Informe provisional - Informe núm. 376, Octubre 2015

Caso núm. 3062 (Guatemala) - Fecha de presentación de la queja:: 12-FEB-14 - En seguimiento

Allegations: The complainant organizations denounce mass dismissals in retaliation for the establishment of the Workers’ Union of the Guatemalan Olympic Committee, as well as acts of intimidation against the workers of the Guatemalan Olympic Committee with a view to their resignation from the union

1. 569. The complaint is contained in communications dated 12 February and 23 April 2014, presented jointly by the General Confederation of Rural and Urban Workers (CTC) and the Workers’ Union of the Guatemalan Olympic Committee (SITRACOGUA), and in subsequent communications from SITRACOGUA dated 9 September 2014, 17 February and 2 July 2015.
2. 570. The Government sent its observations in a communication dated 23 June 2015.
3. 571. Guatemala has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 572. In their communication dated 12 February 2014, the complainant organizations denounce mass dismissals in retaliation for the establishment of SITRACOGUA, as well as acts of intimidation against the workers of the Guatemalan Olympic Committee with a view to their resignation from the union, actions that violate not only ILO Conventions Nos 87 and 98 but also the spirit of the Olympic Charter. With respect to the allegations, the complainant organizations indicate that: (i) on 28 November 2013, the ad hoc committee of workers of the Guatemalan Olympic Committee was founded, and a collective labour agreement was concluded with the employer on 2 December 2013; (ii) on 5 December 2013, 37 workers from the Guatemalan Olympic Committee held a general assembly establishing SITRACOGUA, having notified the General Labour Inspectorate; (iii) in accordance with the Labour Code, on 13 December 2013, the General Labour Inspectorate issued a decision protecting the founding members of the union as well as new members against dismissal for a period of 60 days; (iv) on 31 January 2014, the new management of the Guatemalan Olympic Committee informed 20 workers, including all the members of the executive committee and the interim advisory council of the union, that it was terminating their employment contracts; (v) each worker was given the option of signing a letter of resignation or being dismissed and told that if they opted for dismissal, they would have to apply to the courts to obtain the benefits provided for under the law in the event of dismissal; (vi) while some workers were officially dismissed because of downsizing, others were dismissed on the alleged grounds that they were trusted staff of the former management of the Guatemalan Olympic Committee; (vii) on 4 February 2014, the dismissed workers who were members of the union filed a request for reinstatement with the General Labour Inspectorate; (viii) after meeting with the complainants and the management of the Guatemalan Olympic Committee, the General Labour Inspectorate issued an injunction that day, requesting the employer to reinstate the workers who had founded the union, a request that was denied by the management of the Guatemalan Olympic Committee, whose representatives did not attend the meeting on 11 February 2014 arranged by the General Labour Inspectorate; (ix) the filing of the complaint with the General Labour Inspectorate gave rise to further reprisals, and on 5 February 2014, another two workers who belonged to the union were dismissed, one of whom was a founding member of the union; (x) that day, the vehicles of the union’s interim secretary-general, Ms Marina García, and interim proceedings secretary, Ms Suleima de León, were vandalized; (xi) acts of intimidation also began to occur within the Guatemalan Olympic Committee in order to pressure workers in the institution to resign from the union; and (xii) on 10 and 11 March 2013, representatives of the union filed a complaint with the Office of the Attorney-General for anti-union discrimination and for psychological and physical violence against various women members of the union, and also requested safety measures for the union leaders, Ms Marina García and Ms Suleima de León.
2. 573. In their communication dated 23 April 2014, the complainant organizations sent additional information indicating that: (i) on 28 February 2014, Ms Débora Agusto and Ms Jazmín Urbina, both founding members of the union, were dismissed, once again allegedly due to downsizing of the Guatemalan Olympic Committee; (ii) on 6 March 2014, the registration process for SITRACOGUA, the first trade union in the history of the Guatemalan Olympic Committee, was concluded; (iii) on 5 and 10 March 2014 respectively, the union filed a formal complaint with the Prosecutor-General of Human Rights and an action with the employment tribunals to override the unlawful dismissals of its members; (iv) on 21 March 2014, the union received a notification from the Ministry of Labour, stating that the Guatemalan Olympic Committee had forwarded to the Ministry a series of “voluntary letters” of resignation from the union; and (v) in the same document, the management of the Guatemalan Olympic Committee communicated its decision to repeal the adoption of the collective agreement between the Guatemalan Olympic Committee and the ad hoc committee of workers of the Guatemalan Olympic Committee on grounds of unlawfulness.
3. 574. In their communications dated 9 September 2014 and 17 February 2015, the complainant organizations report: (i) a lack of any progress in the proceedings of various complaints and actions filed with the Prosecutor-General of Human Rights and the employment tribunals; (ii) a lack of response from the Office of the Attorney-General to the criminal action filed for anti-union discrimination, violence against women and coercion, consisting of the issuance of a minor indictment against the general manager and advisers of the Guatemalan Olympic Committee; (iii) the dismissal, on 31 January 2015, of Mr Ronald Senta, a member of the union; (iv) persistent acts of coercion pressuring the members of the union still working for the Committee to resign from the organization; and (v) amparo proceedings brought by officials of the Guatemalan Olympic Committee against the union registration ruling, which is before the Constitutional Court.
4. 575. In their communication of 2 July 2015, the complainant organizations once again report a lack of any progress in the proceedings before the various bodies considering the anti-union acts committed against their members. They point out that the hearing of 2 June 2015 before the labour court resulted in yet another delay due to a new stalling tactic used by the Guatemalan Olympic Committee. The complainant organization concludes by stating that the session of the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining held on 23 June 2015 once again revealed the stalling tactics of the employer, which refused to discuss the reinstatement of the dismissed workers and preferred to wait for the ruling of the labour courts, which has been delayed because of the institution’s procedural tactics.

