Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 316, Juin 1999

Cas no 1960 (Guatemala) - Date de la plainte: 03-AVR. -98 - Clos

Allegations: Refusal to recognize trade unions; acts of anti-union discrimination in the context of collective disputes

1. 505. The complaint is contained in a communication from the International Confederation of Free Trade Unions dated 3 April 1998. The Confederation submitted further allegations in a communication dated 16 July 1998. The Government sent its observations in communications dated 10 and 18 May, 28 July and 25 September 1998.
2. 506. At its November 1998 meeting the Committee requested the complainant and the Government to provide more detailed observations and information to enable it to examine this case in full knowledge of all the facts (see 311th Report, para. 5). The Government sent further information in a communication dated 29 January 1999. The complainant did not send the requested information.
3. 507. 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. The complainant's allegations

1. 508. In its communication dated 3 April 1998, the International Confederation of Free Trade Unions (ICFTU) alleges that the owners of the Mopá and Panorama banana plantations (in the Department of Izabal) have engaged in various forms of anti-union action against workers, the persons advocating the establishment of trade unions on those plantations and the Izabal Banana Workers' Union (SITRABI), which offered its support to the workers on those plantations. The ICFTU indicates that once the trade unions had been set up and the relevant documents had been submitted to the General Labour Inspectorate, the employers ordered in writing a work stoppage at the plantations, subsequently claiming that it had been an illegal strike. Also, they fraudulently presented documents maintaining that the workers from the plantations concerned had been dismissed one day prior to the formation of the trade unions.
2. 509. According to the ICFTU, the action taken against the advocates of the new trade unions, the workers and the Izabal Banana Workers' Union (SITRABI), included instituting criminal proceedings and issuing warrants for the arrest of 19 workers belonging to the executive committee of the SITRABI, as well as establishing a military presence in the area.
3. 510. The complainant adds that the biased judicial attitude consisting of accepting only the employers' allegations in support of their interests casts doubts on the conduct of the judiciary and its duty to guarantee the rule of law.
4. 511. In its communication dated 16 July 1998, the ICFTU alleges that the Trade Union of Workers of the Port of Santo Tomás de Castilla has been facing serious problems. More specifically, the port inspector has taken repressive anti-union action aimed at destroying the trade union organization. He has instigated unjustified dismissals and has offered workers 500 quetzals each if they will leave the trade union and join a solidarity (solidarista) association. In addition, the sum of 2 million quetzals was offered for the establishment of a solidarity cooperative.
5. 512. The ICFTU also refers to problems experienced by workers at the Alabama and Arizona plantations and explains that on 9 February 1998 they submitted a statement of claims through the labour court of Puerto Barrios, a procedure which according to law precludes any type of reprisals and requires court authorization for any dismissals. Despite this provision, on 12 and 13 February 1998 the enterprise dismissed over 500 workers. The ICFTU adds that when the workers initiated legal proceedings for reinstatement in their posts, their employers responded by starting criminal proceedings against them and posting groups of armed men to impede freedom of movement, to intimidate them so that they would give up their quest to establish their trade union and to stop them gaining any ground on work issues. This forced the workers to carry out a peaceful demonstration in March 1998 and to occupy the Guatemala-Puerto Barrios road, in order to demand that a high-level committee be set up to mediate a solution to the labour dispute (this committee was set up but the cases have not yet been resolved).
6. 513. At present, the workers at the Alabama and Arizona plantations remain illegally dismissed in spite of the fact that by law the founders of a trade union enjoy irremovability and that this was the third attempt to set up a trade union at the Arizona plantation.
7. 514. Furthermore, the ICFTU indicates that on 14 April 1998 over 120 workers from the El Paraíso plantation went on strike over the illegal dismissal of 16 workers who were trying to set up a trade union (on 6 April 1998 these 16 workers from the El Paraíso plantation had requested an injunction to stop the enterprise from dismissing workers; this injunction was issued).
8. 515. The ICFTU also notes that on 14 April 1998 one of the members of the private security team belonging to the El Paraíso plantation, later identified as Mr. Abel Ipiña, fired at workers, wounding the worker Mr. Oscar René Soto in the upper chest.
9. 516. The ICFTU states that the Izabal labour judge of first instance declared the strike held by workers from the Mopá and Panorama plantations to be illegal, refusing to review the evidence submitted by the workers to prove that they had been the victims of a lockout. This was the same judge who on 18 March 1998 decided in favour of the reinstatement of the workers dismissed from the Panorama plantation and recognized that their dismissal was the result of the establishment of a trade union.

