegations concerning freedom of association.
   • (m) The Committee urges the Government to ensure the fulfilment of all the commitments which the authorities made to the mission.
   • (n) The Committee recalls that ILO technical assistance is available to the Government with respect to all these matters.

Annex I

1. Allegations pending with respect to acts of violence against trade unionists
2. Assassinations of trade unionists
3. - Tyron Francisco Segastume, Trade Union of Workers of the Coca-Cola bottling
4. enterprise, (STETCSA), in February 1990;
5. - Nestor Rene Osorio Sandoval, Trade Union of Electricity Workers (STINDE), in
6. March 1990;
7. - Juan Tarax, trade union activist in the Sugar Enterprise of El Pilar
8. (Retalhuen), in April 1990;
9. - Jose Maria Ixcuyat, peasant activist, in May 1990;
10. - Petronila Hernandez Vasilio, secretary responsible for organization of the
11. Trade Union of Independent Agricultural Workers of La Reformita (Moyuta,
12. Jutiapa), in July 1990;
13. - Lilian Elizabeth Juarez Escobar, member of the special strike committee of
14. the Trade Union of Workers of the Social Security Institute (STIGGS), in April
15. 1991;
16. - Camila Ajqui Gimon, member of the Council of Ethnic Communities;
17. - Rujunel Junam (CERJ), on 14 April 1991;
18. - Julio Cesar Perez (rural worker), on 13 July 1991;
19. - Pedro Genoveno Escobar (rural worker), on 20 July 1991;
20. - Edwin Giovanni Hidalgo Jerez (member of STINDE), in August 1991;
21. - Adrian Miranda Lopez, member of the Trade Union of the San Gregorio farm,
22. murdered on 6 May 1993;
23. - Velizario Lopez Rojas, Trade Union of Workers of the San Gregorio farm, on
24. 30 October 1993;
25. - at its meeting in November 1992, referring to the murder of a worker on 5
26. August 1989 during a labour dispute at the La Patria farm, the Committee
27. requested as a matter of urgency the opening of a judicial inquiry to clarify
28. the facts and punish the guilty parties and for it to be kept informed of
29. developments in this respect.
30. Disappearances, abductions, assaults and arrest of trade unionists
31. - grenade attack on the home of Edgar Sanchez Velasquez (rural worker), and
32. his subsequent arrest on 21 April 1990;
33. - attempted abduction of Filiberto Ramirez (member of the Trade Union of
34. Workers of the TIPIC SA enterprise), on 28 May 1990;
35. - police repression of strikers at the Social Security Institute, STIGGS, on
36. 11 February 1991;
37. - the physical assault of and death threats against Ramon Jacome Pinto
38. (General Secretary of the STIGGS), on 6 February 1991;
39. - the abduction and physical assault of Aura Violeta Flores Acevedo, member of
40. the Trade Union of Workers of the Ministry of Culture and Sports (SITRACUDE),
41. on 21 March 1991;
42. - the armed attack against Fernando Lucero and Luis Ramirez (SITRACUDE
43. activists), on 20 March 1991;
44. - arrest of 50 leaders of the STIGGS strike in April 1991;
45. - the arrest, physical assault of and criminal trials against Otto Ivan
46. Rodriguez Vanegas (former General Secretary of STINDE), on 5 April 1991;
47. - the armed attack which seriously wounded Victor Alfred Chacoj (member of the
48. Road Transport Trade Union), in April 1991;
49. - the abduction and subsequent arrest of Jose Vidal Pamal Tuchan (General
50. Secretary of the Trade Union of Workers of the Psychiatric Hospital), on 30
51. May 1991;
52. - the attempted abduction and death threats which forced Dora Arriaza, leader
53. of the Trade Union Federation of Public Employees (FENASTEG), into exile, on
54. 14 May 1991;
55. - the attempted abduction of Yolanda Figueroa (official of the Trade Union of
56. Customs Officers), and her two daughters, on 21 June 1991;
57. - the abduction, death threats and physical assault of Wosveli Castro, General
58. Secretary of the Federation of Trade Unions in the Metal Trades (FETRAMEGUA),
59. on 16 May 1991;
60. - death threats and physical assault of Rosendo de Leon Dubon, official of the
61. National Press Trade Union (STN);
62. - the arrests of Silvio Pastor, Pablo Itzel Hernandez, Teodoro Pastor Itzep,
63. Rolando Pastor Hernandez and Francisco Pastor Hernandez (members of CERJ), on
64. 24 and 26 May 1991;
65. - the abduction and subsequent disappearance of Felipe Lopez Mendoza (member
66. of CERJ), in June 1991;
67. - the physical attack against a member of FESINTROP, on 14 February 1991;
68. - the abduction of Mr. Edi Antonio Conde Lu, General Secretary of the Trade
69. Union of Electricity and Energy Workers and secretary responsible for
70. organization of the Confederation of Trade Union Unity of Guatemala (CUSG) on
71. 8 September 1994; subsequently he was brutally beaten, threatened with death
72. and had to flee the country;
73. - the disappearance of the trade unionist Gustavo Rosalio Vasquez Lopez, in
74. February 1992;
75. - the detention of members of the trade union at the Mahler y Sucesoras
76. enterprise for more than six hours, inside the plant, where they were
77. subjected to pressure and intimidation to make them sign documents and
78. harassment (intimidation continued outside the enterprise);
79. - the abduction of Mr. Ernesto Bol, secretary responsible for records of the
80. Trade Union of the Municipality of Coban (district of Alta Verapaz), on 15
81. July 1993. He was subsequently released, threatened and intimidated;
82. - Mr. Werner Coc Ramirez, a leader of the Bakers' Trade Union, who was
83. savagely beaten in Ciudad Peronia (district of Villa Nueva) by persons who set
84. upon him and criticized him for his trade union activities (15 July 1993);
85. - Mr. Walter Manuel Najera Molina, member of the Trade Union of Workers of the
86. Central Bottling (Coca-Cola) enterprise who was abducted, tortured,
87. interrogated and subsequently released (11 July 1993);
88. - in the ESDEE Guatemala maquila enterprise, members of the trade union
89. received death threats and were abducted, with the participation of mobile
90. units of the military police;
91. - the attempted abduction of Mr. Pablo Mazariegos (SITRAEMSA trade unionist),
92. on 3 December 1993;
93. - Mr. Eligio Quej Moran, member of the ad hoc committee of workers of the
94. national police was abducted on 31 May 1994, and tortured. On 25 March 1993
95. the National Federation of Public Servants (FENASEP) began the process of
96. organizing workers in the national police; the members of the ad hoc committee
97. which was set up have since that time been harassed and received death threats
98. from the "Jaguar of Justice" death squadron;
99. - imprisonment of Mr. Ruben Terry Amezquita, General Secretary of the Trade
100. Union of Workers of the state enterprise of Puerto de Quetzal.
101. Annex II
102. Report of the direct contacts mission carried out in Guatemala from 13 to 17
103. February 1994 by Mr. Enrique Marín Quijada, Professor of Labour Law, Central
104. University of Venezuela
105. Introduction
106. I. The complainants' allegations, replies received from the
107. Government and conclusions of the Committee on Freedom of
108. Association
109. Cases Nos. 1512 and 1539
110. Case No. 1595
111. Case No. 1740
112. Case No. 1778
113. Case No. 1786
114. II. Agenda of activities carried out
115. III. Information on the allegations obtained during the mission
116. IV. Conclusions and personal reflections
117. List of persons interviewed
118. Report of the direct contacts mission carried out in Guatemala from 13 to 17
119. February 1994 by Mr. Enrique Marín Quijada, Professor of Labour Law, Central
120. University of Venezuela
121. Introduction
122. In its 295th Report (November 1994, approved by the Governing Body at its
123. 261st Session), the Committee on Freedom of Association adopted the following
124. decisions concerning the cases pending against the Government of Guatemala,
125. presented by national and international organizations of workers:
126. As regards Cases Nos. 1512, 1539, 1595, 1778 and 1786 (Guatemala), concerning
127. a great number of allegations which relate to murders, physical attacks, death
128. threats and arrests of trade unionists, the Committee expresses its concern
129. over the seriousness of the issues raised and considers that a direct contacts
130. mission would be very useful in order to obtain the necessary information and
131. to examine the allegations in full knowledge of all the facts. The Committee
132. requests the Government to accept such a mission and proposes to examine these
133. cases on the basis of the mission report.
134. Urgent appeal
135. As regards Case No. 1740 (Guatemala), the Committee observes that, despite the
136. time which has elapsed since the presentation of these complaints, it has not
137. received the Government's observations. The Committee draws the attention of
138. the Government to the fact that, in accordance with the procedural rules set
139. out in paragraph 17 of its 127th Report, approved by the Governing Body, it
140. may present a report on the substance of this case, even if the observations
141. or information requested have not been received in due time. The Committee
142. accordingly requests the Government to transmit its observations or
143. information as a matter of urgency. (See 295th Report, paras. 12 and 13.)
144. The Government of Guatemala accepted the direct contacts mission in a
145. communication dated 9 December 1994.
146. The Director-General of the ILO appointed me as his representative to carry
147. out this direct contacts mission, which took place in Guatemala from 13 to 17
148. February 1995. I was accompanied by Mr. Alberto Odero, an official of the
149. Freedom of Association Branch, and Mr. Germán López Morales, Standards
150. Specialist, Multidisciplinary Team of San José. From 23 to 25 January 1995,
151. Mr. López Morales carried out a preparatory mission aimed at organizing the
152. mission's programme and handing over to the authorities a document on the
153. replies made so far by the Government with regard to the outstanding
154. allegations before the Committee, so that the Government knew exactly what
155. remaining information the direct contacts mission wished to obtain. Mr. Ian
156. Chambers, Director of the ILO Office for Central America and Panama,
157. accompanied the mission when it met with the President of the Republic.
158. The mission's mandate was to request information concerning a considerable
159. number of allegations relating to various and complex events which occurred
160. between 1990 and 1994. These allegations relate to violations of fundamental
161. human rights as well as to more specific violations of freedom of association
162. of which trade union leaders and activists were allegedly victims.
163. The mission was cordially received by government representatives, senior
164. authorities from non-governmental organizations and representatives of
165. occupational organizations. Everyone collaborated so that the work could be
166. carried out properly, within the administration's limitations as will be
167. described in the following pages. I would like to express my profound
168. gratitude to all.
169. More specifically, the mission met with His Excellency Mr. Ramiro de León
170. Carpio, President of the Republic, His Excellency Mr. Acisclo Valladares,
171. State Attorney General, His Excellency Mr. Jorge Mario Garciá Laguardia,
172. Attorney for Human Rights, Her Excellency Mrs. Gladys Annabella Morfín,
173. Minister for Labour and Social Welfare, His Excellency Mr. Vincente Arranz
174. Sanz, Chairman of the Presidential Commission for Human Rights, His Excellency
175. Mr. Oscar Barios Castillo, President of the Supreme Court of Justice, His
176. Excellency Mr. Ramsés Cuestas Gómez, Public Prosecutor of the Nation, as well
177. as with several officials and ministerial figures. The mission also met with
178. the Coordinating Committee of Agricultural, Commercial, Industrial and
179. Financial Associations (CACIF) as well as with the representatives of the
180. following trade union organizations: the General Confederation of Workers of
181. Guatemala (CGTG), the Federation of Rural Workers (CTC), the Confederation of
182. Trade Union Unity of Guatemala (CUSG), the Union of Workers of Guatemala
183. (UNSITRAGUA) and the Federation of Employees of Banks and Insurance Companies
184. (FESEBS). Lastly, the mission met with the head of the United Nations mission
185. in Guatemala (MINUGUA) and its officials. (A complete list of persons,
186. institutions and organizations that the mission met with is annexed hereto.)
187. In order to clearly show the information obtained by the mission and to
188. evaluate it in the light of the situation that is currently prevailing in
189. Guatemala, this information will be divided into three parts: the first part
190. will contain the complainants' allegations and the Government's observations
191. and, where possible, the Committee's conclusions and recommendations in these
192. cases; the second part will reflect the activities accomplished; the third
193. part will analyse the different issues raised by these complaints.
194. I. The complainants' allegations, replies received from the Government and
195. conclusions of the Committee on Freedom of Association
196. Cases Nos. 1512 and 1539
197. These cases were presented by the International Confederation of Free Trade
198. Unions (ICFTU), the World Confederation of Organizations of the Teaching
199. Profession (WCOTP) and the Latin American Central of Workers (CLAT).
200. The Committee has examined these cases on a number of occasions, the last
201. being at its November 1992 meeting, when it submitted an interim report to the
202. Governing Body (see 284th Report of the Committee, paras. 706-720, approved by
203. the Governing Body at its 254th Session (November 1992)). In communications
204. dated 26 April 1993, 16 January and 27 March 1995, the Latin American Central
205. of Workers (CLAT) made new allegations. In communications dated 23 September
206. and 20 December 1993 and 9 June, 7 and 28 September, 31 October and 29
207. November 1994, as well as 13 March 1995, the International Confederation of
208. Free Trade Unions (ICFTU) made new allegations and presented additional
209. information. The Government sent some observations in its communications dated
210. 5 November 1993 and 14 July, 7 September and 6 October 1994.
211. A. Previous examination of the cases
212. As regards the complainants' allegations that remained pending, the Committee
213. requested information on inquiries into murders, physical attacks, abductions,
214. arrests, death threats and on anti-union discrimination practices.
215. At its November 1992 Session, the Governing Body approved the following
216. recommendations of the Committee (see 284th Report of the Committee, para.
217. 720):
218. - "the Committee requests the Government to keep it informed on the outcome of
219. the judicial inquiries into the murders of José Orlando Pantaleón, José León
220. Segura de la Cruz and Carlos Humberto Rivera" (the Government had stated that
221. the courts had ordered a temporary stay of proceedings because they had not
222. found sufficient evidence to bring certain persons to trial);
223. - "the Committee requests the Government once again to inform it whether the
224. dismissed teachers were in fact reinstated in their jobs" (these were teachers
225. who had been dismissed by the previous government and who had participated in
226. a strike from May to August 1989);
227. - "the Committee requests the Government to inform it whether workers in the
228. teaching sector have the right to conclude collective agreements";
229. - "the Committee expresses its concern at the seriousness of the new
230. allegations submitted by the ICFTU and the CLAT and requests the Government to
231. reply to these as soon as possible, indicating whether judicial inquiries have
232. been carried out with a view to shedding light on the murders, abductions,
233. arrests and physical attacks against trade union officials and activists, and
234. to determining responsibility and punishing the guilty parties".
235. The latter allegations of the ICFTU and the CLAT were appended to the previous
236. examination of Cases Nos. 1512 and 1539 by the Committee and are reproduced
237. below.
238. Trade union officials and activists murdered
239. 1. Carlos Enrique Segastume; and
240. 2. Tyron Francisco Segastume (Workers' Union of the Central Coca Cola Bottling
241. Enterprise - STECSA) in February 1990;
242. 3. Néstor René Osorio Sandoval (Workers' Union of the National Electricity
243. Institute - STINDE) in March 1990;
244. 4. Juan Tarax (trade union activist in the El Pilar Retalhuen sugar
245. enterprise) in April 1990;
246. 5. Petronilo Hernández Vasilio (Organizing Secretary of the Independent
247. Agricultural Workers' Trade Union of La Reformita, Moyuta, Jutiapa) in July
248. 1990;
249. 6. Lilian Elizabeth Juarez Escobar (member of the special strike committee of
250. the Workers' Trade Union of the Social Security Institute - STIGSS) in April
251. 1991;
252. 7. Dinora José Peréz Valdez (bank trade union activist) in April 1991;
253. 8. Oscar Oswaldo Luna Aceituno (member of the Workers' Trade Union of the
254. University of San Carlos) in June 1991;
255. 9. Edwin Giovanni Hidalgo Jerez (member of STINDE) in August 1991;
256. 10. José María Ixcuyat (peasant activist) in May 1990;
257. 11. Camilo Ajqui Gimon (member of the Council of Ethnic Communities, Rujunel
258. Junam - CERJ) on 14 April 1991;
259. 12. Federico Tay Osorio; and
260. 13. Diego Tay Vicente (rural workers) on 6 July 1991;
261. 14. Julio César Pérez (rural worker) on 13 July 1991;
262. 15. Pedro Genevevo Escobar (rural worker) on 20 July 1991.
263. Assaults, abductions and arrests of trade unionists
264. 1. The grenade attack on the home of Edgar Sánchez Velásquez (rural worker)
265. and his subsequent arrest on 21 April 1990;
266. 2. the attempt to abduct Filiberto Ramírez (member of the Workers' Trade Union
267. of the TIPIC SA enterprise) on 28 May 1990;
268. 3. the police repression of strikers of the Social Security Institute (STIGSS)
269. on 11 February 1991;
270. 4. the physical assault on and death threats against Ramón Jacome Pinto
271. (Secretary-General of STIGSS) on 6 February 1991;
272. 5. the arrest of 50 strike leaders from STIGSS in April 1991;
273. 6. the abduction of and physical attack against Aura Violeta Flores Acevedo
274. (member of the Workers' Trade Union of the Ministry of Culture and Sport -
275. SITRACUDE) on 21 March 1991;
276. 7. the attack with firearms against Fernando Lucero and Luis Ramírez
277. (SITRACUDE activists) on 20 March 1991;
278. 8. the arrest, physical attack against and criminal trial against Otto Iván
279. Rodríguez Vanegas (former Secretary-General of the STINDE) on 5 April 1991;
280. 9. the armed attack against Victor Alfredo Chacoj (member of the Road
281. Transport Union), resulting in his being seriously injured, in April 1991;
282. 10. the abduction and subsequent arrest of José Vidal Pamal Tuchan
283. (Secretary-General of the Psychiatric Hospital Workers' Union) on 30 May 1991;
284. 11. the attempt to abduct and death threats against Dora Arriaza (leader of
285. the Trade Union Federation of State Employees - FENASTEG) on 14 May 1991,
286. which forced her into exile;
287. 12. the attempt to abduct Yolanda Figueroa (official of the Customs Officials'
288. Trade Union) and her two daughters on 21 June 1991;
289. 13. the abduction, death threats against and physical attack on Wosveli Castro
290. (Secretary-General of the Federation of Trade Unions in the Metal Trades -
291. FETRAMEGUA) on 16 May 1991;
292. 14. death threats against and physical attack on Rosendo de León Dubón and the
293. attempt to abduct Mauricio Raxcacó Henríquez (officials of the National Press
294. Trade Union - STN);
295. 15. the arrests of Silvio Pastor, Pablo Itzel Hernández, Teodoro Pastór Itzep,
296. Rolando Pastor Hernández and Francisco Pastor Hernández (members of CERJ) on
297. 24 and 26 May 1991;
298. 16. the abduction and subsequent disappearance of Felipe López Mendoza (member
299. of CERJ) in June 1991;
300. 17. the physical attack against a member of the FESINTROP on 14 February 1991.
301. Death threats against trade unionists
302. 1. Luis Fernando Juárez Girón, Francisco Alberto Ortíz and Juan José Ortíz
303. Aguirre (Secretary-General, Secretary of inter-union relations and Treasurer
304. of FESINTROP) in February and March 1991;
305. 2. all of the Executive of FENASTEG on 6 May 1991;
306. 3. Byron Morales and Sergio Guzmán (leaders of the Union of Workers of
307. Guatemala - UNISTRAGUA) on 17 May 1991;
308. 4. Juan Francisco Alfaro Mijangos (Secretary-General of the Confederation of
309. Trade Union Unity of Guatemala);
310. 5. Clemente Morales Chavez and David Noé Morales de la Cruz (Secretary-General
311. and Registrar of the Union of Workers of Public Works in Encuintla) in May
312. 1991;
313. 6. Sonia Argueta Sis (Street Vendors' Trade Union) in May 1991;
314. 7. Carlos Molina Ochaeta (Civil Aviation Workers' Union in Petén) in May 1991;
315. 8. Irene Dieguez and Eva Judith Gálvez (Sales Representatives' Association) in
316. May 1991;
317. 9. Amilcar Méndez Urizar (CERJ official) in August 1991;
318. 10. Crisanto García in August 1991;
319. Acts of anti-union discrimination
320. 1. The dismissal of 29 workers from the La Torre estate, with a view to
321. disbanding its trade union;
322. 2. the dismissal of 60 workers belonging to the trade union of the Banco
323. Metropolitano in February 1991;
324. 3. the violent police repression of workers on strike at the CAVISA glass
325. factory on 3 July 1990;
326. 4. the refusal to recognize the legal personality of the union of workers of
327. the state enterprise in the port of Quetzal, and the imprisonment and
328. subsequent refusal to reinstate the Secretary-General of the trade union,
329. Rubén Terry Amézquita;
330. 5. the setting up of solidarist associations to undermine the workers' trade
331. unions in the enterprises Distribuidora de Sur Occidente and Compañia de
332. Productos Duralita;
333. 6. the refusal to recognize the legal personality of the Workers' Union of the
334. General Directorate of the Forestry Commission and subsequent dismissal of 21
335. workers on 27 July 1990;
336. 7. the campaign of intimidation against workers belonging to the municipal
337. workers' trade union in Cuyotenango, Suchitepéquez;
338. 8. the dismissal of 30 employees of the Municipality of Malactan on 15 January
339. 1991;
340. 9. the dismissal of 30 employees of the Municipality of Esquipulas, who had
341. tried to set up a trade union, on 23 January 1991;
342. 10. dismissals of employees in the Municipalities of San Martín
343. (Guetzaltenango), San Andrés Xecul (Totonicapan), Chiquimulilla (Santa Rosa),
344. Santa Catarina Ixatahuacan (Solala), Rabinal (Baja Verapaz), San Mateo
345. (Quetzaltenango), Coatepeque (Quetzaltenango), San Andrés Villa Seca
346. (Retalhuleu), San Pedro Carcha (Alta Verapaz), Cuyotenango (Suchitepéquez),
347. San José el Idolo (Suchitepéquez), San Antonio (Suchitepéquez) and Salcaja
348. (Quetzaltenango);
349. 11. the persecution of workers belonging to trade union organizations in
350. various estates in the south of the country;
351. 12. the dismissal, on anti-trade union grounds, of 29 workers at the La
352. Abundancia estate, belonging to the Corporación de Inversiones Metropolitanas
353. SA;
354. 13. the dismissal of 65 workers in the Municipality of Palín who are members
355. of the workers' union, despite the fact that a court order had been issued for
356. their reinstatement.
357. B. New allegations and information from the complainants
358. In its communication dated 26 April 1993, the CLAT denounces a number of
359. situations involving the infringement of trade union rights:
360. - Trade Union of Workers in the Ministry of the Interior: the procedure for
361. the granting of legal personality to the trade union and the approval of its
362. constitution was initiated in January 1991. Despite the period of time which
363. has elapsed, the Ministry of Labour has taken no decision since the
364. Provisional Executive Committee of the said trade union did not endorse the
365. contents of the decision dated 26 February 1991, which excludes from the right
366. to trade union membership the 22 secretaries in the same number of
367. departmental offices of the Ministry of the Interior, who were said to be
368. employees in positions of trust with authority to sign on behalf of the
369. Governor;
370. - Street Vendors' National Front Trade Union: the application for legal
371. personality and the approval of its constitution was made in 1988, without any
372. decision having been issued to date;
373. - Trade Union of Customs Workers: the application for registration has been
374. pending since 1988;
375. - Trade Union of Workers of the Guatemalan Red Cross: this union was
376. arbitrarily abolished by the enterprise, following a declaration of bankruptcy
377. without having exhausted all the judicial procedures;
378. - Trade Union of Workers of the Secretariat of Social Welfare: despite the
379. legality of the elections of trade union officials, which were carried out in
380. the presence of labour inspectors, the Ministry of Labour accepted the
381. challenge made by the losing list of candidates, and ordered the holding of
382. another extraordinary general meeting, which it subsequently cancelled;
383. - Trade Union of Bakers: dismissal of the general secretary of the union for
384. the exercise of trade union activities and refusal of the labour authority to
385. notify the enterprise of the trade union immunity (fuero sindical) of the
386. worker concerned;
387. - Trade Union of Shipping Workers: on 19 February 1992 the documentation for
388. the establishment of the trade union was presented to the Ministry of Labour,
389. which resulted in the dismissal of the executive committee and more than 20
390. workers by the shipping companies. When challenged, the employers alleged the
391. prescription of rights, although this was to be ascribed to the slowness with
392. which the Ministry of Labour had acted;
393. - Trade Union of the Autonomous Sports Confederation of Guatemala: refusal of
394. the labour authority to approve a collective agreement, alleging that it had
395. been submitted after the expiry of the time-limit prescribed by the law
396. (within 24 hours of its signature), a circumstance which was beyond the
397. control of the workers, and requesting the parties to conclude a new agreement
398. at a time when their mutual relations are not very harmonious;
399. - Trade Union of Workers of the San Juan de Dios Hospital: several of its
400. members were dismissed, and although the Vice-Minister of Public Health agreed
401. to reinstate them in their workplaces, the Director of the Hospital refused to
402. comply with this decision unless the dismissed workers accept the application
403. of a sanction consisting of 30 days' suspension from work without pay, and
404. their transfer to other care centres in the provinces;
405. - Trade Union of Workers in the Imperial Food Products SA enterprise: failure
406. to implement a collective agreement and dismissal of several workers for
407. participating in the establishment of the trade union.
