Informe provisional - Informe núm. 336, Marzo 2005

Caso núm. 2259 (Guatemala) - Fecha de presentación de la queja:: 25-MAR-03 - Cerrado

Allegations: The complainants allege that the free exercise of the right to freedom of association has been violated through the supervision and interference of the State in managing union funds. UNSITRAGUA further alleges that numerous anti-union acts and dismissals have taken place in contravention of legislation and the collective agreement in force at various enterprises and institutions

1. 431. The Committee last examined this case at its meeting in June 2004 (see 334th Report, paras. 527-579). In its communications of 20, 22 May and 20 July 2004, the Trade Union of Workers of Guatemala (UNSITRAGUA) sent new allegations, and in a communication of 26 July 2004 sent information and comments on the Government’s observations. In a communication dated 27 July 2004, the General Confederation of Workers of Guatemala (CGTG) sent supplementary information. The Government sent its observations in communications dated 29 April (received 1 June) and 4 November 2004 and 19 January 2005.
2. 432. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 433. At its meeting in June 2004, the Committee made the following interim recommendations regarding the allegations presented by the complainant [see 334th Report, para. 579]:
   • (a) With regard to the alleged supervision and interference of the State in managing union funds, the Committee, taking into account the observed violations of Convention No. 87, requests the Government to ensure that the functions of the SAT are adjusted in line with the various principles mentioned above concerning the financial autonomy of trade unions, and, in consultation with trade union confederations, to modify legislation as necessary in this direction and to keep it informed of measures taken in this respect.
   • (b) With regard to the dismissal of Mr. Félix Alexander Gonzáles from the Office of the Attorney-General of the Nation, the Committee requests the Government to send it a copy of the ruling of the Honourable Second Chamber of the Court of Appeal, and also requests the complainants to provide further information in this regard.
   • (c) With regard to the failure to implement the order to reinstate Mr. Byron Saúl Lemus Lucero in the Supreme Electoral Tribunal, the Committee requests the Government to take the measures at its disposal to rectify the situation and to keep it informed in this respect.
   • (d) With regard to the delay in the proceedings appealing for the reinstatement of Mr. Luis Rolando Velásquez at the National Hospital of Orthopaedics and Rehabilitation, the Committee requests the Government to take the necessary steps to ensure that the process will not be delayed unnecessarily and to keep it informed of the results of the proceedings.
   • (e) With regard to the dismissal of Ms. Rosa María Trujillo de Cordón, Ms. Xiomara Eugenia Paredes Peña de Galdamez and Ms. Zoila Jacqueline Sánchez De García, the Committee invites the complainant to send new information showing the anti-union nature of the dismissals. With regard to the alleged non-recognition of the union by the Secretariat of Public Works of the First Lady of the Republic of Guatemala, the Committee requests the Government to ensure that the Secretariat of Public Works recognizes the union and to keep it informed in this respect.
   • (f) The Committee regrets that the Government has not sent its observations with regard to the allegation concerning the state of indirect dismissal reported at Industrial Agriculture Cecilia S.A. by 34 workers belonging to the union there, resulting from failure to pay salaries, duties not being assigned, etc., and requests it to send its comments in this respect without delay.
   • (g) With regard to the dismissal of 16 workers from Finca Eskimo S.A., a subsidiary of Agropecuaria Omagua S.A., the Committee requests the Government to send it a copy of the ruling handed down by the Court of Appeal in this respect.
   • (h) With regard to the allegation concerning the failure to recognize and refusal to negotiate with the Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala (SINTRACOMUSAC) by the university, the Committee, observing that strictly speaking there is no labour relation obliging the employer to bargain collectively, requests the Government to take the measures necessary to resolve the dispute peacefully through dialogue between parties, to begin appropriate investigations into the allegations of violence and to keep it informed in this respect.
   • (i) As regards the alleged dismissal of the provisional executive committee of the union at the port enterprise Santo Tomás de Castilla, the Committee requests the Government, in the event that legal action is brought in this respect, to inform it of the ruling as soon as it is handed down, in order to discover whether the dismissals involve all workers or only the members of the union’s provisional executive committee. If no legal action is brought, the Committee requests the Government to carry out an independent investigation to establish the true reasons for the dismissals and to keep it informed in this respect.
   • (j) With regard to the allegations concerning Bocadeli de Guatemala S.A., the Committee requests the Government to respond specifically to the allegations of anti-union actions, including those concerning pressure placed on Mr. Manuel Natividad Lemus Zavala.
   • (k) The Committee requests the Government to send its observations regarding the new allegations concerning massive and selective dismissals in the municipality of Chiquimulilla sent by the General Confederation of Workers of Guatemala in its recent communication dated 5 April 2004, and regarding the new allegations sent by UNSITRAGUA in its recent communications dated 19 and 30 April 2004 relating to the dismissal of 40 workers, the delay in the transmission of a set of claims to the Secretariat of Public Works of the First Lady of the Republic of Guatemala and the dismissal of a member of the executive committee of the Secretariat’s trade union.
   • (l) The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, on the questions at issue.

