Informe provisional - Informe núm. 351, Noviembre 2008

Caso núm. 2445 (Guatemala) - Fecha de presentación de la queja:: 31-AGO-05 - Cerrado

Allegations: Murders, threats and acts of violence against trade unionists and their families; anti-union dismissals and refusal by private enterprises or public institutions to comply with judicial reinstatement orders; harassment of trade unionists

1. 873. The Committee examined this case at its November 2007 meeting and presented an interim report to the Governing Body [see 348th Report of the Committee, paras 755–787, approved by the Governing Body at its 300th Session (November 2007)]. The Government sent new observations in communications dated 2, 24 and 28 January 2008.
2. 874. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 875. In its previous examination of the case the Committee made the following recommendations on the allegations that remained pending [see 348th Report, para. 787]:
   • (a) Recalling that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are respected, the Committee once again deplores the murder of the trade union officials Rolando Raquec and Luis Quinteros Chinchilla, and the attempt against the life of the trade unionist Marcos Alvarez Tzoc and the trade union official Imelda López de Sandoval, once again requests the Government to inform it as a matter of urgency of developments in the inquiries and proceedings currently under way, and expects that those responsible will be severely punished.
   • (b) The Committee once again requests the Government immediately to take all the necessary measures to safeguard the lives of the wife and children of the murdered trade unionist Rolando Raquec, given the death threats which, according to the allegations, they have received.
   • (c) With regard to the allegations of death threats against the Secretary-General of the Trade Union Association of Itinerant Vendors of Antigua, the Committee hopes that the proceedings in question relating to the threats and assaults will be concluded in the near future and requests the Government to keep it informed in this regard.
   • (d) The Committee once again requests the Government to communicate the outcome of the inquiries carried out by the national police and the Prosecutor-General for Human Rights into the allegation concerning the selective surveillance and theft of laptop equipment belonging to José E. Pinzón, Secretary-General of the CGTG.
   • (e) With regard to the alleged non-payment of benefits ordered by the judicial authority to trade unionists in the municipality of Cuyotenango Suchitepéquez, the Committee requests the Government to ensure that the payment has now been made.
   • (f) With regard to the alleged dismissal of trade unionists at the El Arco Estate (municipality of Puerto Barrios), the Committee notes the Government’s statements according to which the proceedings initiated by the dismissed workers at the Clermont Estate in the municipality of Río Bravo, who had obtained a judicial reinstatement order, and the application to the judicial authority by the employer for authorization to dismiss trade unionists at the Los Angeles Estate (municipality of Puerto Barrios) are currently before the Chamber of Amparo of the Supreme Court of Justice. The Committee requests the Government to inform it of the outcome of these proceedings and sincerely expects that they will be concluded without further delay.
   • (g) With regard to the alleged dismissal of workers at the El Tesoro Estate (municipality of Samayac) for having submitted lists of claims during negotiations on a collective agreement, despite a judicial reinstatement order, the Committee requests the trade union to which these trade unionists belong to request the competent legal authority to implement the reinstatement order.
   • (h) The Committee observes with regret that the Government has not provided any information on the allegations relating to: (1) the workers dismissed for having tried to set up a trade union in the municipality of San Miguel Pochuta; (2) the refusal of the municipality of Cuyotenango Suchitepéquez to grant the trade union leave provided for by law; (3) the non-payment of wages and other benefits ordered by the judicial authority to trade unionists in the municipality of Livingston; and (4) the absence of measures by the authorities to promote collective bargaining between the El Carmen Estate and the trade union. The Committee urges the Government to send the requested information without delay.
   • (i) With regard to the allegations relating to the abusive investigation conducted by the department of human resources against Ms Imelda López de Sandoval, Secretary-General of USTAC, the Committee urges the Government to instruct the General Directorate of Civil Aviation without delay to delete from its staff database any information of a private nature relating to this trade unionist.
   • (j) With regard to the alleged threats against the employees of the General Directorate of Civil Aviation who participated in a protest in front of the building against the constant abuse by the administration (according to the allegations, the General Directorate’s chief maintenance officer threatened that they would be reported and subsequently dismissed if they were five minutes late back to work, and then took photographs of them) and with regard to the intimidation by security officers against the members outside the room where the union’s general assembly was to be held, the Committee regrets that the Government has not sent its observations and urges it to do so without delay.
   • (k) The Committee once again reminds the Government that the ILO’s technical assistance is at its disposal and that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress emphasizing reinstatement as an effective means of redress.