B. The Government’s reply

1. 576. In its communication of 23 June 2015, the Government begins by communicating the information provided by the General Labour Inspectorate. The General Labour Inspectorate states that: (i) on 3 and 4 February 2014, it received two complaints concerning the dismissal of 14 workers from the Guatemalan Olympic Committee, one of which indicated that the grounds for dismissal was the establishment of SITRACOGUA; (ii) during the initial visit carried out by the General Labour Inspectorate, the Director-General of the Guatemalan Olympic Committee said that he was not aware of the existence of any union within the entity; (iii) the inspectors nevertheless noted the existence of a decision by the General Labour Inspectorate of 13 December 2013, affording the founding members of SITRACOGUA temporary protection against dismissal; (iv) in the light of the above, on 4 February 2014, the labour inspectors requested the Guatemalan Olympic Committee to reinstate 12 dismissed workers who were protected against dismissal, setting a hearing for 11 February to ensure compliance with this request; (v) the employer party did not appear at the hearing on 11 February; and (vi) the inspectors considered that day that their decision had been totally disregarded and referred the case to the competent court so that it could impose the relevant sanctions.
2. 577. The Government also indicates that: (i) the proceedings in the employment tribunals are still under way, as the action for lack of jurisdiction filed by the Guatemalan Olympic Committee was found to be without merit; (ii) the Office of the Attorney-General is investigating the alleged acts of discrimination, coercion and violence against women, the alleged victims of which were women who worked for SITRACOGUA; (iii) the economic, social and cultural rights unit of the Prosecutor-General of Human Rights issued a final decision stating that the complaint that it had received concerning the dismissal of 20 workers who were members of SITRACOGUA was already being considered by the employment tribunals; and (iv) this case is being heard by the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining, which held an initial mediation session on 19 May 2015, at which the representatives of SITRACOGUA demanded the reinstatement of the members of the organization who had been dismissed, while the representatives of the Guatemalan Olympic Committee who were present stated that they lacked decision-making power, which resulted in the scheduling of a second session on 23 June 2015.

