Rapport intérimaire - Rapport No. 338, Novembre 2005

Cas no 2341 (Guatemala) - Date de la plainte: 13-MAI -04 - Clos

Allegations: Interference by the labour inspectorate in the internal affairs of the Trade Union of Workers of the Portuaria Quetzal enterprise, and unlawful removal of seven trade union members from their positions on the trade union’s executive committee, restructuring (optional resignation plan) of the company for anti-trade union purposes and without consultation, and practices infringing the right to bargain collectively; dismissal of trade union members in violation of the collective agreement; subcontracting for anti-trade union purposes pursued by the Ministry of Education against teachers; mass anti-trade union dismissals in the Crédito Hipotecario Nacional; dismissals in the municipality of Comitancillo (department of San Marcos) in breach of a court reinstatement order, dismissal of a member of the Trade Union of the Supreme Electoral Tribunal; criteria for the representation of employers on the Tripartite Commission for International Affairs in breach of Convention No. 87; introduction of a mechanism preceding submission of complaints to the ILO; suspension of work and pay of workers of the La Esperanza company who established a trade union; violation of union premises and threats and intimidation of trade union members

891. The complaint is contained in communications by the Trade Union of Workers of Guatemala (UNSITRAGUA) dated 13 and 29 May, 28 July, 9 and 10 August and 25 November 2004 and 10, 11, 12, 13 and 25 January, and 23 May 2005, and by the International Confederation of Free Trade Unions (ICFTU) dated 2 August 2005.

1. 892. The Government sent its observations in communications dated 17 September, 27 October and 4 November 2004, and 17 and 25 January, 11 and 25 April, 20 July and 5 October 2005.
2. 893. 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 complainants’ allegations

1. 894. In its communications dated 13 and 29 May, 10 August and 25 November 2004, the Trade Union of Workers of Guatemala (UNSITRAGUA) alleges that on 6 May 2004, the executive committee of the Trade Union of Workers of the Portuaria Quetzal enterprise convened an extraordinary general assembly for the purpose of discussing the following items on the agenda: (a) reading of the previous minutes; (b) report of the external audit contracted by the trade union; and (c) information on the negotiation process of the new collective agreement on employment conditions. The assembly began normally but, upon completion of consideration of the first item on the agenda a quorum ceased to exist, for which reason the remaining items were presented purely for information purposes. The results of the auditor’s report revealed the existence of anomalies in the handling of trade union funds amounting to over 450,000 quetzals; in the light of this information, the members of the executive committee expressed their intention to bring the matter to the attention of the criminal courts in order to ascertain the existence of criminal liability on the part of previous committees. At this time, a group of leaders and members took possession of the podium and stated that Mr. Mariano Gutierrez Lopez, a labour inspector, was present. They then proceeded unlawfully to dismiss the seven members of the executive committee in flagrant violation of the trade union’s rules of procedure, and unlawful action was taken to elect persons to replace them. The UNSITRAGUA adds that the labour inspector, clearly interfering in the internal affairs of the trade union and in breach of the trade union rules for voting and of its rules of procedure, facilitated the unlawful removal of the legally elected members of the executive committee to make way for the election of a new executive committee and initiate procedures for their registration. On 7 May, some 70 members contested the above-described extraordinary general assembly and the taking over of the podium and assumption of control of the assembly by Messrs. Rony Cardona Corzo, Everildo Revolorio Torres, Juan José Morales Moscoso, Eualio Salomón Palencia Jiménez and Mario René Delgado Gómez. They also challenged the unlawful dismissal of the legally elected executive committee, the unlawful election violating the established procedures laid down in the rules of procedure and the regulation governing voting in elections, and interference by the Labour Inspectorate; however, the new trade union leader, Miguel Antonio Madrid, refused to receive the document challenging the removal of the previous committee, alleging that the new committee (unlawfully elected) had decided not to receive the document. In the light of this refusal, the members approached the Labour Inspectorate with a view to requesting that a labour inspector be assigned to record the refusal of the trade union leaders to receive the challenge document; this request was denied by the Labour Inspectorate. On 11 May 2004, the unlawfully dismissed trade union leaders submitted a complaint to the Office of the Public Prosecutor in order to initiate an investigation into the anomalies in the management of trade union funds and to ascertain the possibility of criminal prosecution. On 13 May 2004, 113 workers declared the events of 6 May 2004 to be without effect and complained of interference by the Labour Inspectorate.
2. 895. The UNSITRAGUA alleges that, at the present time, the representatives of the Portuaria Quetzal enterprise have formed a commission from which workers’ representatives are excluded and are in the process of adopting a so-called “voluntary resignation plan” intended to achieve the separation from the company of a large number of workers. This procedure has not been discussed in the Joint Council and the opinion of the trade union has not been solicited. The purpose of the voluntary resignation plan is to reduce the number of workers in the company in order to justify granting a concession for the provision of port services to companies from the private sector; such action in practice affects all workers in light of the fact that the Organic Law of the company provides that workers own a 5 per cent stake in the company. Another objective of this voluntary resignation plan is to replace the permanent workers (trade union members) by workers on fixed-term contracts or under mechanisms that totally change the employment relationship and remove workers’ right to resignation or retirement benefits. In addition, selective dismissals have occurred, in breach of the procedures laid down in the current collective agreement, which has generated uncertainty among the company’s employees. Such actions are intended to demonstrate that the authorities are prepared to breach the provisions of the collective agreement. These measures have three clear objectives: to bring financial pressure to bear on workers to accept voluntary resignation by driving them to desperation; to achieve discord by deliberately delaying the conclusion of the new collective agreement on employment conditions and make it impossible to offer a concerted response to such measures; and, lastly, to generate uncertainty and the sensation among workers that they are defenceless. In order to institute this resignation plan, the authorities intend to use the pension fund reserves which will deplete the sums available to pay benefits to workers resigning or retiring from the company in the future.