408. In communications dated 23 September and 20 December 1993, and 9 June and 7
409. September 1994, the International Confederation of Free Trade Unions (ICFTU)
410. states that on 19 August 1993, workers from the "La Mariposa" SA bottling
411. plant presented a copy of the act of constitution of the trade union of the
412. enterprise, SITRAEMSA, in accordance with the provisions of the Labour Code.
413. The same day they presented a legal document requesting respect for workers'
414. dignity, freedom of association and stable labour relations. As a result, the
415. management of the enterprise is carrying out a violent campaign of repression
416. against trade union officers and members. The ICFTU also alleges (a) the
417. murder of Germán Alfredo de León Parajón, a founder member of the Union of
418. Workers of Quetzaltenango (UTQ), (b) numerous death threats (Raúl Rodríguez, a
419. member of the executive committee, in August 1993; Crisanto García, in August
420. 1991; José Antonio Alvarez, in December 1993; Nery Barrios and the other
421. members of the UTQ; Armando Sánchez, an officer of the National Trade Union
422. Federation of State Employees of Guatemala (FENASTEG); Dick Fletcher, Humberto
423. Sánchez and Dante Monerroso, members of the Trade Union and Popular Action
424. Unit (UASP); José Pinzón, Conrado Alberto Solís, Tránsito de Jesús López,
425. Carlos Enrique Solís Ramos and Félix Hernández (the latter a member of the
426. National Federation of Public Servants); all of the members of the executive
427. committee of the Electric and Power Workers' Union); Roberto Rosales and
428. Carlos López, members of this trade union, have also received death threats at
429. their homes); nine general secretaries of the General Confederation of Workers
430. of Guatemala (CGTG), and seven members of the Union of Workers of the Coca
431. Cola bottling plant (in August 1994), and (c) various acts of anti-union
432. discrimination: surveillance of the premises of the UITA by unidentified
433. persons, on 23 August 1993; harassment and persecution of trade union
434. activists; pressure on three members of the executive committee of the
435. SITRAEMSA to force them to resign, on 24 and 31 August and on 9 September
436. 1993; refusal to engage in collective bargaining with the trade union and
437. simulation of the signature of a collective agreement with an "ad hoc"
438. committee set up by the enterprise, the agreement having been registered with
439. the Ministry of Labour on 16 September 1993; the officers of the ad hoc
440. committee are entirely free in the plant to attack the trade union, while the
441. activities of the trade union officers are under strict surveillance; pay
442. increases granted only to the members of the ad hoc committee, and attempts to
443. abduct Pablo Mazariegos on 3 December 1993.
444. In a communication dated 7 September 1994, the ICFTU alleges that on 31 August
445. 1994, following a demonstration organized by the Trade Union and Popular
446. Action Unit (UASP) to protest against the death of three workers during their
447. removal from an estate in the western part of the country, the Treasurer of
448. the Union of Workers in the Guatemala Coca Cola bottling plant, René Estrada,
449. was the victim of an attack by unknown persons carrying knives and firearms.
450. René Estrada, who along with the other members of the union (seven) had
451. already received threats against his life, is in serious condition in
452. hospital.
453. In its communication dated 28 September 1994, the ICFTU reports the abduction
454. of Edi Antonio Conde Lu, General Secretary of the Electric and Power Workers'
455. Union and Organizing Secretary of the Confederation of Trade Union Unity of
456. Guatemala (CUSG) in the night of 8 September 1994. He was released the next
457. day at about 6 a.m.; his abductors were four persons in national police
458. uniform driving a 405 radio patrol car. During the night he was brutally
459. beaten, as a result of which his right shoulder was fractured and he is
460. suffering from cerebral problems caused by the blows he received in the head.
461. He is in a serious condition. His abductors threatened to murder him if he did
462. not leave the country immediately and the threats continued on 10 and 11
463. September, notes being left in his home to the effect that he would be killed
464. if he remained in the country. For the above reasons, Mr. Conde, his wife and
465. two small children had to leave the country with the assistance of
466. international trade union solidarity.
467. In its communication dated 31 October 1994, the ICFTU alleges that since 27
468. May 1994, faced with the imminent closure of the plant, 41 workers belonging
469. to the Union of Workers of the "Lunafil" factory, affiliated to the Union of
470. Workers of Guatemala (UNSITRAGUA), have been demonstrating in front of the
471. enterprise in protest against its illegal closure. Since then workers have
472. been subjected to various forms of intimidation such as provocations, threats
473. and insults from the private security guards of El Ebano, who have even
474. managed to take photographs of each of the trade union officers and members.
475. In addition, in May unidentified armed men threatened trade union member José
476. Gil at his home on several occasions. The ICFTU adds that on 6 October 1994,
477. at 7.30 p.m., in the street in Amatitlán, a group of men with their faces
478. covered and wearing gloves forcibly detained Débora Guzmán, wife of Félix
479. González, Dispute Secretary of the trade union, attacked her and told her in
480. threatening tones that if her husband and another trade union officer, Julio
481. Coj, the Treasurer, did not withdraw from the trade union, she would be
482. murdered, and that she had 48 hours to convince them. Moreover, on 7 October
483. 1994 various anonymous phone calls were received in the offices of UNSITRAGUA
484. (the Lunafil trade union and UNSITRAGUA have their offices in the same
485. building). One of these calls threatened that if the trade union members did
486. not give up their struggle they would kill Débora Guzmán, the wife of trade
487. union member Félix González, and the last phone call stated that she was in
488. their power and that Félix González should be told that whether she would
489. return alive depended on him. The officers of the trade union and members of
490. UNSITRAGUA immediately mobilized to ascertain whether what these persons had
491. said was true, and found that fortunately it was not. In the night of 8
492. October 1994, unidentified persons brought the following anonymous message
493. into the home of Félix González: "Mrs. Guzmán, we hope you have done as you
494. were told. We know you are at home and we will not go back on what we said. We
495. will do what we said. We warn you that this is not a joke as you might think;
496. do not hide from us, we will find you. Anonymous.". It should be pointed out
497. that the trade union is fairly certain that the Lunafil enterprise is behind
498. the attacks and harassment.
499. In its communication dated 29 November 1994, the ICFTU states with regard to
500. the attack against René Cabrera Estrada, an officer of the Union of Workers in
501. the Guatemala Coca Cola bottling plant, that according to the International
502. Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied
503. Workers Associations, the origin of this attack was a family dispute which had
504. nothing to do with his trade union and social activities. The event gave rise
505. to confusion since it occurred immediately after a popular demonstration.
506. In its communication of 16 January 1995, the CLAT alleges that death threats
507. have been made against trade union official José E. Pinzón (CGTG) and Felix
508. Hernández (FENASEP), and that the trade union official Manuel de Jesús Alonso
509. of the CGTG has been murdered and that unionist Mateo Santos Cuom Xom (trade
510. union being created at the Esquipulas Municipality, Chiquimula) has been
511. abducted and subsequently released.
512. In a communication of 13 March 1995, the ICFTU expresses its deepest concern
513. over the kidnapping of Mrs. Débora Guzmán Chupen, Secretary for Finances of
514. the Trade Union of Workers of the Maquiladora MJ and L & L Modas enterprise,
515. situated in Atitlan. She is also the companion of Mr. Félix González,
516. Secretary for Disputes of the Trade Union of Workers of the "Lunafil" factory.
517. The latter was one of several trade unionists who were calling for the factory
518. to be reopened following its illegal closure in 1994. In view of the
519. confrontational attitude of the owners of the Maquiladora MJ and L & L Modas
520. enterprise, the workers occupied the premises peacefully. During the month of
521. January, one of the owners of the enterprise brutally attacked a leader of
522. this union, which shows that this dispute is very recent.
523. The ICFTU adds that it was in October 1994 that the first acts of intimidation
524. were carried out against Débora Guzmán and that, finally, she was arrested at
525. 0930h on 28 February 1994, when she was heading towards the Amatitlán market.
526. It was then that some heavily armed men approached her. They told her to
527. accompany them and that they would not use their arms. Then they injected a
528. drug into her. She woke up on 1 March at 0800h in a large room. They
529. threatened her and hit her and demanded that she call UNSITRAGUA, saying "that
530. you have to tell the person who answers that your husband should withdraw from
531. the trade union of Lunafil if he wishes to see you again". Thus, she talked to
532. the trade unionist Hugo Morales, coordinator of UNSITRAGUA on the telephone
533. and told him about the requirements of those who had kidnapped her. The trade
534. unionist could only partly respond because one of the kidnappers intervened
535. and the line was cut. Following this, Débora Guzmán was once again hit and
536. threatened. They put her in a vehicle with her hands bound and after a
537. two-hour journey they abandoned her in the locality of Le Caminos, Toponicapan
538. (24 km from Guatemala City). Here somebody helped her. She underwent a medical
539. examination in the Toponicapan Hospital in the presence of officials from
540. UNSITRAGUA and was then immediately transported to the capital. During the
541. journey, she had violent nervous seizures.
542. The ICFTU further alleges that, at 1830h on 5 March 1995, some strangers left
543. a new message containing threats which literally stated the following: "...
544. Madam, you know what it is like to be kidnapped and detained. Therefore, we
545. are asking you to ask your husband to resign from the trade union within 72
546. hours. Otherwise, we will carry out what we said we would do. We know that you
547. are not scared but we will do everything possible to convince you ..." The
548. same day, some heavily armed men in a lorry drove towards the "Lunafil"
549. factory and fired some shots into the air.
550. In a communication of 27 March 1995, the CLAT alleges that trade union leaders
551. of the Federation of Peasants of Guatemala (FEDECAMPO), Messrs. Manuel Pablo
552. Quino and José Morales Técun, were faced with death threats following the
553. publication of a FEDECAMPO information bulletin dated 21 March 1995 reporting
554. the dissolution of patrols of civilian self-defence in the Lacama Canton I;
555. these patrols were not useful in the view of the agriculturers of the region.
556. The CLAT adds that the leader of FENASEP, Mr. Félix Hernandez, who had been
557. the victim of death threats, continued to be perpetually harassed; one of
558. these acts took place following his participation in a radio broadcast. He was
559. intimidated by two vehicles which forced him to take refuge in the
560. headquarters of the radio station. The CLAT concludes by pointing out that the
561. inquiries into the murder of the trade union leader Manuel de Jésus Alonso
562. have not produced any results.
563. C. The Government's reply
564. With respect to the allegations still pending since November 1992 relating to
565. acts of anti-union discrimination, in its communication of 7 September 1994
566. the Government states the following: (1) as regards the dismissal of 29
567. workers from the La Torre estate, they have been reinstated in their jobs and
568. have received the wages due to them; (2) according to the records of the
569. labour inspectorate, no complaint has been lodged regarding the dismissal of
570. 60 members of the Trade Union of Workers of the Banco Metropolitano. Moreover,
571. the deadline for lodging a complaint has now elapsed; (3) regarding the
572. violent police repression of workers on strike at the CAVISA glass factory,
573. the Labour Tribunal declared the strike illegal and, in accordance with
574. section 244 of the Labour Code, the workers were dismissed and duly
575. compensated; (4) regarding the refusal to recognize the legal personality of
576. the Trade Union of Workers of the Quetzal port enterprise, the union was
577. recognized in 1990 under Government Agreement No. 879-90, and Rubén Terry
578. Amézquita was appointed as its provisional general secretary. As to the
579. latter's imprisonment and the subsequent refusal to reinstate him, there is no
580. trace of any complaint on file or with the General Labour Inspectorate; (5)
581. regarding the setting up of solidarist associations to undermine workers'
582. trade unions in the Distribuidora del Sur Occidente and Compañía de Productos
583. Duralita enterprises, there is no trade union in the Distribuidora del Sur
584. Occidente, and the complainants are asked to explain exactly what they mean by
585. "undermining"; (6) regarding the refusal to recognize the legal personality of
586. the Trade Union of Workers of the General Directorate of the Forestry
587. Commission and subsequent dismissal of 21 workers on 27 July 1990, no trade
588. union of that name has applied for recognition, although there is a Trade
589. Union of the General Directorate of Woods and Forests, whose legal personality
590. was recognized on 20 June 1992. The Ministry of Labour has no record of any
591. complaint regarding the dismissals; as regards the alleged campaigns of
592. intimidation and dismissal of employees in various municipalities (numbers 7,
593. 8, 9 and 10 of the list appended to the previous examination of the cases),
594. the relevant information will be submitted in November as it is first
595. necessary to make inquiries in the interior of the country; (11) regarding the
596. persecution of workers belonging to trade union organizations in various
597. estates in the south of country, the Government requests that the complainants
598. specify the name and location of the estates, the relevant date and the names
599. of the workers affected so that it can make its observations on this subject;
600. (12) regarding the 29 workers dismissed from the La Abundancia estate, they
601. were given land instead of financial compensation and agreed to this
602. arrangement; (13) as regards the dismissal of 65 workers in the Municipality
603. of Palín, during talks held the Mayor of Palín offered to pay them the wages
604. that were due to them but the workers chose to take the matter to court. The
605. Government will inform the Committee of the outcome of the case next November;
606. (14) the Office of the Public Prosecutor has been asked to investigate the
607. matter of the surveillance of the UITA premises by unknown persons on 23
608. August 1993; (15) as regards the harassment and persecution of trade union
609. activists, the complainants are requested to provide information on the date,
610. place, enterprises and names of the workers concerned; (16) regarding the
611. alleged pressure to force the resignation of three members of the executive
612. committee of SITRAEMSA ("La Mariposa" bottling plant), there were no
613. dismissals; regarding the refusal to engage in collective bargaining with the
614. trade union and the simulation of the signature of a collective agreement with
615. an "ad hoc" committee by the enterprise, the collective agreement on working
616. conditions that was concluded with the "ad hoc" committee was approved on 16
617. September 1993 and SITRAEMSA obtained recognition of its legal personality
618. subsequently, on 28 September 1993. It was also agreed to negotiate a new
619. collective agreement with the trade union as from September 1994; regarding
620. the alleged anti-union discrimination (numbers 19 and 20) to favour the
621. members of the "ad hoc" committee, the General Labour Inspectorate has already
622. taken action, the outcome of which the Government will communicate next
623. November. Regarding the attempted abduction of Pablo Mazariegos on 3 December
624. 1993, the Office of the Public Prosecutor has been asked to investigate the
625. matter.
626. With respect to the recommendations adopted by the Committee in November 1992,
627. the Government makes the following comments in its communication of 7
628. September 1994: the teachers dismissed in 1990 were subsequently reinstated in
629. their jobs after having been paid the salaries due to them; as to the right of
630. teachers to conclude collective agreements, they are entitled to do so as
631. there is no provision to the contrary.
632. As regards the new allegations presented by the CLAT concerning various
633. instances of infringement of trade union rights, the Government states the
634. following in its communications of 5 November 1993 and 7 September 1994: as
635. regards the Trade Union of Workers of the Ministry of the Interior, the
636. Ministry of Labour was prevented by legal restrictions from recognizing this
637. newly created trade union officially, as it wishes to include categories of
638. employees that are regarded as holding positions of trust, such as the General
639. Secretaries of departmental offices of the Ministry of the Interior, the
640. Vice-Ministers of the Ministry of the Interior, and members of the national
641. and finance police; as regards the Street Vendors' National Front Trade Union,
642. a resolution of the Ministry of Labour and Social Insurance dated 12 August
643. 1993 granted legal personality to the union and approved its constitution; as
644. regards the Trade Union of Customs Workers, resolution No. 1146 of the
645. Ministry of Labour, dated 5 August 1993, granted legal personality to the
646. union and approved its constitution; as regards the Trade Union of Workers of
647. the Guatemalan Red Cross, the institution terminated its public services for
648. financial reasons on 31 October 1992 and ceased to exist as such; as regards
649. the Trade Union of Workers of the Secretariat of Social Welfare, the elections
650. were declared null and void in a decision by the labour authority dated 21
651. December 1992, a decision which was approved by the Office of the Public
652. Prosecutor; as regards the Trade Union of Bakers, the initial application was
653. made in November 1992, and the application is now in the final stage of the
654. approval process; as regards the Trade Union of Shipping Workers, the
655. application did not meet the legal requirements and, in a resolution of the
656. Ministry of Labour dated 16 August 1993, the trade union was requested to
657. comment on a number of observations, a request which has not yet been
658. answered; as regards the Trade Union of the Autonomous Sports Confederation of
659. Guatemala, the collective agreement was signed in April 1993 but presented to
660. the labour authority only in the month of June, and it was for this reason
661. that it was suggested that the parties conclude a new updated agreement; as
662. regards the Trade Union of Workers of the Municipality of Palín, the matters
663. are now beyond its jurisdiction and will be resolved by the labour courts; as
664. regards the Trade Union of Workers of the Imperial Food Products SA
665. enterprise, the labour authority quoted the representative of the enterprise,
666. who was prepared to make the respective compensation payment, but when the
667. workers concerned were asked to present themselves they did not turn up.
668. As regards the new allegations by the ICFTU (dated 23 September and 20
669. December 1993 and 9 June 1994), in a communication dated 14 July 1994 the
670. Government states that the collective agreement concluded with "La Mariposa"
671. SA enterprise on 14 September 1993 does not infringe or diminish the rights of
672. workers guaranteed by labour law. The Government also points out that on 28
673. September 1993 the labour authority issued resolution No. 1906 granting legal
674. personality to the Trade Union of Workers of the "La Mariposa" SA bottling
675. plant. As regards the denunciation of acts of anti-union discrimination and
676. reprisals by the enterprise, the Government states that on 14 December 1993,
677. the labour inspector went to the enterprise with a view to establishing a
678. direct agreement between the disputing parties on the specific cases in
679. question. Several recommendations were made, with the fixing of a time-limit
680. of fifteen (15) days for the settlement of the dispute. After several visits
681. to the enterprise, inquiries and investigations, the labour authority was able
682. to establish that the enterprise was in fact carrying out acts of anti-union
683. discrimination against workers who were trade union members. Protective
684. measures were formulated respectively for each case denounced, with a 48-hour
685. time-limit being fixed for their implementation. On 18 April 1994 it was
686. established that the enterprise had not carried out these instructions, as a
687. result of which appeal was made to the Sixth Labour Court on 17 May 1994 for
688. punitive proceedings and the application of the respective sanctions in
689. accordance with the law; the Government will inform the Committee of the
690. outcome of this appeal subsequently.
691. In its communication dated 6 October 1994, the Government sends the following
692. letter from the Office of the Public Prosecutor of the Nation to the Ministry
693. of Labour:
694. I have the honour to inform you that, at the request of your department
695. concerning the list of violations of human rights, the Office of the Public
696. Prosector of the Nation has initiated the following measures:
697. 1. Locating the case files referred to in the list appended to your letter in
698. order to ascertain which departments are processing them and what stage has
699. been reached in the process.
700. 2. Locating the family members of the victims of human rights violations in
701. order to interview them and inquire whether judicial proceedings have been
702. instituted in order to ascertain the circumstances of the murders, threats and
703. intimidation against their family members.
704. 3. Coordinating measures with the departmental public prosecutors' offices to
705. institute inquiries into the human rights violations referred to in the list
706. appended to your letter and to see that they are given special attention in
707. order to expedite the proceedings.
708. 4. Accordingly, instituting inquiries to determine the guilt of the persons
709. accused of the above-mentioned human rights violations or, where appropriate,
710. to ascertain whether these were merely common-law crimes.
711. The Office of the Public Prosecutor, through its Human Rights Unit, will
712. inform you of the outcome of the initial inquiries and interviews with the
713. victims, and will report on the status of the proceedings already under way in
714. the courts of jurisdiction.
715. Case No. 1595
716. Previous examination of the case
717. This case was presented by the General Confederation of Workers of Guatemala
718. (CGTG) and examined by the Committee on three occasions, most recently at its
719. June 1994 meeting, at which it submitted interim conclusions (see 294th Report
720. of the Committee, paras. 572-585, approved by the Governing Body at its 260th
721. Session (June 1994)).
722. The allegations pending refer to the murder of a worker during a labour
723. dispute, the dissolution or non-recognition of the legal personality of
724. several trade unions, obstacles to the establishment of trade union
725. organizations and acts of anti-trade union discrimination. At its previous
726. examination of the case, the Committee formulated the following conclusions
727. and recommendations (see 294th Report, paras. 578-585):
728. In the first place, the Committee once again deplores the fact that the
729. Government has not communicated its observations concerning the murder of a
730. worker on 5 August 1989 during a labour dispute between the La Patria farm and
731. the trade union, and requests that a judicial inquiry begin without delay to
732. establish the facts and punish the guilty parties. The Committee requests to
733. be kept informed of the developments in the investigation.
734. As regards the allegations for which the Committee requested the Government to
735. keep it informed of developments in the corresponding judicial proceedings,
736. the Committee notes with interest that the Government mentions that the Union
737. of Peasant Workers of the La Patria farm and the enterprise have reached an
738. agreement which provides for the reinstatement of the dismissed workers. The
739. Committee requests the Government to transmit a copy of that agreement and to
740. indicate whether these workers were indeed reinstated in their jobs. The
741. Committee also notes that the Villa Nueva Municipal Workers' Union has not
742. been dissolved, contrary to the complainants' allegation.
743. As regards the allegations concerning measures taken to obstruct the creation
744. of trade unions at the Manufacturera Integridad SA, Koram SA, Bocco & Cía.
745. Ltda., Diseños Panamericanos SA, Confecciones Isabel SA and "Sam Agliano y Don
746. San" in-bond "maquila" enterprises, the Committee notes that the Government
747. states that the Sam Agliano y Don San enterprise has closed and that there are
748. no trade unions at the other enterprises, nor have procedures been initiated
749. for the recognition of trade unions there, and that the Ministry has organized
750. an awareness campaign for the employers and has held a seminar on their rights
751. and obligations. The Committee regrets to observe that the Government has not
752. sent observations concerning the allegations of attempts to obstruct the
753. establishment of trade union organizations at the Unión Bolívar, EGA, La Fé
754. and Morena urban transport companies. In these circumstances, the Committee
755. emphasizes the importance it attaches to the fact that workers and employers
756. should in practice be able to form and join organizations of their own
757. choosing in full freedom (see Digest of decisions and principles of the
758. Freedom of Association Committee, 3rd edition, 1985, para. 222), and requests
759. the Government to take the measures necessary to ensure that in practice the
760. workers of the ten enterprises mentioned by the complainants can form trade
761. unions and freely exercise their trade union rights. The Committee requests
762. the Government to keep it informed of developments in the situation in these
763. enterprises.
764. As regards the legal proceedings concerning the dismissal of several trade
765. union leaders of the executive committee of the Workers' Union of the San Juan
766. de Dios Hospital and the administrative procedures concerning the dismissal of
767. the General-Secretary of the Trade Union of Bakers of Chiquimula, the
768. dismissal of 20 members of the Trade Union of Shipping Workers of Santo Tomás
769. de Castilla and the recognition of the legal personality of the Workers' Union
770. of the Ministry of the Interior, the Committee, as it did during its previous
771. examination of the case, requests the Government to keep it informed of the
772. decisions handed down.