B. New allegations

1. 434. In its communication of 5 April 2004, the General Confederation of Workers of Guatemala (CGTG) alleges that workers were dismissed in the municipalities of Chiquimulilla, Santa Rosa Department; Puerto Barrios, Izabal Department; and Pueblo Nuevo Viñas, Santa Rosa Department. As regards the municipality of Chiquimulilla, where workers are organized in a CGTG-affiliated organization, the CGTG indicates that from the end of 2003 onwards, as a result of the constant violations of their labour rights, the workers decided to summon the municipal authority before the competent Labour and Social Security Court with a view to negotiating a set of claims including one regarding stability of employment. The current administration of the municipality has made repeated and blatant threats against the trade union and made its intention to destroy the union quite clear. For example, starting on 29 January 2004, the mayor began a series of selective and unjustified dismissals, despite the fact that the municipal authority had been summoned (a situation in which any dismissal requires special court authorization). Although the municipality was later forced to reinstate all the workers, they were reinstated in different posts under unfavourable conditions. The mayor continued to threaten and harass them to force them to leave their jobs and their union. When a conciliation board was held under the auspices of the competent court of first instance to resolve the collective dispute, the workers’ delegates and the mayor signed a collective agreement on conditions of work, article 9 of which provides for the stability of employment of municipal workers, who cannot be dismissed unless they commit an offence under the terms of the Municipal Service Act. Following the voluntary abandonment of the summons action against the municipal authority, the mayor, in contravention of the collective agreement, dismissed most of the workers belonging to the trade union, including two members of the union’s executive committee (violating the immunity from dismissal provided for in the Labour Code during their periods in office and for a period of one year after leaving union office).
2. 435. As regards the municipality of Puerto Barrios, where workers are organized in a union affiliated to the CGTG and to the National Federation of Public Servants (FENASEP), the CGTG alleges that from February 2003, as a result of constant problems relating to the withholding of wages and threats of dismissal, the workers obtained a summons against the municipal authority to attend the competent labour and social security court to negotiate a set of claims, including stability of employment for municipal workers. Despite the summons, the mayor, who had already stated his intention to break up the union, dismissed six female members of the union in connection with reorganization. This led to a meeting between FENASEP, the CGTG and the mayor, in the presence of the labour inspector, to resolve the dispute through conciliation, but the meeting was unsuccessful. Furthermore, following an application to the Izabal Labour, Social Security and Family Court to reinstate the six workers, the Court decided to suspend the summons proceedings against the municipal authority on the grounds that, since a collective agreement had recently been negotiated, it was not legally possible for an ad hoc committee to maintain such a summons against the municipal authority. An appeal against this ruling was lodged with the appropriate appeals court, within the established time limit, and is still pending. Further dismissals took place subsequently, and at the time this complaint was presented, more than 20 illegal dismissals had not been resolved because the principal legal action (relating to the collective dispute) was still pending. In the meantime, reprisals, harassment and other measures by the authority intended to disrupt the union continue to be everyday occurrences, and the authority refuses any attempt to resolve the problems through dialogue.
3. 436. As regards the municipality of Pueblo Nuevo Viñas, the CGTG states that the municipal workers formed a trade union on 26 December 2003. They lodged a complaint with the Labour, Social Security and Family Court concerning a collective socio-economic dispute with the municipal authority; this included a set of claims on matters including a pay increase and stability of employment. The municipal authority then initiated proceedings against all the workers, in particular the trade union officers. A conciliation board was set up under the auspices of the Santa Rosa Labour Court, and a collective agreement was concluded with provisions on, among other things, stability of employment. Despite this, the mayor dismissed ten workers after the agreement had been signed, including the general secretary of the trade union and two members of the consultative council. A court order was sought for the reinstatement of the dismissed workers, given that they all enjoyed protection by virtue of their involvement in the foundation of a trade union, but orders were obtained for the reinstatement only of the general secretary and the two members of the consultative council. This led to an application to quash the decision, an application that is still pending. In addition, when the executive minister visited the municipality in order to ensure that the reinstatement order was carried out, the mayor agreed to reinstate only the general secretary, whom he demoted the following day. This was reported to the court and the matter is still pending.
4. 437. In its communication of 19 April 2004, UNSITRAGUA states that on 9 March 2004, the women workers of the Secretariat of Public Works of the First Lady of the Republic of Guatemala presented a set of claims to the General Labour Inspectorate, along with the other items required by law with a view to negotiating a number of improvements in working conditions. The Labour Inspectorate deliberately delayed forwarding the set of claims to the Secretariat (more than 25 days elapsed between presentation of the set of claims and the employer being notified), and thus allowed the dismissal of about 40 workers. UNSITRAGUA indicates that under the terms of the Act respecting union membership and strike action for state employees and its amendments, workers can seek judicial protection by declaring a collective dispute only once the direct channels have been exhausted and after a period of 30 days from the time the set of claims is transmitted to the employer (in this case, the State). The delay in transmitting the set of claims severely affected the right of collective bargaining. UNSITRAGUA also alleges that the trade union of the Secretariat of Public Works of the First Lady of the Republic of Guatemala has been the target of a series of repressive anti-union measures by that institution. Specifically, it states that when the new executive committee was elected, the authorities demanded the union’s complete file, including the list of members, which has been used by the authorities for anti-union purposes such as harassing members to make them leave the union. The authorities have also launched a smear campaign against the union leadership. In its communication of 30 April 2004, also in relation to the Secretariat of Public Works, UNSITRAGUA alleges that on the same day, Dilia Josefina Cobox Ramón, who had been the union’s social relations secretary, was dismissed without just cause. The dismissal violated her trade union immunity, and no union representatives were admitted to the meeting at which she was given notice of dismissal. Attempts were made subsequently to force her to sign a number of papers without her knowing the contents. In its communication of 20 May 2004, UNSITRAGUA alleges that on 15 May 2004, also in the Office, Edna Violeta Díaz Reyes was also dismissed without just cause. She had been the union’s inter-union relations secretary. The organization maintains that this violated trade union immunity and was an attempt to make her liable for a demonstration carried out by a group of skilled workers who were owed four months’ wages.