3. 896. The UNSITRAGUA alleges that on 12 January 2004, the Trade Union of the Workers of Portuaria Quetzal enterprise reacted to the expiry of the period for negotiation of the collective agreement on employment conditions by bringing this fact to the notice of the employer, in written form and with acknowledgement of receipt by the employer for the appropriate purposes. The Ministry of Labour acted on the assumption that notification had been given of the expiry of the collective agreement on employment conditions and instructed that this be recorded accordingly. Subsequently, the Portuaria Quetzal enterprise proposed to the trade union that a different period of validity be introduced for bargaining and that negotiations focus on matters of genuine importance to the trade union. In the light of this proposal, the trade union, in full agreement with the employer, decided to restrict bargaining to those matters of a financial and social nature that needed to be updated, in the interests of forestalling an excessively protracted bargaining process. On 14 October 2004, the outcome of the collective bargaining process was submitted to the Ministry of Labour with a request that the reforms to the Occupation Act be endorsed, and this request was accompanied by the necessary documentation. On 3 November 2004, the trade union was notified of a resolution by the Ministry of Labour, dated 2 November 2004, which declared void the request for endorsement by reason of the fact that notification had not been received of the expiry of the previous collective agreement on employment conditions and that it was impossible to endorse the new agreement, in deference to the stewardship principle laid down in article 103 of the Constitution. On 4 November 2004, an appeal was lodged against this resolution stating that, on the contrary, notification had been given of the expiry of the agreement. On 11 November 2004, the trade union filed a request for re-examination of that judgement, attaching a copy of the denunciation of the collective agreement. On 24 November 2004, the trade union was informed of a resolution rejecting the appeal on the grounds that it had been demonstrated that legal notification of expiry had been given, and that the provisions of Government Agreement No. 221-2004 had not been given effect (ordering rejection in limine of the request if requirements are not met).
4. 897. The UNSITRAGUA alleges that, on 28 July 2004, the employee, Edgar Ticas Arévalo, was dismissed for supposedly having failed to report for work on 9 and 14 July 2004. According to the UNSITRAGUA, the provisions of the current collective agreement on employment conditions provides that the employer should have placed this matter before the Joint Council and that no disciplinary measure could be executed in the absence of a ruling by that body. Although the trade union requested that the Joint Council be convened, the Portuaria Quetzal enterprise refused to accede to the request. The UNSITRAGUA adds that the trade union member in question failed to report for work because he was being held in custody by the national civil police in connection with a personal dispute. However, administrative delays in the administration of justice meant that the relevant proceedings were not completed until 13 July 2004, at which time bail was posted to secure his release and allow him to return to work. The UNSITRAGUA states that the General Employment Regulation provides that such a situation cannot justify dismissal and can give rise only to suspension without pay for a period equivalent to the duration of custody.
5. 898. The UNSITRAGUA alleges that, on 4 January 2005, upon the orders of the general manager of the Portuaria Quetzal enterprise, the employee, Oscar Humberto Dueñas Hernández, a member of the Trade Union of the Workers of Portuaria Quetzal enterprise, was dismissed on grounds of article 78, paragraphs (a), (b), (f) and (i) of the company’s General Employment Regulation, despite the fact that it is clear from the description of the charges that the grounds put forward are not listed as justifying dismissal or sanction. The UNSITRAGUA adds that during the hearing to allow the employee to defend himself, the authorities of the Portuaria Quetzal enterprise denied him full disclosure of the contents of the documents detailing the facts underlying the charges against him, which severely hampered his right to defence. The UNSITRAGUA adds that the allegations used to justify dismissal should have been substantiated before a competent tribunal, which did not occur. Despite an express application by the trade union, the Portuaria Quetzal enterprise has failed to bring this case before the Joint Council, as required by the collective agreement.
6. 899. In addition, the UNSITRAGUA submits a complaint, in communications dated 28 July and 9 August 2004, in regard to the formulation by the Ministry of Labour and Social Welfare of a draft regulation for the Tripartite Commission for International Affairs, which is intended to create a mechanism which in practice monitors the international activity of trade unions in submitting complaints and reports of violations of freedom of association; all complaints or reports must be submitted for consideration and possible rejection by the State of Guatemala prior to their further referral; thus, the State effectively assumes the functions corresponding to the Committee on Freedom of Association. The complainant alleges that a high-level commission already exists, composed of various state bodies with a remit to seek solutions in cases of violations of freedom of association reported to the ILO. The Ministry would appear to intend to adopt a regulation that introduces a binding procedure prior to transmission to the ILO of complaints or reports of violations of freedom of association.
7. 900. The UNSITRAGUA alleges in a communication dated 10 January 2005 that, on 30 September 2004, the employee Víctor Manuel Cano Granados, a member of the Trade Union of the Supreme Electoral Tribunal, was dismissed, in the absence of any administrative disciplinary proceeding and in total and open violation of his rights to defence and to due process (the employer was aware that no employee could be dismissed without prior authorization by the tribunal hearing the case). Consequently, the employee applied for reinstatement; current standards require the tribunal to order his reinstatement within 24 hours after receiving the complaint or request, but over three months have passed and the judge has failed to comply.