773. As regards the allegations of dismissals at the Fábrica Pundú SA, the
774. Committee notes that according to the Government the enterprise has closed and
775. the question of reinstatement is no longer relevant. As regards the dismissal
776. of all the members of the Workers' Union of the El Trapichito farm and the
777. dismissal of 55 members of the Workers' Union of the El Naranjo farm, the
778. Committee notes that the Government states that there are no records of these
779. allegations. Regretting that the Government has not provided any information
780. to make it possible to determine whether these dismissals were anti-trade
781. union in nature, the Committee points out to the Government that no one should
782. be subjected to acts of anti-union discrimination for carrying out legitimate
783. trade union activities and draws its attention to the fact that "protection
784. against acts of anti-union discrimination should cover not only hiring and
785. dismissal but also any discriminatory measures during employment, in
786. particular transfers, downgrading and other acts that are prejudicial to the
787. worker" (see Digest, op. cit., para. 544). In these circumstances, the
788. Committee requests the Government to conduct an investigation into the alleged
789. anti-union dismissals and, should these dismissals be related to legitimate
790. trade union activities, ensure that the workers concerned are reinstated in
791. their posts. It also requests the Government to keep it informed in this
792. respect.
793. As regards the allegations of requests for the dissolution of the San Antonio
794. Suchitepequez Municipal Workers' Union, the Committee takes notes of the
795. Government's statement that the union's legal personality was recognized in
796. August 1988. Similarly, as regards the requests for the withdrawal of the
797. legal personality of the Workers' Union of the Compañía Centroamericana
798. Administradora de Hoteles y Turismo SA (Hotel Ritz Continental), the Committee
799. takes note of the Government's statement that the union's executive committee
800. members presented an official document dissolving the union in 1990 after 22
801. workers had left the union. The Committee requests the complainant
802. organizations to provide details on the reasons why, and circumstances in
803. which, the resignation of workers took place and to provide a copy of the
804. document of dissolution of the trade union.
805. In the light of its foregoing interim conclusions, the Committee invites the
806. Governing Body to approve the following recommendations:
807. (a) Deploring the murder of a worker on 5 August 1989 during a labour dispute
808. at the La Patria farm, the Committee once again requests that a judicial
809. inquiry begin without delay so as to establish the facts and punish the guilty
810. parties, and requests to be kept informed of the developments in the
811. investigation.
812. (b) Noting with interest the Government's statement that the Union of Peasant
813. Workers of the La Patria farm and the enterprise have reached an agreement on
814. the reinstatement of the dismissed workers in their jobs, the Committee
815. requests the Government to transmit a copy of that agreement and to indicate
816. whether these workers were indeed reinstated in their jobs.
817. (c) Emphasizing the importance that it attaches to the fact that workers and
818. employers should in practice be able to form and join organizations of their
819. own choosing in full freedom, the Committee requests the Government to take
820. the measures necessary to ensure that in practice the workers of the
821. Manufacturera Integridad SA, Koram SA, Bocco & Cía Ltda., Diseños
822. Panamericanos SA, Confecciones Isabel SA, and Unión, Bolívar, EGA, La Fé and
823. la Morena urban transport companies can form trade unions and freely exercise
824. their trade union rights. The Committee requests the Government to keep it
825. informed of the developments in the situation in these enterprises.
826. (d) The Committee requests the Government to conduct an investigation into the
827. alleged anti-union dismissals at the El Trapichito and El Naranjo farms and,
828. should these dismissals be related to legitimate trade union activities, to
829. ensure that the workers concerned are reinstated in their posts. It requests
830. the Government to keep it informed in this respect.
831. (e) The Committee once again requests the Government to keep it informed of
832. the decisions handed down in the legal proceedings concerning the dismissal of
833. several trade union leaders of the Workers' Union of the San Juan de Dios
834. Hospital and in the administrative procedures concerning the dismissal of the
835. Secretary-General of the Trade Union of Bakers of Chiquimula, the dismissal of
836. 20 members of the Trade Union of Shipping Workers of Santo Tomás de Castilla,
837. and the recognition of the legal personality of the Workers' Union of the
838. Ministry of the Interior.
839. (f) Noting the Government's statement that the members of the executive
840. committee of the Workers' Union of Hotel Ritz Continental have presented in
841. 1990 an official document dissolving the union after 22 workers had left the
842. union, the Committee requests the complainant organizations to provide details
843. on the reasons why, and the circumstances in which, the resignation of the
844. workers took place and to provide a copy of the document of dissolution of the
845. trade union.
846. Case No. 1740
847. The complaint is contained in a communication from the Union of Workers of
848. Guatemala (UNSITRAGUA) dated 26 October 1993. This organization presented
849. additional information and new allegations in a communication dated 18
850. December 1993.
851. As regards Case No. 1740, at its November 1994 meeting (see 295th Report,
852. para. 13), the Committee observed that, despite the time which had elapsed
853. since the presentation of these complaints, it had not received the
854. Government's observations. The Committee drew the attention of the Government
855. to the fact that, in accordance with the procedural rules set out in paragraph
856. 17 of its 127th Report, approved by the Governing Body, it may present a
857. report on the substance of these cases at its next meeting, even if the
858. observations or information requested have not been received in due time. The
859. Committee accordingly requested the Government to transmit its observations or
860. information as a matter of urgency.
861. A. The complainant's allegations
862. UNSITRAGUA alleges the following violations of trade union rights:
863. - The Workers' Union of the Corporación Textil Internacional SA (CORTEX),
864. organized on 16 March 1993, summoned the enterprise before the labour
865. tribunals. The employer reacted by carrying out dismissals and issuing death
866. threats (complaints have been filed to this effect).
867. - The Trade Union of ESDEE Guatemala SA (SINTEGSA) was organized on 29 April
868. 1993. The enterprise reacted by carrying out dismissals, issuing death
869. threats, terminating contracts, setting up shock units and forging signatures.
870. - The Workers' Union of the Diseños y Maquilas SA enterprise (SINTRADIMASA
871. (MARISA)) was organized on 24 July 1993; the enterprise has been summoned
872. before the labour tribunals. There have been unlawful dismissals, physical
873. attacks on workers, as a result of which a complaint was filed for assault and
874. death threats, and workers have been used to set up a trade union that is
875. sympathetic to the employer.
876. - The Union of Municipal Workers of Coban, department of Alta Verapaz
877. (SITRAMCO) was organized on 10 March 1993; the employer's reaction took the
878. form of dismissals carried out by the Mayor and the municipal corporation. In
879. addition, the general secretary of the trade union was abducted and released
880. hours later.
881. - The Union of Workers of the Municipality of Santa Cruz Verapaz was organized
882. on 3 July 1993; the municipality dismissed most of the trade union's officers
883. and refuses to comply with the orders for reinstatement issued by the
884. competent labour tribunal.
885. - In March 1993 trade union member Byron Morales received a death threat from
886. a paramilitary squad in the form of an anonymous message, warning him to leave
887. the country. This threat was accompanied by numerous instances of surveillance
888. and attempts at intimidation.
889. - On 20 March 1993 trade union member Gustavo Rosalio Vasquez López
890. disappeared after carrying out a protest demanding a settlement to the labour
891. dispute on the San Gregorio farm, where the entire membership of the trade
892. union had been dismissed in February 1992. The disappearance of this trade
893. union member has not been elucidated.
894. - On 6 May 1993 Adrián Miranda López, a member of the San Gregorio farm
895. Workers' Union, was murdered after having been questioned regarding his trade
896. union activity. Several other members of the trade union subsequently also
897. received death threats.
898. - On 30 October 1993 Velizario López Rojas, a member of the San Gregorio farm
899. Workers' Union, was murdered during the labour dispute. It should also be
900. pointed out that the enterprise has still not reinstated the 310 workers
901. dismissed, despite having been ordered to do so.
902. - Members of the union of the Malher y Sucesoras enterprise were detained for
903. over eight (8) hours in the factory and subjected to pressure and intimidation
904. to force them to sign documents and cease exercising their rights, and were
905. subsequently subjected to systematic harassment and surveillance outside the
906. enterprise.
907. - On 15 July 1993 at 9 p.m., Ernesto Bol, Minutes Secretary of the Trade Union
908. of Workers of the Municipality of Coban, district of Alta Verapaz, was
909. abducted. He was subsequently released, threatened and intimidated.
910. - On 15 July 1993 in Ciudad Peronia, district of Villa Nueva, Werner Coc
911. Ramírez, an officer of the Trade Union of Bakers, was accosted and savagely
912. beaten by persons who criticized him for his trade union activity.
913. - On 11 July, at 6 p.m., four heavily armed men in a yellow car abducted
914. Walter Manuel Nájera Molina, a member of the Workers Union of the Central
915. Bottling Plant (Coca Cola); he was tortured and interrogated, and subsequently
916. released.
917. - In the enterprise ESDEE de Guatemala in-bond "maquila" enterprise, workers
918. are savagely beaten and dismissed, with the participation of the national
919. police. Trade union members have received death threats and been abducted with
920. the participation of mobile units of the military police.
921. - Officers of the trade union of the MJ Modas in-bond "maquila" enterprise
922. have received new death threats targeting their families and children. Such
923. threats were made against Natividad Salazar Barrera, María del Carmen Cruz
924. Fuentes and Dicky Marroquín. The trade union is involved in a heavy dispute
925. with the employer.
926. - On 5 October, a paramilitary group again threatened a group of Guatemalans
927. with death. The list of persons threatened includes officers of the UASP, to
928. which the UNSITRAGUA is affiliated. One of the officers who received threats
929. is Byron Morales, a member of the Trade Union of Workers of the National
930. Committee for the Blind and Deaf Mutes and Coordinator of the Organizing
931. Committee of UNSITRAGUA.
932. - On 12 February 1992 the COCAPSA enterprise carried out unlawful and unjust
933. mass dismissals of 310 workers at the San Gregorio Piedra Parada farm, in the
934. district of Coatepeque, Quezaltenango, the Compañía Agrónomo Pecuaria SA (San
935. Gregorio Piedra Parada farm) having been summoned to court and a decision
936. having been handed down by the Second Labour Court of the First Instance of
937. Coatepeque, prohibiting the enterprise from terminating any contract of
938. employment without the authorization of the labour judge. On 17 August 1992,
939. the First Chamber of the Court of Appeals (Labour and Social Welfare) upheld
940. the proceedings for reinstatement instituted by the workers. It should be
941. pointed out that the unlawful mass dismissals in violation of the rights of
942. the San Gregorio farmworkers was carried out with the intention of impairing
943. and cutting short the workers' efforts to organize, which constitutes a grave
944. violation of Convention No. 87 by the Compañía Agrónomo Pecuaria SA and the
945. State of Guatemala, where as the result of impunity there is no compliance
946. with labour law or respect for workers' rights.
947. - On 22 March 1993 an agreement was signed between the trade union of the
948. Agroport SA in-bond "maquila" enterprise and the employer, in which the
949. enterprise makes the following basic commitments: to comply with labour
950. legislation; to pay the workers a transport allowance for moving from the
951. enterprise to another plant; to resume work - which had been suspended - and
952. to refrain from reprisals; this agreement was approved by the labour
953. authorities on 30 March. On 12 April the plant was closed without any of the
954. items in the agreement having been carried out, and the majority shareholder
955. or owner, William Johosep Hulsizer, a United States national, fled to the
956. United States.
957. - The women workers of the MJ, SA, and the L & L, SA, enterprises have been
958. subjected to numerous instances of abuse, changes in conditions of work, and
959. moral and physical harassment in retaliation for their participation in the
960. trade union, as well as numerous unlawful dismissals. These are destabilizing
961. acts carried out by the employer with the aim of destroying the trade union
962. organization. On 16 December 1993 several officers were locked inside the
963. enterprise in an arbitrary and unlawful manner.
964. - In the ESDEE de Guatemala enterprise, after a trade union had been formed
965. and applied for registration, reprisals were carried out against the trade
966. union officers and members of the organization, and it was ultimately decided
967. to close down the enterprise unlawfully. Specifically, the complainant
968. organization alleges that the employer committed the following anti-union
969. acts: (1) it refused to bargain with the trade union and decided to set up a
970. parallel organization with persons having the employers' trust; (2) trade
971. union officer Pilar Cifuentes Aguilar was denied access to the enterprise in
972. April 1993 and the General Secretary of the trade union was dismissed in July
973. the same year; (3) various trade union members were dismissed one after the
974. other between July and October 1993, and ultimately all of the workers were
975. dismissed; and (4) a woman trade union member was physically assaulted on 20
976. September 1993 while the workers were protesting against the closure of the
977. enterprise.
978. - The management of the National Committee for the Blind and Deaf Mutes of
979. Guatemala categorically refused to negotiate a collective agreement with the
980. representative trade union organization (SINTRACNPS), instead of which it has
981. exerted its influence to delay the process as long as possible; the case has
982. been before the Ministry of Labour and the Fourth Labour and Social Welfare
983. Court for exactly 19 months.
984. B. The Government's reply
985. In its communication dated 5 January 1994, the Government states that on 16
986. March 1993 the General Labour Directorate of this Ministry received an
987. application for recognition of legal personality of the "Trade Union of
988. Workers of the Corporación Textil Internacional SA" which was processed in
989. accordance with the law. However, the legal adviser's office of that
990. directorate considered that certain legal requirements had not been met and
991. informed the persons concerned accordingly. Once the defects had been remedied
992. and the other legal procedures had been carried out, on 21 October 1993 the
993. General Labour Directorate issued a favourable decision and forwarded the file
994. to this office. On 27 October, the Ministry of Labour and Social Welfare, by
995. decision No. 2176, recognized the legal personality of the trade union in
996. question, approved its bylaws and authorized it to begin its activities.
997. Finally, on 12 November last, this ministerial decision was published in the
998. Diario de Centroamérica, thus completing the procedure.
999. The Government states that no complaint has been filed with the Ministry of
1000. Labour concerning intrigues, dismissals, threats and the setting up of shock
1001. units by employers, and therefore, should such occur or have occurred in the
1002. past, it suggests that the victims file complaints to that effect with the
1003. authorities.
1004. Case No. 1778
1005. The complaints are contained in a communication from the Latin American
1006. Central of Workers (CLAT) dated 1 June 1994. The CLAT sent additional
1007. information and new allegations in communications dated 6 June and 1 November
1008. 1994.
1009. The complainant's allegations
1010. The CLAT states that it has received information to the effect that on 31 May
1011. 1994 Eligio Quej Morán, a member of the ad hoc committee of workers of the
1012. national police, was abducted. According to the same information, he was
1013. tortured and his abductors injected him with a drug which caused haemorrhages.
1014. His life is in danger and he has apparently lost his sight. The CLAT states
1015. that on 25 March 1993 the National Federation of Public Servants (FENASEP)
1016. began organizing the workers in the national police force. Since then members
1017. of the ad hoc committee set up on that date have been persecuted and issued
1018. with death threats by the "Jaguar Justiciero" death squad for having
1019. exercised, in accordance with the law, their right to organize and put forward
1020. legitimate demands. This event seriously endangers the physical integrity of
1021. all of the workers on this committee and is a sign of the increasing climate
1022. of violence against workers. According to the CLAT, the previous Minister of
1023. the Interior recognized and began to observe the human, economic and social
1024. rights of the workers serving on the national police force; however, the
1025. rights acquired under the previous administration are now being denied.
1026. The CLAT forwards a letter from the General Confederation of Workers of
1027. Guatemala (CGTG) to the Director-General of the national police expressing its
1028. concern at the transfer to other areas of three members of the ad hoc
1029. committee, Felipe de Jesús Cirín Aguilar, Arnoldo Farján Enríquez and Roberto
1030. Eligio Quej Morán, which it describes as a reprisal.
1031. Lastly, the CLAT alleges that other members of workers' organizations have
1032. been receiving anonymous messages containing death threats from the "Jaguar
1033. Justiciero" group.
1034. On 24 October 1994, at 11 p.m., Manuel de Jesús Alonso, General Secretary of
1035. the Trade Union of Workers of the Municipality of Puerto Barrios (department
1036. of Izabal) and coordinator of the CGTG in northern Guatemala, was shot. These
1037. events occurred when he was in front of the door of his home in Puerto
1038. Barrios. The perpetrators were not identified. On 29 October he died after
1039. suffering for several days. The trade union of which he was the leader was
1040. affiliated to the National Federation of Public Servants (FENASEP) and to the
1041. CGTG. It should be pointed out that the northern regional organization of the
1042. CGTG had been the target of threats from this group in recent months. The
1043. trade union leader Manuel de Jesús Alonso had displayed solidarity with the
1044. inhabitants of El Estor and had denounced abuses committed by the Mayor of
1045. this town. He had also made public various unlawful acts committed by
1046. officials of the municipalities of Puerto Barrios and the Izabal office of the
1047. Ministry of the Interior.
1048. Case No. 1786
1049. The complaints in this case are contained in communications from the General
1050. Confederation of Workers of Guatemala (CGTG) and the World Confederation of
1051. Labour (WCL) dated 18 and 24 June 1994, respectively.
1052. The complainants' allegations
1053. The trade union organizations allege the following violations of trade union
1054. rights in the private sector:
1055. - The enterprise Operadora de Empresa, SA, which owns the El Dorado Hotel,
1056. signed a collective agreement on working conditions with the Trade Union of
1057. Workers of the El Dorado Hotel and other activities which are part of the same
1058. economic unit, the provisions of which are being violated by the employer, in
1059. particular as regards work shifts. There are three work shifts - day, night
1060. and mixed shifts - which were duly negotiated between the parties; however,
1061. the employer has divided the shifts to suit itself and not in accordance with
1062. the agreement signed between the trade union and the employers. For example,
1063. an eight-hour continuous day shift is divided so that after a first period of
1064. three or four hours, the worker stops working and returns to complete his
1065. shift after four or five hours. This interval during which he does not work is
1066. not remunerated, despite the fact that the worker remains at the employer's
1067. disposal, and constitutes an infringement of collective bargaining.
1068. - An in-bond "maquila" enterprise, J & R Ropa Deportiva de Centroamérica, SA,
1069. operating in the free industry and trade zone of Santo Tomás de Castilla
1070. Puerto Barrios, in the department of Izabal, in April 1994 dissolved the local
1071. of the Trade Union of Workers of the Clothing Industry (STIC) by means of
1072. reprisals, intimidation, mass dismissals, unfair sanctions against workers,
1073. privileges for the non-unionized and reprisals against unionized workers,
1074. until the union membership was decimated, also as the result of death threats
1075. against trade union officers of Puerto Barrios by the far right and the
1076. "Jaguar Justiciero" death squad; today there is no trade union in that
1077. enterprise. The negligence of the Second Labour Judge of the First Instance
1078. contributed enormously to dissolving this trade union organization.
1079. - Este Oeste, SA, an in-bond "maquila" enterprise operating in the capital,
1080. also destroyed the local of the STIC by means of mass dismissals; in order to
1081. dismantle the trade union organization the enterprise closed down its
1082. operations in the capital and was later transferred to the city of Villa
1083. Nueva, District of Guatemala, 20 kilometres from the capital; the workers'
1084. contracts of employment were terminated and they were paid only 50 per cent of
1085. their remuneration; however, in order to obtain this remuneration the workers
1086. had to peacefully occupy the Embassy of the Republic of Korea, of which the
1087. Consul intervened; the premises of the Este Oeste, SA, enterprise were taken
1088. over and the local of this trade union entirely annihilated. A wage agreement
1089. was signed, but is also being violated by the employers, as pay checks are
1090. issued but are not backed by money in the bank.
1091. - Unicasa, SA, and Welly, SA, both in-bond "maquila" enterprises operating in
1092. the capital, have taken various reprisals against workers, in the form of
1093. unnecessary suspension of work, dismissals, raising production goals and
1094. deteriorating working conditions, for the sole purpose of dismantling the
1095. trade unions affiliated to the STIC.
1096. Working conditions of the workers in the in-bond "maquila" enterprises are
1097. subhuman; the workers are reduced to slavery; they are not granted time off to
1098. undergo medical examinations of the Guatemalan Social Security Institute
1099. (IGSS); when a worker is found to be pregnant she is dismissed; production
1100. targets are set inhumanly high and constitute ruthless exploitation; the
1101. workers are not allowed to relieve themselves; the toilet facilities (two or
1102. three of them) are open half an hour twice a day for 400 or 600 workers;
1103. overtime is not remunerated as such; average hours of work in these
1104. enterprises are 12 hours a day from Monday to Saturday, amounting to 72 hours
1105. per week, while the Constitution provides for a 44-hour working week.
1106. - On the Santa Anita farm, owned by Agropecuaria Santa Anita, SA, located in
1107. the district of San Miguel Pochuta, department of Chimaltenango: 42 members of
1108. the trade union of workers on the farm were dismissed; in this case, the
1109. employer resorted to intrigues with the officials of the Second Court of the
1110. First Instance of Chimaltenango, cancelling the warnings issued by the same
1111. Court, the employer being aware that since the enterprise was engaged in a
1112. collective dispute of a socio-economic nature protected under the Labour Code,
1113. any termination of an employment contract (dismissal) must be authorized by
1114. the Court. None the less, at the enterprise's request, the warnings were
1115. cancelled and the notification of the decision running counter to the rights
1116. and interests of the working class was dated four days earlier than the date
1117. on which it was actually issued, which prevented the workers from appealing
1118. this decision; in other words they were denied the right to defend themselves.
1119. On the same day on which the notification was issued all of the trade union
1120. members were dismissed; a petition was made for their reinstatement but the
1121. Court rejected it.
1122. - The Nueva California farm, owned by Agropecuaria Inmobiliaria Miramar, SA,
1123. located in the district of San Miguel Pochuta, department of Chimaltenango,
1124. has dismissed 40 workers who are members of the Trade Union of Workers of the
1125. Nueva California Farm. They have not been reinstated to date, despite the
1126. major efforts made by the union leadership at every level. Efforts to summon
1127. the employer to engage in collective bargaining on working conditions have
1128. been unsuccessful.
1129. - The El Salto farm, owned by Plantación San Carlos, SA, also in the district
1130. of San Miguel Pochuta, department of Chimaltenango, has dismissed 80 workers
1131. who are founding members of the trade union of workers of the San Carlos and
1132. El Salto farms, despite the fact that section 209 of the Labour Code provides
1133. that "workers shall not be dismissed for having participated in forming a
1134. trade union" and that when a collective dispute of a socio-economic nature is
1135. under way with a view to collective bargaining of working conditions, any
1136. termination of an employment contract must be authorized by the judge handling
1137. the dispute; these standards, however, are a dead letter as far as the
1138. employers are concerned. Proceedings have been instituted with a view to
1139. obtaining the reinstatement of these workers.
1140. - The Bolivia farm, owned by Agropecuaria Bolivia, SA, in the district of
1141. Cicacao, department of Suchitepéquez: 102 workers who are founding members of
1142. the trade union of workers of this farm have been dismissed despite the
1143. prohibition laid down in section 209 of the Labour Code and the protection
1144. against dismissal ordered by the General Labour Inspectorate. Their
1145. reinstatement has been demanded but the employers have stated categorically
1146. that they will not reinstate anyone.
1147. - The Los Angeles farm, owned by Agropecuaria Los Angeles, SA, has dismissed
1148. 26 workers despite the fact that a court order was issued for their
1149. reinstatement. The legal representative of this enterprise has said that they
1150. will not be reinstated; moreover, reprisals have been severe, including a wage
1151. reduction of up to 50 per cent, equivalent to 1.03 dollars, an increase in the
1152. workload, withholding of pay and failure to pay other remuneration. All of
1153. this is aimed at creating despair among the workers so that they will leave
1154. the farms, thus denying the right to freedom of association and collective
1155. bargaining.