B. The Government’s reply

1. 876. In its communication dated 2 January 2008, the Government thanks the Committee for reminding it that the technical assistance of the Office is at its disposal. It formally requests that such technical assistance be provided, and trusts that this will be done shortly.
2. 877. In its communications of 24 and 28 January 2008, the Government refers to the alleged dismissals carried out by the municipality of San Miguel Pochuta (Chinaltenango) and states that the Labour Inspectorate carried out an inquiry which revealed that 20 workers were dismissed for setting up a trade union. As this was a measure taken unilaterally on the part of the employer, the dismissed workers took administrative and legal action with a view to obtaining reinstatement. The legal authority ordered that they be reinstated and fined the employer. The workers were then reinstated.
3. 878. As to the allegation relating to death threats against the Secretary-General of the Trade Union Association of Itinerant Vendors of Antigua, the Government states that the District Prosecutor of the Government Prosecutor’s Office of the Department of Sacatepéquez referred the complaint to the local Justice of the Peace, in order that the latter might proceed with the misdemeanours procedure (procedimiento de faltas). The Justice of the Peace in question stated that, before the complaint could be examined, the victims (complainants) would have to appear in person to confirm their complaint, providing full information on the three persons involved (given that no addresses had been provided for the purpose of issuing summonses) if the misdemeanours procedure were to proceed. The Government requests the Committee on Freedom of Association to request the complainant organization to inform the complainants that they must appear before the Justice of the Peace in order to confirm the complaint and to establish the liability of those accused of threatening them.
4. 879. As to the alleged failure to pay trade unionists the legal benefits ordered by the judicial authority, the Ministry of Labour and Social Welfare carried out an inspection in the municipality of Cuyotenango, Suchitepéquez, through the General Labour Inspectorate, with the active involvement of the employer and workers. The workers reported that steps were taken to begin implementing the judicial ruling regarding the payment of the benefits owed but, faced with non-compliance, the judge ordered that prosecution proceedings be initiated. The conflicting parties, however, agreed on an out-of-court settlement, which was accepted by the labour judge. As to the refusal to grant trade union leave, the labour inspector appointed to deal with the complaint, acting within his remit, invited the parties to come to agreements that would resolve the issue. The employer expressed a desire to cooperate and maintain contact with the trade union’s Secretary-General with a view to granting trade union leave in a way that would be mutually beneficial. The labour inspector states that, in cases of non-compliance with the agreements made, the party concerned is entitled to go before the judicial authority.

C. The Committee’s conclusions

1. 880. The Committee notes that the pending issues relating to the present case refer to murders or acts of violence against trade unionists, anti-union dismissals, non-payment of salaries and benefits ordered by the judicial authority, obstacles to collective bargaining, refusal to grant trade union leave, and acts of harassment against trade unionists. The Committee notes that the Government has accepted and hopes shortly to receive technical assistance from the ILO. The Committee trusts that the object of this assistance will be to ensure promptly an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, beginning with the implementation, without delay, of the judicial reinstatement orders.
2. 881. The Committee notes with interest the information provided by the Government to the effect that: (1) the judicial reinstatement orders for the 20 workers who had set up a trade union in the municipality of San Miguel Pochuta have been implemented, and, furthermore, the employer has been fined; (2) during a recent labour inspection, the municipality of Cuyotenango expressed a desire to cooperate with the trade union in order to reach a settlement concerning trade union leave; furthermore, the municipality and the trade union reached an out-of-court settlement regarding the issue of the non-payment of legal benefits to the trade unionists.
3. 882. On the other hand, as to the death threats against the Secretary-General of the Trade Union Association of Itinerant Vendors of Antigua, the Committee notes that the Government requests the complainant organizations to take steps to ensure that the trade union leader in question appears before the Justice of the Peace of Sacatepéquez in order to confirm the complaint and allow the misdemeanours procedure to proceed. The Committee requests the complainant organizations to contact the Secretary-General of the trade union for that purpose. The Committee hopes that the proceedings in question relating to the threats and assaults will be concluded in the near future, and requests the Government to keep it informed in this regard.
4. 883. The Committee notes with regret that the Government has not sent the requested information on the other pending issues in spite of the lengthy period of time that has passed since the presentation of the allegations and their serious nature, given that they refer to the murder or attempted murder of trade unionists. The Committee urges the Government to transmit all the information without delay, and reiterates the recommendations which it formulated during the previous examination of this case.