8. 901. The UNSITRAGUA alleges in its communication dated 11 January 2005 that, with the term for which trade union leaders were elected approaching expiry, the Trade Union of Employees of the Crédito Hipotecario Nacional de Guatemala proceeded to convene and, in keeping with its articles of incorporation, carry out the election of persons to assume trade union posts; the following persons were elected: Mr. Luis Fernando Sirín Aroche, as secretary for employment and disputes and Mr. Yuri de León Polanco, as a member of the Advisory Council on trade union organization. Mr. Freddy Arnoldo Muñoz Morán, chairperson of the board of the Crédito Hipotecario Nacional, and its legal representative, made known his disagreement with the election of these individuals by challenging their election to trade union posts. The General Labour Inspectorate had already declared that these trade union leaders could not be removed from office when their election was made public on 1 December 2004. Nonetheless, and in retaliation for the trade union’s refusal to allow employer interference in the election of their representatives, the chairperson dismissed Mr. Luis Fernando Sirín Aroche and Mr. Yuri de León Polanco and a further 30 employees who were trade union members.
9. 902. The UNSITRAGUA alleges in a communication dated 12 January 2005 that employees of the municipality of Comitancillo, in the department of San Marcos, seeing that the number of employees was insufficient to meet the requirements embodied in the Labour Code to establish a trade union (which provides that a minimum of 20 workers are required), established a coalition of workers and submitted to their employer, the municipality of Comitancillo, San Marcos, a series of petitions and subsequently submitted the corresponding collective dispute to the Court of the First Instance for Labour and Social Welfare in the department of San Marcos. Despite the fact that the Mayor of Comitancillo, San Marcos, was aware of the fact that he could not legally dismiss any employee without the prior authorization of the judge hearing the case, he nonetheless dismissed 18 employees, between 16 January and 16 February, that is, all those who sought to exercise their right to bargain collectively. In reaction to the dismissals, the respective reinstatements were sought, of which eight were granted, only to be dismissed again one week later by the Mayor.
10. 903. The UNSITRAGUA alleges in its communication dated 13 January 2005 that Agreement No. 284-2004, article 7, provides that:
11. Convocation. One month prior to the date when the new members of the tripartite commission for international labour affairs take their respective posts, the Ministry of Labour and Social Welfare should convene trade union sectors and the most representative industrial, agricultural, commercial and financial bodies, so that candidates may be designated during the following 15-day period. If the sectors involved fail to submit their respective lists within the deadline or if they submit more candidates than required, the Ministry of Labour and Social Welfare will make a selection on the basis of greatest representation.
12. The UNSITRAGUA is of the view that this provision breaches Convention No. 87 as it provides that employers will be represented by industrial, agricultural, commercial and financial entities, thereby excluding employers’ representatives from other areas of the economy.
13. 904. The UNSITRAGUA alleges in its communication dated 25 January 2005 that, employees of the agricultural company La Esperanza y Anexos S.A., established a trade union and initiated collective bargaining within the context of a collective dispute of an economic and social nature and that this was immediately countered by their suspension for an indefinite period. This retaliatory action by the employer was brought before the Tribunal of Labour and Social Welfare of the Department of Escintla. On 2 August 2004, the court ordered the employer, La Esperanza y Anexos, S.A., to retract these unlawful suspensions and pay the wages and other benefits that had remained unpaid for the duration of the suspension. The UNSITRAGUA adds that the employer appealed and the case is currently before the Fourth Chamber of the Appeal Court for Labour and Social Welfare. The employees have been suspended for over 21 months, for which reason a provisional attachment of assets was requested to ensure compliance, but this application was denied. The attachment was requested a second time and the judge handed down a decision stating that claims for the payment of sums not received by employees in reprisal should be lodged with an ordinary court.
14. 905. The UNSITRAGUA alleges in its communication of 23 May 2005 that the State of Guatemala, through the Ministry of Education, has implemented a strategy intended to generate an atmosphere of labour instability, which will dissuade workers from exercising their right to freedom of association for fear of losing their jobs and thereby weaken and gradually destroy existing trade unions. The Ministry of Education is seeking to provide a legal underpinning for a new strategy to weaken and destroy trade unions. The provisions of the cooperation agreements offered by the Asociación Movimiento Fe y Alegría and the Ministry of Education seek to disguise the employer status of the Asociación Movimiento Fe y Alegría using a system of subcontracting through so-called parents’ associations. The teachers are hired by these associations for a period of ten months and warned that if they join a trade union their contract will not be renewed and they are effectively forbidden to even speak with trade union leaders and other unionized employees. This also means that these employees are deprived of two months’ salary per year and of one-sixth of their Christmas bonus and of the annual bonus payable to employees in the private and public sectors, and to their leave entitlement, as well as of employment stability as enjoyed by other employees hired directly by the Asociación Movimiento Fe y Alegría. Meanwhile, these subcontracted employees are being paid a substantially higher salary than those who are trade union members, this being a means used by the employer to discourage new or continued trade union membership.
15. 906. In its communication of 2 August 2005, the International Confederation of Free Trade Unions (ICFTU) alleges that its affiliate, the Confederation of Trade Unions of Guatemala (CTUG) has reported that, during the early morning of 11 May 2005, an attempt was made to break into their trade union premises. Fortunately, the intruders did not enter the offices and confined themselves to breaking down the metal door of the main entrance; this is certainly an act of intimidation in reaction to the repeated complaints by the CTUG against the Government’s anti-union policy towards workers.