1156. - The Medellín farm, owned by Agropecuaria Abal, SA, located in the district
1157. of Chicacao, department of Suchitepéquez, engaged in illegal intrigues and
1158. arrangements with a woman employed in the offices of the human rights body
1159. (the place designated by the workers for the receipt of notifications). The
1160. record shows that a notification was issued warning the employer not to
1161. dismiss workers and it is suspected that the woman in question (a relative of
1162. the employer) hid the notification. Later a mass dismissal of all the trade
1163. union members (a total of 60) was carried out. The workers have instituted
1164. legal proceedings. The trade union has been completely destroyed.
1165. The complainants allege further that the situation of rural workers is
1166. becoming increasingly difficult. The employers circulate lists of unionized
1167. workers to the other farms in the southern coastal area of the country, so
1168. that they are not given work and have to emigrate very far from the area.
1169. Rural workers, their children and their families are being subjected to
1170. significant tribulations merely for having exercised their right of
1171. association and collective bargaining.
1172. Finally, the complainants allege the following violations of trade union
1173. rights in the public sector:
1174. - The Ministry of Urban and Rural Development once employed 880 trade union
1175. members, now reduced to 30, as the other workers were dismissed. The mass
1176. dismissals in the Ministry of Urban and Rural Development occurred in the
1177. context of the structural adjustment programme advocated by the main
1178. proponents of the neo-liberal project. In this case the government authorities
1179. disregarded the right of workers to organize freely and the warnings issued by
1180. the labour judge examining a collective dispute of a socio-economic nature, as
1181. a result of which the Ministry had been summoned and warned not to dismiss any
1182. worker without the authorization of that judge. These warnings were a dead
1183. letter as far as the Government was concerned.
1184. - Municipality of El Estor, department of Izabal. The workers employed by this
1185. municipality were in the process of forming a trade union; however, 20 of the
1186. main founding members have been dismissed and over six months have passed
1187. without their being reinstated. The case is now before a court of appeal but
1188. it is doubtful that the law will be duly applied, given the recent tendency of
1189. the courts to do away with the basic principles underlying labour law.
1190. II. Agenda of activities carried out
1191. In accordance with the usual direct contacts procedure, the mission met with
1192. representatives of the Government, of an employers' organization and of
1193. workers' organizations. It also met with high non-governmental authorities
1194. competent in the matters referred to in the complaints.
1195. President of the Republic. The mission, accompanied by the Director of the ILO
1196. Office for Central America and Panama, was received by His Excellency the
1197. President of the Republic, Licenciado Ramiro de Leon Carpio, in an audience at
1198. which the Minister of Labour was also present. After referring to the serious
1199. problems which exist in the world today and even in the international
1200. organizations themselves, the President expressed his firm belief in democracy
1201. and stated that the policy of repression which had reigned in his country for
1202. a long time had now been replaced by a policy for the promotion of human
1203. rights, even though unfortunate events continued to occur and an atmosphere of
1204. impunity and fear remained to a large degree. He emphasized the enormous
1205. progress achieved in his country in the field of individual rights and, at the
1206. same time, the enormous difficulties of all kinds which the country faced, in
1207. particular as regards social, cultural and economic rights. He expressed
1208. serious concern about the present situation and what would happen once the
1209. armed conflict was over and peace achieved, because then the social problems
1210. and lack of social structures would become more evident and require urgent
1211. action and a frontal attack on poverty, although without social justice the
1212. peace process would be slowed down. In this context efforts had been made to
1213. introduce a policy to strengthen the trade union movement and promote the
1214. creation of trade union organizations (in this regard specific instructions
1215. had been given to the Minister of Labour) and he stated that he was ready to
1216. do all that he could to help make this goal a reality. The Minister of Labour
1217. confirmed that she had received formal instructions to this end.
1218. The President expressed his gratitude to the ILO and welcomed the presence of
1219. the mission to which he offered his full support. As a result of his
1220. day-to-day work in the presidency of the Republic and his earlier wide
1221. experience as Human Rights Commissioner, the President said that he fully
1222. understood the nature and seriousness of the matters before the Committee on
1223. Freedom of Association and expressed his willingness to take measures so that
1224. these complex matters be gradually resolved, including through tripartite
1225. means.
1226. The Director of the ILO Office for Central America and Panama emphasized the
1227. importance of the mission in itself and in the context of the peace process
1228. currently under way in the country and in which the ILO was playing a direct
1229. part. At the same time he offered the Government ILO technical cooperation to
1230. help it overcome present problems regarding freedom of association as well as
1231. in other spheres, for which the President thanked him.
1232. Minister of Labour. The mission examined in detail with the Minister of Labour
1233. the matters pending; the main difficulties in responding to the allegations
1234. made by the complainant organizations, both in substance and in the light of
1235. the structural situation and circumstances facing the country, as well as the
1236. nature of some of the allegations, and the efforts which had been made in this
1237. respect. The Minister was convinced that the progress which could be achieved
1238. in the labour sphere would make an important contribution to the peace
1239. process.
1240. There was also a fruitful exchange of ideas on the programme to be carried out
1241. by the mission and the kind of results which could be achieved, in accordance
1242. with the procedural requirements concerning complaints before the Committee on
1243. Freedom of Association. The Minister said she was fully ready to cooperate and
1244. study any measures which might be necessary to adopt. She also said that she
1245. was ready to meet with representatives of the employers' and workers'
1246. organizations to examine on a tripartite basis the matters pending and the
1247. possible action to be taken. Subsequently, the mission met once again with the
1248. Minister to give a provisional progress report on the results achieved.
1249. In general, the Minister of Labour made the following observations on the
1250. substance of the complaints:
1251. (a) As regards the alleged violations of human rights, most of which occurred
1252. long before the present period of government, she said that before the arrival
1253. of the mission she had requested the cooperation of the Public Ministry
1254. concerning the outcome of the inquiries carried out or the holding of new
1255. inquiries.
1256. (b) As regards the delay in the establishment of trade unions, the Minister
1257. informed the mission that some of the cases denounced had been resolved and
1258. she mentioned the progress achieved through a reform of the respective
1259. administrative procedure to enable completion within the 55 days prescribed by
1260. the law and that the results achieved so far were satisfactory, as could be
1261. seen from ministry statistics.
1262. (c) As regards the problem of the illegal dismissal of workers protected from
1263. removal and employers' resistance to their reinstatement, there was a need for
1264. legislative reform to give the labour inspector effective powers of sanction
1265. and to speed up the procedure, and that a legislative commission of the
1266. Ministry would participate in this process; there was also a need for
1267. administrative measures to increase the number of conciliation and arbitration
1268. courts and to ensure their establishment on a permanent basis, a matter which
1269. fell within the competence of the Judicial Department, presided over by the
1270. Chief Justice of the Supreme Court. These matters would be examined in more
1271. detail during the course of the mission.
1272. (d) It was a matter of regret that many of the allegations made to the
1273. Committee lacked the necessary details to enable a reply to be made.
1274. The Minister was sympathetic to the idea of establishing a body or tripartite
1275. mechanism to ensure the effective examination of complaints made by the trade
1276. union organizations and examination of other matters relating to freedom of
1277. association, within the framework of the Tripartite Consultation
1278. (International Labour Standards) Convention, 1976 (No. 144), which had been
1279. ratified by Guatemala. The practice of tripartism was not new in the country
1280. since there had been several recent experiences of this type on the fixing of
1281. the minimum wage, the study - under way - of a system of vocational training,
1282. productivity, child workers and a critical analysis of the work of the
1283. Ministry of Labour, amongst others. Furthermore, as part of the modernization
1284. of the Ministry, which was of particular interest to her. The number of labour
1285. inspectors had been increased and their work methods reorganized. The Minister
1286. was also in favour of the establishment of channels and means of communication
1287. between state bodies as a way of resolving the problem of lack of replies to
1288. most of the allegations made before the Committee.
1289. In a written communication, the Minister said that the Government was taking
1290. steps to protect persons and families and that its supreme objective was the
1291. common good. The State should guarantee its inhabitants the right to life,
1292. freedom, justice, security, peace and the integrated development of
1293. individuals. These objectives were enshrined in constitutional principles but
1294. had moreover resulted in policies and measures introduced by the Government,
1295. not only to preserve the State based on rule of law but also to promote the
1296. protection of human rights and labour rights. These measures included the
1297. introduction of the new Penal Code of Procedure and the Organic Law of the
1298. Public Ministry, adopted by Decree No. 40-94. As regards the protection of
1299. human and labour rights, she said that new labour courts had been established.
1300. Furthermore, protection units for working women, child workers and the
1301. integration into work of persons with disabilities had been set up. The
1302. following instruments had been promulgated to improve and speed up the
1303. exercise of the right to freedom of association and collective bargaining; the
1304. regulations governing the recognition of the legal personality; approval of
1305. statutes and registration of trade union organizations, contained in
1306. Government Agreement No. 639-93 of 2 November 1993; and the regulations
1307. governing the negotiation, approval and denunciation of collective agreements
1308. on working conditions in an enterprise or specific production centre,
1309. contained in Government Decree No. 22-94 of 13 May 1994. She also mentioned a
1310. series of texts on the minimum wage policy unanimously adopted by the National
1311. Wage Commission, a tripartite body. (Endnote 1)
1312. In her communication, the Minister emphasized the efforts made to modernize
1313. the Ministry of Labour and Social Insurance, with the cooperation of the ILO,
1314. including the purchase of computer equipment, as well as programmes, projects,
1315. courses and seminars in various spheres, amongst which she mentioned the
1316. improvement of labour relations and collective bargaining. (Endnote 2) In this
1317. context she also mentioned the establishment of a multisectoral body to
1318. promote multipartite training in the country: to this end a Letter of
1319. Understanding had been signed with representatives of the following
1320. organizations: CACIF, ANACAFE, AGA, FEPYME, CONFECOOP, CUSG, CGTG, UNSITRAGUA,
1321. CTC, FESEBS, FENASTEG and FENASEP. (Endnote 3)
1322. Labour Directorate. With a view to examining the subject of the establishment
1323. of trade unions, which was raised in several allegations, the mission held a
1324. meeting with an adviser of the Minister and officials of the General Labour
1325. Directorate; the Child Labour Unit and the Women's Protection Unit, which
1326. depended upon the Social Insurance Directorate; as well as with the Department
1327. of Statistics.
1328. At that meeting the mission was given a detailed explanation of the procedure
1329. for the granting of legal personality, the approval of the statutes and the
1330. registration of trade union organizations; this procedure included a large
1331. number of unnecessary or repetitive steps which made it excessively long. On
1332. the instructions of the Ministry of Labour, an analysis was undertaken which
1333. resulted in the adoption of Government Agreement No. 639-93 of 2 November 1993
1334. which established the regulations and procedure to be followed in this
1335. respect, a procedure which has been simplified and which should not exceed the
1336. 55 days prescribed by the law. (Endnote 4) The Minister observed in this
1337. respect that the following figures on the establishment of trade unions and
1338. the number of days required for the registration of trade unions and trade
1339. union officials showed the progress achieved from one year to the next:
1340. Registration of trade union organizations
1341. _________________________________________________________________
1342. Year Applications Registrations Days
1343. (average)
1344. _________________________________________________________________
1345. 1993 61 52 400
1346. 1994 57 64 55
1347. Source: General Subdirectorate of Labour, 14 Feb. 1995.
1348. _________________________________________________________________
1349. Registration of legal status (registration of officials)
1350. _________________________________________________________________
1351. Year Registrations
1352. _________________________________________________________________
1353. 1993 164
1354. 1994 225
1355. Source: General Subdirectorate of Labour, 14 Feb. 1995.
1356. _________________________________________________________________
1357. However, despite the reforms made, there may still be delays, essentially for
1358. reasons not ascribable to the Ministry, or in any event to the Directorate. It
1359. was unfortunately not possible to meet with officials of the General Labour
1360. Inspectorate, which is competent for some aspects of the above-mentioned
1361. procedure. This was all the more regrettable since some of the criticisms
1362. which the mission was subsequently to hear from trade union organizations
1363. referred precisely to the Inspectorate's role in the procedure and the
1364. criteria applied by this body. The external factors which might still slow
1365. down the establishment of trade unions included workers' ignorance about the
1366. procedure, the scant legal advisory services available, the presentation of
1367. defective statutes or documents without the necessary signatures and problems
1368. of communication concerning notification of the interested parties,
1369. deficiencies in the postal system or changes of address and even the lack of
1370. means of the parties concerned to go to the Ministry. But these deficiencies
1371. and the resulting delays arose only in a minority of cases, approximately 30
1372. per cent of the total, and concerned above all workers who are not members of
1373. any central organization which could advise them. The officials of the
1374. Ministry believed that it would be useful to draw up model statutes (which
1375. would not be obligatory of course) or for each central trade union
1376. organization to prepare its own, with the approval of the Ministry, to speed
1377. up the process and make it more reliable, although they understood that this
1378. had already been done in the different central organizations. For its part the
1379. mission pointed out that a reduction in the number of stages in the procedure
1380. for the establishment of trade unions was a positive development although it
1381. would be advisable to go further in this respect, bearing in mind the
1382. provisions of the Freedom of Association and Protection of the Right to
1383. Organize Convention, 1948 (No. 87).
1384. As regards the establishment of trade unions, the ministerial officials gave
1385. information to the mission on the total number of trade unions registered in
1386. the country and the membership rate, although they pointed out that the
1387. ministerial statistics were defective because of the system itself and the
1388. failure of trade unions to comply with the requirement to send in their
1389. membership data at periodical intervals.
1390. Between December 1943 and May 1994, 995 trade unions had been set up in the
1391. country, including 38 federations and five confederations, of which 833 were
1392. in the private sector and 162 in the public sector (Endnote 5) but, for
1393. various reasons, there was no way of knowing how many of these trade unions
1394. had ceased to exist and therefore how many trade unions actually existed now.
1395. Subject to the same reservation, the total number of members according to
1396. ministerial records was 86,752, including 78,901 men and 7,851 women. The
1397. regional distribution of the total number of established trade unions (Endnote
1398. 6) is as follows:
1399. Established trade unions: Regional distribution
1400. _________________________________________________________________
1401. Region Registered trade union organizations
1402. _________________________________________________________________
1403. Metropolitan 380
1404. North 5
1405. North-east 60
1406. South-east 85
1407. Central 144
1408. South-west 271
1409. North-west 48
1410. Petén 2
1411. Total 995
1412. _________________________________________________________________
1413. The unionization rate for 1993, according to ministerial data, was 3 per cent
1414. of the economically active population employed, with very small variations
1415. since 1980, as can be seen from the following table. (Endnote 7) However, in
1416. the opinion of the Ministry, the actual rate was at least 6 per cent, since
1417. the failure of trade unions to send in periodical data on their membership to
1418. the Ministry resulted in figures which were well below real levels.
1419. Economically active population employed, number of registered trade unions,
1420. number of trade union members and membership percentages
1421. _________________________________________________________________
1422. Year EAPE (1) Registered Members Membership
1423. trade unions (3) percentage
1424. (2) (4)
1425. _________________________________________________________________
1426. 1980 2 135 835 619 62 752 2.9
1427. 1993 2 954 226 995 86 752 3.0
1428. (1) SEGEPLAN estimates. (2) Accumulated registration.
1429. (3) According to figures given in the constituent acts of trade unions, which
1430. are well below real levels because of the failure of trade unions to send in
1431. updated data each year.
1432. (4) Relationship between the number of members and the EAPE.
1433. _________________________________________________________________
1434. The mission had reason to believe that in fact the Ministry of Labour had
1435. tried to reduce the number of stages and time of the procedure for the
1436. establishment of trade unions. However, some trade union central organizations
1437. made the criticism that the progress achieved did not benefit equally all the
1438. trade unions being established and that delays continued to occur. In this
1439. respect the mission had the opportunity to meet with the officials of a trade
1440. union, which complained that its application for legal recognition and
1441. registration in the register in the Ministry had been pending for a long time
1442. and that it was constantly faced with obstacles on matters of form which it
1443. believed clearly signalled an attitude of rejection.
1444. Ministry of Government. The mission was received by the Deputy Minister of
1445. Security, who had been in office for only a few weeks. Two subjects were dealt
1446. with during this meeting: the investigation of allegations of violations of
1447. the human rights of trade unionists and the situation of the Trade Union of
1448. Employees in that Ministry.
1449. The Deputy Minister of Security told the mission that the present team of
1450. executive officials of the Ministry were anxious to develop a policy for the
1451. effective respect of human rights and to ensure more resolute action by the
1452. national police in this respect. He reminded the mission that the Minister was
1453. a member of the law profession with an acknowledged reputation in the country;
1454. he was a university teacher, former President of the College of Lawyers and
1455. member of the Constitutional Court.
1456. As regards the Trade Union of Employees of the Ministry of Government, better
1457. known internally as the "Police Trade Union" (in formation), the Deputy
1458. Minister was not familiar with the allegation made to the Committee on Freedom
1459. of Association, but said that at least at present the officials of that trade
1460. union were being given proper treatment by the authorities and were exercising
1461. their trade union functions without problems. He said that the establishment
1462. of this trade union was a positive development if its activities remained
1463. within the scope of the law and its statutes.
1464. Presidential Commission on Human Rights (COPREDEH). The Commission "is an
1465. institution of the Government established by Government Agreement No. 486-91,
1466. dated 12 July 1992" according to an official document received by the mission.
1467. Its establishment was recommended by Professor Christian Tomuschat, an
1468. independent expert on Guatemala for the United Nations. Its high level members
1469. include a personal representative of the President of the Republic, who chairs
1470. the Commission, and the Ministers of Foreign Affairs, Government, National
1471. Defence, the Chief of the Public Ministry and the Coordinator of the Peace
1472. Commission.
1473. The main objectives of COPREDEH are: to coordinate action by the ministries
1474. and institutions of the executive to ensure the respect and protection of
1475. human rights and to guarantee communication and cooperation between the
1476. President of the Republic and the Judicial Department and the Human Rights
1477. Commission, as regards such rights; to centralize information on denunciations
1478. of violations of human rights and to promote their investigation through the
1479. Public Ministry and the Ministry of Government; to establish a mechanism for
1480. the constant monitoring of investigations of violations of human rights and
1481. judicial trials, with a view to informing the international community on the
1482. situation, through the Ministry of Foreign Affairs; to study and to propose to
1483. the President of the Republic draft legislation or initiatives on human
1484. rights; and to promote through the Ministry of Foreign Affairs cooperation and
1485. international financial and technical assistance and cooperation and the
1486. exchange of information with the different international bodies.
1487. COPREDEH is therefore a high level institution for the formulation and
1488. implementation of presidential policy on human rights. For this reason, during
1489. the preparatory mission, a request was made to the President of COPREDEH to
1490. provide information on the allegations pending before the Committee, and to
1491. have the necessary inquiries carried out. The President of the Commission, who
1492. had been in office for only a few days, showed great interest in the questions
1493. which had given rise to the direct contacts mission and readiness in dealing
1494. with them, for which he had received formal instructions from the President of
1495. the Republic. After listening to the mission and confirming that the inquiries
1496. carried out had produced only meagre results, he said that as a result of the
1497. direct contacts mission and on the express wish to the President of the
1498. Republic, a liaison committee had been set up by COPREDEH on labour matters in
1499. the sphere of human rights, which logically included trade union matters. The
1500. purpose of the committee was to monitor all the cases submitted to the
1501. Committee on Freedom of Association, and coordinate action by the Ministry of
1502. Labour, the Office of the Attorney General and the national police. In this
1503. way, the Minister of Labour would be able to pass on automatically to the
1504. liaison committee the complaints received.
1505. High non-governmental authorities. Given the nature of the questions before
1506. the Committee on Freedom of Association, which concerned the functioning of
1507. the administration of justice and the standards regulating it and the
1508. competent activity of the Public Ministry, the Office of the Public Prosecutor
1509. of the Nation and the Human Rights Commission, the mission was interested in
1510. meeting with these high authorities and with the Chief Justice of the Supreme
1511. Court and President of the Judicial Department.
1512. The Supreme Court of Justice and Judicial Department. The mission paid a
1513. courtesy visit to the Chief Justice of the Supreme Court and President of the
1514. Judicial Department, who received it in the presence of three magistrates of
1515. the Supreme Court. The mission explained to them the scope of its mandate and
1516. the points raised by the social interlocutors concerning the deficiencies of
1517. the labour jurisdiction, the attitude of judges and the legislation on labour
1518. disputes. The Chief Justice and his magistrate colleagues, after pointing out
1519. that they had been in office for only four months and would remain in office
1520. for five years, said that there had been serious budgetary restrictions
1521. affecting the establishment of courts, although they were carrying out a study
1522. on ways to set up more conciliation and arbitration courts - which have a
1523. tripartite structure - through a system of piece-work remuneration, which
1524. would significantly reduce costs. As regards the attitudes of judges in
1525. specific cases they said they could do nothing, since judges were autonomous
1526. and the inspection of courts, which was relatively efficient, guaranteed that
1527. cases were heard in accordance with the law.
1528. Attorney General of the Republic. The Public Ministry, headed by the Attorney
1529. General of the Republic, is an autonomous institution, the principal functions
1530. of which are to ensure the strict fulfilment of the country's laws. (Endnote
1531. 8) The conversation with the Attorney General focused on the problem of the
1532. denunciations of violations of human rights and freedom of association and the
1533. manner in which such matters were treated by the Public Ministry. The mission
1534. was informed that up to July 1994 inquiries were carried out under the
1535. responsibility of the judges, so that the Public Ministry could not comment on
1536. what had happened until then. Now the new Code of Penal Procedure gave the
1537. Public Ministry direct responsibility for criminal investigations ex officio
1538. and in respect of denunciations and disputes. Previously information on trials
1539. was not centralized and was kept in each court or tribunal. Hence the
1540. difficulty of replying to the allegations made to the Committee on Freedom of
1541. Association prior to the reform.
1542. There was an office of permanent attention where denunciations could be made.
1543. The office opens a file for each denunciation and allocates the case to a
1544. specific prosecutor, according to the zone. The family members concerned are
1545. convened to provide their respective statements. Instructions for the carrying
1546. out of inquiries are given to staff of the national police and the Office of
1547. the Attorney General and on the basis of their reports, judicial proceedings
1548. are initiated, according to the distribution of cases made by the Supreme
1549. Court of Justice among the different criminal courts. The Prosecutor then
1550. requests the initiation of criminal proceedings, which may or may not be
1551. granted by the judge.
1552. As regards the allegations made in the complaints made to the Committee on
1553. Freedom of Association, the Attorney General said that there was little
1554. information in the complaints or at least in the information which he had
1555. received from the Ministry of Labour. This could also be explained in part by
1556. the "climate of fear" in the country which discouraged the giving of evidence
1557. and which was related to events in the 1980s. At the request of the Ministry
1558. of Labour during the direct contacts mission, some prosecutors went to the
1559. courts and to the police as well as to the Presidential Commission on Human
1560. Rights, but had great difficulty in obtaining any results on the
1561. investigations carried out, except in a few cases. In the same way, they wrote
1562. to the complainant organizations requesting further information (names, dates,
1563. places, offices to which they had applied) without achieving any positive
1564. results to date. Up until 1995 it was impossible for the Office of the
1565. Attorney General to assume effectively the new functions prescribed by the law
1566. because of strict budgetary restrictions. Now the situation has changed and
1567. the Attorney General has undertaken to initiate inquiries on all the
1568. complaints pending before the Committee on Freedom of Association in the event
1569. that this has not yet already been done. The Attorney General, taking
1570. advantage of the presence of the mission, also agreed to meet with
1571. representatives of the trade union organizations with a view to clarifying the
1572. complaints, ensuring greater efficiency in the future presentation of any
1573. other complaints and overcoming the "climate of fear" and lack of trust;
1574. representatives of the Human Rights Commission and the United Nations Mission
1575. for the Verification of Human Rights in Guatemala (MINUGUA) would also be
1576. invited to this meeting.