5. 438. In its communication of 22 May 2004, UNSITRAGUA states with regard to its previous allegation concerning the dismissal by the port enterprise Santo Tomás de Castilla of the entire provisional executive committee of the Union of Dockers, Loaders, Unloaders and Other Workers of the port enterprise Santo Tomás de Castilla, that the workers were reinstated in their posts on 11 February 2004. The organization alleges, however, that since their reinstatement, the workers have been the target of a range of anti-union discriminatory measures, including the following: (a) they have been denied the safety equipment needed for their work, despite the fact that they had requested it several times and lodged a complaint with the Izabal department Labour Inspectorate; (b) they were constantly assigned to the most exhausting and arduous tasks involving constant exposure to the sun; (c) although they had without limit of time contracts, they were classified according to their pay slips as workers hired for specified tasks only; and (d) they are paid less than the other workers at the enterprise.
6. 439. In its communication of 20 July 2004, UNSITRAGUA alleges that over the last two years, the Office of the Attorney-General of the Nation has initiated a number of measures intended to weaken and break up the trade union of workers of the Office of the Attorney-General. These included illegal dismissals, disciplinary proceedings, unjustified dismissals in connection with reorganization, and transfers of workers to force them to leave. The following trade union members were among the workers dismissed: Alcira Noemí Salguero Noguera, Rafael Fransisco Urrutia, Myrian Estela Godoy Bonilla de Rodríguez, Ramón Estuardo Monzón Sagui, Andrés Muñoz Quevedo, Juan Ignacio Miguel Ortiga Aparicio and Sara Cajas. These dismissals violated the principles of legality, in citing reasons not provided for under law, and violated the administrative disciplinary procedures established under the collective agreement. As regards the trade union members dismissed in connection with reorganization, UNSITRAGUA names the following: Eliseo Ismael Rivera Castro, Laura Lili Alvarez Muralles de Pineda, Yuri Zumeta, Robinson Arnoldo Chevez Martínez, José Antonio López Mendoza, Livi Deisse Ramírez Ramírez, Héctor Humberto Barrios Mazariegos, Dense Juan Fransisco Alonzo Mazariegos, and Andrés Muñoz Quevedo. These dismissals violated article 13 of the collective agreement, which expressly prohibits dismissal in connection with reorganization and, in addition, the Office of the Attorney-General refused to submit the decision to the bipartite Joint Panel for review, as required by the collective agreement. As regards the transfers to other workplaces, also in contravention of the collective agreement, UNSITRAGUA states that the following trade union members were affected: Myrian Estela de Rodríguez, Roberto De Léon, Anabella Ortiz Mijangos, Julia Leticia Martínez Chavarría, Mirna Irecema Rodríguez Rivera, María del Rosario Pérez y Pérez, Olga Marina Chang López, Adelso Pojoy Silva, Annecke Jannette Vásquez Ramírez, Enma Araceli Soto Romero, Silvia Hortensia Castillo Avila and Alcira Noemí Salguero Noguera. Workers were not informed of or consulted on these transfers and, in contravention of article 14 of the collective agreement, the Office of the Attorney-General refused in every case to submit the decision to the Joint Panel for review, as required by the collective agreement.
7. 440. In its communication of 26 July 2004, in response to the Committee’s recommendation in which it requested new information on the dismissal of Félix Alexander Gonzáles from the Office of the Attorney-General of the Nation, UNSITRAGUA states that the Office interfered in that worker’s personal affairs and used a problem unrelated to work as a pretext for dismissing him. It also accused him of something which in law is not deemed to constitute grounds for dismissal, and thus violated the principle of legality.
8. 441. As regards the dismissal of Rosa María Trujillo de Cordón, Xiomara Eugenia Paredes Peña de Galdamez and Zoila Jacqueline Sánchez de García, all members of the trade union of workers of the Secretariat of Public Works of the First Lady of the Republic of Guatemala, in response to the Committee’s recommendation in which it had requested new information showing the anti-union nature of the dismissals, UNSITRAGUA reiterates the information already sent to the Committee, and states that the anti-union nature is reflected in the fact that the union’s ordinary members were severely affected.

C. The Government’s new reply

1. 442. In its communication of 29 April 2004, with regard to the dismissal of Félix Alexander Gonzáles of the Office of the Attorney-General, the Government states that the Second Chamber of the Labour and Social Security Appeals Court ruled that the worker’s application for reinstatement was unfounded. The worker did not lodge any further appeal and the Court declared the case closed.