16. 907. The ICFTU adds that on 9 May 2005, unknown persons entered the headquarters of the National Coordination of Peasant Organisations (NCPO) and removed 15 computers which contained information of great importance to the organization, together with a video camera and two digital cameras; they also examined the files which they then scattered on the floor. In addition, on 10 May, an unsuccessful attempt was made to enter the headquarters of the General Union of Workers of Guatemala (GUWG) through the roof. The NCPO shares its premises with the recently established Indigenous, Peasant, Trade Union and Popular Movement which combines several trade unions and popular organizations; hence, the ICFTU suspects that those responsible for these incidents were not common criminals but were more likely to be members of the national security forces seeking to intimidate trade union members and members of popular organizations.
17. 908. The ICFTU further states that, on 25 and 26 June 2005, the head office of its affiliate, the Trade Union of Education Employees of Guatemala (STEG), was burgled by unknown persons, who removed computers, communication equipment such as fax machines, telephones and other office material and files. They also destroyed all the office furniture and conference tables; they daubed red crosses in three different places, which may be taken as a clear threat directed at the trade union leaders and employees working in the institution. The ICFTU expresses its concern at the fact that an arrest warrant was issued for the Secretary-General of the STEG, Mr. Joviel Acevedo, on account of his participation in protest demonstrations by civil society against adoption of the Free Trade Agreement.
18. 909. The ICFTU further alleges that all members of the executive committee of the Trade Union of Employees of the Crédito Hipotecario Nacional (STCHN) have been subject to threats and intimidation. On 25 July 2005, a funeral wreath was laid at the entrance to the offices of the UNSITRAGUA (to which the STCHN is affiliated) and documents containing threats against the STCHN leaders were found inside the premises; however, the threats in fact target all members of the union (a photocopy of the threats is attached). The names of the threatened leaders are: Edgar Vinicio Ordónez García, Secretary-General; Luis Fernando Sirín Aroche, secretary for employment and disputes; Efrian López Quiché, secretary for communications, records and agreements; Danilo Enrique Chea Herrera, secretary for organization and publicity; Elio Santiago Monroy Lopez, secretary for finance; José Douglas Asencio, secretary of sport; Manuel Francisco Arias Virula, secretary for social welfare and Luis Ernesto Morales Gálvez, a member of the Advisory Council.
19. 910. The ICFTU assumes that these threats are related to the labour dispute, which began on 22 March 2002 following the dismissal of 170 employees belonging to the trade union who were obliged by the bank (Crédito Hipotecario Nacional) to tender their “voluntary resignations”. On 21 July 2002, the same happened to another group of employees who were also trade union members. During the course of 2003, several leaders were intimidated in different ways and the trade union submitted complaints of corruption in connection with the merger between the Banco del Exercito and BANORO. Since then, a policy of pressure and harassment has been directed against employees to encourage their withdrawal from the trade union with the result that the 450 membership in 2002 has declined to 210 at the present time; in addition, the agreements concluded through collective bargaining have not been implemented and consequently the trade union has taken action to prevent the bank from dismissing trade union members; the authorities have threatened trade union leaders with removal of trade union immunity.
20. B. The Government’s replies
21. 911. In its communications dated 17 September, 27 October and 4 November 2004, the Government states that there were no acts of interference by the Labour Inspectorate in the affairs of the Trade Union of Employees of the Portuaria Quetzal enterprise, and that freedom of association has not been infringed because he made no suggestion at any time during the assembly held by that trade union. All the events that took place in the assembly are recorded in the minutes drafted by that official and appended as evidence. At the request of the secretary of the trade union, the labour inspector participated solely as observer of events during the trade union’s extraordinary general assembly of 6 May 2004. The inspector participated only when his opinion was requested regarding the matter under discussion during the assembly, to the effect that, as the supreme body of the trade union in question, the assembly had to decide as to the future of the members of the executive committee in dispute, and then proceeded to read articles 207, 221 and 222 of the Labour Code; this occurred, as stated in the inspector’s records, after the assembly had discussed the dispute within the executive committee (its members could not agree on decisions to be taken) and considered the different possibilities, including replacement of committee members. The Government states that at no time were the articles of incorporation of the trade union in question violated, and that during the assembly the labour inspector did not remove the immunity of any member of the committee given that he was not empowered to do so; immunity was removed by majority of the plenary assembly, as recorded in the minutes which he drafted as observer of these events; the record states that there was a quorum of two-thirds of members. It is stated that the committee members did not at any time leave the podium, as alleged. The Government adds that the former committee members in question at no time requested the intervention of an inspector from the Dirección V Central to witness the refusal by the newly elected committee members to receive the document challenging the former members’ removal; they simply submitted the document so that the labour inspector could bring it to the attention of the new committee members. Neither did they request the intervention of an inspector to witness the refusal by the new committee member, Miguel Antonio Madrid Hernández, to receive the document. According to the record, on 13 May 2004, 113 employees submitted a document challenging the decisions of the trade union assembly to the General Directorate of Labour; the record states that 450 of the 600 members attended the assembly.
22. 912. The Government states, in regard to endorsement of the collective agreement on employment conditions between the Trade Union of Employees of the Portuaria Quetzal enterprise and the company that, on 14 October 2004, a request was submitted for endorsement of the reforms to the collective agreement on employment conditions, as negotiated and adopted. On 2 November 2004, opinion No. 292-2004 and resolution No. 1820-2004 were issued refusing the request by reason of the fact that this could not occur unless the previous collective agreement was terminated. On 30 November 2004, endorsement of the new collective agreement was again requested. On this occasion, the legal office proceeded to issue the respective opinion after studying the matter and concluding that the agreement in question did not breach current labour provisions in law and recommended that it be endorsed, as occurred.