The Committee's recommendations

1. 884. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has only sent information regarding a small number of the allegations presented.
   • (b) Recalling that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are respected, the Committee once again deplores the murder of the trade union officials Rolando Raquec and Luis Quinteros Chinchilla, and the attempt against the life of the trade unionist Marcos Alvarez Tzoc and the trade union official Imelda López de Sandoval, once again strongly requests the Government to inform it as a matter of urgency of developments in the inquiries and proceedings currently under way, and expects that those responsible will be severely punished.
   • (c) The Committee once again strongly requests the Government immediately to take all the necessary measures to safeguard the lives of the wife and children of the murdered trade unionist Rolando Raquec, given the death threats which, according to the allegations, they have received.
   • (d) With regard to the allegations of death threats against the Secretary-General of the Trade Union Association of Itinerant Vendors of Antigua, the Committee requests the complainant organizations to inform the trade unionists of the need to confirm the legal complaint lodged with the judicial authority and hopes that the ongoing proceedings relating to the threats and assaults will be concluded in the near future and requests the Government to keep it informed in this regard.
   • (e) The Committee once again requests the Government to communicate the outcome of the inquiries carried out by the national police and the Prosecutor General for Human Rights into the allegation concerning the selective surveillance and theft of laptop equipment belonging to José E. Pinzón, Secretary-General of the CGTG.
   • (f) With regard to the alleged dismissal of trade unionists at the El Arco Estate (municipality of Puerto Barrios), the Committee notes the Government’s statements according to which the proceedings initiated by the dismissed workers at the Clermont Estate in the municipality of Río Bravo, who had obtained a judicial reinstatement order, and the application to the judicial authority by the employer for authorization to dismiss trade unionists at the Los Angeles Estate (municipality of Puerto Barrios) were before the Chamber of Constitutional Protection (Amparo) of the Supreme Court of Justice. The Committee again requests the Government to inform it of the outcome of these proceedings, and expects that they will be concluded without further delay.
   • (g) With regard to the alleged dismissal of workers at the El Tesoro Estate (municipality of Samayac) for submitting lists of claims during negotiations on a collective agreement, despite a judicial reinstatement order, the Committee again requests the trade union to which these trade unionists belong to request the competent legal authority to implement the reinstatement order.
   • (h) The Committee notes with regret that the Government has not provided any information on the allegations relating to: (1) the non-payment of wages and other benefits ordered by the judicial authority to trade unionists in the municipality of Livingston; and (2) the absence of measures by the authorities to promote collective bargaining between the El Carmen Estate and the trade union. The Committee urges the Government to send the requested information without delay.
   • (i) With regard to the allegations relating to the abusive investigation conducted by the Department of Human Resources against Ms Imelda López de Sandoval, Secretary-General of USTAC, the Committee urges the Government to instruct the General Directorate of Civil Aviation without delay to delete from its staff database any information of a private nature relating to this trade unionist.
   • (j) With regard to the alleged threats against the employees of the General Directorate of Civil Aviation who participated in a protest in front of the building against the constant abuse by the administration (according to the allegations, the General Directorate’s chief maintenance officer threatened that they would be reported and subsequently dismissed, if they were five minutes late back to work, and then took photographs of them) and with regard to the intimidation by security officers against the members outside the room where the union’s general assembly was to be held, the Committee regrets that the Government has not sent its observations and urges it to do so without delay.
   • (k) The Committee notes that the Government has accepted and hopes shortly to obtain technical assistance from the ILO. The Committee expects that the object of this assistance will be to ensure promptly an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, beginning with the implementation, without delay, of the judicial reinstatement orders.
   • (l) The Committee calls the Governing Body’s attention to this serious and urgent case.