1577. Meeting between the Public Ministry - MINUGUA - CGTG. The planned meeting
1578. between the Attorney General and his immediate collaborators and the trade
1579. union organizations did in fact take place, although the short notice given
1580. meant that only representatives of the CGTG could attend. The meeting was also
1581. attended by Ms. Leila Lima, Director of the MINUGUA regional office for the
1582. central zone. The meeting was a very positive and productive means of
1583. establishing channels to provide the trade union organizations with better
1584. access to the Office of the Attorney General to ensure effective means of
1585. intervention by the latter in the event of complaints and the correction of
1586. any defects in complaints made. The Attorney General recalled that his mandate
1587. would continue for a further four years, which would allow his action to have
1588. a far-reaching effect during which he hoped to cooperate with the trade union
1589. organizations whose representatives should come to his Office each time they
1590. felt it necessary to make a denunciation concerning the violation of human
1591. rights.
1592. The staff of the Attorney General's Office said that so far the search for
1593. information on the complaints made in the cases pending before the Committee
1594. on Freedom of Association had produced only scant results. The Human Rights
1595. Unit of the Attorney General's Office made inquiries at COPREDEH, the Human
1596. Rights Commission and the Ministry of Labour. Furthermore, communications were
1597. addressed to the complainant organizations, requesting them to specify or
1598. supplement certain information, but no replies had been received to date. They
1599. pointed out that very often it was impossible to carry out the legal inquiries
1600. because of defects in the complaints; other times the Attorney General's
1601. Office was not able to act because the matter in dispute might be of a purely
1602. labour nature, as for example when a complaint was made that an employer had
1603. dismissed and removed one or more workers. Furthermore, they recalled that
1604. although the increase in the number of bodies empowered to receive complaints
1605. had increased the scope of action of citizens, there was now a degree of
1606. fragmentation and lack of coordination in the existing services.
1607. The Attorney General proposed the organization of workshops, or a working
1608. group, with representatives of the trade union organizations and the
1609. participation of MINUGUA, to examine specific cases and improve the action of
1610. the Attorney General's Office when complaints arose.
1611. For their part the trade union representatives maintained that the proper
1612. formulation of a complaint did not always guarantee that a serious inquiry
1613. would be carried out and that the guilty parties would be punished and they
1614. gave examples of precise denunciations of serious infringements which had gone
1615. unpunished despite the fact that the complaints included the forenames and
1616. family names of the victims, places and dates of the events and even the
1617. possible or suspected authors. They pointed out that at the local level the
1618. work of the Attorney General's Office was even weaker because of the influence
1619. exercised by certain persons.
1620. The trade union representatives expressed their desire for the national
1621. problems to be resolved. For now, workers and peasants lacked protection and
1622. were isolated for many reasons, including illiteracy. As regards the meeting,
1623. they were pleased to know that the Public Ministry had set up a unit for the
1624. defence of human rights. They hope that its work will be felt at the local
1625. level and, in general, that more resources will be granted to this work.
1626. Furthermore, they recognized that the Attorney General's Office had carried
1627. out its obligations in other cases. They thanked the Attorney General for his
1628. invitation and welcomed the establishment of a body for dialogue and training.
1629. The representative of MINUGUA welcomed the willingness of the Attorney General
1630. to help improve the application of justice. She announced the imminent
1631. signature of a mutual cooperation agreement with this Office, a state
1632. institution, the strengthening of which was a matter of great priority.
1633. MINUGUA was endeavouring to establish means of coordination with the Attorney
1634. General's Office and with its unit for the defence of human rights to help
1635. overcome the discredit and lack of confidence affecting national institutions.
1636. In this connection she believed it was useful to discuss specific negative
1637. experiences in order to draw lessons and she expressed her willingness to form
1638. part of the working group proposed by the Attorney General, which coincided
1639. perfectly with the workplans of the mission. Secondly, aware of the interest
1640. of the Committee on Freedom of Association in the protection of trade union
1641. activists or officials under threat, she said that MINUGUA and COPREDEH had in
1642. fact established a unit for the protection of threatened persons, which had
1643. already carried out some important work.
1644. As a result of this exchange of ideas, and taking advantage of the presence of
1645. the direct contacts mission to establish specific undertakings, the Attorney
1646. General decided to convene an initial meeting of a working group coordinated
1647. by the unit for the defence of human rights, with the participation of
1648. representatives of the various trade union central organizations, the Ministry
1649. of Labour and MINUGUA, and which would be held on 28 March 1995 in the
1650. Training Centre of the Office of the Attorney General of the Republic.
1651. Public Prosecutor of the Nation. The Public Prosecutor carries out a wide
1652. range of activities under the powers conferred by the Constitution, as adviser
1653. and consultant of state organs and bodies, the representative of the State and
1654. the Head of the Public Prosecutor's Office. (Endnote 9) As regards the mandate
1655. of the mission, the Public Prosecutor of the Nation said that he had dealt
1656. with denunciations of violations of human rights, collective labour disputes
1657. and illegal dismissals involving problems of reinstatement, which in some
1658. cases were complicated by the occupation of enterprises. The Public Prosecutor
1659. listened with much interest to the reasons which had given rise to the direct
1660. contacts mission and offered his collaboration, particularly concerning the
1661. difficult problem of illegal dismissals, which should be examined not only on
1662. the basis of the specific situations which arose but within a more global
1663. perspective.
1664. Human Rights Commissioner. The Constitution makes provision for the post of
1665. Human Rights Commissioner, inspired by that of the Ombudsman. The Commissioner
1666. is a Commissioner of the Congress of the Republic for the defence of human
1667. rights guaranteed by the Constitution. (Endnote 10) The present Commissioner
1668. who is a professor of constitutional law and an historian, received the
1669. mission in the presence of the Deputy Commissioner and two advisers. The
1670. Commission is a state - not government - body of control which enjoys absolute
1671. autonomy. The mission was informed that previously the work of the Commission
1672. centred above all on individual rights because of the war. At present it has
1673. also been able to address labour rights, as can be seen from the activities
1674. report for 1994. (Endnote 11)
1675. The experience of the present Commissioner, in his own opinion, was not very
1676. positive. He was therefore not very optimistic about the development of the
1677. situation, which he described as dramatic. The country was on the point of an
1678. uncontrollable social explosion and suffered from a weak system; he referred
1679. to the deficiency of the Government and Congress, resulting from an election
1680. in which the majority party obtained 5 per cent of the votes and where the
1681. abstention rate was extremely high. He pointed out that there was much
1682. spontaneous discontent although he did not doubt the good faith of many
1683. officials. Of course there had been enormous progress since 1982, in
1684. particular in recent years, especially in the civil and political spheres, but
1685. the transition process still had a long way to go and there were many
1686. obstacles.
1687. As regards the alleged lack of investigation of violations of human rights,
1688. the Commissioner said that the Ministry of Government was competent to
1689. investigate these complaints, although it did not always do so, and the
1690. Ministry of Labour did not automatically protect freedom of association.
1691. Furthermore, there was a lack of institutional coordination and thus the
1692. Ministry of Labour had been reproached by the Ministry of Government for
1693. having registered certain trade unions and the Ministry of Economy for the
1694. fixing of minimum wages. The Commission was competent to request information
1695. from the Government and did so; now that more attention was being given to
1696. labour matters, it did not accept bureaucratic excuses when information was
1697. requested, for example from the Ministry of Labour.
1698. As regards the specific denunciation concerning the assassination of the
1699. leader, Manuel de Jesus Alonso, the officials of the Public Prosecutor's
1700. Office stated that the Governor of Izabal and the Mayor of El Estor, as well
1701. as the military base of the locality had been the subject of investigations.
1702. Furthermore, they said that no trade unionists were currently under arrest in
1703. the country.
1704. In the opinion of the officials of the Public Prosecutor's Office, the reform
1705. work on the Labour Code which was begun in 1986 and adopted in 1992 following
1706. pressure by the Government of the United States was insufficient. The Ministry
1707. of Labour applied sanctions only through the courts, unlike other ministries
1708. which had direct powers of sanction. In this respect the remedy would be to
1709. undertake a new legislative reform to establish administrative sanctions in
1710. the event of refusal to reinstate a worker who had been illegally dismissed
1711. and to apply penal sanctions in the event of a recurrence at the labour and
1712. trade union levels, the labour inspectorate needed to be given powers of
1713. sanction. On the other hand, even with the legislation in force, perhaps the
1714. work of the inspectors could be more effective if they were more creative and
1715. could count on the cooperation of the Attorney General's Office; indeed,
1716. sometimes officials of the Public Prosecutor's Office acted in collaboration
1717. with those from the Ministry of Labour.
1718. United Nations Mission for the Verification of Human Rights in Guatemala
1719. (MINUGUA). The mission visited the headquarters of the United Nations mission
1720. in Guatemala, responsible for the verification of compliance with the
1721. comprehensive agreement of 1994, which was finalizing its establishment at
1722. that time in the different regions of the country; as well as the headquarters
1723. of the regional office for the central zone.
1724. Confirming the information received, MINUGUA was concerned at the increasing
1725. number of denunciations and the low level of reply; there was an alarming
1726. number of denunciations of violations of the human rights of trade unionists,
1727. who are one of the most vulnerable social groups. Freedom of association was
1728. one of the priorities which the comprehensive agreement established for the
1729. verification mission; hence the interest given to the direct contacts mission,
1730. to which it offered its full cooperation.
1731. Impunity continued to be a major problem. MINUGUA officials also said that the
1732. establishment of the causes of the violations of human rights could also
1733. become a major problem. In particular, a chain reaction was often set off by
1734. labour situations (for example, claims for wage increases or payments) which
1735. resulted in trade union repression and culminated in acts of violence.
1736. Furthermore, there was a high rate of common delinquency.
1737. However, there had been some positive changes and those within or outside the
1738. Government who were promoting these changes should be given support. MINUGUA
1739. officials hoped that a better organizational response by the State could be
1740. achieved gradually, since there was a clear willingness on the part of high
1741. government authorities.
1742. MINUGUA reported that it also received denunciations of violations of human
1743. rights, and that it had some power to investigate these denunciations through
1744. its institutional contacts with the Presidential Commission on Human Rights
1745. (COPREDEH), the army and the Attorney General's Office; its mandate also
1746. included the strengthening of institutions, in which it would work closely
1747. with the Attorney General's Office, and that an agreement would be signed in
1748. this regard within the coming days. MINUGUA said that it had been very well
1749. received in the country and expressed its readiness to cooperate with the ILO.
1750. The mission expressed its sincere thanks for their hospitality and full
1751. cooperation to Mr. Leonardo Franco and his distinguished collaborators, in
1752. particular Mrs. Leila Lima, who emphasized the existence of shared concerns
1753. with the ILO as well as the scope for mutual support.
1754. Workers' organizations. The mission met with representatives of the trade
1755. union central organizations, including some of the main federations not
1756. affiliated to confederations and all those which had made complaints against
1757. Guatemala to the Committee on Freedom of Association. These organizations
1758. welcomed the presence of the mission and recognized the ILO's efforts on
1759. behalf of freedom of association. Their detailed and constructive remarks
1760. coincided on fundamental aspects, with some differences. The following
1761. paragraphs describe various approaches reflecting the different trade union
1762. positions.
1763. First approach. A trade union official gave a brief historical panorama in an
1764. attempt to place in context the subject of the violations of human rights of
1765. trade unionists, especially as regards threats. He said that the trade union
1766. movement dated back to 1947. When President Arbenz was overthrown, trade
1767. unions were accused of being communist and attacked. As a result of foreign
1768. influence mediatized trade unions were set up which, however, subsequently
1769. redirected their activities towards the pursuit of trade union democracy. From
1770. 1975 some trade unions were infiltrated by the guerrilla movement, which had
1771. begun around 1962. As a result, between 1975 and 1982 a policy of selective
1772. trade union repression was applied against the authentic leaders of the
1773. movement. As a means of self-defence, the trade union movement established
1774. links with human rights and other analogous groups.
1775. This trade union official believed that at present there were no serious
1776. threats against trade union activity except when it represented a danger to
1777. specific economic interests. In this connection he mentioned the case of the
1778. trade unionist, Eddie Conde Lu, General Secretary of the Electricity and
1779. Energy Workers' Union, a labour leader in that enterprise for almost ten years
1780. and Secretary responsible for organization of the Confederation of Trade Union
1781. Unity of Guatemala (CUSG), who had made denunciations. On 8 September 1994, he
1782. was kidnapped by the four occupants of patrol vehicle No. 405, who were
1783. wearing the uniform of the national police. He was viciously attacked and
1784. freed the next day. Another trade unionist who had filmed compromising
1785. situations with a video camera was also attacked. In the same way, the
1786. secretary of a sugar workers' trade union was the victim of a physical attack.
1787. That being said, the trade union official did not know if the "Jaguar of
1788. Justice" movement, a kind of armed group mentioned in some of the complaints
1789. and in the press published during the period of the mission in Guatemala,
1790. actually existed. Neither did he know if any or all of the threats mentioned
1791. at present were genuine since there was much confusion. Furthermore, the
1792. climate of violence had changed significantly. Years ago threats made were
1793. almost always followed by violent acts, whereas today this was not always the
1794. case. But there continued to be anti-trade union activities and attitudes
1795. amongst employers, the Ministry of Labour, courts and security bodies, and
1796. attempts to prevent changes, which would not come about until there was a
1797. culture of trade union freedom in the country. In the same way, the Attorney
1798. General was not interested in labour matters.
1799. As regards possible action concerning the denunciation of violations of human
1800. rights, he believed that there were cases where perhaps nothing could be done
1801. or very little, because of the vague nature of the denunciations which was due
1802. to a large extent to the current situation of insecurity in which the events
1803. occurred and the fear of reprisals; but there were cases in which the
1804. Government must act because precise information had been given, as in the
1805. already mentioned case of Eddie Conde Lu.
1806. As regards the establishment of trade unions, this was the only subject in
1807. which real progress had been achieved. On all other matters the situation had
1808. deteriorated.
1809. The trade union official reviewed the various aspects of the problem of the
1810. illegal dismissals of workers protected by trade union immunity and the
1811. refusal to reinstate them. On the one hand, one practice common amongst
1812. employers was to open and close down enterprises, and then reopen them in the
1813. same place or in a different place, changing the name of the enterprise, thus
1814. making a mockery of workers' rights; this illegal practice should be dealt
1815. with by the Government in administrative provisions. Another practice was to
1816. prevent, through dismissals, or threats (Endnote 12) the trade union from
1817. achieving the necessary membership to oblige the employer to negotiate, since
1818. trade unionism without collective bargaining was worth nothing. (Endnote 13)
1819. Furthermore, labour inspectors did nothing to secure the reinstatement of
1820. workers who had been illegally dismissed; they were supposed to have the
1821. worker reinstated within 24 hours or automatically request judicial
1822. proceedings. In a further violation of the law, there were only two
1823. conciliation and arbitration courts in the entire Republic; (Endnote 14) the
1824. establishment of such courts was thwarted by the employers' representatives
1825. and the attitude of judges which was not favourable to the workers. (Endnote
1826. 15) All these circumstances in practice render null and void the legal
1827. requirement to order reinstatement within 24 hours. The President of the
1828. Judicial Department should be requested to give instructions for courts to
1829. speed up their work, perhaps coupled with a supervision of the courts, with a
1830. view to ensuring compliance with the law, if necessary through the imposition
1831. of penal sanctions (30 days' imprisonment) against employers who do not
1832. reinstate a worker; and conciliation and arbitration courts should be
1833. integrated into full labour courts. Finally, there was a need to reform the
1834. law to give powers of sanction to inspectors and to disseminate existing
1835. standards.
1836. As regards the possibilities for tripartite dialogue, he said that he was
1837. ready to participate in this kind of discussion, although he was sceptical and
1838. requested guarantees from the ILO since serious violations were occurring in
1839. the country, such as, anti-trade union dismissals, "yellow" trade unions
1840. controlled by the employer - or coalitions of workers of the same kind
1841. (Endnote 16) - solidarism and, apart from the fact that there were few courts,
1842. justice was tainted and biased. The trade union official welcomed the
1843. establishment of a tripartite committee, or a body for achieving consensus,
1844. although its objective should not be to try and change the image of the
1845. country and avoid trade sanctions, which was the main concern of the
1846. Government, but to establish a genuine kind of dialogue.
1847. Second approach. In the opinion of the second group of trade union officials,
1848. the Government had no defined policy; the Ministry of Labour might promote
1849. freedom of association, but this would not necessarily occur in other
1850. departments. Thus, for example, the maquila enterprises were established under
1851. the scheme of the Caribbean Basin Initiative and the Generalized System of
1852. Preferences (GSP) and they had helped to mitigate the crisis in employment,
1853. although they enjoyed considerable freedom in disregarding the law, without
1854. the Ministry of Labour being able to do anything about it. Then there was the
1855. problem of the lack of legitimacy of the public authorities, given the large
1856. number of abstentions in the elections. The legislative branch and the
1857. judiciary were far apart from one another. Furthermore, the Judicial
1858. Department had taken action against its own trade union.
1859. As regards violations of freedom of association, there had been a change in
1860. methods since 1993. Even so, 25 trade unionists died in 1994, six of them in
1861. the same central organization. The new Human Rights Commissioner had adopted a
1862. more open attitude on labour matters, appointed officials in this sphere and
1863. had thus managed to neutralize the Government. It was not really the most
1864. appropriate body, and the Commissioner did not have any coercive powers,
1865. although he had played an important role.
1866. Perhaps the trade union organizations had not made all the denunciations which
1867. they ought to have made, because of lack of time and resources, and this would
1868. explain the smaller number of allegations before the Committee on Freedom of
1869. Association. When there was a violation of human rights, efforts should be
1870. concentrated on trying to resolve the problem in the enterprise, in the
1871. courts, or in the street. His strategy was to take the matter to the Ministry
1872. of Labour, the Labour and Social Insurance Courts and the Human Rights
1873. Commission. There was no initial recourse to an international body because the
1874. process was a long one and not always effective. Furthermore, even in this
1875. case, recourse could be made to other bodies, such as the United States
1876. Department of Trade under the GSP, or the United Nations Commission on Human
1877. Rights. An attempt was made to monitor a complaint lodged with the Committee
1878. on Freedom of Association, although it had not been possible because of the
1879. large number of violations, concerning which information had been given to
1880. officials of the United States Commerce Department. Trade union organizations
1881. recognized that they lacked training to act in international bodies, in
1882. particular in the ILO, and in this connection they would welcome training
1883. courses on international labour standards and the respective procedures.
1884. Finally, they said that the Government appointed on its own initiative the
1885. trade union representative before the ILO.
1886. This trade union sector believed that it had been the victim of systematic
1887. repression since 18 July 1994, because of its attempts to deal with labour and
1888. other problems. It suggested that there should be greater coherence between
1889. the work of the ILO and the United Nations, since although the Comprehensive
1890. Agreement provided protection for freedom of association and against impunity,
1891. these rights were being constantly violated.
1892. As regards the establishment of trade unions, the procedure had indeed been
1893. reduced but not the time required, which still usually took more than 60 days.
1894. In its own case the process had been under way for more than one year.
1895. As regards legislative aspects, trade unions believed that the reforms had
1896. become a kind of straightjacket, because of the lack of enough conciliation
1897. and arbitration courts and the attitude of the judges. In general, positive
1898. law was good but rarely applied; there was thus a need to fill the gaps and
1899. improve its practical application. Finally, the trade unions expressed
1900. criticism of the action of the General Labour Inspectorate.
1901. The trade unions believed that the possibility of a tripartite meeting to
1902. discuss matters related to the mission was positive and suggested that trade
1903. union participation in this meeting could include a representative of each of
1904. the existing coordinating bodies: the UASP and the CNUT.
1905. Third approach. As regards violations of human rights, it could not be said
1906. that there was a government policy to this end and the methods have varied,
1907. although the results were equally negative. The main problem was impunity,
1908. indifference and the fact that the subject was ignored at all levels. Mention
1909. was made of the assassination of four trade union leaders: Cesareo Chanchave,
1910. General Secretary of the Pilots' Trade Union; Manuel de Jesus Alonso, Jesus
1911. Miranda y Jacinto Sanchez del Cid, cases in which there were precise
1912. denunciations but where no investigation had been carried out or any concrete
1913. result achieved. In some of these cases the complainant organization even
1914. indicated the suspected masterminds, but to no avail. As regards the situation
1915. of Alonso, they spoke with the President of the Republic, the Ministry of
1916. Defence, the Attorney General of the Republic and the Human Rights
1917. Commissioner and only the latter ordered an investigation. The Attorney
1918. General has been very reluctant to deal with labour cases; even worse, some
1919. prosecutors had participated in manoeuvres to neutralize trade unions, as had
1920. occurred at the El Arco, Medellín and Bolivia Farms.
1921. As regards problems of illegal dismissals and the refusal to reinstate
1922. workers, this trade union sector stated that each time a problem arose they
1923. took the matter to the labour inspectorate, but they had never been convened
1924. by the Ministry to any conciliation meeting to discuss obstacles to the
1925. reinstatements. On the contrary they had seen the General Labour Inspector
1926. intervene to neutralize trade unions or approve collective agreements with
1927. defects, in order to lift any existing summons; other times he had acted with
1928. delay, as in the case of the Medellín Farm, mentioned earlier. These
1929. situations had helped make this trade union sector sceptical. It had said that
1930. it was ready to engage in tripartite dialogue, but was mistrustful because its
1931. desire for dialogue, expressed on various occasions, had always been
1932. frustrated. If an experiment of this nature were undertaken, the objective
1933. should be to achieve concrete results through a strategy enabling a process of
1934. dialogue and regular meetings to be established. They recalled that on 8 April
1935. 1993 a tripartite agreement on short, medium and long-term objectives had been
1936. concluded, although it was a dead letter agreement since it was never followed
1937. up by other meetings. In the same way, the intersectoral negotiations of 1994
1938. produced some results, which were then blocked later. The Advisory Council of
1939. the Ministry of Labour in its turn had held only two meetings and seemed to be
1940. bogged down in lethargy. In the specific case of coffee, the negotiating
1941. parties reached a comprehensive and complex agreement but after government
1942. agreement was restricted only to wage increases, the scope of the text was
1943. limited and further bargaining discouraged. In the light of these negative
1944. experiences, if the objective were now to achieve something more effective the
1945. participation mechanism would have to be improved and include ILO
1946. participation and monitoring. The process should not be started from scratch
1947. but take advantage of the mechanisms which already existed. They proposed that
1948. seminars should be devoted to specific topics which would help the
1949. interlocutors to get to know one another and overcome mistrust and the culture
1950. of intolerance.
1951. Fourth approach. Another trade union sector believed that there had been
1952. progress in human rights in general and a substantial reduction in the number
1953. of assassinations and threats, although freedom of association was undermined
1954. by anti-trade union dismissals and the promotion of solidarism. This sector
1955. said that it preferred to act through dialogue and negotiation by all legal
1956. means, especially in the context of the globalization of the economy; it
1957. resorted to direct action only when there was no other solution. It was a
1958. partisan of trade union unity, which had been sabotaged by some officials who
1959. held anachronistic views. It also supported tripartism.
1960. Organization of employers. The mission was received by the Labour Commission
1961. of the Coordinating Committee of Agricultural, Commercial, Industrial and
1962. Financial Associations (CASIF). A particularly frank and constructive meeting
1963. lasting several hours examined questions concerning human rights, the
1964. establishment of trade unions and problems of anti-trade union discrimination,
1965. amongst others.
1966. Human rights According to the representatives of CACIF, armed conflict had
1967. affected all aspects of life in Guatemala, especially at the social (situation
1968. of poverty) and labour levels, since guerrilla factions had infiltrated some
1969. trade unions. The principal topic in the country today was the conflict, which
1970. was the main source of human rights violations. Employers were fully aware of
1971. the human rights violations which affected persons of all sectors of society
1972. and condemned such violations.
1973. Up until some 12 or 14 years ago, the climate of repression made any meeting
1974. and dialogue between employers and the labour sector impossible. Today, the
1975. situation was very different in qualitative terms. The death squadrons no
1976. longer existed and dialogue was a common feature of relations between
1977. employers and workers in various conciliation bodies. In this process of
1978. evolution, labour relations had become more transparent and trade unions had
1979. developed. The fruit of this new climate was the labour reform, which was
1980. adopted by consensus. Employers felt the need to participate, along with
1981. workers, in the adoption of the major decisions in the country, beginning with
1982. the peace process.