23. 913. In its communications dated 17 and 25 January, 11 and 25 April and 20 July 2005, the Government states that the alleged mass dismissal of employees of the Crédito Hipotecario Quetzal, including the dismissal of 29 employees belonging to the trade union, does not constitute trade union repression because the persons involved were hired on temporary or fixed-term contracts specifying an expiry date. It is further stated that Mr. Luis Fernando Sirín Aroche is currently working for the Crédito Hipotecario Nacional de Guatemala as secretary for employment and disputes on the trade union’s executive committee. Mr. Jaime Yuri de León Polanco no longer works for the Crédito Hipotecario Nacional de Guatemala and investigation of his employment situation reveals that, on 31 December 2004, his employment relationship was lawfully terminated and an official document to that effect was issued.
24. 914. In response to the employer interference alleged by UNSITRAGUA, which states that the Labour Code and articles of incorporation of the organization provide that the right to challenge elections to trade union posts is confined to trade union members, the Government states that such statements reveal blatant manipulation of the legal system governing employment, since the Labour Code, article 1, states: “this Code regulates the rights and duties of employers and workers, in connection with employment, and establishes institutions to settle disputes”. The Labour Code does not grant an exclusive right to trade union members, but grants them in fact to the parties in the employment relationship.
25. 915. Moreover, the Government states that the complaint lodged by the UNSITRAGUA in regard to the Portuaria Quetzal enterprise is based on an interpretation of constitutional provisions and employment standards which they consider to be applicable to the case, and subsequently refer to the dismissal of the former employee Mr. Oscar Humberto Dueñas Hernández and the procedure followed to dismiss him.
26. 916. Article 108 of the Constitution provides that relations between employers and workers are governed by the internal regulations of the company, in this case the Portuaria Quetzal enterprise, and not by the Labour Code as claimed by the UNSITRAGUA. It may be noted that the Organic Act of the Portuaria Quetzal enterprise (Legislative Decree No. 100-85, which has an authority equal to the ordinary law passed by the Congress of the Republic), article 19, paragraph (d), provides that the general manager has the power to: “appoint and dismiss any member of staff, with the exception of the deputy manager and the internal auditor”. This provision confirms one of the administrative powers of any employer, which is to recruit and dismiss staff.
27. 917. Meanwhile, the Portuaria Quetzal enterprise’s general employment regulation (governmental Agreement No. 949-89 of 12 December 1989) embodies all relevant labour standards and article 67, paragraph (d), provides for: “dismissal when, in the view of the general management, the employee’s action merits dismissal, corresponding to the grounds laid down in this regulation”. Article 78 lists grounds for dismissal, including those applicable to Mr. Dueñas Hernández’s case: “(a) when the employee conducts himself in an openly immoral manner during the course of his work or proffers insult, abuse or physical violence … (b) when the employee engages in any of the above-described acts, against another employee of the company, necessarily with the result that it seriously undermines discipline or interferes with the company’s work … (f) when the employee expressly refuses to abide by the resolutions, standards or provisions of the company’s management … (i) when the employee fails to comply with the obligations and prohibitions by which he is bound …”
28. 918. On 23 December 2004, a report was received from the Portuaria Quetzal enterprise security officer regarding the incident and the conduct of Mr. Dueñas Hernández, after which the personnel department arranged a two-day hearing to allow him to defend his position, which he was not able to do, leading to the issue of Order No. 001-2005, terminating the employment relationship. It was held against him that when he delivered lunch to his daughter, who worked in another part of the company, he parked his car in such a way as to block the entrance to the company premises for ten minutes, and used insulting and offensive language in response to the guard who instructed him to comply with the internal security procedures; similar incidents had occurred previously.
29. 919. This was not the first case of misconduct on the part of Mr. Dueñas Hernández who had previously been subject to suspension without pay for successive instances of misconduct, to the extent that on 17 September 2001, Mr. Dueñas Hernández signed a document agreeing to: “formally undertake henceforth to display irreproachable conduct, with a view to avoiding any problems in his employment that might affect company officials or co-workers, or damage company property, failing which the Portuaria Quetzal enterprise is free to dispense with his services and he undertakes expressly, in writing, to resign from the position that he currently occupies …”
30. 920. It may be noted that Mr. Dueñas Hernández was only a member of the trade union, subject to the rights and duties of any worker, and was not a member of the union’s executive committee, without entitlement to any special privileges and notably that of immunity from dismissal. A review appeal submitted by the individual in question was processed and duly rejected by the company board after which, in the light of the employee’s refusal to accept the compensation and benefits due to him, the case was taken before a labour tribunal.
31. 921. In regard to Mr. Víctor Edgar Ticas Arévalo, the Government states that he was employed in the position of security supervisor, whose main task was to coordinate, supervise and oversee activities within the port complex. Port security is extremely important and complex, involving considerable responsibility given the need to ensure appropriate oversight of goods and services and particularly supervision of workers in order to ensure due confidence in the manner in which supervisory, administrative and port activities are carried out.
