Report in which the committee requests to be kept informed of development - Report No 359, March 2011

1. 545. The Committee last examined this case at its November 2009 meeting [see 355th Report of the Committee, paras 766–774, approved by the Governing Body at its 306th Session].
2. 546. The Union Movement of Guatemalan Indigenous and Agricultural Workers (MSICG) asserted itself as a complainant in this case in a communication dated 25 January 2010. The International Trade Union Confederation (ITUC), in its communication dated 17 February 2010, also indicated that it supported the complaints of UNISTRAGUA and the ICFTU.
3. 547. The Government sent its observations in communications dated 2 February, 5 and 13 May, and 15 and 25 June 2010.
4. 548. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 549. In its November 2009 meeting, the Committee made the following interim recommendations concerning the allegations presented by the complainant organization [see 355th Report, para. 774]:
   • (a) With respect to the dismissal of 18 employees from the municipality of Comitancillo (San Marcos), the Committee deplores the long delay that has occurred owing to the various procedures and appeals, and recalls that justice delayed is justice denied, and asks the Government to send the ruling handed down in this matter by the Fourth Court of Labour and Social Welfare;
   • (b) As to the remaining allegations, the Committee deeply deplores finding itself obliged for a second time, in view of the lack of response from the Government or the complainant organizations, to reiterate its earlier recommendations, reproduced below:
     • – With regard to the alleged interference by the enterprise Portuaria Quetzal in the extraordinary general assembly of the Portuaria Quetzal Trade Union, during which trade union leaders were removed from their position in the absence of a quorum, the Committee requests the Government to send its observations without delay on any administrative or judicial decision taken, particularly with regard to the fact that the decisions of the trade union assembly were challenged by 113 of the 600 members.
     • – The Committee requests the complainant organizations to send additional information on the alleged warrant for the arrest of Mr Jovial Acevedo, Secretary General of the STEG (file number, court, etc.), to enable the Government to communicate its response;
     • – With respect to the allegations by UNSITRAGUA dated 17 May 2007, the Committee regrets that the Government has not replied and urges it to send its observations without delay on the allegations relating to: (1) the non-recognition by Crédito Hipotecario Nacional Bank of the union officials chosen by the union’s general assembly on 15 December 2006, despite an administrative decision establishing that the employer was not legally entitled to challenge the trade union elections; (2) the provisional decision handed down by the Supreme Court of Justice in connection with a remedy of amparo (appeal for protection of constitutional rights) lodged by the bank to suspend the abovementioned administrative decision on a provisional basis; and (3) the refusal to grant trade union leave to the union official Héctor Alfredo Orellana Aroche, on the basis of the abovementioned provisional decision handed down by the Supreme Court of Justice. The Committee also requests the Government to send the text of the ruling handed down by this Court; and
   • (c) On a more general note, the Committee urges the Government to be more cooperative with the procedure in future, particularly given that this case was presented a number of years ago.