2. 443. As regards the delay in dealing with the application for reinstatement of Luis Rolando Velásquez at the National Hospital for Orthopaedics and Rehabilitation, the Government states that the case was dealt with by the Third Chamber of the Labour and Social Security Appeals Court (file No. 301-2003), and that according to the file the ruling was implemented on 8 October 2003.
3. 444. As regards the alleged dismissal of the trade union executive committee at the port enterprise Santo Tomás de Castilla, the Government states that the Labour and Social Security Court of Izabal Department ordered the reinstatement of the workers concerned, but does not know whether they have actually been reinstated.
4. 445. With regard to the allegations regarding the municipality of Puerto Barrios presented by the CGTG, the Government states that in January 2004, representatives of the Trade Union of Workers of the Municipality of Puerto Barrios presented a complaint concerning the unjustified dismissal of 11 workers at a time when the municipality had already been summoned to court. The Labour Inspectorate asked the mayor to reinstate the dismissed workers, and when he refused to do so, gave him five days to explain his reasons. The mayor alleged that the summons to which the union referred was applicable only during the discussion of the collective agreement, which had already been negotiated and approved by the Labour Inspectorate the previous year, and for that reason reinstatement was not legally possible. At the workers’ request, the administrative procedure was declared to be exhausted. The administrative file is currently before the Sanctions Department of the Ministry of Labour with a view to appropriate penalties being applied. The workers applied to the Labour, Social Security and Family Court, and the case is currently before the Appeals Chamber.
5. 446. With regard to the alleged mass and selective dismissals in the municipality of Chiquimulilla, also presented by the CGTG, the Government states that on 30 January 2004, Rodolfo García Rivas and his colleagues complained to the Labour Inspectorate that they had been dismissed. Although they were reinstated, they were subsequently dismissed again. On 5 March 2004, the Labour Inspectorate visited the municipality following a complaint by the trade union’s executive committee, according to which the employer had withheld 15 days’ wages. The same situation was repeated on 14 April of the same year.
6. 447. As regards the allegations regarding the municipality of Pueblo Nuevo Viña, the Government states that, on 12 February 2004, a group of workers complained to the Labour Inspectorate that they had been dismissed. Some of the workers have already received suitable compensation, but the case with regard to the others is still pending. The Government states that on 1 March 2004, a group of dismissed workers sought the intervention of the Labour Inspectorate to obtain their reinstatement at work. The employer offered to pay them appropriate compensation but this was rejected by the workers.
7. 448. In its communications of 4 November 2004 and 19 January 2005, the Government states with regard to the allegations concerning the Secretariat of Public Works of the First Lady of the Republic of Guatemala that on 9 March 2004, it received notice from Lesbia Amparo Velásquez Gómez, Lilian Leticia Franco and Silvia Victoria Guzmán Muralles, regarding the establishment of the Ad Hoc Committee of Workers of the Secretariat of Public Works of the First Lady of the Republic, together with a set of claims to be passed on to the Secretariat. The Labour Inspectorate dealt with this in the normal way and asked the Labour Registration Department of the General Labour Directorate whether there was already a legally constituted trade union at the Secretariat in question; this was confirmed to be the case. On 19 March 2004, the Inspectorate issued Decision No. 904-004, ordering that the existing trade union be informed of the content of the notice of establishment of the Ad Hoc Committee and of the claims, setting a deadline of three days for the trade union’s response. When this period elapsed without any response from the union, the Inspectorate stated that it deemed the notice to have been duly received and closed the proceedings. As regards the allegation that the General Labour Inspectorate deliberately delayed forwarding the set of claims to the Secretariat, which then dismissed 40 workers as a result of the 25-day delay, the Government categorically denies that the normal processing of the file was a delaying tactic, and points out that under the terms of section 375 of the Labour Code, the only obligation when non-unionized workers establish an ad hoc committee is to notify the Labour Inspectorate. With regard to the set of claims, the Inspectorate is required to ascertain whether there is already a legally constituted trade union in order to inform it of the establishment of an ad hoc committee and the presentation of a set of claims, given that in practice some ad hoc committees are supported by employers in order to conclude collective agreements that sideline existing unions. With regard to the dismissal of 40 workers from the Secretariat, the Government states that, for workers employed by a state body to acquire immunity from dismissal, the set of claims must be presented to a labour and social security court which then issues an order to the effect that any termination of employment must be authorized by the judge examining the dispute. This procedure was not followed by the new Ad Hoc Committee, and workers were therefore not protected by the requirement that dismissal must be authorized by a court. The Government maintains that it is wrong to claim, as UNSITRAGUA has done, that workers acquire immunity from dismissal merely by giving notice of the establishment of an ad hoc committee and presenting a set of claims. Notification of the employer is intended only to comply with the procedure established under the Act respecting union membership and strike action for state employees, according to which the direct channels of redress must first be exhausted (30 days following notification of the employer) before any collective labour dispute is declared or any lists of demands presented by an ad hoc committee. In practice, in order to prevent dismissals, trade unions or ad hoc committees first declare a collective dispute before labour courts in order to obtain immunity from dismissal through a court decision. This would have been the appropriate procedure, but was not followed by the Ad Hoc Committee. The Secretariat in question states that in early 2004, some 29 persons were dismissed as a result of reorganization in accordance with Order No. 2004-DJ-663 of 3 March 2004 by the National Civil Service Authority, which ruled in favour of the Secretariat’s administrative reorganization. The Secretariat emphasizes that of the 29 dismissals (not 40, as UNSITRAGUA maintains), only seven concerned trade union members. The Secretariat also denies the allegations of harassment of union members and attempts to smear union officers, and says it has documentary evidence that Dilia Josefina Cobox Ramón was consistently negligent in her duties. It also maintains that it did not know at the time of the dismissals that Edna Violeta Díaz Reyes was inter-union relations secretary or that Dilia Josefina Cobox Ramón was social affairs secretary. With regard to the case of Edna Violeta Díaz de Reyes, the secretariat states that the case is at the administrative stage before the National Civil Service Authority, where she appealed against the dismissal and applied for reinstatement and payment of wage arrears.