32. 922. Unfortunately, Mr. Ticas Arévalo departed from this line of conduct and his partiality to alcohol had caused serious incidents. One such incident occurred when he was driving under the influence of alcohol and collided with another vehicle resulting in the death of one person, leading to criminal prosecution for voluntary manslaughter. Meanwhile, it was reported that Mr. Ticas failed to report for work on 8, 9, 10, 11, 12, 13 and 14 July, without justification; upon his return to work, he was granted a hearing to explain the situation, during which he failed to offer any justification for his absence and confined himself to expressing his dissatisfaction that he had not been granted leave that he had requested, and it was only later that the company learned that, under the effect of alcohol, he had been involved in an incident in a local restaurant during which he had brandished his revolver in a threatening manner and caused damage to property, and other offences. In keeping with its required procedure, the company made known its readiness to pay compensation and corresponding benefits, which were not accepted by the employee.
33. 923. It should be noted that the UNSITRAGUA’s version of the situation is not accurate; it exaggerates some elements and misrepresents others. The UNSITRAGUA states that Mr. Ticas Arévalo’s case should have been placed before the Joint Council. This Council meets at the request of the employee involved but, in this case, it was the employee himself who, on 29 July 2004, submitted an appeal against the dismissal agreement which was to be duly considered and settled by the honourable board of the company. It was not until 2 August that the trade union “suggested” that the Joint Council be convened, by which time the appeal was already being processed as requested by the employee in question.
34. 924. The UNSITRAGUA is also inaccurate in stating that negotiation of the new collective agreement on employment conditions has been unduly delayed by the enterprise’s management. It should be noted in this regard that the new collective agreement has already been concluded between the trade union and the company. As is true of any collective bargaining, the process must follow a prescribed course during which the agreements reached must be submitted to referendum, as occurred without any untoward delays in the bargaining process.
35. 925. The Government states, furthermore, that the “Fe y Alegria” Movement association has submitted a communication rejecting the complaint, stating that the “Fe y Alegria” Movement does not engage in subcontracting through parent associations; these associations are organized by parents in the context of freedom of association embodied in the Political Constitution of the Republic of Guatemala; their main motivation is their concern about constant absenteeism and problems with bad teachers in schools who cannot be dismissed because they entrench themselves by means of constant collective disputes relating to economic and social matters; this year there had been three collective disputes promoted and organized by the trade union, two of which have already been ruled to be unlawful by the corresponding jurisdictional bodies.
36. 926. The “Fe y Alegria” Movement association states that it has not interfered in any way in organizing parents’ associations which are different legal entities and, as such, these associations enjoy the freedom, power and right to hire staff in any capacity that they consider necessary to carry out the functions for which they have been established and under the terms they consider they can afford. The “Fe y Alegria” Movement adds that, just as the association does not interfere in the organization of parents’ associations, neither does it intervene in their decisions; thus, decisions to pay higher salaries than schools are taken internally, based on internal provisions of which the “Fe y Alegria” Movement is not aware because they are different legal entities. The financial situation of the “Fe y Alegria” Movement is severely constrained by the fact that it is forced to devote funds to counter the endless unfounded complaints levelled against the movement by the trade union.
37. 927. The Government further states that the municipality of Comitancillo terminated the contracts of the employees to which the complaint related, on the grounds provided for in Decree No. 71-86, article 4, paragraph c.1, the Law on Unionization and Regulation of Strikes by Civil Servants which states that: “when an employee engages in conduct that constitutes a just cause for dismissal, the nominated authority of the State and of its decentralized and autonomous bodies are empowered to cancel appointments and employment contracts, without incurring liability and without prior judicial authorization”. It is therefore clearly apparent that the municipality in question is an autonomous authority of the State and is therefore empowered to terminate the employment contract of an employee who has engaged in conduct that constitutes just cause for dismissal, without having to apply for prior judicial authorization from the judge examining the collective dispute giving rise to the prohibition contained in article 380 of the Labour Code (not applicable to this case), which states that no employment contract may be terminated without the authorization of the judge hearing the case in question. In other words, the provision contained in Decree No. 71-86 exempts the municipality from having to seek authorization to terminate an employment contract when just cause exists to dismiss the employee. Consequently, the municipality of Comitancillo terminated the employment contract of the employees referred to in the complaint by reason of the fact that just cause existed to terminate each of these contracts. This procedure was never used, as the complainants claimed, to infringe freedom of association and the right to bargain collectively. Moreover, it should be noted that the employees dismissed with just cause challenged the termination of their employment contract and sought reinstatement before the Labour and Social Welfare Tribunal which, after duly considering the matter, ruled on 9 and 24 September 2004 in favour of the municipality of Comitancillo and rejected the application for reinstatement lodged by the dismissed employees.
38. 928. The actions of the municipality of Comitancillo have not infringed freedom of association rights or the right to bargain collectively in respect of the dismissed employees in any way. The documents submitted by the Government demonstrate that the judicial authority initially ordered reinstatement by reason of the fact that the persons in question were members of the newly established trade union but had subsequently ascertained that these were (state) employees and thus not covered by the Labour Code; the Appeal Court ruled that no reprisals had been taken by the employer and that just cause existed for dismissal, further stating that the complainants should have used other judicial channels (ordinary court) to ascertain whether just cause existed; the employees’ application for reinstatement was rejected. The documentation submitted by the Government reveals that the dismissed employees have lodged a remedy of amparo.
39. 929. In its communication dated 25 January 2005 (received September 2005), the Government states in connection with the allegations regarding the La Esperanza agricultural enterprise that, on 8 February 2005, in reprisals Case No. 421-2004, the Fourth Chamber of the Appeal Court for Labour and Social Welfare (Mazatenango) ruled in favour of the appellants and ordered the employer, La Esperanza, to end the illegal suspension of the individual employment contracts, paying back salaries and other benefits, in addition to a fine. Likewise, on 24 August 2005, before the Conciliation Tribunal established in the department of Escuintla, the parties agreed on the reinstatement of all the employees involved in the reprisals incident and on a guarantee of employment stability. An agreement was also concluded regarding payment of back wages.