1983. Referring specifically to the denunciations, the employers said that
1984. unfortunately - to a large extent due to the war - there were no resources for
1985. investigations and this was a matter of concern to them. When peace was
1986. achieved, impunity would be substantially reduced. The present Government was
1987. one of transition, with many deficiencies and a lack of human resources. To
1988. give some idea of the situation, they said that they had not been informed of
1989. the existence of the mission. They believed that the Government should make an
1990. effort to reply to the Committee on Freedom of Association. They expressed
1991. their willingness to help in the discussion and resolution of these problems
1992. and to further the investigations and ensure that the Government replied to
1993. the complaints from a body which included the presence of the workers. On the
1994. other hand, however, they believed that denunciation had been used abusively.
1995. The establishment of trade unions. The CACIF believed that the establishment
1996. of workers' trade unions should be as free as the establishment of a limited
1997. company and they had been clear in the support expressed to the GSP bodies
1998. that they did not oppose the establishment of trade unions. On the contrary,
1999. the legal reform adopted by consensus tended to speed up this process.
2000. Protection against anti-union discrimination. As regards the illegal
2001. dismissals and the refusal to reinstate workers on trade union grounds, they
2002. said that there was no widespread employer policy in this respect, since they
2003. were convinced that peace was a good thing for everyone and that peace could
2004. not be achieved through signatures, but had to be constructed, as was
2005. proclaimed in the Organization's slogans. But they recognized that employers
2006. also needed ILO cooperation and in particular training in these and other
2007. subjects. They also recognized that the problem was a complex one and they
2008. would ask their legal advisers to study it carefully. Furthermore, without
2009. wishing to justify any employer behaviour which might be illegal, they pointed
2010. out that coexistence with serious trade unions which concentrated on labour
2011. matters was much easier than when the trade union had a marked political
2012. objective and acted in a radical manner. Some trade unions promoted the
2013. closing down of factories or public services. Recourse to strikes was
2014. regulated by the law, but some trade unions distorted its use as an
2015. "instrument of dialogue". Most of the strikes occurred in the public sector
2016. and they did not believe that there had been or was usually any repression for
2017. this reason.
2018. In discussing possible instruments to prevent acts of anti-union
2019. discrimination, the representatives of the CACIF told the mission that for a
2020. number of years they had been working on the preparation of a code of conduct
2021. to provide their members with guidance on the minimum level of respect of
2022. workers' rights to be observed by all employers. Of course, it would only be a
2023. moral instrument, although they were aware of the importance which it would
2024. have at the internal level and of its repercussions on the international image
2025. of the employers' movement.
2026. The employers believed that the lack of effective protection of the
2027. non-removability of workers was due to the slowness of justice, a widespread
2028. and well-known feature which affected everyone in Guatemala. But they were
2029. optimistic and believed that there would be significant changes in the near
2030. future, once the peace process had been concluded. Furthermore, the Judicial
2031. Department had already been restructured and the situation had improved. In
2032. November 1992 the law was amended to speed up the work of the conciliation and
2033. arbitration courts and employers and workers had already appointed their
2034. representatives to these courts. Employers had every interest in the
2035. improvement of the administration of justice in general and as regards labour
2036. matters in particular.
2037. Tripartite experience. As a means of improving the labour relations climate
2038. and exploring effective solutions to the problems raised, the employer
2039. representatives were ready to participate in a tripartite meeting promoted by
2040. the mission, which could serve as a basis for a more regular tripartite
2041. dialogue and contribute to resolving the problems which had led to the
2042. complaints before the Committee on Freedom of Association.
2043. In conclusion, the employer representatives were ready to encourage the
2044. Government to address the denunciations made and to promote a positive
2045. attitude on the subjects of the complaints, although they expressed their
2046. concern with respect to those complaints which seemed to be rash. In the same
2047. way, they expressed their concern, given the present situation of the country,
2048. at a possible adverse conclusion by the Committee on Freedom of Association
2049. and its negative repercussions on international trade. Guatemala was, they
2050. said, experiencing its most important political event of the century, namely
2051. the process for resolving the internal armed conflict. But peace would have
2052. difficult consequences, including an increase in social demand. To meet this
2053. demand, the country required an increasingly efficient economy and appropriate
2054. levels of investment, which presupposed the possibility of free trade for its
2055. products, without any obstacles which might give the country a negative
2056. international image. Being a small country, Guatemala needed international
2057. trade.
2058. Tripartite meeting. At the end of its activities, the mission convened a
2059. tripartite meeting which was attended by the Minister of Labour, an observer
2060. representative of COPREDEH, representative of CASIF, representatives of the
2061. CSUG, the CGTG and the National Federation of State Workers of Guatemala
2062. (FENASTEG). The leaders of the CTC and UNSITRAGUA had also announced their
2063. intention of attending the meeting, but were not present. The purpose of the
2064. meeting was to report on the activities carried out by the mission, and some
2065. of the results obtained and to examine the possibilities of joint action to
2066. resolve the problems which had led to the complaints and to prevent future
2067. problems. The meeting offered an opportunity to review past experience in
2068. tripartite dialogue and expressed the hope that the establishment of a climate
2069. of trust would allow new experiences to be explored, within the framework of
2070. the Tripartite Consultation (International Labour Standards) Convention, 1976
2071. (No. 144), with the participation of the ILO.
2072. The representative of the workers' organizations referred to the denunciations
2073. of violations of human rights and freedom of association. They said that
2074. although perhaps it was no longer possible to do anything or very little about
2075. events in the past, at least in the future the Ministry of Labour should
2076. provide effective protection to workers. They said that each sector should
2077. undertake to participate in the establishment of a climate of tolerance and
2078. morality, that the Government should undertake a real examination of workers'
2079. problems and that workers' organizations would have no objection to
2080. participating in tripartite dialogue, within the framework of Convention No.
2081. 144, provided that the agenda was comprehensive and conducted under the
2082. supervision or monitoring of the ILO. The final purpose of tripartite dialogue
2083. should not be to change the international image of the country, but to address
2084. in a meaningful way the problems facing the country.
2085. The representatives of CACIF reiterated some of the positions which they had
2086. expressed to the mission and said they were ready to participate in any
2087. committee or working group established within the framework of Convention No.
2088. 144.
2089. The Ministry of Labour reiterated the Government's desire to respect freedom
2090. of association and to examine as efficiently as possible any denunciations
2091. made. In order to achieve better results in this respect, with the
2092. participation of workers' and employers' organizations, the Government was
2093. ready to set up a tripartite committee, within the framework of Convention No.
2094. 144, ratified by Guatemala, which could also discuss complaints concerning
2095. freedom of association, denunciations of human rights violations and other
2096. subjects of interest. The Minister thanked the mission for the efforts made to
2097. achieve this proposal, although she said that the situation in the country was
2098. complex and that a certain atmosphere of mistrust and suspicion was still an
2099. obstacle to tripartite dialogue. At all events, she said that she would do
2100. everything possible to set up in the near future a tripartite committee on a
2101. solid basis and not merely to comply with a formal requirement, and she hoped
2102. she could count on ILO cooperation in this respect. To this end, she would
2103. send out the respective convocations in the coming weeks. Within the same
2104. spirit of dialogue, the Minister announced the convening of the Advisory
2105. Council of the Ministry of Labour in the near future.
2106. The mission believed that the tripartite nature of this meeting was of great
2107. significance in the present situation of Guatemala. On the one hand it was a
2108. valuable example of the exchange which could occur between the social partners
2109. and of the way such an exchange could be directed towards the future if it
2110. were properly oriented and resulted in concrete and positive action. At the
2111. same time, it highlighted the burden which had been left by adverse situations
2112. and frustrated dialogue. All the social partners now required positive
2113. experiences and the workers' organizations needed guarantees that human rights
2114. and freedom of association would be respected. On these bases, a climate of
2115. mutual confidence and trust could be created and consolidated. The ILO could
2116. play a major role in the strengthening of this climate of confidence because
2117. of the reputation it enjoys amongst the social partners.
2118. The intense and successive series of meetings with high authorities,
2119. technicians of the administration, representatives of workers' organizations
2120. and CACIF and officials of the verification mission of the United Nations
2121. Mission for the Verification of Human Rights in Guatemala (MINUGUA) was an
2122. extremely positive and valuable experience for the mission in allowing it to
2123. understand gradually the nature and scope of the problems pending before the
2124. Committee on Freedom of Association, as well as the capacity for response by
2125. the Government and non-governmental authorities, in the conditions which the
2126. country is experiencing. Their testimony, along with the large volume of
2127. documentation provided to us, will now allow us to examine the different
2128. aspects of the complaints.
2129. III. Information on the allegations obtained during the mission
2130. The allegations made in the six complaints comprise two main spheres: (Endnote
2131. 17) violations of the basic human rights of trade union officials and
2132. activists and serious violations of freedom of association in the following
2133. form:
2134. (1) Attacks against trade union officials and activists: murders,
2135. disappearances, kidnappings, acts of physical aggression and threats.
2136. (2) Obstacles to workers' trade union organizations.
2137. (3) Acts of anti-union discrimination.
2138. (4) Violations of collective bargaining.
2139. The purpose of this second part is to examine the information received on the
2140. different allegations. However, some preliminary remarks must first be made on
2141. the present situation in Guatemala, where the political and social process
2142. under way has some special characteristics.
2143. The present situation of Guatemala (Endnote 18)
2144. The long war and the laborious search for firm and lasting peace within a
2145. climate of violence characterize the present situation in Guatemala at all
2146. levels. More than 30 years of armed conflict have created a way of life in a
2147. society where peace is now imminent but where poverty and tensions themselves
2148. pose a threat of creating a "spontaneous and uncontrolled social explosion".
2149. (Endnote 19)
2150. In the dramatic situation which it has experienced, after a series of coup
2151. d'état, the country has nevertheless made an extraordinary effort to ensure
2152. the organization of the State and the functioning of its institutions, in a
2153. process not devoid of paradox. The 1985 Constitution, "promulgated during the
2154. transition from an extremely harsh authoritarian Government to one of
2155. democratic principles" is centred on the concern for guaranteeing human
2156. rights, enshrined in the Preamble itself, and the privileged status given to
2157. political parties and the establishment of three new institutions: the Supreme
2158. Electoral Court, the Constitutional Court, and the Human Rights Commission, a
2159. body which is established for the first time in Latin America, under the
2160. direct influence of the figure of the Ombudsman. (Endnote 20) It also
2161. establishes, in separate form, the offices of the Attorney General of the
2162. Republic and Head of the Public Ministry, and the Public Prosecutor of the
2163. Republic. The Constitution contains an important list of individual, social
2164. and political rights, including the right to life, meeting and demonstration,
2165. association, the right to work, and to a series of minimum social rights which
2166. must be enshrined in labour legislation, including the right to freedom of
2167. association of workers and the rights to strike and work stoppages. The
2168. Constitution establishes the freedom and equality of all human beings, freedom
2169. of action, the inviolability of a person's home, of correspondence, documents
2170. and books, and freedom of expression of thought. In the same way, it
2171. establishes guarantees against illegal arrest and on behalf of the rights of
2172. prisoners, the right to a defence, the presumption of innocence, the public
2173. nature of trials and the principle of egality.
2174. As regards the functioning of institutions, the amount of legitimacy of the
2175. authorities is a necessary theme in Guatemala and a source of concern, because
2176. of the very high rate of abstentionism in elections. The constitutional
2177. reforms were approved on 30 January 1994, in a popular vote, by 70 per cent of
2178. the voters, but the abstention rate was 85 per cent. In the same way, in the
2179. parliamentary elections of 14 August 1994, the abstention rate was 80.5 per
2180. cent. (Endnote 21) The mandate of the President runs only from 5 June 1993 to
2181. 16 January 1996. There are however a number of surprising aspects. The present
2182. authorities, far from limiting themselves to only administrative activities,
2183. are immersed in a process of adopting fundamental decisions, accepted by the
2184. people, on such matters as the negotiation of a peace settlement, the drafting
2185. of major legislation, or the intense exercise of administrative activities,
2186. with major changes in the traditional public administration, and creative work
2187. in the new state institutions, despite the dangers which face them. "The
2188. success of the conclusion of the Comprehensive Agreement on human rights, of
2189. 29 March 1994, was tarnished by the brutal assassination of Licenciado
2190. Epaminondas Gonzalez Dubon, President of the Constitutional Court, who had
2191. maintained a firm and resolute response to the coup of 25 May 1993"; at the
2192. same time, rumours of a coup d'état were circulating in Guatemala and there
2193. was talk of an attempt to assassinate the President of the Republic on 30 June
2194. 1994, the date of the national holiday. (Endnote 22) Secondly, although there
2195. is emphasis on the lack of the electoral legitimacy of the authorities, the
2196. fact that the constitutional principle has been maintained in the difficult
2197. circumstances of the transition from an authoritarian regime to a democratic
2198. regime, particularly in the situation created by the most recent coup d'état
2199. attempt, is justifiably considered as a major collective achievement. In this
2200. respect, it is significant that there has been no rupture in Guatemala but
2201. rather a gradual process, which has nevertheless included some very important
2202. events.
2203. As regards the situation of human rights in Guatemala, the independent expert,
2204. Monica Pinto, identifies five key features: (1) the armed conflict and the
2205. peace process, which include various important agreements, such as the
2206. above-mentioned Comprehensive Agreement on human rights, the activity of the
2207. Assembly of Civil Sectors, the presence of the United Nations Verification
2208. Mission and the current difficulties in the continuation of negotiations; (2)
2209. the militarization of Guatemalan society and its repercussions; (3) the
2210. escalation of social violence in 1994; (4) the situation of extreme widespread
2211. poverty, with an unjust distribution of wealth; and (5) the indigenous
2212. majority (approximately 59 per cent of the population) whose claims, according
2213. to the author, include the constitutional recognition of the existence of four
2214. peoples in the country: the Mayas, the Xincas, the Garifonas and the Ladinos,
2215. with appropriate political expressions.
2216. The Human Rights Commission maintains that the human rights situation is not
2217. encouraging. As in the previous year, there is a persistent lack of respect
2218. for the life, dignity, integrity and security of persons. There has been a
2219. continuation of the sporadic harassment of institutions which protect human
2220. right, which is tending to create a climate of fear based on uncontrolled
2221. intimidation. (Endnote 23) Furthermore, the Pinto report, using the report of
2222. the Human Rights Commissioner, refers to cases of the forced disappearance of
2223. persons, summary executions, tortures and other forms of cruel, inhuman or
2224. degrading treatment, threats and political repression, amongst other excesses.
2225. As regards the threats made against human rights activists, trade unionists,
2226. journalists, university students and judges, Ms. Pinto points out that "from
2227. August (1994), notes signed the Jaguar of Justice', began to appear which
2228. announced the decision to execute different figures". (Endnote 24) The
2229. violations are serious and coincide with some of those mentioned in the
2230. complaints. Furthermore, both reports refer to the death of Herman de Leon
2231. Parejon, a leader of the Trade Union of Workers of Quetzaltenango, mentioned
2232. in Cases Nos. 1512 and 1539; the report of the Commissioner also refers to the
2233. death of the trade unionist Noé Pérez Acevedo, killed by a soldier; and the
2234. Pinto report mentions the case of the trade unionist, Gilberto Moral Caan,
2235. arrested by the army in Alta Verapaz in April 1994, similarly, during the
2236. presence of the mission in Guatemala and a few days after, the press reported
2237. violent events, such as those mentioned in the above-mentioned reports.
2238. (Endnote 25)
2239. One of the most dramatic elements of the situation in Guatemala which was
2240. raised in many conversations and mentioned in important documents is that of
2241. impunity. The Comprehensive Agreement establishes in point 3 a solemn
2242. undertaking against impunity, whereby the Government assumes the task of
2243. promoting legislative reform to classify as offences of special seriousness
2244. forced or involuntary disappearance, as well as summary or extra-judicial
2245. executions, and their international recognition as crimes against humanity. In
2246. his report the Human Rights Commissioner, in referring to the threats, forced
2247. disappearances, summary executions and tortures, states: "... and it is very
2248. difficult, and in most cases impossible, to establish the origins of these
2249. actions (...). Very many cases have not been clarified". (Endnote 26) Ms.
2250. Pinto also speaks of a situation of "widespread impunity". (Endnote 27)
2251. However, it is important to take account also of several concurrent aspects
2252. concerning the violations of human rights. The high state authorities
2253. responsible for the vigilance of human rights are extremely concerned about
2254. the frequency and seriousness of the violations, which occur despite their
2255. efforts to prevent them, and believe that the situation as compared with ten
2256. years ago is favourable, although progress now has become slow and difficult.
2257. Secondly, the Human Rights Commission is carrying out a useful and interesting
2258. organizational work on the compilation of a register of denunciations and
2259. proceedings carried out, by type of right violated and department, which will
2260. provide a kind of X-ray of the human rights situation; of course, the figures
2261. reveal different situations according to the departments, perhaps due to
2262. differences in the levels of tension and unrest, or deficiencies in
2263. registration in some departments. Thirdly, the number of denunciations made to
2264. the Commissioner rose considerably in 1994, which indicates a greater
2265. awareness of this means of redress and perhaps greater confidence by the
2266. population, although some of these denunciations (1,806 out of a total of
2267. 13,431) were not within the competence of the Commission. Furthermore, there
2268. has been a marked increase in the number of bodies which receive denunciations
2269. of human rights violations.
2270. The previous paragraphs give some idea of the very complex situation in
2271. Guatemala concerning the war and the efforts being made to achieve peace.
2272. There have been important achievements in the search for a more complete state
2273. organization, in the context of a transition regime and a climate of poverty;
2274. and although there is a continued policy to promote human rights, this has not
2275. prevented many serious violations, many of which remain unpunished. However,
2276. there is the prospect that state action will become increasingly firm with the
2277. support, in the human rights field, of the United Nations Mission for the
2278. Verification of Human Rights in Guatemala (MINUGUA). It is in this context
2279. that the allegations made against Guatemala to the Committee on Freedom of
2280. Association, especially those concerning violations of the basic rights of
2281. trade unionists, should be examined.
2282. Allegations of violence against the basic rights of trade unionists
2283. The complaints against Guatemala contain allegations on a large number of
2284. murders, acts of aggression, kidnappings, illegal arrests and death threats
2285. against more than 150 trade union officials or trade unionists, in addition to
2286. allegations concerning groups of an unknown number of workers. In reply to
2287. these allegations, the Government provided reports of the Attorney General of
2288. the Republic concerning 13 of the persons mentioned in the complaints. A
2289. possible author is identified in the only case which states that the
2290. assassination had no relationship with a trade union situation.
2291. The replies provided by the Public Ministry are as follows. (Endnote 28)
2292. (a) Murders
2293. I. (1) Carlos Enrique Cardenas Sagastume: kidnapped on 16 June 1991, on
2294. leaving the Centre of Military Studies. His body was found in the vehicle of
2295. Major Cardenas. Case initiated ex officio by COPREDEH. The Ministry of Defence
2296. stated that inquiries were being carried out, without leads having yet been
2297. established. The case is before the Criminal Court of the First Instance,
2298. which did not call upon the Attorney General.
2299. (10) Dinora Gossep Pérez Valdez: murdered on 29 April 1991, with multiple
2300. bullet wounds. Case before the Seventh Penal Court of the First Instance, No.
2301. 986-91, for homicide. There are no leads.
2302. (11) Oscar Oswaldo Luna Aceituno: murdered outside his home on 26 June 1991 by
2303. two armed men. Case before the Sixth Penal Investigation Court of the First
2304. Instance. The last report is dated 23 August 1991. There is no evidence
2305. permitting the authors of the murder to be identified.
2306. (12) Federico Tay Osorio: case before the Second Penal Investigation Court of
2307. the First Instance of the Department of Quiché, Case No. 849-91, concerning
2308. which the Public Ministry requested on 10 July 1991 that inquiries be carried
2309. out. No persons have been charged with this murder.
2310. (13) Federico Tay Vicente: case examined along with that of Mr. Federico Tay
2311. Osorio.
2312. (19) German Alfredo de Leon Parajon: kidnapped on 1 July 1994, by persons
2313. unknown, in the department of Quetzaltenango. Found assassinated on 9 July
2314. 1994 in a town in Solola. The matter continues to be under investigation by
2315. the Public Ministry of the Department of Solola.
2316. - Concerning this case, the Human Rights Commissioner issued a detailed
2317. statement, on 5 September 1994, in which the dates of the events do not
2318. coincide with those given by the Public Ministry; the former concludes that
2319. there was participation by two members of the national police according to
2320. statements by eyewitnesses, states that the case is before the Court of the
2321. First Instance of the Department of Solola and that there was a violation of
2322. human rights for which the State of Guatemala if responsible. (Endnote 29)
2323. (20) Manuel de Jesus Alonso: on 24 October 1994 entered the emergency
2324. department of the hospital of the Guatemalan Social Security Institute (IGSS),
2325. transported from the Colonia de Repegua de Santo Tomas de Castilla in a
2326. vehicle of the voluntary fire brigade. The case is identified with the No.
2327. 1823-94-E-2 and was initiated by order of the national police 3156, dated 25
2328. October 1994, according to the Public Ministry of the Department of Izabal. It
2329. also indicates the inquiries carried out, which led to the identification of a
2330. rented vehicle with registration plates A-4634. Mention is also made of the
2331. Governor of Izabal, Orlando de Jesus Cabrera; the Municipal Mayor of Puerto
2332. Barrios, David Pineda Acevedo and Carlos Ical, Abelardo Cacao, Romeo Aroldo
2333. Lima and Doris Bladimiro Lima, but without explaining why (the communication
2334. is in response to a questionnaire, the text of which would clarify the meaning
2335. of these references, but which is not included).
2336. II. (18) René Cabrera Estrada: after receiving threats, he was ultimately
2337. murdered on 18 August 1994. Evidence suggests that the author was Elmer Lopez
2338. Ortiz, who apparently had personal problems with the victim.
2339. (b) Acts of aggression and threats
2340. II. (14) Mauricio Raxcaco Enriquez: on 19 August 1991 he was beaten and
2341. threatened by four men dressed in civilian clothes, who were travelling in a
2342. white vehicle. As a result of the constant threats, Mr. Raxcaco left the
2343. country in August 1991.
2344. (c) Threats
2345. III. (9) Amilcar Mendez: threatened with death on several occasions, by
2346. telephone, most recently on 24 December 1994, accused of being a member of the
2347. URNG. Case reported to COPREDEH.
2348. (14) Armando Sanchez: on 3 January 1995 he was requested to present himself to
2349. the Attorney General's Office to formalize his denunciation of threats
2350. received in October 1994 from the "Jaguar of Justice" movement, but has not
2351. yet appeared.
2352. (20) José Gil: allegedly threatened in his house with death in May 1994 by
2353. armed men. COPREDEH was informed of the case in December 1994 and referred the
2354. matter to the Public Ministry and the Directorate General of the National
2355. Police.
2356. (21) Débora Guzman: wife of Mr. Felix Gonzalez y Gonzalez, Secretary of labour
2357. disputes of the Trade Unions of Workers of the Lunafil factory; she was
2358. arrested, assaulted and threatened on 6 October 1994, in a street of
2359. Amatitlan, COPREDEH, through the Ministry of Foreign Affairs, received the
2360. denunciation and proceeded to coordinate investigations with the Office of the
2361. Attorney General of the Republic and the Directorate General of the National
2362. Police.
2363. The Government emphasized the difficulty facing the authorities in locating
2364. the respective files, where they indeed exist, because of the dates of the
2365. events which resulted in the complaints and the reluctance of the complainants
2366. to collaborate by indicating the respective dates and providing information.
2367. The difficulty is even greater as regards denunciations prior to 5 June 1993,
2368. when President Ramiro de Léon Carpio took office, and which account for the
2369. majority.
