Informe provisional - Informe núm. 270, Marzo 1990

1. 268. In a communication of 13 January 1989 the Private Employees' (empleados particulares) Trade Union of the Republic of Guatemala (SEP) presented a complaint alleging the violation of trade union rights in that country. The Government sent its comments and observations on this complaint in a communication of 13 November 1989.
2. 269. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No 98).

A. The complainant's allegations

1. 270. The complainant organisation states that its complaint has been endorsed by the Bank and Insurance Employees' Trade Union Federation (FSEBS) and by the Guatemalan Workers' Trade Union (UNISITRAGUA), to which it is affiliated. In the present case it alleges measures of reprisal by an employer against the trade union. It explains that the employer in question has sought to destroy the trade union by means of repression, atomisation (atomisación) and the replacement of workers by others who are either apathetic or hostile towards the union.
2. 271. According to the complainant organisation, Guatemala has thus violated Articles 1, 2 and 10 of Convention No. 87, as well as Articles 1, 2 and 3 of Convention No. 98, and Articles 1, 2 and 3 of Convention No. 111.
3. 272. In presenting the background to the situation, the complainant explains that it had originally been set up in 1944 as a mutual benefit society - the Private Employees' General Association - and subsequently transformed into a trade union registered with the General Labour Directorate on 20 November 1947.
4. 273. The complainant states that at the time of this transformation, its rules were amended to include a provision enabling it to organise all workers in the private sector. Thanks to this feature of its rules, the trade union was authorised to engage in collective bargaining as regards conditions of work in all enterprises in which it managed to recruit the minimum percentage of workers stipulated by law. In so doing the trade union had established ongoing relations with Lloyd's Bank International and the Banque d'Occident since 1951 and 1952, respectively. Unfortunately, the State proved incapable of guaranteeing the right to life and trade union rights in the country since the foreign intervention of 1954, which put an end to the only process of democratisation recognised by the workers of Guatemala. As from that date, the trade union movement has been severely repressed.
5. 274. The complainant did not escape this fate, and had experienced a gradual weakening to such an extent that in 1986 the employees of Lloyd's Bank International opted for an enterprise trade union in order to avoid a repression similar to that which had been directed against the employees of the Banque d'Occident.
6. 275. According to the complainant, workers in the banking sector had been subjected to an unspeakable repression during the years 1978-84. The Banque d'Occident had undertaken to eliminate all trade union organisation within the enterprise by means of overt and covert repression and atomisation. Overt repression took the form of (a) threats against trade union leaders; (b) the hiring of workers on condition that they not join the trade union; (c) the defamation of trade union leaders and of the trade union itself; (d) the promotion of workers on condition that they relinquish membership of the trade union; (e) favouritism in the matter of examinations towards workers who were not members of the trade union; (f) pressures against longstanding employees, especially those belonging to the trade union, in an effort to persuade them to relinquish membership in the trade union or to leave the bank; and (g) in view of this policy's failure in the past three years, dismissals with indemnities for length of service in excess of those provided for in the collective agreement, in order to secure the departure of workers belonging to the union.
7. 276. Since 1980 covert repression entailed a sophisticated process in the selection of staff which consisted of excluding graduates of the University of San Carlos of Guatemala, the only autonomous university in the country of international prestige and repute, and the graduates of state upper schools, in particular those from the cities of Guatemala and Quetzaltenango, where the employees of the Banque d'Occident had demonstrated over the years their capacity to participate in trade union activities. Consequently, the workers hired in recent years exhibited the following characteristics: (a) some had demonstrated an openly hostile attitude towards the unions; (b) others had studied in private schools and universities throughout the country; (c) others were related to managers of private enterprises; and (d) any of the few graduates of the University of San Carlos who managed to find work with the bank had to meet criteria (a) and (c).
8. 277. Lastly, the above-mentioned atomisation consisted of entrusting several of the bank's services to legally constituted micro-enterprises which operated on bank premises and under the direction of bank managers, but whose staff were employed by persons outside the bank.
9. 278. In conclusion, the complainant explains that the employer's discriminatory policy was responsible for reducing the number of workers in the enterprise who belonged to the trade union from 300 to 55. According to the complainant, measures taken by the employer during 1986-87 led to a 50 per cent reduction in the number of workers belonging to the trade union, thus weakening the trade union to such an extent that it is experiencing the greatest difficulties, owing to the small number of its members, in negotiating a new collective agreement.

B. The Government's reply

1. 279. As regards the historical background of the complaint, the Government replies that it cannot be blamed for these developments. It adds that the reasoning according to which the trade union no longer represents the workers of the Banque d'Occident as a result of trade union repression, is inaccurate. According to the Government, this development is due to the creation of the Bank and Insurance Employees' Trade Union Federation (FSEBS), which brings together the trade unions of almost all banks in the country.
2. 280. Concerning the allegations according to which the employer has sought to destroy the trade union by means of repression, atomisation and the replacement of workers by others who are hostile to the trade union, the Government notes that the complaint has not been made against the Government of the Republic of Guatemala, but against an enterprise (the Banque d'Occident). Consequently, the complaint should be examined by national authorities and not by the ILO. It adds that the Ministry of Labour and Social Welfare has not, over the course of this year, received any complaint from the Private Employees' Trade Union of the Republic of Guatemala against the Banque d'Occident alleging violation of the Constitution, the Labour Code, or the collective agreement regarding conditions of work signed by the parties.
3. 281. Concerning the substance of the case, the Government recognises that in accordance with article 19 of the ILO Constitution, member States shall take such action as may be necessary to make effective the provisions of ratified Conventions. However, in the present case, the General Inspectorate of Labour was not informed of any violation of Conventions Nos. 87, 98 or 111 by the Banque d'Occident or, during the period of negotiation, of the collective agreement regarding conditions of work between the parties referred to by the trade union. Nevertheless, owing to the unique nature of this case, in the sense that the complaint was received through international channels, and not through internal channels, the Ministry of Labour and Social Welfare instructed the General Inspectorate of Labour to investigate the complaints submitted by the Private Employees' Trade Union.
4. 282. In conclusion, the Government of the Republic of Guatemala does not consider itself party to the complaint filed by the Private Employees' Trade Union, inasmuch as the complaint was filed against a private enterprise. Although the Private Employees' Trade Union has not pursued action on the basis of labour legislation in force in the country, the Ministry of Labour and Social Welfare has instructed the General Inspectorate of Labour to investigate the allegations and take the corresponding legal steps.

C. The Committee's conclusions

1. 283. The Committee notes that in response to the allegations of anti-trade union practices by a private employer, the Government states that the complainant trade union has not filed any complaints before the national authorities. In this connection, the Committee recalls that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not necessarily subject to recourse being had to national procedures (Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, paras. 31 and 33).
2. 284. The present case concerns allegations of anti-trade union activity by a private employer, and the Government concludes that a complaint against it is not receivable. The usual practice of the Committee in such cases has been not to make any distinction between allegations levelled against governments and those levelled against persons, legal or natural, accused of infringing freedom of association, but to consider in each particular case whether a government has taken adequate measures to permit the free exercise of trade union rights within its territory (Digest of decisions, op. cit., para. 25).
3. 285. The Committee notes that the Government has ordered a labour inspection inquiry but has not replied in detail to the allegations made by the complainant according to which the employer sought to compel workers of the Banque d'Occident to resign from the trade union by various means of overt and covert pressure: dismissals, transfers, refusals to hire, and by what the complainant refers to as atomisation. The Committee accordingly requests the Government to supply its observations on these allegations and to send the results of the labour inspection investigation.