40. 930. In its communication dated 5 October 2005, the Government recalls that the fast-track procedure when complaints are filed with the ILO results from a tripartite decision made during a direct contacts mission, that is not a compulsory mechanism and that USITRAGUA resorted to it.

C. The Committee’s conclusions

1. 931. The Committee notes that the allegations submitted are as follows: interference by the Labour Inspectorate in the internal affairs of the Trade Union of Employees of the Portuaria Quetzal enterprise, and unlawful removal from trade union positions of seven members of the executive committee, restructuring (voluntary resignation plan) of the company for anti-union purposes without consultation and practices contrary to the right to bargain collectively; dismissal of trade union members in violation of the collective agreement; subcontracting for anti-union purposes instigated by the Ministry of Education with regard to teachers (Fe y Alegria Movement); mass anti-union dismissals by Crédito Hipotecario Nacional; dismissals in the municipality of Comitancillo (department of San Marcos) in violation of a judicial reinstatement order; dismissal of a member of the Trade Union of the Supreme Electoral Tribunal; the criteria for employers’ representation in violation of Convention No. 87; introduction of a mechanism prior to the submission of complaints to the ILO and suspension of work and pay of employees of the company La Esperanza who had established a trade union. The Committee also notes the more recent allegations by the ICFTU, dated 2 August 2005, regarding violation of trade union premises and theft of property, threats and intimidation of trade union members, including an arrest warrant against one member, and while emphasizing its concern over the gravity of these allegations, requests the Government to submit its comments on these matters without delay.
2. 932. In regard to the alleged acts of interference by the labour inspector in the affairs of the Trade Union of Employees of the Portuaria Quetzal enterprise, by intervening in an extraordinary general assembly on 6 May 2004 when, according to the complainant, seven trade union leaders were unlawfully removed from their posts and others appointed in their place, the Committee notes the Government’s statement that such interference did not occur, that freedom of association was not infringed and that the labour inspector participated solely as an observer (at the request of the trade union). According to the Government, the inspector only participated in the assembly when his opinion was requested in regard to the matters under discussion to which he replied that it was up to the assembly to decide the future of the members of the executive committee. The Committee further notes the Government’s statement that the inspector’s report records that the plenary of the assembly, by majority, removed the former committee members from their positions on the executive committee.
3. 933. In light of the above, the Committee notes the contradiction between the allegations of interference and lack of a quorum in the assembly, and the Government’s reply denying interference by the labour inspector in the extraordinary general assembly during which trade union leaders were removed from the executive committee, and highlighting the fact that the trade union requested that the labour inspector be present and that a quorum existed of two-thirds of its members. The Committee notes that, according to the allegations, 113 of the 600 members of the trade union submitted a challenge to the assembly’s decisions to the General Directorate of Labour. The Government for its part states that the trade union assembly was attended by 450 of the 600 union members. The Committee requests the Government to keep it informed of any administrative or judicial decision relating to this matter. Lastly, the Committee notes the Government’s contention that the trade union leaders removed from the executive committee did not request the intervention of an inspector from the Dirección V Central, for the purpose of recording the refusal by the newly instituted leaders to receive the challenge document. According to the Government, the document in question was submitted only so that the Labour Inspectorate could transmit it to the new executive committee, as occurred. The Government adds that the presence of an inspector was not requested to witness the refusal by the new leader, Miguel Antonio Madrid Hernández, to accept the challenge document submitted.
4. 934. In regard to the alleged denial by the authorities to recognize the collective agreement concluded between the Trade Union of Employees of Portuaria Quetzal enterprise and the Portuaria Quetzal enterprise, the Committee notes that, according to the Government’s reply, endorsement of the collective agreement was initially withheld because the previous agreement remained in force and had not been withdrawn. Once that matter had been resolved, the new collective agreement was certified.
5. 935. In regard to the alleged dismissal of Mr. Edgar Ticas Arévalo and Mr. Oscar Humberto Dueñas Hernández by the Portuaria Quetzal enterprise, the Committee notes that the Government declares that the dismissals are not related to the exercise of freedom of association, that the first case of dismissal is due to a voluntary manslaughter while under the influence of alcohol, together with other offences and failure to report for work and, the second, to the repeated incidents at work, the most recent being obstruction of the entrance to premises with his car and insults to the company’s security staff. The Committee however draws attention to the fact that the Government has not denied the allegation that the company did not convene the Joint Council as provided in the current collective agreement, and requests the Government to guarantee that this provision will be enforced in the future.
6. 936. In regard to the allegation that a draft regulation of the Ministry of Labour (in connection with the Tripartite Commission on International Affairs) provides for the establishment of a mechanism prior to the submission of complaints to the ILO, the Committee notes from the report of the Committee of Experts for 2005 (observations on Conventions Nos. 87 and 98), that this mechanism arose during a direct contacts mission between 17 and 20 May 2004. It is “a rapid action mechanism to consider reports and complaints to be submitted to the ILO that institutes a period of 15 days to endeavour to resolve the problems in question before they are forwarded to the ILO” and is intended to allow the authorities to carry out special prompt action. The Committee also notes that, as stated by the Committee of Experts, this mechanism was approved by the Tripartite Commission for International Affairs. The Committee notes that, according to the Government, that procedure is not compulsory and that UNSITRAGUA has used it. In the view of the Committee, this mechanism is fully compatible with the principles of freedom of association.