8. 449. As regards the allegations concerning pressure on members of the trade union of workers of the enterprise Bocadelli S.A., the Government states that on 5 August 2003, an application (No. 440-2003) against the enterprise was filed on behalf of 24 workers at the enterprise by Manuel Natividad Lemus Zavala. On 21 May 2004, notice of voluntary withdrawal of the action was lodged with the court, with the certified signatures of all but four of the workers (those four being: Damacio Salguero López, Edgar Giovanni Lara García, Julio César Rodas Maldonado and Miguel Angel Morataya Arévalo). Three days later, a ruling was given that the original case would continue with regard to the four workers who did not sign. Lastly, a summons was issued to attend an oral hearing on 6 October 2004. According to the Bocadelli de Guatemala S.A. enterprise, documentary evidence given to the Ministry of Labour and Social Security showed the allegations regarding illegal wage reductions to be false and therefore malicious and without foundation. Nevertheless, the Government sends a resolution of the General Labour Inspectorate which sanctions the enterprise for not having refunded the illegal wage reductions.
9. 450. The Government sends a ruling handed down on appeal in relation to the Eskimo enterprise, as requested by the Committee. The ruling declares null and void the reinstatement of the dismissed workers based on the conclusion that their dismissals were due to the expiration of the period laid down in the employment contracts of 15 workers.

D. The Committee’s conclusions

1. 451. The Committee recalls that the present case concerns allegations of violations of freedom of association in the form of supervision and interference by the State in the management of trade union funds. UNSITRAGUA further alleges numerous anti-union acts and dismissals in contravention of the law and the collective agreement in force at the following enterprises and institutions: the Office of the Attorney-General of the Nation; Supreme Electoral Tribunal; Ministry of Public Health and Social Aid; Secretariat of Public Works of the First Lady of the Republic of Guatemala; Industrial Agriculture Cecilia S.A.; Finca Eskimo S.A, taken over by the Agropecuaria Omagua S.A.; the San Carlos of Guatemala University; the port enterprise Santo Tomás de Castilla; and Bocadelli de Guatemala S.A. The CGTG alleges unjustified dismissals in the municipalities of Chiquimulilla, Puerto Barrios and Pueblo Nuevo Viñas.
   • Municipality of Chiquimulilla
2. 452. As regards the allegations concerning dismissals in the municipality of Chiquimulilla in Santa Rosa Department, the Committee notes that according to the CGTG, the trade union and the mayor signed a collective agreement, article 9 of which provides for stability of employment for municipal employees, who can be dismissed only if they commit an offence within the meaning of the Act respecting municipal services. Despite this, and in violation of the agreement according to the CGTG, the mayor subsequently dismissed most of the workers who belonged to the union, including two members of the executive committee (which also violated the principle of immunity from dismissal under the Labour Code during their terms in office and for a period of one year after leaving union office). The Committee notes the Government’s statements with regard to these allegations, to the effect that, on 30 January 2004, Rodolfo García Rivas and his colleagues complained to the Labour Inspectorate that they had been dismissed and that, although they were reinstated, they were subsequently dismissed again. The Committee regrets that the general information provided by the Government does not respond to the CGTG allegations, and requests the Government to send specific observations on this matter without delay. The Committee also requests the CGTG to communicate the number and names of workers dismissed, and to indicate whether the dismissals affected only trade union members or other municipality workers as well.
   • Municipality of Puerto Barrios
3. 453. The Committee notes that the allegations made by the CGTG concerning the municipality of Puerto Barrios, which was under a court summons from February 2003 onwards in order to negotiate a set of claims, concern the dismissal of six female members of the trade union, who lodged an application for reinstatement with the Labour, Social Security and Family Court of Izabal. The CGTG alleges that further dismissals took place subsequently, and more than 20 illegal dismissals in total have yet to be resolved, given that the principal case (collective dispute) is still pending. Lastly, the CGTG alleges that measures by the municipality aimed at breaking up the union continue to be an everyday occurrence. The Committee notes the Government’s information with regard to these allegations that in January 2004 representatives of the Trade Union of Workers of the Municipality of Puerto Barrios lodged a complaint with the Labour Inspectorate in connection with the unjustified dismissal of 11 workers, despite the fact that the municipality was under a court summons. The Government maintains that although the Labour Inspectorate asked the mayor to reinstate the dismissed workers, the mayor refused to do so on the grounds that the court summons was limited to the period of discussions on the collective agreement that had already been negotiated and approved by the Labour Inspectorate the year before, which meant that reinstatement would not be legally possible. The Government states that the administrative file is currently being examined by the Department of Sanctions of the Ministry of Labour with a view to appropriate penalties. The case is also being examined from the legal point of view by the Appeals Chamber. The Committee requests the Government to forward a copy of the ruling as soon as it is handed down.