2370. Similarly, the Attorney General of the Republic pointed out that until July
2371. 1994 the responsibility for investigating punishable offences was that of the
2372. judges and that it is only since the introduction of the new Code of Penal
2373. Procedure that this responsibility has been transferred to the Public
2374. Ministry, a situation which makes it more difficult for his Office to carry
2375. out inquiries on events which occurred before that date. Even so, given the
2376. presence of the mission, a special effort was made to obtain information from
2377. the courts, COPREDEH, the files of the Attorney General's Office and the
2378. complainants were asked to cooperate by providing additional details on their
2379. allegations, as regards, names, places, dates and any other matters. The
2380. information obtained marked a step forward, but as stated earlier, the
2381. Attorney General told the mission that a new effort would be made to
2382. investigate the denunciations which remained pending.
2383. Given the likelihood that little information would be obtained on the
2384. allegations in question, the mission examined with different authorities the
2385. possible ways of strengthening the procedure for investigating new
2386. denunciations. One of the existing difficulties is that, in accordance with
2387. the usual procedure, the allegations contained in a complaint are only
2388. communicated by the ILO to the Ministry of Labour and Social Insurance, which
2389. of course has no competence in penal matters. The other authorities are not
2390. informed, and neither are the employers' or workers' organizations, except the
2391. complainant. It would be desirable in this connection that, when the Ministry
2392. receives from the ILO the text of the complaint containing allegations on
2393. punishable acts, it should be communicated to the competent national
2394. authorities responsible for investigation, i.e. COPREDEH, the Ministry of
2395. Government and the national police, amongst others, as regards the Government;
2396. the Human Rights Commissioner, the Attorney General of the Republic and the
2397. Public Prosecutor of the Republic, as regards non-governmental authorities. To
2398. this end, as noted earlier, the President of COPREDEH told the mission that he
2399. had set up a liaison committee which included representatives of some of these
2400. authorities, to monitor denunciations which might be related to freedom of
2401. association.
2402. Secondly, an analysis was made of the possibility of establishing more fluid
2403. communication between the Public Ministry and the trade union organizations.
2404. The idea was suggested of a meeting between the Attorney General and the trade
2405. union organizations, with the participation of the United Nations for the
2406. Verification of Human Rights in Guatemala (MINUGUA), and the Attorney General
2407. proposed the convening of a meeting of a working group made up of
2408. representatives of trade union organizations, the unit responsible for the
2409. defence of human rights and MINUGUA, to examine specific cases and improve the
2410. work of the Attorney General's Office in the investigation of denunciations.
2411. The presence of MINUGUA in this work could be very useful, because of its
2412. willingness and commitment to work towards the strengthening of the Attorney
2413. General's Office and the priority which it gives to the protection to the
2414. right of association.
2415. Thirdly, the possibility was raised within the framework of the Tripartite
2416. Consultation (International Labour Standards) Convention, 1976 (No. 144), of
2417. the establishment of a tripartite commission which could, amongst other
2418. matters, examine complaints made and encourage the investigation of
2419. denunciations, it being understood that this activity is the sole
2420. responsibility of the State, and provided that the social partners and the
2421. Government are in agreement with such a proposal.
2422. Allegations of violations of freedom of association
2423. The complaints also contain allegations on: (a) obstacles to trade union
2424. organization; (b) acts of anti-union discrimination; and (c) violations of
2425. collective bargaining. The Government has provided ample information on these
2426. kinds of allegations, the content of which must be examined by the Committee
2427. on Freedom of Association.
2428. (a) Obstacles to trade union organizations: concerning their establishment,
2429. free election of officers and free exercise of activities; and as regards
2430. their dissolution:
2431. (1) Trade Union of Workers of the Ministry of Government: the recognition
2432. process is in the final stage after the trade union fulfilled all the legal
2433. requirements.
2434. (2) Trade Union of the National Front of Street Vendors: legal personality was
2435. granted on 12 August 1993 and registered in the Public Register of Trade
2436. Unions. Case closed.
2437. (3) Trade Union of Customs Workers: legal personality was granted on 5 August
2438. 1993 and registered in the respective register. Case closed.
2439. (4) Trade Union of Workers of the Guatemalan Red Cross: the body ceased to
2440. exist due to financial reasons. Thus it is not true that the trade union was
2441. neutralized or abolished.
2442. (5) Trade Union of Workers of the Secretariat of Social Welfare: because of
2443. irregularities in the elections, the new executive members were not
2444. registered; it was resolved to authorize the last registered executive
2445. committee to convene new elections which, it appears, have not yet been held.
2446. (6) Trade Union of Workers of the State Enterprises of Puerto Quetzal: legal
2447. personality was granted on 30 October 1990 and registered in the respective
2448. register. Case closed.
2449. (7) Trade Union of Workers of the General Directorate of Forestry Commission
2450. (DIGEBOS): legal personality was granted in 1992 and registered in the
2451. respective register. Case closed.
2452. (8) Trade Union of Workers of the La Mariposa bottling enterprise: legal
2453. personality was granted on 28 September 1993 and registered in the respective
2454. register on 1 October 1993. A collective agreement was signed before the trade
2455. union obtained its legal personality. Subsequently, a collective agreement on
2456. working conditions was concluded, the negotiation of which began on 6
2457. September 1994 by the direct method and ended on 13 October the same year. It
2458. was approved by the Ministry of Labour on 20 December 1994, and came into
2459. force as from 14 October 1994 for a period of two years. The approval of the
2460. Ministry made reservations about two clauses which it considered contrary to
2461. the workers' interests. A discretionary remedy was lodged which is currently
2462. pending. There are no denunciations concerning the other allegations, but
2463. since they concern violations of human rights the Attorney General's Office
2464. was requested to carry out the respective investigations.
2465. (9) Workers of the Manufacturera Integridad S.A., Koram S.A., Bocco & Cia.
2466. Ltda, Disenos Panamericanos, Confecciones Isabel S.A., Transporte Urbano
2467. Union, Bolivar, EGA, La Fe and La Morena enterprises: no request has been made
2468. for the registration of trade unions of workers of these enterprises.
2469. (10) Trade Union of Workers of the Hotel Ritz Continental: the General
2470. Directorate of Labour found defects in the documents appended to the request
2471. for the dissolution of the trade union and convened the representatives of the
2472. latter for their correction. They have not presented themselves and thus no
2473. action has been taken on the dissolution.
2474. (b) Acts of anti-union discrimination:
2475. (1) La Torre farm: dismissal of 29 workers to neutralize their trade union.
2476. Previous report ratified. Case closed.
2477. (2) Banco Metropolitan: dismissal of 60 workers who were members of the trade
2478. union. Previous report ratified. The only record in the General Labour
2479. Inspectorate concerns the claim for payment of financial compensation made by
2480. Mr. Abner Jesus Hernandez.
2481. (3) CAVISA glass factory: violent police repression of striking workers.
2482. Ratification of previous report. As regards the alleged acts of violent
2483. repression, it is reported in the General Labour Inspectorate that the
2484. accusations concerning acts of abuse, violence and sabotage were both
2485. reciprocal and many, although none of the parties presented evidence. An
2486. inquiry has been started in the courts of justice to establish whether
2487. denunciations were made.
2488. (4) Trade Union of Workers of the Puerto Quetzal State enterprise: refusal to
2489. reinstate the General Secretary, Mr. Ruben Terry Amézquita. Previous report
2490. reconfirmed.
2491. (5) Establishment of solidarist associations to the detriment of the trade
2492. unions of the Distribuidora del Sur Occidente and Compania Duralita
2493. enterprises. In the first case there is no indication in the records of the
2494. General Directorate of Labour of any procedure for the granting of legal
2495. personality to the trade union in the Sur Occidente enterprise. The trade
2496. union of workers in Duralita enterprise obtained its legal personality and was
2497. registered in the Public Register of Trade Unions on 14 January 1980. The
2498. mandate of the last executive committee expired on 19 September 1990. The
2499. complainants are requested to specify the exact nature of the infringement of
2500. their rights and to give details of names and dates.
2501. (6) Trade Union of Workers of the Forestry Commission: dismissal of 21 members
2502. who were workers of the trade union. Previous report reconfirmed.
2503. (7) Trade Union of Workers of the Municipality of Cuyotenango, Department of
2504. Suchitepéquez, campaign of intimidation against its members. The General
2505. Labour Inspectorate reports that it has received no denunciation.
2506. (8) Trade Union of the Municipality of Malacatan: dismissal of 30 employees.
2507. The General Labour Inspectorate reports that it has received no denunciation.
2508. (9) Town of Esquipulas: dismissal of 30 employees who promoted the
2509. establishment of a trade union. The General Labour Inspectorate reports that
2510. it has received no denunciation.
2511. (10) Various towns: dismissals. The complainant organizations are requested to
2512. give more details so that the complaints can be examined.
2513. (11) Trade union organization in various farms in the country: persecution of
2514. workers who are members of these organization. The complainant organizations
2515. are requested to give more details so that the complaints can be examined.
2516. (12) The La Abundancia farm, owned by the Metropolitan Investment Corporation:
2517. anti-union dismissal of 29 workers. Following the intervention of the General
2518. Labour Inspectorate extra-judicial settlement was achieved; the workers
2519. received land in payment for their work; indeed, after the agreement was
2520. signed, the workers continued working on the farm for a further 80 days and
2521. received their wages and other benefits.
2522. (13) Municipality of Palin: dismissal of 65 workers who were members of the
2523. trade union of the said municipality. Despite the intervention of the First
2524. Deputy Minister of Labour and the Deputy Inspector General, there was no
2525. conciliation. The workers took legal action, which resulted in the
2526. authorization of these dismissals.
2527. (14) Bakers' Trade Union: dismissal of the Secretary General and refusal to
2528. notify his trade union immunity to the employer. This is a trade union
2529. association whose members work in different enterprises. The records of the
2530. General Labour Inspectorate contain no report of any denunciation. It should
2531. be noted that the name of the person concerned is not given.
2532. (15) Trade Union of Shipping Workers: dismissal of the members of the
2533. executive committee and more than 20 workers. Confirmation of the previous
2534. report, with the addition that the General Labour Inspectorate has no record
2535. of any denunciation concerning the alleged dismissals.
2536. (16) Trade Union of Workers of the Imperial Food Products S.A. enterprise:
2537. dismissal of several workers who promoted the establishment of the trade
2538. union. The General Labour Inspectorate reports that it has no record of a
2539. denunciation. In a recent routine inspection carried out by both the employers
2540. and workers it was found that the collective agreement on conditions of work
2541. has been in force for six years, that there has never been any violation of
2542. the agreement and that the problems have been resolved by the direct method.
2543. (Endnote 30)
2544. (17) Trade Union of Workers of the Corporacion Textil Internacional S.A.
2545. (CORTEX) enterprise: dismissals, death threats, following a summons served on
2546. the enterprise. A social and economic dispute is currently before the
2547. competent court.
2548. (18) Trade Union of the ESDEE enterprise of Guatemala S.A. (SINTEGSA):
2549. dismissals, death threats, terminations of contracts, setting up of shock
2550. units, forging of signatures. The enterprise closed its operations in 1994
2551. and, following the intervention of the General Labour Inspectorate, wages and
2552. labour benefits were paid to all workers.
2553. (19) Trade Union of Disenos y Maquilas S.A. enterprise: illegal dismissals,
2554. physical assaults on workers, promotion of a trade union sympathetic to the
2555. enterprise. There are two trade unions in this enterprise: the Trabajadores en
2556. Disenos y Maquilas S.A. trade union and the Laborantes de Disenos y Maquilas
2557. S.A. trade union and both are registered in the labour register. The
2558. complaints cannot be adequately addressed because of the lack of clarity
2559. concerning the events denounced. The complainants are requested to provide
2560. more information.
2561. (20) Trade Union of Municipal Workers of Coban, department of Alta Verapaz:
2562. dismissal, temporary abduction of the Secretary General. On 20 February 1995,
2563. following the recommendation of the General Directorate of Labour, the file
2564. was transferred to the Ministerial Office for the issue of the respective
2565. resolution granting legal personality to the trade union. The General Labour
2566. Inspectorate reports that it has no record of any denunciation concerning
2567. dismissals or the temporary abduction of the Secretary General.
2568. (21) Trade Union of Workers of the Municipality of Santa Cruz Verapaz:
2569. dismissal of most of the trade union members and refusal to comply with a
2570. judicial order for their reinstatement. The legal personality of the trade
2571. union was recognized and it was registered in the respective register. The
2572. disputes which arose were resolved with the mediation of the General Labour
2573. Inspectorate and other public officials. (Endnote 31)
2574. (22) COCAPSA, San Gregorio, Piedra Parada farm, in the district of Coatepeque,
2575. Quetzaltenango: unlawful and mass dismissal of 310 workers at the Agronomo
2576. Pecuaria Company (San Gregorio, Piedra Parada farm), court order for their
2577. reinstatement and refusal by the enterprise. Following intervention by the
2578. Public Prosecutor of the Republic, the parties reached a compromise which was
2579. implemented to the entire satisfaction of the workers under the supervision of
2580. the General Labour Inspectorate. Case closed. (Endnote 32) In a document
2581. handed to the mission, UNSITRAGUA recognizes that wages have been paid, but
2582. reiterates that the enterprise has not carried out the order for the
2583. reinstatement of the dismissed workers.
2584. (23) Women workers at the M.J.S.A., and L&L S.A. enterprise: abuses, changes
2585. in working conditions, moral and physical ill-treatment, illegal dismissals.
2586. Denunciations were received in the General Labour Inspectorate and several
2587. infringements of the law were corroborated, resulting in the following
2588. punitive judgements: M.J.S.A.: Nos. 400-94 and 836-94; L&L S.A.: Nos. 51-94
2589. and 194-94, all before the Sixth Labour and Social Insurance Court.
2590. (24) ESDEE de Guatemala S.A.: reprisals against trade union leaders and
2591. members, illegal closure of the enterprise, refusal to engage in collective
2592. bargaining, promotion of an organization with staff in positions of trust,
2593. refusal to allow the trade union leader Pilar Cifuentes Aguilar to enter the
2594. enterprise and dismissal of the General Secretary of the trade union,
2595. dismissal of all the workers, acts of physical aggression against the trade
2596. unionists. See reply above.
2597. (25) Este Oeste S.A.: destruction of the branch office of the Trade Union of
2598. Workers of the Textile Industry (STIC) through the mass dismissal of workers,
2599. the closing down and transfer of the enterprise, partial payment of benefits,
2600. failure to carry out the pay agreement. The enterprise transferred its
2601. installations to a place outside the urban perimeter of the city. The workers
2602. claimed that this was a manoeuvre to destroy its trade union organization.
2603. However, a transfer of this nature is not prohibited by the law. With the
2604. intervention of the General Labour Inspectorate an agreement was reached on
2605. the payment of all wages and benefits to the workers.
2606. (26) Unicasa S.A. and Welly S.A., both "maquila" enterprises: reprisals
2607. against the workers through unnecessary suspensions of work, dismissals,
2608. raising productivity targets, very poor working conditions, with the sole
2609. object of dismantling the Trade Union of Workers in the Textile Industry. The
2610. labour situation of workers in the maquila enterprises is subhuman; they are
2611. treated as mere slaves and are not granted time off to undergo medical
2612. consultations at the Guatemala Social Security Institute (IGSS). After
2613. receiving denunciations, the General Labour Inspectorate intervened and after
2614. corroborating the situation took the following punitive action: Nos. 232-94
2615. and 169-94 against Unicasa S.A. and 183-94 against Welly S.A., in the Sixth
2616. Labour and Social Insurance Court.
2617. (27) Santa Anita farm, owned by Agropecuria Santa Anita S.A., in the district
2618. of San Miguel Pochuta, department of Chimaltenango: dismissal of 42 members of
2619. the Trade Union of Workers of this farm, following the irregular cancellation
2620. of the warnings issued by the Second Court of the First Instance of
2621. Chimaltenango; the notification of the judicial measure was backdated, which
2622. prevented the workers from appealing, i.e. they were denied their right to
2623. defend themselves. On the day of the notification, all the workers were
2624. dismissed. Their request for reinstatement was declared unreceivable. The
2625. administrative appeals procedure has been exhausted and the case is now before
2626. the Second Court of the First Instance of Chimaltenango. In a document dated
2627. 10 February 1995, the CGTG repeats its allegation and refers to a series of
2628. labour rights which are not respected on this and other farms.
2629. (28) The Nueva California farm, owned by Agropecuaria Immobiliaria Miramar
2630. S.A., in the district of San Miguel Pochuta, department of Chimaltenango:
2631. fruitless attempt to summon the employer to engage in collective bargaining,
2632. dismissal of 40 workers who were members of the trade union of workers of the
2633. Nueva California farm, refusal to reinstate them. Following the receipt of new
2634. denunciations, the General Labour Inspectorate intervened and issued awards
2635. Nos. 6 and 18 of the year 1994. Subsequently the case was brought before the
2636. Second Court of the First Instance in Chimaltenango.
2637. (29) The El Salto farm, owned by the Plantacion San Carlos S.A., in the
2638. district of San Miguel Pochuta, department of Chimaltenango: dismissal of 80
2639. founding members of the trade union of workers of the San Carlos and El Salto
2640. farms, with an application for reinstatement pending. This is not a case of
2641. dismissal but of a collective suspension. Following the intervention of the
2642. General Labour Inspectorate, a pay agreement was signed in October 1994, but
2643. the question of the job stability of the workers has been placed before the
2644. competent courts of justice.
2645. (30) The Bolivia farm, owned by Agropecuaria Bolivia S.A., in the district of
2646. Chicacao, department of Suchicatepéquez: dismissal of 102 founding members of
2647. the trade union of workers of this farm, despite their right to non-removal,
2648. and refusal to reinstate. With the intervention of the General Labour
2649. Inspectorate an attempt was made to achieve conciliation: the employer offered
2650. to pay all the labour benefits, buy land for housing and building materials
2651. and provide transport, but the offer was not accepted by the workers. The
2652. administrative appeals procedure has thus been exhausted and the way is now
2653. open to legal proceedings.
2654. (31) The Los Angeles farm, owned by Agropecuaria Los Angeles S.A.: dismissal
2655. of 26 workers, despite the existence of a court order for their reinstatement,
2656. and harsh reprisals (wage reductions of up to 50 per cent, increased number of
2657. tasks, withholding of pay and non-payment of other benefits) to force workers
2658. to abandon the farms, thus infringing the right to freedom of association and
2659. collective bargaining. Following the intervention of the General Labour
2660. Inspectorate, an agreement on working conditions was signed on 9 October 1994.
2661. (32) The La Argentina farm, belonging to Don Juan Dietrich Oltmann Niemann
2662. Enge, in the district of Chicacao, department of Suchitepéquez: failure to pay
2663. wages, attempt to dismiss 28 workers, whose reinstatement was achieved in
2664. exchange for an agreement not to claim wages not paid during the period of
2665. dismissal. The General Labour Inspectorate has no record of any denunciation
2666. in this respect.
2667. (33) The Medellin farm, owned by Agropecuaria Abal S.A., in the district of
2668. Chicacao, department of Suchitepéquez: irregular cancellation of warnings not
2669. to dismiss workers, mass dismissal of all trade unionists (a total of 60) and
2670. destruction of the trade union; legal proceedings under way. Following receipt
2671. of the denunciation, the General Labour Inspectorate intervened in an attempt
2672. to provide conciliation for the settlement of the dispute, but the parties
2673. refused, thus concluding the administrative complaints procedure and reserved
2674. the right to take the matter to the courts. In a document delivered to the
2675. mission, the CGTG comments on this situation: Carlos Miguel Abascal, the owner
2676. of the farm, dismissed 29 trade unionists 11 months ago, to whom he owes an
2677. average of 85,000 quetzalas in respect of outstanding wages, and initiated a
2678. process to evict the workers, a manoeuvre in which the General Labour
2679. Inspector has participated.
2680. (34) Ministry of Urban and Rural Development: of the 830 members of the union,
2681. there remain only 30 as a result of the mass dismissal of workers under the
2682. structural adjustment programme, without any respect by the government
2683. authorities of the right of workers to organize freely, or the warnings issued
2684. by the labour judge examining a collective dispute of a socio-economic nature
2685. as a result of which the Ministry had been summoned not to dismiss any worker.
2686. For budgetary reasons this Ministry was suppressed. All the workers received
2687. the payment of their wages.
2688. (35) Municipality of El Estor, department of Izabal: dismissal of 20 workers
2689. who promoted a trade union, doubts about the due application of the law by the
2690. Court of Appeals which is examining the case. The trade union was granted
2691. legal personality on 19 May 1994. The doubts about the due application of
2692. justice fall within the competence of the Supreme Court, to which the text of
2693. the complaint has been transmitted.
2694. (36) National police: transfer of three members of the ad hoc committee for
2695. the establishment of the trade union, as a measure of reprisal. The General
2696. Labour Inspectorate has no record of any denunciation in this respect.
2697. (37) Surveillance of the UITA premises by unknown individuals. A request has
2698. been made to the Attorney General of the Republic to carry out investigations.
2699. (38) Trade Union of Workers of the La Mairposa bottling enterprise: harassment
2700. and persecution of trade unionists, including pressure to force three members
2701. of the Executive Committee to resign in September 1993. See reply above.
2702. (39) Peasants of the La Patria Farm Trade Union of Workers: having taken note
2703. that the trade union and the enterprise had reached an agreement which
2704. included the reinstatement of the dismissed workers, the Committee had
2705. requested a copy of this agreement and information on whether the workers had
2706. actually been reinstated in their workplaces. No reply received.
2707. (40) El Trapichito and El Naranjo farms: inquiry requested on possible
2708. anti-union dismissals and if corroborated, the reinstatement of the workers; a
2709. request was also made to the Government to keep the Committee informed in this
2710. respect. No reply received.
2711. (41) Trade Union of Workers of the San Juan de Dios Hospital: information
2712. requested on the outcome of the judicial proceedings concerning the dismissal
2713. of several members of the Executive Committee and on the allegation that the
2714. director of the hospital refused to respect the decision of the Deputy
2715. Minister of Health concerning the reinstatement of the dismissed trade union
2716. officials, since it was allegedly made conditional on the imposition of a
2717. sanction of suspension from work for 30 days without salary and the transfer
2718. to other health-care centres in the provinces. On this point, on which the
2719. Government did not reply, and as regards the situation in the above-mentioned
2720. hospital, see above.
2721. (c) Violations of collective bargaining:
2722. (1) The Operadora de Empresa S.A. enterprise, owner of the El Dorado hotel:
2723. violation of the collective agreement signed by the trade union of this hotel
2724. and other activities comprising the same economic unit, particularly as
2725. regards work shifts. After receiving denunciations of these violations, the
2726. General Labour Inspectorate intervened and issued several warnings. In a
2727. routine inspection carried out on 22 February 1995, it was observed that the
2728. alleged change of hours had been discontinued by the enterprise. (Endnote 33)
2729. (2) Empresa Agroport S.A., a maquila enterprise: illegal closure on 12 April
2730. 1993 contrary to the agreement concluded with the trade union on 22 March
2731. 1993, and the subsequent flight of the main owner to the United States. The
2732. agreement was signed following the intervention of the General Labour
2733. Inspectorate. However, subsequently, the employer fled the country making it
2734. impossible to take any action.
2735. (3) National Committee for the Blind and Deaf Mutes of Guatemala: refusal to
2736. negotiate a collective agreement with the most representative trade union
2737. organization, delay tactics lasting 19 months. Negotiation of the collective
2738. agreement was initiated, however, the employer lodged an appeal with the
2739. Administrative Disputes Court which in a communication dated 27 May 1994
2740. requested the original of the file which has not yet been returned.
2741. (4) Trade Union of the Autonomous Sports Confederation of Guatemala: refusal
2742. of the labour authority to approve a collective agreement. According to Report
2743. No. 292-95 of 22 February 1995 respecting the routine inspection in the trade
2744. union of this confederation, the administrative procedure for the discussion
2745. of the collective agreement on conditions of work was exhausted and following
2746. the refusal of the employer, the case is now before the Sixth Labour and
2747. Social Insurance Court for the setting up of a conciliation board.
2748. (5) Trade Union of Workers of the Imperial Food Products enterprise: failure
2749. of the enterprise to respect the collective agreement. See above, the reply
2750. given.
