Allegations: dismissal of trade union leaders following the re-establishment of
the Trade Union of Gas Bottling, Transport, Distribution and Maintenance Workers of the
companies belonging to the TOMZA Group
- 286. The Committee last examined this case at its March 2013 meeting,
when it presented an interim report to the Governing Body [see 367th Report, approved by
the Governing Body at its 317th Session (March 2013), paras 774–783].
- 287. The Government sent partial observations in a communication dated 21
May 2013.
- 288. 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
A. Previous examination of the case- 289. In its previous examination of the case in March 2013, the Committee
regretted that, despite the time elapsed, the Government had not provided any
information on the allegations, and it made the following recommendations [see 367th
Report, para. 783]:
- (a) The Committee deeply regrets to note
that, despite several requests and an urgent appeal, the Government has failed to
provide any information on the allegations.
- (b) While
highlighting the seriousness of the allegations and recalling that no one should be
dismissed or subject to prejudicial measures for carrying out legitimate activities,
such as the re-establishment of a trade union, the Committee expects the Government
to ensure that the companies in question have complied with the abovementioned
reinstatement order and to keep it informed in this regard.
B. The Government’s reply
B. The Government’s replyC. The Committee’s conclusions
C. The Committee’s conclusions- 292. The Committee recalls that the case under examination refers to
allegations of anti-union dismissals following the re-establishment of a trade union and
the failure to implement a court reinstatement order. The Committee takes note of the
Government’s observations regarding the status of the various proceedings related to the
acts alleged in this complaint. First, the Committee observes that two of the dismissed
workers, Mr Félix Manuel Ixen Aju and Mr Aniceto Amado Sarat Álvarez, were reinstated on
4 September 2012. The Committee further notes that, as it may be seen from the
appendices sent by the Government, the aforementioned workers filed their complaint on
the day following their reinstatement. The Committee also observes that two proceedings
were shelved following the workers’ withdrawal of the corresponding complaints (Mr
Daniel Avisai Vivar García, Mr Bartolo Cabrera Carranza and Mr José Víctor Iguardia
Revolorio).
- 293. In addition, the Committee observes that two other judicial
proceedings (the proceedings in which a reinstatement order had been issued at first
instance in respect of nine trade union leaders, and the proceedings filed by Mr José
Daniel Mejía and Mr Kelvin Rolando Argueta Colindrez) were shelved after the legal
arguments put forward by the enterprise, Gas Metropolitano, Ltd, were upheld. The
Committee notes that the Government has not provided copies of the court rulings
upholding the legal arguments put forward by the enterprise, on the basis of which the
abovementioned proceedings were shelved, or of the actual decisions to shelve the
proceedings. Highlighting that in one of the proceedings shelved without its withdrawal
by the complainant, a reinstatement order had been issued at first instance in respect
of nine dismissed trade union leaders and that, in its previous examination of the case,
the Committee had requested the Government to enforce that order, the Committee requests
the Government to transmit the corresponding decisions as a matter of urgency and to
provide all the necessary details regarding the grounds for shelving the abovementioned
cases.
- 294. Lastly, the Committee notes that a number of judicial proceedings
are still pending a final decision, including the collective social and economic action
filed by the trade union and various reinstatement proceedings in respect of dismissed
workers, which have been the subject of appeals. In this regard, the Committee takes
special note of the proceedings filed by Mr Elgar Leonel Barrios Bautista, in which a
reinstatement order was issued at first instance, and the reinstatement proceedings in
respect of Mr Selvin Gildardo Hernández Zuñiga, which resulted in a ruling at first
instance in favour of the worker.
- 295. The Committee notes that, three years after the acts alleged in this
complaint, a significant number of proceedings filed by the dismissed workers are still
pending a final decision and that, with the exception of two persons, the reinstatement
orders issued at first instance have either been shelved or have been the subject of an
appeal without the provisional implementation of the reinstatement orders, even though
section 209 of the Labour Code of Guatemala provides that “Workers may not be dismissed
for participating in the creation of a trade union” and that “In the event of failure to
comply with this provision, the worker or workers in question shall be reinstated within
twenty-four hours”. In this regard, the Committee recalls that cases concerning
anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so
that the necessary remedies can be really effective. An excessive delay in processing
cases of anti-union discrimination, and in particular, a lengthy delay in concluding the
proceedings concerning the reinstatement of the trade union leaders dismissed by the
enterprise, constitute a denial of justice and therefore a denial of the trade union
rights of the persons concerned [see Digest of decisions and principles of the Freedom
of Association Committee of the Governing Body of the ILO, fifth (revised) edition,
2006, para. 826]. The Committee also highlights that, in a case in which proceedings
concerning dismissals had already taken 14 months, the Committee requested the judicial
authorities, in order to avoid a denial of justice, to pronounce on the dismissals
without delay and emphasized that any further undue delay in the proceedings could in
itself justify the reinstatement of these persons in their posts [see Digest, op. cit.,
para. 827]. In the light of the above, and recalling that under the Memorandum of
Understanding signed with the Workers’ group of the Governing Body of the ILO on 26
March 2013, following the complaint concerning non-observance by Guatemala of the
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87), presented under article 26 of the ILO Constitution, the Government committed itself
to developing “policies and practices to ensure the application of labour legislation,
including … timely and effective judicial procedures”, the Committee requests the
Government to ensure that the pending judicial proceedings in relation to this case are
concluded without further delay and, while awaiting the final judicial decisions, to
ensure the immediate provisional reinstatement of the workers in respect of whom
reinstatement orders that have not been shelved were issued at first instance. The
Committee requests the Government to urgently inform it in this regard.
The Committee’s recommendations
The Committee’s recommendations- 296. In the light of its foregoing interim conclusions, the Committee
invites the Governing Body to approve the following recommendations:
- (a)
Highlighting that in one of the two proceedings in relation to this case, which had
been shelved without its withdrawal by the complainant, a reinstatement order had
been issued at first instance in respect of nine dismissed trade union leaders and
that, in its previous examination of the case, the Committee had requested the
Government to enforce that order, the Committee requests the Government to transmit
the corresponding decisions as a matter of urgency and to provide all the necessary
details regarding the grounds for shelving the abovementioned cases.
- (b) The
Committee requests the Government to ensure that the pending judicial proceedings in
relation to this case are concluded without further delay and, while awaiting the
final judicial decisions, to ensure the immediate provisional reinstatement of the
workers in respect of whom reinstatement orders that have not been shelved were
issued at first instance. The Committee requests the Government to urgently inform
it in this regard.