   • Municipality of Pueblo Nuevo Viñas
4. 454. With regard to the Municipality of Pueblo Nuevo Viñas, the Committee notes the CGTG’s statement to the effect that, in December 2003, the Trade Union of Workers of the Municipality of Pueblo Nuevo Viñas was established and that from that time onwards, the municipal authorities began adopting measures against all the workers and especially against trade union officers. For example, despite the conclusion of a collective agreement which included a provision guaranteeing stability of employment, the mayor dismissed ten workers including the union’s general secretary and two members of the consultative council. An application was made to the courts to order reinstatement of the dismissed workers, but it was only possible to obtain an order to reinstate the general secretary and the two members of the consultative council. An appeal was filed and is still pending. The CGTG also alleges that when the executive minister visited the municipality in order to ensure that the reinstatement order was carried out, the mayor agreed only to reinstate the general secretary, who was demoted the following day. A complaint was then made to the court, and the case is still pending. The Committee notes that, according to the Government, on 12 February 2004 a group of workers in the municipality complained to the Labour Inspectorate that they had been dismissed, and that some of the workers concerned have received appropriate compensation but that the case of the others is still pending. The Government states in this regard that on 1 March 2004 a group of dismissed workers asked the Labour Inspectorate to intervene in order to obtain their reinstatement. The employer offered appropriate compensation but this was rejected by the workers. The Committee notes that the Government has not denied the allegations concerning the dismissal of the general secretary of the union and two members of the consultative council, and requests the Government to take the necessary measures to ensure that the order to reinstate these three union officers is carried out and that they are actually reinstated in their posts without loss of wages, and to keep it informed in this regard. The Committee requests the Government to inform it of any administrative or judicial rulings concerning the remaining allegations. It also requests the CGTG to communicate the names of the workers concerned.
   • Office of the Attorney-General of the Nation
5. 455. The Committee notes that, with regard to the Office of the Attorney-General of the Nation, UNSITRAGUA alleges that in the last two years, there have been illegal dismissals, disciplinary proceedings, dismissals without just cause in connection with reorganization, and transfers intended to force workers belonging to the trade union representing employees of the Office to resign. The dismissed workers include the following: Alcira Noemí Salguero Noguera, Rafael Fransisco Urrutia, Myrian Estela Godoy Bonilla de Rodríguez, Ramón Estuardo Monzón Sagui, Andrés Muñoz Quevedo, Juan Ignacio Miguel Ortiga Aparicio and Sara Cajas. According to UNSITRAGUA, these dismissals violate the principles of legality and the administrative disciplinary procedures established under the collective agreement. Those dismissed in connection with reorganization are as follows: Eliseo Ismael Rivera Castro, Laura Lili Alvarez Muralles de Pineda, Yuri Zumeta, Robinson Arnoldo Chevez Martínez, José Antonio López Mendoza, Livi Deisse Ramírez Ramírez, Héctor Humberto Barrios Mazariegos, Dense Juan Fransisco Alonzo Mazariegos, and Andrés Muñoz Quevedo. These dismissals violated article 13 of the collective agreement, which expressly prohibits dismissal in connection with reorganization and, furthermore, the Attorney-General’s Office refused to submit the decision to the bipartite Joint Panel for review, as required by the collective agreement. The following workers were transferred: Myrian Estela de Rodríguez, Roberto de Léon, Anabella Ortiz Mijangos, Julia Leticia Martínez Chavarría, Mirna Irecema Rodríguez Rivera, María del Rosario Pérez y Pérez, Olga Marina Chang López, Adelso Pojoy Silva, Annecke Jannette Vásquez Ramírez, Enma Araceli Soto Romero, Silvia Hortensia Castillo Avila and Alcira Noemí Salguero Noguera. Workers were not informed or consulted in advance with regard to these transfers, and, in contravention of article 14 of the collective agreement, the Office of the Attorney-General refused in every case to submit the decision to the Joint Panel for review, as required by the collective agreement. The Committee notes that the Government has not sent its observations on these allegations, and requests it to send its comments without delay, with details of the administrative or judicial rulings handed down on this matter.
6. 456. The Committee notes that, in response to its recommendation in which it requested further information on the dismissal of Félix Alexander Gonzáles of the Office of the Attorney-General, UNSITRAGUA states that the Office used a problem unconnected with work as a pretext for the dismissal, accusing the worker of something not regarded as a reason for dismissal and thus violating the principle of legality. The Government states that the Second Chamber of the Labour and Social Security Appeals Court rejected the worker’s application for reinstatement and, in view of the fact that the worker did not appeal, declared the case closed. The Committee once again requests the Government to transmit a copy of the ruling given by the Second Chamber in this case.
   • National Hospital for Orthopaedics and Rehabilitation
7. 457. The Committee notes the Government’s information regarding the delay in dealing with the application for reinstatement of Luis Rolando Velásquez at the National Hospital for Orthopaedics and Rehabilitation, to the effect that the case was examined by the Third Chamber of the Labour and Social Security Appeals Court under file No. 301-2003 and that, according to the file, the ruling was implemented on 8 October 2003. The Committee takes note of this information.