B. The Government's reply

1. 517. In its communications dated 10 and 18 May, 28 July and 25 September 1998, the Government states that conflicts had occurred at the Izabal banana plantations which involved the dismissal of 19 workers from the Mopá and Panorama plantations and 21 workers from the Alabama and Arizona plantations. The Government indicates that in spite of the efforts made by the Ministry of Labour the disputes at the Mopá and Panorama plantations could not be resolved, and once the labour administration channels had been exhausted the matter passed to the labour and then the criminal courts (the same thing happened at the Alabama and Arizona plantations). From the point of view of the workers, the conflict at the Mopá and Panorama plantations consists of a work stoppage by the employer, and from the point of the view of the enterprise, an illegal strike. The Government indicates that the courts of justice of first and second instance declared the strike to be illegal, which rules out a work stoppage by the employer. The Government indicates that the trade unions in these plantations were recognized by way of decisions dated 1 June 1998. It adds that at the same time that this labour dispute was taking place, the enterprise was also involved in a dispute with the SITRABI trade union whose members did not belong to the plantations mentioned.
2. 518. The Government notes that in order to find a solution to the dispute, a considerable number of measures were taken by the authorities, including the President of the Republic and the Minister of Labour; a high-level committee made up of various ministers was also established. These measures began following complaints lodged by both workers and employers in March 1998.
3. 519. It can be seen from the list of measures taken by the authorities to which the Government refers that the courts issued eviction orders for the Mopá and Panorama plantations which were subsequently temporarily suspended. The Government indicates that the government procurator's office is investigating the shots fired at Mr. Oscar René Soto and that a warrant has been issued for the arrest of the person presumed to be responsible. Furthermore, as regards the alleged issuing of warrants for the arrest of trade union leaders, it states that only two SITRABI trade union leaders were arrested and that this occurred by order of the judicial authority on 12 May 1998; they were later released.