B. The Government’s replies

1. 550. In its communications dated 2 February and 5 May 2010, the Government provides information on: (i) the allegations regarding the practices of the Ministry of Education in promoting subcontracting in the Movimiento Fe y Alegría association through parents’ associations, with the objective of weakening the trade union, by making renewal of contracts conditional on not belonging to the union; and (ii) the allegations relating to the dismissal of the trade union member Víctor Manuel Cano Granados (this information is not recorded here, since this and the complainants’ allegations are examined in this report in the context of a previous case (No. 2241)).
2. 551. With regard to the alleged arrest warrant against Jovial Acevedo, the STEG’s Secretary-General (second paragraph of recommendation (b)), the Government in its communication dated 13 May 2010 reiterates its earlier information, namely: (1) the Special Attorney for Crimes against Journalists and Trade Unionists has not received any complaint regarding such an incident, but has received one regarding the break in and theft carried out on the union headquarters; and (2) the Sixth Criminal Court of First Instance indicated that it was asked to examine criminal case No. 13456-2006, in which Mr Jovial Acevedo had filed a complaint in his capacity as Secretary-General of the STEG and coordinator of the General Assembly of the Teaching Profession, alleging that he had been coerced and threatened, but this case was set aside and archived, at the litigant’s own request, by an order dated 6 September 2007, there being no complaint relating to the warrant for arrest in connection with his participation in the protest demonstrations against the adoption of the Free Trade Agreement. The Government adds that to date the information requested by the Committee from the complainant organization has not been received, which shows the complainant’s lack of interest in establishing the facts and makes it clear that there is not, and never was, any truth in the complaint.
3. 552. With regard to the refusal to grant trade union leave to the union official Héctor Alfredo Orellana Aroche, on the basis of the provisional decision handed down by the Supreme Court of Justice (referred to in the third paragraph of recommendation (b), point (3)), the Government indicates in its communication of 15 June 2010 that, in an official letter dated 11 February 2010, it requested information from the General Labour Inspectorate as to whether any complaint had been received from Mr Héctor Alfredo Orellana Aroche concerning his employer’s refusal to grant trade union leave. The Government adds that on 27 April 2010, the General Labour Inspectorate reported that in the adjudication of case file No. R1-960-2010 of the Crédito Hipotecario Nacional Bank of Guatemala, Mr Orellana Aroche and other members of the union stated that between 2007 and 2008, approximately, there were indeed problems with the exercise of trade union leave. This is no longer the case; the problem has been resolved, and trade union leave is now granted in accordance with the law and the collective agreement. To date, the issues with the employer have been resolved with the intervention of the Ministry of Labour and Social Welfare as a goodwill mediator, which persuaded the authorities of the Crédito Hipotecario Nacional Bank of Guatemala to comply with the requirement to grant trade union leave.
4. 553. With regard to the Crédito Hipotecario Nacional Bank’s refusal to recognize the union officials elected by the union's general assembly on 15 December 2006, despite an administrative decision which established that the employer was not legally entitled to contest the trade union elections, and with the provisional decision handed down by the Supreme Court of Justice in connection with a remedy of amparo (constitutional protection) lodged by the bank to suspend the abovementioned resolution on a provisional basis (recommendation (b), third paragraph, points (1) and (2)), the Government indicates in its communication dated 25 June 2010 that on 18 December 2006, the Secretary-General of the executive committee of the Workers’ Trade Union of the Crédito Hipotecario Nacional Bank of Guatemala notified the head of the human resources department that the union’s general assembly had been held and informed her of the composition of the executive committee and advisory council. The Government adds that in response to the abovementioned official letter, the head of human resources of the Crédito Hipotecario Nacional Bank of Guatemala sent the union an official letter stating that the employer did not recognize the members of the executive committee or the advisory council.
5. 554. The Government states that the General Manager of the Crédito Hipotecario Nacional Bank of Guatemala made his disagreement clear to the Director-General of Labour with regard to the registration of the members of the executive committee and advisory council of the Workers’ Trade Union of the Crédito Hipotecario Nacional Bank, requesting that the elected union officials in question not be recognized, a demand that was addressed in ruling No. 943-2006 by which it was decided that “... The claimant’s disagreement must be dealt with through the appropriate channels and the party provided under the law and statutes for that purpose, since it is established that the union elections were carried out in the exercise of the trade union autonomy enjoyed by organizations of this type and in accordance with the right to freedom of association on a collective basis.” The Government indicates that the Crédito Hipotecario Nacional Bank disagreed with the outcome and appealed against the ruling handed down by the Directorate General of Labour which, in its ruling No. 4/20G7, rejected the appeal.
6. 555. The Government also indicates that: (1) given the rejection of this appeal, the general manager of the Crédito Hipotecario Nacional Bank of Guatemala appealed for constitutional protection (amparo) against the Ministry of Labour and Social Welfare, claiming that this authority had failed to respect the law by issuing a decision which protected the illegality of the elections held by the union, which was granted provisional constitutional protection; (2) it was concluded that the manager had requested constitutional protection without first exhausting the corresponding judicial procedure, and on that basis the protection requested by the Crédito Hipotecario Nacional Bank of Guatemala was refused and, as a consequence, the provisional constitutional protection was withdrawn; (3) the General Manager lodged an appeal stating that he had requested constitutional protection, not a court review of the decision, since, based on decision 4/2007 of the Ministry of Labour, the constitutional provisions had clearly been violated and the union elections had been illegal; and (4) it was determined that it is for the general assembly of the union’s members, not the employer, to contest union election results, and the Constitutional Court therefore upheld the contested ruling. The Government explains that despite the various means which the management has used in order to avoid recognizing the trade union officials, the latter retained their positions as officials and, in accordance with Guatemalan legislation, the rights of the union’s members were fully respected; there was thus no non-compliance with the Conventions on freedom of association and collective bargaining ratified by Guatemala.