   • Port enterprise Santo Tomás de Castilla
8. 458. As regards the alleged dismissal by the port enterprise Santo Tomás de Castilla of the entire provisional executive committee of the Union of Dockers, Loaders, Unloaders and Other Workers of the port enterprise Santo Tomás de Castilla, the Committee notes the allegation by UNSITRAGUA that although the dismissed workers were reinstated on 11 February 2004, they have since then been subjected to a series of acts of anti-union discrimination including the following: (a) failure to provide the safety equipment required for their work; (b) permanent assignment to the most exhausting and arduous duties; (c) classification on wage slips as being employed for specified tasks only, despite the fact that their contracts are without limit of time; and (d) payment of lower wages than other workers at the enterprise. The Committee notes that the Government confines itself to stating that that the Labour and Social Security Court of Izabal department ordered the reinstatement of the dismissed workers, and does not reply to the new allegations sent by UNSITRAGUA. The Committee requests the Government to send its comments in this regard without delay.
   • Secretariat of Public Works of the First Lady
   • of the Republic of Guatemala
9. 459. With regard to the allegation by UNSITRAGUA, that on 9 March 2004 the female workers of the Secretariat of Public Works of the First Lady of the Republic of Guatemala presented a set of claims to the Labour Inspectorate with a view to negotiating a number of improvements in working conditions, but that the inspectorate deliberately delayed forwarding the list to the secretariat (more than 25 days passed between presentation of the claims and notification of the employer) and thereby made it possible to dismiss about 40 workers (because, under the terms of the Act respecting union membership and strike action for state employees and its amendments, workers may seek judicial protection by declaring a collective dispute only after the direct means of redress have been exhausted after a period of 30 days from the presentation of the claims to the employer), the Committee notes the Government’s information to the effect that: (a) on the date in question, notification was received of the establishment of the Ad Hoc Committee of Workers of the Secretariat of Public Works of the First Lady of the Republic, together with a set of claims for forwarding to the secretariat; (b) the Labour Inspectorate dealt with this in the normal way, and asked the Department of Labour Registration whether there was already a legally constituted trade union; it was confirmed that this was the case; (c) on 19 March 2004, the inspectorate issued Decision No. 904-004 ordering that the Trade Union of the Secretariat of Public Works of the First Lady of the Republic be informed of the content of the notice of establishment of the Ad Hoc Committee and the claims; the union did not reply after three days, and the Labour Inspectorate therefore deemed the notice and the claims to have been duly received and closed the case. The Committee notes the Government’s categorical denial that the normal process of examining the case was a delaying tactic, and states that the Labour Inspectorate is obliged to ascertain whether there is already a legally constituted trade union so that it can inform the union of the establishment of an ad hoc committee and of any claims, given that in practice some ad hoc committees are supported by employers with a view to concluding collective agreements that sideline existing unions. The Committee takes note of this information.
10. 460. As regards the alleged dismissal of about 40 workers, the Committee notes that according to the Secretariat of Public Works of the First Lady of the Republic of Guatemala, some 29 people were dismissed in early 2004 in connection with reorganization, under the terms of Decision 2004-DJ-663 issued on 3 March 2004 by the National Civil Service Authority. The secretariat emphasizes that of the 29 dismissed workers (not 40, as UNSITRAGUA claims), only seven were trade union members. The Committee also notes that the complainant has not sent any new information on this aspect of the case. In these conditions, the Committee does not have information allowing it to appreciate the anti-union nature of the dismissals. It will therefore not pursue its examination of this allegation, unless the complainant produces evidence showing that the dismissals were anti-union in nature.
11. 461. The Committee notes that UNSITRAGUA also alleges that the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic was subjected to a number of anti-union measures by the authorities of the institution, in particular, the use of the union’s membership list to harass workers into leaving the union and a smear campaign against the union leadership. The Committee notes further UNSITRAGUA’s allegation concerning the unjustified dismissal, in contravention of trade union immunity, of Dilia Josefina Cobox Ramón, the union’s social relations secretary (30 April 2004), and of Edna Violeta Díaz Reyes, the inter-union relations secretary (15 May 2004). The Committee notes that the secretariat denies that anti-union acts took place, maintains that it has documentary proof that Dilia Josefina Cobox Ramón constantly neglected her duties, and claims that it did not know at the time of the dismissals that these workers held union office. With regard to the case of Edna Violeta Díaz de Reyes, the secretariat states that this is at the administrative stage before the National Civil Service Authority. Under these circumstances, the Committee requests the Government to carry out an independent inquiry without delay into the alleged anti-union acts directed against members of the union, and to keep it informed in this regard. The Committee also requests the Government to indicate whether Dilia Josefina Cobox Ramón and Edna Violeta Díaz Reyes have taken any legal action, and if they have, to keep it informed of developments.
12. 462. As regards the dismissal of Rosa María Trujillo de Cordón, Xiomara Eugenia Paredes Peña de Galdamez and Zoila Jacqueline Sánchez De García, all members of the trade union of the Secretariat of Public Works of the First Lady of the Republic, the Committee recalls that in its previous examination of the case, it decided that it would not proceed with examining these allegations unless the complainant sent new information showing the anti-union nature of the dismissals. The Committee notes that the information sent by UNSITRAGUA contains no such evidence, and therefore concludes that it will not continue its examination of this allegation.