C. The Committee’s conclusions

1. 578. The Committee notes that this case refers to the complaint concerning mass dismissals within the Guatemalan Olympic Committee in retaliation for the establishment of SITRACOGUA, as well as acts of intimidation against this institution’s workers with a view to their resignation from the union.
2. 579. With respect to the alleged anti-union dismissals, the Committee notes, firstly, that the identity and exact number of workers belonging to SITRACOGUA who were dismissed on 31 January 2014 is not exactly clear from the allegations of the complainant organizations and the Government’s observations. The Committee therefore requests the complainant organizations to provide this information quickly. The Committee notes, however, that both the complainant organizations and the Government agree that: (i) all the members of the executive committee and the interim advisory council of SITRACOGUA were dismissed on 31 January 2014, approximately a month and a half after the organization was established; (ii) the employer failed to comply with the decision of the General Labour Inspectorate of 13 December 2013, affording temporary protection against dismissal to the founding members of SITRACOGUA, and with its injunction of 4 February 2014, requesting the reinstatement of 12 workers who had been dismissed for founding the trade union; (iii) the objection to the dismissals before the labour courts is still awaiting an initial decision; and (iv) the case has been before the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining since May 2015.
3. 580. The Committee therefore notes, in the light of the foregoing and, in particular, the reports of the General Labour Inspectorate forwarded by the Government, that the dismissals made by the institution on 31 January 2014 affected all the leaders of the recently created SITRACOGUA and that the employer ignored the temporary protection afforded to these workers under Guatemalan legislation as well as the request for reinstatement issued by the labour inspectors. Recalling that no person should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and that the persons responsible for such acts should be punished [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 772], the Committee expresses its concern at the ineffectiveness of the General Labour Inspectorate’s intervention in this case and at the fact that 18 months after the decision of the General Labour Inspectorate requesting the reinstatement of the founding members of SITRACOGUA, no ruling has been handed down in this case. In this regard, the Committee highlights 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, op. cit., para. 826].
4. 581. Also recalling that, under the terms of the Memorandum of Understanding signed with the Workers’ group of the ILO Governing Body on 26 March 2013 further to the complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), made under article 26 of the ILO Constitution, the Government made a commitment to adopt “policies and practices to ensure the application of labour legislation, including … effective and timely judicial procedures”, the Committee strongly hopes that the legal challenge to the dismissal of the founding members of SITRACOGUA will soon be examined and that, in the event that the decision of first instance upholds the request for reinstatement issued by the General Labour Inspectorate, all necessary measures will be taken to ensure that the workers will be effectively and immediately reinstated. The Committee requests the Government to inform it urgently in this regard.
5. 582. With respect to the alleged acts of intimidation against the members of SITRACOGUA, the Committee notes that the complaint before the Office of the Attorney-General concerning discrimination, coercion and violence is still under investigation. Recalling that under the roadmap adopted by the Government of Guatemala in September 2013 in consultation with the social partners with a view to implementing the Memorandum of Understanding referred to in the preceding paragraph, the Government made a commitment to “strengthen the prevention, protection and response mechanisms in respect of threats and attacks against trade union leaders, unionized workers and others seeking to form trade unions”, the Committee strongly hopes that the investigation will be completed without further delay. The Committee requests the Government to inform it urgently in this regard.
6. 583. The Committee further notes that the Government has not provided its observations in relation to the request for safety measures for the union’s interim secretary-general, Ms Marina García, and the interim proceedings secretary, Ms Suleima de León, which was made after their cars were vandalized. The Committee requests the Government to ensure that the competent authorities have considered the aforementioned request for protection measures in a timely, appropriate manner and to inform it urgently of the decisions taken in this regard.
7. 584. Lastly, the Committee trusts that the interventions of the various aforementioned public institutions will ensure the free exercise of freedom of association and collective bargaining within the Guatemalan Olympic Committee.

The Committee’s recommendations

1. 585. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the complainant organizations to indicate clearly the identity and the exact number of workers belonging to SITRACOGUA who were dismissed on 31 January 2014.
   • (b) The Committee strongly hopes that the legal challenge to the dismissal of the founding members of SITRACOGUA will soon be examined and that, in the event that the decision of first instance upholds the request for reinstatement issued by the General Labour Inspectorate, all necessary measures will be taken to ensure that the workers will be effectively and immediately reinstated. The Committee requests the Government to inform it urgently in this regard.
   • (c) The Committee strongly hopes that the investigation of the Office of the Attorney-General into the acts of discrimination, coercion and violence against members of SITRACOGUA will be completed without further delay. The Committee requests the Government to inform it urgently in this regard.
   • (d) The Committee requests the Government to ensure that the competent authorities have examined the aforementioned request for protection measures for the union leaders, Ms Marina García and Ms Suleima de León, in a timely, appropriate manner and to inform it urgently of the decisions taken in this regard.
   • (e) The Committee trusts that the interventions of the various aforementioned public institutions will ensure the free exercise of freedom of association and collective bargaining within the Guatemalan Olympic Committee.