C. The Committee’s conclusions

1. 556. As regards the alleged warrant for the arrest of Mr Jovial Acevedo, the Secretary-General of the STEG, the Committee notes that the Government reiterates the information previously provided, namely: (1) the Special Attorney for Crimes against Journalists and Trade Unionists has not received any complaint regarding such an incident, but has received one concerning the break in and theft carried out on the union headquarters; and (2) the Sixth Criminal Court of First Instance indicated that it was examining criminal case No. 13456-2006, in which Mr Jovial Acevedo had filed a complaint alleging, in his capacity of Secretary-General of the STEG and coordinator of the General Assembly of the Teaching Profession, that he had been coerced and threatened, but the case in question was set aside and archived, at the litigant’s own request, by an order dated 6 September 2007, there being no complaint regarding the abovementioned arrest warrant for his participation in the protests against the adoption of the Free Trade Agreement. Given that the Committee has been unsuccessfully requesting that the complainant organizations send additional information on the alleged warrant for Mr Jovial Acevedo’s arrest, and bearing in mind the Government’s observations, the Committee will not pursue its examination of this allegation.
2. 557. With regard to the refusal to grant trade union leave to the union official Héctor Alfredo Orellana Aroche, the Committee notes with interest that to date the issues with the employer concerned by the complaint have been resolved through the intervention of the Ministry of Labour and Social Welfare as a goodwill mediator, which persuaded the authorities of the Crédito Hipotecario Nacional Bank of Guatemala to comply with the requirement to grant trade union leave.
3. 558. With regard to the Crédito Hipotecario Nacional Bank’s refusal to recognize the trade union officials elected by the union's general assembly on 15 December 2006, the Committee notes the rulings handed down by the courts following the repeated appeals lodged by the employer. These rulings confirmed the legality of the contested elections of trade union officials.
4. 559. With regard to the remaining allegations, the Committee deeply deplores finding itself obliged, in view of the lack of response from the Government, to reiterate its previous recommendations on certain allegations and urges the Government to reply without delay:
   • – With respect to the dismissal of 18 employees from the municipality of Comitancillo (San Marcos), the Committee deplores the long delay that has occurred owing to the various procedures and appeals, and recalls that justice delayed is justice denied. It asks the Government to send the ruling handed down in this matter by the Fourth Court of Labour and Social Welfare, and to inform it whether the abovementioned workers have been reinstated following the decision of the Constitutional Court dated 14 November 2006.
   • – With regard to the alleged interference by the enterprise Portuaria Quetzal in the extraordinary general assembly of the Portuaria Quetzal Trade Union, during which trade union leaders were removed from their position in the absence of a quorum, the Committee requests the Government to keep it informed of any administrative or judicial decision taken on this issue, particularly with regard to the fact that the decisions of the trade union assembly were challenged by 113 of the 600 members.