C. The Government's further reply

1. 520. In its communication dated 29 January 1999 the Government denies that repressive measures have been taken against trade unionists or to destroy the trade union organization at the Santo Tomás de Castilla National Port Enterprise. No massive dismissals have taken place and there have been no unjustified dismissals either. The enterprise had neither sufficient money to pay workers to renounce their trade union nor the intention of restricting workers' rights. No requests have been made to establish a solidarity association in the enterprise.
2. 521. With respect to the Mopá, Panorama and Paraíso plantations, the Government explains that they are operated by independent producers to which the land was leased by the Bandegua enterprise. When the conflict began the workers at these plantations were not organized into trade unions. The conflict that arose in these plantations is not only of an industrial nature --criminal and commercial factors also come into play. The labour issues resulted in a series of judicial actions by both parties: the employer sought a declaration that the strike was illegal and the workers sought a declaration that there had been a lockout; the labour courts of first and second instance in turn declared the strike called by the workers to be illegal, these decisions are final and have left as groundless the workers' request that a lockout be declared. Other workers' organizations (not made up of workers from the plantations involved in the conflict but workers' trade union organizations from the enterprise that owned the land leased to the independent employers) carried out a variety of measures aimed at putting pressure on the employers and on Bandegua to accept their claims. Given this situation, Bandegua began civil judicial proceedings for the contracts of lease to be rescinded; this request was granted by the court, putting Bandegua into the possession of the plantations; this measure was subsequently revoked with the judge ordering the plantations to be returned to the independent producer. This demonstrates that the non-labour aspects of the conflict, i.e. the criminal and commercial factors, arose as a result of the actions of the abovementioned trade union groups, particularly the trade union SITRABI.
3. 522. In spite of all the above and recognizing the importance and serious social and economic implications of the conflict, right from the start the Government became involved in trying to resolve it at the highest level. Measures taken include: (1) strengthening of the Puerto Barrios Labour Sub-inspectorate; (2) innumerable meetings held with representatives from both sides in the search for solutions; (3) creation of a high-level committee made up of various ministers of state which held several meetings with sectors involved in the problem; (4) a meeting held between the acting President of the Republic and a group of ministers to evaluate the situation, where the decision was taken to form a committee made up of the Deputy Ministers of the Interior and of Labour and the General Labour Inspector in order to verify the facts in situ: this committee visited the plantations involved in the conflict; (5) appointment of another committee specifically responsible for investigating staff conduct at the Puerto Barrios Sub-inspectorate, which resulted in the dismissal of staff from that office; (6) application by the Deputy Minister of Labour to the Government Procurator's Office to carry out an investigation into the events at the Paraíso plantation, which led to an arrest warrant being issued for Mr. Abel Ipiña; (7) ongoing communication and meetings with workers' representatives, the trade union confederations concerned, employers and their legal representatives, the chairman of the industrial committee of the Congress of the Republic, the President of the Supreme Court of Justice and other judicial authorities in order to seek negotiated solutions to the conflict; etc.
4. 523. The Government also emphasizes that the workers' trade unions at the El Paraíso, Mopá and Panorama plantations were legally recognized and registered and attaches the corresponding documentation. Similarly, there was active and ongoing worker participation in the high-level committee convened by the Commissioner for Human Rights, on the request of the workers, with the participation of, inter alia, the Minister and Deputy Minister of the Interior; the head of the Government Procurator's Office, the secretary of the Supreme Court of Justice, the Minister and Deputy Minister of Labour, the General Labour Inspector and representatives from MINUGUA. The work of this committee culminated in a decision by the Commissioner for Human Rights indicating that as neither party demonstrated the will to negotiate it was impossible to pursue the mediation.
5. 524. The Government adds that the problem at the El Paraíso plantation was resolved following the intervention of the Deputy Minister of the Interior on 14 May 1998 when an application for a writ of habeas corpus was made for the people inside the plantation, on the same date an agreement was concluded between the two groups of workers at the plantation, employment contracts were signed and work was resumed, which has continued uninterrupted ever since. It was at this plantation where the incident occurred in which the worker Mr. Soto was injured. As regards this matter: (1) the person allegedly responsible, Mr. Abel Ipiña, is still at large and it is rumoured that he fled to Honduras; (2) the worker Mr. Soto was only slightly injured and was discharged from hospital after just a few days; (3) according to accounts given at the plantation, AK-44 rifles were not used and, instead of an incident of trade union aggression, what occurred was in fact an argument between two individuals (Mr. Ipiña and Mr. Soto).
6. 525. The Government also declares that Mr. Littman, the lessee of the Mopá and Panorama plantations, reached an understanding with Mr. Manuel Ayau, whereby Mr. Ayau would buy the best of the plantations; in order to do so Bandegua's consent as owner of the land was obtained and in principle an understanding was reached with the workers that the trade union and collective bargaining would be respected, on the premise that the resumption of work would be gradual due to the state of the plantations and the parties would agree to a "truce" for a number of years to promote the full recovery of the plantations. The problem is thus in the process of being solved.
7. 526. The Government states that it has done its best within the sphere of its competence to mediate a solution to the problems mentioned in the complaint, but unfortunately the attitude of both parties has not always lent itself to achieving the desired negotiated solutions. Similarly, the Ministry of Labour has implemented: (1) the emerging employment programme to help the victims of Hurricane Mitch in the banana-producing region of Izabal; (2) part of the agenda of the first 100 days; and (3) the reconstruction programme. These measures have been taken to give work to the unemployed, providing them with food for their families.