2751. (6) La Mariposa bottling enterprise: refusal to engage in collective
2752. bargaining with the SITRAEMSA trade union and the forging of the signature of
2753. a collective agreement with an ad hoc committee set up by the enterprise; this
2754. agreement was registered in the Ministry of Labour on 16 September 1993;
2755. increase of wages granted only to members of this committee. See above, the
2756. reply given.
2757. In accordance with the contents of the previous paragraph, the Government
2758. replied to the ten allegations concerning obstacles to the establishment of
2759. trade unions. Of these replies, five point out that the trade union has been
2760. recognized and its legal personality registered and one that the respective
2761. procedure is about to be completed; two refer to dissolutions of trade unions
2762. (in one case because of the disappearance of the employer and in another case
2763. because the Government discovered defects in the dissolution process); one
2764. concerns trade union elections; and in one allegation, concerning the workers
2765. of several enterprises, the reply states that there has been no request for
2766. the registration of trade unions.
2767. It is appropriate to bear in mind and analyse the regulation for the
2768. recognition of legal personality, the approval of statutes and registration of
2769. trade union organizations, adopted by Government Agreement No. 639-93, of 2
2770. November 1993.
2771. The cases pending contain a total of 40 allegations concerning acts of
2772. anti-union discrimination, most of which refer to dismissals for trade union
2773. reasons (35 allegations), in public or private establishments. The former
2774. include a number of municipalities while there is a significant number of
2775. farms in the latter. The Government replied to 37 allegations and these
2776. replies include in particular cases of reinstatement or some form of agreement
2777. (7) and the absence of any denunciations or their imprecise nature (16).
2778. There are six allegations concerning violations of collective bargaining, and
2779. the Government replied to five of these. In two cases compliance by the
2780. employer has been achieved, in one case a collective agreement has been
2781. negotiated, in another judicial proceedings are under way and in one other
2782. compliance seems impossible because the employer has fled the country.
2783. IV. Conclusions and personal reflections
2784. In conclusion the mission was able to carry out a wide exchange of ideas with
2785. high government and non-governmental authorities, employers' representatives
2786. and important workers' organizations, and obtain valuable information which
2787. was kindly provided. In the same way, it had the opportunity to engage in a
2788. very fruitful discussion with representatives of the United Mission for the
2789. Verification of Human Rights in Guatemala (MINUGUA). In an audience with the
2790. President of the Republic, the mission was accompanied by the Director of the
2791. ILO Office for Central America and Panama.
2792. Guatemala is experiencing a political and social process characterized by
2793. internal war and efforts to establish peace; the reform of the Constitution, a
2794. transition regime and a situation of poverty; a policy for the promotion of
2795. human rights, despite the existence of many serious violations, most of them
2796. unpunished; and with the perspective of increasingly resolute state action. In
2797. this context, one trade union organization believed that the climate of
2798. violence had changed significantly and that there were no serious threats to
2799. trade union activity except when the latter posed a danger to certain economic
2800. interests. According to another trade union organization, there was no defined
2801. government policy on freedom of association and this explained certain
2802. contradictions, for example as regards enterprises established under the
2803. regime of the Caribbean Basin Initiative and the Generalized System of
2804. Preferences (GSP). A third trade union organization believed that although it
2805. could not be said that there was a government policy of violating human
2806. rights, the results were equally negative and the main problem was one of
2807. impunity and indifference. For their part, the employers believed that the
2808. armed conflict was the main source of violations of human rights and said that
2809. they were in favour of freedom of association. In any case, the situation of
2810. human rights in the trade union world would appear to have evolved in a
2811. positive way in recent years as regards acts of violence, as can be
2812. corroborated for example by the small number of allegations over the last two
2813. years, with the exception of death threats.
2814. The allegations of violations of the human rights of trade unionists from 1990
2815. directly concern more than 150 persons, whilst the replies refer only to 12 of
2816. these, 11 of which do not indicate those responsible for the violations. To
2817. explain this situation, and despite the fact that some denunciations are vague
2818. or imprecise, account must be taken of the effects of violence, the recognized
2819. lack of capacity of the State to investigate punishable acts and the
2820. repressive policy which existed in the past. It should be emphasized that the
2821. large majority of crimes against trade unionists have gone unpunished.
2822. Given the very small amount of information obtained, the Attorney General of
2823. the Republic told the mission that his Office, and in particular the unit for
2824. the defence of human rights, would once again investigate the denunciations
2825. made.
2826. With regard to the future, and in an attempt to strengthen state activity in
2827. the event of future denunciations of human rights violations, the following
2828. initiatives were proposed:
2829. (1) to disseminate the denunciations, and in particular the complaints
2830. concerning freedom of association, among the authorities competent to
2831. investigate them including the Office of the Attorney General of the Republic,
2832. the Public Prosecutor of the Republic and the Human Rights Commission, through
2833. the Presidential Commission on Human Rights (PRODOREH), which will include a
2834. liaison committee specialized in these matters, or any other expeditious and
2835. sure means;
2836. (2) to bring the denunciations, and in particular complaints concerning
2837. freedom of association, to the attention of the tripartite commission created
2838. under the Tripartite Consultation (International Labour Standards) Convention,
2839. 1976 (No. 144); and
2840. (3) to set up a working group with officials of the unit for the defence of
2841. human rights, the Attorney General's Office and officials of the trade union
2842. central organizations, with the participation of MINUGUA, to examine specific
2843. cases of violations of the human rights of trade unionists and to initiate
2844. inquiries on such violations; this group was convened to an initial meeting on
2845. 28 March 1995, in the training centre of the Attorney General's Office.
2846. The measures which might be adopted to strengthen the State's capacity for
2847. investigation, with the assistance of employers and workers are, however,
2848. based on the principle of the unavoidable responsibility of the State to
2849. guarantee the life, integrity, security and tranquillity of those persons who
2850. have legitimately exercised their right to freedom of association, and to
2851. protect them against discrimination in their employment on this or any other
2852. ground. In this sense, serious consideration should be given by the
2853. authorities to violations of the human rights of workers in public bodies,
2854. concerning whom that matter of impunity is of special importance, and to
2855. allegations which indicate the participation of members of the police. The
2856. officials and activists who have been assassinated, or have disappeared, or
2857. have been victims of physical assault include workers of the Guatemalan Social
2858. Security Institute, the University of San Carlos, the municipality of Puerto
2859. Barrios (department of Izabal), the Ministry of Culture and Sport, the
2860. psychiatric hospital, the customs authority, the municipality of Coban
2861. (department of Alta Verapaz), the national police and the municipality of
2862. Esquipulas (department of Chiquimula).
2863. The allegations concerning obstacles to the establishment and functioning of
2864. trade unions were fully answered and, in most cases, the replies were
2865. positive. Furthermore, the mission learned that significant efforts had been
2866. made in the Ministry of Labour to speed up the process for granting legal
2867. personality to trade unions and their registration in the respective register
2868. - although opinions differ concerning the results obtained - on the basis of
2869. new regulations, the provisions of which should be analysed.
2870. Two basic guidelines could serve as a basis for complementing efforts made by
2871. the Government so far concerning the establishment and functioning of trade
2872. unions: the presidential wish, clearly expressed, to strengthen trade union
2873. organizations and two ILO Conventions, the Freedom of Association and
2874. Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to
2875. Organize and Collective Bargaining Convention, 1949 (No. 98).
2876. In this connection it might be appropriate to establish an explicit government
2877. policy, on a tripartite basis, to promote freedom of association with due
2878. respect of the law, as a basic guarantee of co-existence, as an indispensable
2879. ethical element of entrepreneurial activity and as a dramatic expression of
2880. the wishes of the workers, for which they have sacrificed many lives and
2881. risked their employment.
2882. From a standard-setting and technical point of view, there should be an
2883. examination of legislation and new regulations, as well as ministerial
2884. instructions, to determine to what extent these texts tend to promote the free
2885. exercise of the right to trade union membership and trade union activities and
2886. to what extent they may restrict them, in the name of government intervention.
2887. The allegations concerning acts of anti-union discrimination have helped
2888. highlight the existence of complex problems concerning the illegal dismissals
2889. and refusals to reinstate dismissed workers. Such events which concern labour
2890. matters often give rise to problems concerning trade unions and matters of
2891. public order and of a civilian and criminal kind which are of national
2892. concern. The use made of illegal and often collective dismissals may give rise
2893. to strong and wasteful legal proceedings or the occupation of enterprises,
2894. with or without the intervention of the police, or other situations.
2895. The measures suggested to overcome this situation are of a legislative and
2896. administrative kind.
2897. From the legislative point of view, the mission was told that there was a need
2898. to give powers of sanction to the Labour Inspectorate, without waiting for the
2899. intervention of a judge; and that at all events there was a need to reform and
2900. speed up the judicial procedure in the event of dismissals, to ensure the
2901. immediate reinstatement of a worker or the application of sanctions, as
2902. provided for in section 380 of the Labour Code; or in the event of a summons
2903. being served on an employer. Some persons consulted believed, however, that
2904. the legislation was clear, but that it had been distorted by judicial
2905. interpretations. In this connection it is worth recalling that the reform of
2906. the Labour Code in 1992 (Decree No. 69-92 of the Congress of the Republic) had
2907. as one of its objectives, as indicated in the statement of reasons: "... to
2908. provide the Labour Code with standards which allow labour and social insurance
2909. proceedings to be completed within the shortest possible time, to ensure that
2910. disputes placed before the courts are resolved with the speed which such cases
2911. require".
2912. From an administrative point of view, all the sectors agreed on the need to
2913. increase the number of labour and social insurance courts and that they should
2914. incorporate courts of conciliation and arbitration on a permanent basis, in
2915. accordance with the provisions of section 294 of the Labour Code. Furthermore,
2916. representatives of the workers' organizations and officials of the Human
2917. Rights Commission said that more effective action could be carried out by the
2918. Labour Inspectorate, even within the current legal framework.
2919. Along with legislative and administrative action, it would perhaps be
2920. appropriate for the Government to give an impetus to the labour relations
2921. system, following tripartite consensus, through the formulation of a
2922. systematic policy to prevent acts of anti-union discrimination.
2923. Anti-union discrimination could be combatted even more effectively with the
2924. active support of the Attorney General's Office of the Republic, the Office of
2925. the Public Prosecutor and the Human Rights Commission, each acting within its
2926. own sphere of competence.
2927. The allegations of violations of collective bargaining are relatively few and
2928. the replies show that the situation varies, with positive and negative
2929. aspects. Probably the main obstacles to collective bargaining are to be found
2930. in the previous allegations concerning human rights violations and obstacles
2931. which have been placed in the way of the establishment and functioning of
2932. trade union organizations.
2933. Several persons told the mission that there was a need for the standards of
2934. the Labour Code concerning freedom of association and collective bargaining,
2935. as well as ILO Conventions Nos. 87 and 98, to be more widely disseminated. In
2936. this respect, the mission confirmed that the Human Rights Commission is
2937. carrying out an extraordinary task of publishing works on human rights,
2938. including simple texts which can be read by everyone. For its part, the
2939. Ministry of Labour has published some interesting explanatory material on the
2940. rights of working children and women's rights and has also published, through
2941. its social communication and public relations unit, regulations on the
2942. granting of legal personality, the approval of statutes and registration of
2943. trade union organizations and the regulations on the procedure for the
2944. negotiation, approval and denunciation of collective agreements on working
2945. conditions in specific enterprises or production centres (Government
2946. Agreements Nos. 639-93 of 2 November 1993 and 221-94 of 13 May 1994,
2947. respectively). It would be desirable for this dissemination to be continued
2948. and increased, by various means, and supplemented by training measures, to
2949. ensure that all the members of the population concerned could be made aware of
2950. their trade union and collective bargaining rights, as well as the legal means
2951. to enforce them.
2952. Finally, the week spent in Guatemala, and the conversations with persons from
2953. many different sectors and in particular with officials of the State and the
2954. occupational sectors, as well as the courtesy with which the mission was
2955. treated, are eloquent proof of the respect and esteem which Guatemala has for
2956. the ILO and the high expectations which it has placed in the Organization
2957. during the difficult and yet promising situation which the country is
2958. experiencing.
2959. Peace, consensus and training are the three key means of promoting freedom of
2960. association and collective bargaining in Guatemala and overcoming the current
2961. problems and the three requirements for the ILO.
2962. The ILO has been actively participating in the peace negotiations. As these
2963. conversations progress, conditions may be established for the improvement of
2964. labour relations and a climate for the development of freedom of association.
2965. However, the President of the Republic himself and the Human Rights
2966. Commissioner believe that social problems pose a serious threat to the lasting
2967. peace which the country is trying desperately to achieve.
2968. At the same time, any effort which can be made to promote the development of
2969. freedom of association and collective labour relations, on a basis of equality
2970. and autonomy, will help improve the labour environment, resolve the
2971. fundamental problems of workers and facilitate, in enterprises, factories,
2972. farms, municipalities and other public bodies, the establishment and
2973. consolidation of opportunities for peace, which are absolutely essential to
2974. the establishment of a general peace. The ILO has a major role to play in this
2975. enormous effort facing the social partners. Furthermore, the conditions seem
2976. to exist for a fruitful collaboration between the ILO and MINUGUA, especially
2977. in the field of basic human rights, within the mandate and responsibility
2978. enjoyed by each organization, for greater effectiveness in the contribution
2979. which both are called upon to make in Guatemala.
2980. The objective is to overcome the lack of trust or reticence to engage in
2981. dialogue within a framework of respect for the life and safety of persons; to
2982. become familiar with and to disseminate the profound principles of
2983. co-existence, solidarity and dignity, and of the standards of freedom of
2984. association; to take advantage of the many possibilities which the
2985. organization of trade unions, offers to society; and of the advantages of
2986. consultation, negotiation and consensus to achieve not only specific
2987. objectives which are mutually acceptable to employers and workers but also
2988. common objectives, especially in the context of the challenges posed by
2989. international competition. It would be desirable in such an endeavour, and
2990. with account being taken of national initiatives, to give full attention to
2991. employers' and workers' organizations for cooperation to continue with the
2992. Ministry of Labour and Social Insurance, in this case with the precise
2993. objective of promoting adaptation and stimulating productivity in matters
2994. concerning labour relations.
2995. Tripartite consultation on international labour standards, including
2996. compliance with the standards on freedom of association, within the framework
2997. of Convention No. 144, are an obligation for Guatemala which has ratified this
2998. Convention. However, from the conversations which the mission held with
2999. representatives of the different sectors and during the tripartite meeting,
3000. there appears to be consensus in this respect which is seen as an objective
3001. which can be achieved by all parties concerned. Several persons said that the
3002. convening of the mission facilitated the holding of this tripartite meeting
3003. and that the presence of the ILO would help keep this tripartite consultation
3004. process on course in the future.
3005. In these circumstances, it would be desirable for the Office for Central
3006. America and Panama to monitor closely and follow up the initial steps taken to
3007. establish and make operational as soon as possible the committee on tripartite
3008. consultation. Its assistance could be centred on providing technical
3009. secretarial support and the holding of meetings; or in cooperation in the
3010. preparation of the agenda and the formulation of a series of increasingly
3011. complex objectives; or the design of simple mechanisms for the dissemination
3012. and effective implementation of the agreements reached, even if they were not
3013. binding; or with respect to several of these aspects, so that the committee
3014. can gradually achieve its goals and feel satisfaction at making important
3015. progress. Similarly, this Office could cooperate with the parties concerned in
3016. the preparation of specific general topics to illustrate the discussion of
3017. concrete national situations in the tripartite committee, as some persons
3018. suggested to the mission; or at least in the provision of supporting
3019. documents. A representative of this Office would certainly be very welcome at
3020. the inauguration and opening sessions of the tripartite committee.
3021. To some extent the mission was pleasantly surprised by the agreement of the
3022. Government, workers and employers concerning the need for training on matters
3023. related to freedom of association and to collective labour relations. All
3024. three parties showed some degree of unfamiliarity with the characteristics of
3025. a direct contacts mission and in particular with what the present mission
3026. wished to achieve, which can probably be explained not only by certain
3027. difficulties in the internal dissemination of information but an insufficient
3028. knowledge of ILO standards and its control and cooperation procedures. Several
3029. persons expressed their interest in receiving ILO support for their sector or
3030. in cooperation with other sectors in studying the problem of collective
3031. dismissals, or the subjects of collective bargaining or the most appropriate
3032. guidelines for a system of labour relations.
3033. The general interest expressed in training on trade union matters and labour
3034. relations should by fully addressed by the ILO Office for Central America and
3035. Panama and the multidisciplinary team. It is hoped that this interest will
3036. result in specific measures in the near future.
3037. As a summary of the three aspects which could guide ILO action in Guatemala,
3038. with a view to overcoming the problems which gave rise to the complaints and
3039. within a much broader and more meaningful context, the social partners showed
3040. considerable interest in the establishment, with ILO cooperation, of a labour
3041. and social documentation centre and expressed the hope that this documentation
3042. centre would become a centre for discussion and the exchange of views. It
3043. would be an excellent tribute to a common endeavour to overcome painful
3044. problems and construct a better future.
3045. The social partners are rightly expecting positive and constructive action by
3046. the ILO for their country concerning the matters contained in the complaints
3047. against freedom of association. I myself would like to pay tribute to the
3048. immense task carried out by some of these officials to ensure that the mission
3049. was held in the best conditions, including all the unnamed staff who quietly
3050. worked to enable us to achieve the final result. To all I express my deep
3051. gratitude.
3052. In particular, I should like to thank Mr. Ian Chambers, Director of the Office
3053. for Central America and Panama, and some of his collaborators: Mr. Camilo
3054. Vasquez, Deputy Director, Ms. Martiza Carranza and Ms. Lisbeth Calvo. The
3055. hospitality provided by Mr. Chambers, his knowledge of the situation in
3056. Guatemala, his willingness to cooperate with this country and his resolute
3057. support of the direct contacts mission, which was reflected in many specific
3058. and timely decisions, gave the mission a sense of invaluable confidence and
3059. security.
3060. I should like to thank Mr. Helmut Wittelsburger, director of the
3061. multidisciplinary team of San José and in particular Ms. Gerardina Gonzales
3062. and Mr. Agustin Munoz, members of the team, for their availability and
3063. valuable contributions.
3064. To the Chief of the Freedom of Association Branch, Mr. Bernard Gernigon and
3065. Ms. Adriana Pineda, I am deeply grateful for all the documentary support and
3066. information which they provided for me in the preparation if the mission and
3067. for their confidence.
3068. I should like to express special thanks to those who accompanied me on the
3069. mission, Messrs. Alberto Odero de Dios, of the Freedom of Association Branch,
3070. and German Lopez Morales, member of the multidisciplinary team of San José.
3071. Mr. Odero de Dios made a fundamental contribution to this collective work,
3072. through the preparation of basic documentation and his valuable experience and
3073. knowledge throughout the mission. Mr. Lopez Morales undertook an important
3074. preparatory mission and was an excellent collaborator during the direct
3075. contacts. With both, I had the impression of forming a real team.
3076. San Antonio de los Altos, 14 March 1995. Enrique MARIN.
3077. Annex
3078. List of persons interviewed
3079. Executive
3080. His Excellency Mr. Ramiro de Leon Carpio, President of the Republic
3081. Her Excellency Ms. Gladys Annabella Morfin, Minister of Labour and Social
3082. Insurance
3083. Ms. Carmen Lopez Caceres, Deputy Minister of Labour
3084. Mr. Fernando Rivera, Deputy Minister of Labour
3085. Mr. Victor Manuel Patres Rojas, Deputy Minister of Security (Ministry of
3086. Government)
3087. Mr. Roberto Cruz, Director General of Labour
3088. Mr. Mariano Santizo Diaz, Director of International Affairs (Ministry of
3089. Labour)
3090. Mr. Mario Montenegro, Adviser to the Ministry of Labour
3091. Ms. Gloria Ramirez de Rodriguez, Assistant Director General of Labour
3092. Ms. Malvina Beatriz Armas, Official of the Ministry of Labour
3093. Ms. Ana Mendoza de Rivera, Official of the Ministry of Labour
3094. Ms. Norma Jimenez de Bonilla, Official of the Ministry of Labour
3095. Office of the Attorney General of the Republic
3096. H.E. Mr. Acisclo Valladares, Attorney General of the Republic
3097. Human Rights Commission
3098. H.E. Mr. Jorge Mario Garcia Laguardia, Human Rights Commissioner
3099. Mr. Ricardo Alvarado Ortigoza, Deputy Commissioner
3100. Mr. Roderico Segura Trujillo, General Coordinator of Advisers
3101. Mr. Victor Hugo Godoy, Adviser
3102. Presidential Commission on Human Rights
3103. H.E. Mr. Vincente Arranz Sanz, President
3104. Mr. Anibal Mencho Gramajo, Sub-director
3105. Judiciary
3106. H.E. Mr. Oscar Barios Castillo, President of the Judicial Department and Chief
3107. Justice of the Supreme Court
3108. Mr. Oscar Najaroo Ponce, Magistrate and Fourth Member of the Supreme Court
3109. Mr. Angel Alfredo Figuero, Sixth Member of the Supreme Court
3110. Ms. Astrid Jeanette Lemus, Magistrate and Ninth Member of the Supreme Court
3111. Public Ministry
3112. H.E. Mr. Ramsés Cuestas Gomez, Public Prosecutor of the Republic and Head of
3113. the Public Ministry
3114. Mr. Victor Manuel Rivas, Private Secretary of the Public Prosecutor of the
3115. Republic
3116. Mr. Stefan Hartleben, Head of the Human Rights Unit of the Public Ministry
3117. Mr. Francisco Antonio Monterroso, Office responsible for the Human Rights Unit
3118. of the Public Ministry
3119. Coordinating Committee of Agricultural, Commercial, Industrial and financial
3120. Associations (CACIF)
3121. Mr. Roberto Ardon, Executive Director of CACIF
3122. Mr. Adolfo Menendez Castejon, Director of CACIF
3123. Mr. Humberto Preti, President of the Chamber of Agro Industries
3124. Mr. Luis Alberto Reyes Mayén, Coordinator of the Committee on Labour Affairs
3125. Mr. Carlos Arias Masselli, Member of the Committee on Labour Affairs
3126. Ms. Fanny de Estrada, Exporters' Association Manager (Chamber of Industries)
3127. General Central Organization of Workers of Guatemala (CGTG)
3128. Mr. José E. Pinzon, General Secretary
3129. Mr. Regoberto Duenas Morales, Secretary responsible for organization
3130. Mr. Rafael Gonzalez, Secretary reponsible for the informal econony
3131. Mr. Manuel Pablo Quino, Secretary responsible for organization of FEDECAMPO
3132. Central Organization of Rural Workers (CTC)
3133. Mr. Carlos Alvarez, General Secretary
3134. Confederation of Trade Union Unity of Guatemala (CUSG)
3135. Mr. Juan Francisco Alfaro, General Secretary
3136. Mr. Everildo Revolorio Torres, Treasurer
3137. Mr. Oswaldo Rey, trade union official of STRAZOO
3138. Mr. Wilfredo Dimas, trade union official of STRAZOO
3139. Mr. Rogelio Hernandez, trade union official of STRAZOO
3140. Trade Union of Workers of Guatemala (UNSITRAGUA)
3141. Mr. Julio Coj, Coordinator of the Committee on International Relations
3142. Mr. Marco Vinicio Hernandez, Coordinator of the Committee on Training
3143. Mr. Guillermo Maldonado, Adviser of the Legal Office
3144. Mr. Oscar Gerardo Alvarez, Sub-coordinator of the Legal Advisory Committee
3145. Trade Union Federation of Banking and Insurance Employees (FESEBS)
3146. Mr. Saul Octavio Martinez, General Secretary
3147. Mr. Reynaldo Gonzales, Secretary responsible for cooperatives
3148. Mr. Alejandro Aguirre, member of the Advisory Council
3149. United Nations Mission for the Verification of Human Rights in Guatemala
3150. (MINUGUA)
3151. Mr. Leonardo Franco, Head of the mission
3152. Ms. Leida Lima, Head of the Regional Office of the Central Zone
3153. Mr. Alejandro Arnusio, official of MINUGUA
3154. Mr. Hugo Lorenzo, official of MINUGUA