    • Bocadelli S.A.
13. 463. As regards the allegations concerning pressure directed at the members of the Trade Union of Workers of the Bocadelli S.A. enterprise, the Committee notes that according to the Government, on 5 August 2003, an application against the enterprise (No. 440-2003) was filed on behalf of 24 workers in Manuel Natividad Lemus Zavala. On 21 May 2004, notice of voluntary abandonment of the action was presented, with the signatures of all those workers except four (Damacio Salguero López, Edgar Giovanni Lara García, Julio César Rodas Maldonado, and Miguel Angel Morataya Arévalo), and three days later, it was decided that the action would continue with regard to the workers who had not signed. The Government also states that the parties had been summoned to attend an oral hearing on 6 October 2004. The Committee notes in this regard that, according to the information provided by the Bocadelli S.A. enterprise, the statements concerning alleged illegal wage deductions were shown to be false with the aid of documentary evidence before the Ministry of Labour and Social Security; nevertheless, the Government sends a resolution of the General Labour Inspectorate which sanctions the enterprise for not having refunded the illegal wage reductions. The Committee observes however that the enterprise does not refer to the alleged acts of anti-union discrimination. The Committee requests the Government to keep it informed of developments in the judicial proceedings under way concerning the four union members.
    • Eskimo enterprise
14. 464. The Committee takes note of the ruling handed down on appeal which declared null and void the reinstatement of 15 workers as the period laid down in their employment contracts had expired.

The Committee's recommendations

1. 465. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the allegations concerning dismissals in the municipality of Chiquimulilla in the Santa Rosa Department, the Committee requests the Government to reply without delay and in specific terms to these allegations and asks the CGTG to communicate the exact number and names of workers dismissed and to indicate whether the dismissals affected only trade union members or other municipality workers as well.
   • (b) As regards the allegations concerning the municipality of Puerto Barrios (refusal to reinstate workers dismissed despite having trade union immunity), the Committee requests the Government to forward a copy of the Appeal Court ruling as soon as it is handed down.
   • (c) As regards the allegations concerning the municipality of Pueblo Nuevo Viñas, the Committee requests the Government to take the necessary measures to ensure that the union’s general secretary and the two consultative council members are reinstated in their posts without loss of wages and to keep it informed in this regard. The Committee requests the Government to inform it of any administrative or judicial decisions regarding the other dismissals, and requests the CGTG to communicate the names of the workers concerned.
   • (d) As regards the new allegations concerning the Office of the Attorney General of the Nation (illegal dismissals, disciplinary proceedings, dismissals without just cause in connection with reorganization, and transfers intended to force union members to resign), the Committee requests the Government to send its comments without delay, with details of the administrative or judicial rulings handed down on this matter.
   • (e) As regards the dismissal of Félix Alexander Gonzáles from the Office of the Attorney-General of the Nation, the Committee once again requests the Government to send a copy of the ruling handed down by the Second Chamber of the Appeals Court on this case.
   • (f) As regards the new allegations concerning the port enterprise Santo Tomás de Castilla (acts of anti-union discrimination against reinstated members of the executive committee), the Committee requests the Government to send its observations in this respect without delay.
   • (g) In relation to the alleged acts of anti-union discrimination directed against the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic, the Committee requests the Government to carry out an independent inquiry without delay into the alleged anti-union acts and to keep it informed in this regard. As regards the dismissal of two trade union officials, the Committee requests the Government to indicate whether Dilia Josefina Cobox Ramón and Edna Violeta Díaz Reyes have taken legal action and, if so, to keep it informed of developments.
   • (h) As regards the alleged pressure applied to members of the Trade Union of Workers of Bocadelli S.A., the Committee requests the Government to keep it informed of developments in the judicial proceedings under way concerning the four union members in question.
   • (i) As regards the alleged supervision and interference by the State in the management of trade union funds, the Committee notes that the Government has not sent any information in this respect, and requests it once again to ensure that the functions of the Superintendent for Tax Administration are brought into line with the principles of the financial autonomy of trade union organizations and, in consultation with trade union confederations, to modify the legislation as necessary in this direction, and to keep it informed of measures taken in this respect.
   • (j) The Committee once again notes with regret that the Government has not sent its observations regarding the allegation concerning the state of indirect dismissal reported at the Industrial Agriculture Cecilia S.A. by 34 workers belonging to the trade union there, resulting from failure to pay salaries, assign tasks, etc., and requests the Government to send its comments in this respect without delay.
   • (k) The Committee notes that the Government has not sent any information regarding the measures adopted to bring about a peaceful settlement, through dialogue between the parties, in the dispute between the Union of Independent Traders of the Central Campus of the University of San Carlos of Guatemala (SINTRACOMUSAC) and the University, and begin appropriate investigations into the allegations of violence; the Committee once again requests the Government to keep it informed in this regard.
   • (l) As regards the failure to implement the order to reinstate Byron Saúl Lemus Lucero in the Supreme Electoral Tribunal, in relation to which the Committee had requested the Government to take the measures at its disposal to rectify promptly the situation, the Committee once again requests the Government to keep it informed in this regard.
   • (m) The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, which have not yet communicated any information.