7. 937. In regard to the alleged practice by the Ministry of Education in promoting subcontracting by the “Fe y Alegria” Movement association through parents’ associations with a view to weakening the trade union, making renewal of these subcontracted employees conditional upon their not joining the trade union and by paying them more than other employees, the Committee notes that the Government merely reproduces the statements by the “Fe y Alegria” Movement association to the effect that: (1) parent associations were established by parents without interference by the Ministry or the “Fe y Alegria” Movement association, and the latter does not intervene in the activities and decisions of the parent associations to pay higher wages; (2) the “Fe y Alegria” Movement association does not subcontract staff. The Committee requests the Government to carry out an independent investigation into the allegations of anti-union practices and to keep it informed in this respect.
8. 938. Regarding the dismissal of leaders of the trade union operating in Credio Hipotecario Nacional, namely Mr. Luis Fernando Sirín Aroche and Mr. Yuri de León Polanco, the Committee notes the Government’s statement that the former remains employed by the Crédito Hipotecario Nacional and that the latter’s services were terminated on 31 December 2004 on the basis of an official document to that effect. The Committee however notes that the Government fails to identify the reason why the latter’s employment relationship was terminated and requests the Government to keep it informed in this respect. In regard to the alleged dismissal of 30 employees belonging to the trade union, the Government notes that they were working on temporary or fixed-term contracts with a specified expiry date.
9. 939. In regard to the alleged dismissal of 18 employees of the municipality of Comitancillo, who declared a collective dispute by reason of the fact that they were denied the right to bargain collectively because they could not meet the legal minimum requirement of 20 workers to form a trade union, the Committee notes that the Government has submitted documentation demonstrating that the judicial authority, pursuant to legal provisions regarding trade union privileges applicable to employees belonging to the trade union, ordered initially that the workers be reinstated but in subsequent proceedings ascertained that, since the individuals in question were state employees, they were not covered by the Labour Code, concluding therefore that there had been no reprisal by the employer and that the employer had in fact invoked just cause. The Appeal Court also noted that the employees should have used an alternative judicial channel (ordinary court) and rejected the application for reinstatement of the dismissed employees. The Committee notes that the documentation submitted by the Government reveals that the dismissed employees have submitted a remedy of amparo and requests the Government to keep it informed of the outcome of the proceedings.
10. 940. In regard to the alleged suspension of employment and pay of employees of the agricultural enterprise La Esperanza who established a trade union, the Committee notes with interest that these matters have been settled by judicial means in an agreement concluded between the parties in the context of proceedings before the Conciliation Tribunal.
11. 941. The Committee requests the Government, after consultation with the most representative workers’ and employers’ organizations, to submit its observations without delay regarding the allegations to which it has not responded, as listed hereafter:
12. – Portuaria Quetzal enterprise: restructuring (voluntary resignation plan) of the company for anti-union purposes and without consultation, and practices contrary to the right to bargain collectively;
13. – dismissal of employee Víctor Manuel Cano Granados who is a member of the Trade Union of the Supreme Electoral Tribunal; and
14. – criteria for representation of employers at the Tripartite Commission for International Affairs, infringing Convention No. 87.

The Committee’s recommendations

1. 942. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
2. (a) Noting the contradiction between the allegations and the Government’s response denying interference by the Labour Inspectorate in the extraordinary general assembly of the Trade Union of the Portuaria Quetzal enterprise, during which trade union leaders were removed from their positions, and in the absence of a quorum, the Committee requests the Government to keep it informed of any administrative or judicial decision that is taken in regard to this matter and, in particular, in regard to the contested decisions of the trade union assembly presented by 113 of the 600 members.
3. (b) The Committee requests the Government to guarantee in the future that when the Portuaria Quetzal enterprise intends to dismiss employees, the Joint Council be convened as provided for in the collective agreement.
4. (c) As regards the alleged practice by the Ministry of Education of promoting subcontracting by the “Fe y Alegria” Movement association through parent associations with a view to weakening the trade union, by making renewal of the subcontracted employees’ contracts conditional upon their not joining the trade union, and paying a higher salary than that received by other employees, the Committee requests the Government to carry out an independent investigation into these alleged anti-union practices and to keep it informed in this respect.
5. (d) The Committee requests the Government to inform it of the specific grounds for terminating the employment relationship of the trade union member Mr. Yuri de León Polanco by the Crédito Hipotecario Nacional.
6. (e) The Committee requests the Government to inform it of the outcome of the remedy of amparo initiated in connection with the dismissal of 18 employees of the municipality of Comitancillo.
7. (f) The Committee requests the Government, after consulting the most representative workers’ and employers’ organizations, to forward without delay its observations on the allegations to which it has not responded and which are listed hereafter:
8. – Portuaria Quetzal enterprise: restructuring (voluntary resignation plan) of the company for anti-union purposes and without consultation, and practices contrary to the right to bargain collectively;
9. – dismissal of employee Víctor Manuel Cano Granados who is a member of the Trade Union of the Supreme Electoral Tribunal; and
10. – criteria for representation of employers at the Tripartite Commission for International Affairs, infringing Convention No. 87.
11. (g) The Committee requests the Government to forward its observations without delay on the most recent allegations by the ICFTU contained in its communication dated 2 August 2005 and emphasizes its concern over the gravity of these allegations.