D. The Committee's conclusions

1. 527. The Committee observes that the allegations relate to: (1) collective disputes at the Mopá, Panorama, Alabama, Arizona and El Paraíso banana plantations (in the Department of Izabal) where workers tried to establish trade unions or submitted statements of claims, resulting in hundreds of dismissals, criminal proceedings being initiated by the parties (also against trade union leaders of the SITRABI), warrants for the arrest of trade unionists, orders for eviction from the plantations, the militarization of the area and shots fired at a worker by a member of a private security team at the El Paraíso plantation; and (2) unjustified dismissals at the port of Santo Tomás de Castilla and pressure applied to persuade workers to renounce the trade union and join a solidarity association. The Committee notes the Government's observations and observes that the complainant did not send the requested information.
2. 528. As regards the disputes at the banana plantations, the Committee notes the Government's declarations and the numerous measures taken by the authorities to resolve these disputes. It notes with interest that the problem at the El Paraíso plantation was resolved following the intervention of the Deputy Minister of the Interior on 14 May 1998, with an agreement being concluded between the two groups of workers at the plantation, contracts of employment signed and work resumed. As regards the shots fired at the worker Oscar René Soto (El Paraíso plantation), the Committee notes the Government's statement that this related to an argument between individuals and not to trade union aggression, that Mr. Soto was only slightly injured and that an arrest warrant has been issued for the person responsible who it is rumoured has fled to Honduras. The Committee also notes that in the Mopá and Panorama plantations in principle an understanding has been reached with the workers to ensure respect for the trade union and collective bargaining, on the basis of which reinstatement will be gradual as a result of the state of the plantations, and that the parties have agreed to a "truce" for a number of years to promote the full recovery of the plantations (also damaged by Hurricane Mitch) and thus in the Government's view the problem is being solved. The Committee requests the Government to keep it informed in this respect.
3. 529. Furthermore, the Committee notes with interest that the trade unions at the Mopá, Panorama and El Paraíso plantations have been recognized. Given that the Government has sent no information concerning the recognition of the trade unions at the Alabama and Arizona plantations, the Committee requests the Government to recognize them without delay and to keep it informed in this respect. Concerning the conflict in these two plantations and specifically the question of the alleged dismissal of over 500 workers and the alleged instituting of criminal proceedings by the employers, the Committee regrets that the complainant did not provide the requested information. It notes the mediation measures carried out by the authorities and requests the Government to keep it informed in this respect.
4. 530. Moreover, with reference to the alleged criminal proceedings instituted and arrest warrants issued against 19 workers belonging to the executive committee of SITRABI, which according to the complainant occurred during the conflict at the Mopá and Panorama plantations, the Committee regrets that the complainant did not send the information requested and notes that, according to the Government, only two SITRABI trade union leaders were arrested (by court order), and were later released.
5. 531. Lastly, as regards the allegations by the complainant organization concerning the dismissals without just cause at the port of Santo Tomás de Castilla and concerning alleged pressure put on workers to renounce the trade union and join a solidarity association, the Committee notes the Government's categoric denial of the allegations and its assertion that no solidarity associations have been established at the enterprise.

The Committee's recommendations

1. 532. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of developments relating to the understanding which appears to have been reached at the Mopá and Panorama plantations apparently ending the conflict that had occurred at both plantations.
   • (b) The Committee requests the Government to recognize the workers' unions at the Alabama and Arizona plantations without delay and to keep it informed in this respect.
   • (c) The Committee requests the Government to keep it informed about the results of the mediation measures taken by the authorities concerning the dismissal of workers from the Alabama and Arizona plantations and the legal action initiated by the employers.