Informe provisional - Informe núm. 336, Marzo 2005

1. 405. The Committee examined this case at its March 2003 meeting and submitted an interim report [see 330th Report, paras. 793-823, approved by the Governing Body at its 286th Session (March 2003)].
2. 406. The Government sent new observations in communications dated 29 August 2003, and 9 January, 29 April, 4 November and 2 December 2004.
3. 407. In addition, the complainant organization UNSITRAGUA sent new allegations in communications dated 16 October 2003, 14 November 2004 and 14 January 2005.
4. 408. 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. Previous examination of the case

1. 409. In its previous examination of the case in March 2003, the Committee made the following recommendations [see 330th Report, paras. 805-823]:
2. (a) Expressing its serious concern over the acts of violence against union members, the Committee urges the Government to take measures to order an urgent investigation into the allegations relating to assaults, death threats and intimidation against union members, as well as the attacks on union headquarters. It also requests the Government to refer these cases to the Special Attorney for Offences against Union Members and to keep it informed in this respect.
3. (b) The Committee requests the Government to take the necessary measures to remedy the breaches confirmed by the Labour Inspectorate in the General Property Registry (dismissal of union officer Mr. Gustavo Santisteban and acts of employer interference in union elections) and to keep it informed in this respect.
4. (c) The Committee requests the Government to inform it of the final ruling in the judicial process relating to the dismissals of 43 members of the union operating at Agrícola Industrial Santa Cecilia S.A.
5. (d) With regard to the allegations relating to ACRILASA (non-compliance with the collective agreement, dismissal of nine union members and the majority of members of the union’s executive board, non-compliance with judicial reinstatement orders and pressure on union leaders and members to resign from their posts or from the union) the Committee urges the Government to take the necessary measures to ensure that the legislation is respected in the company in question, including through sanctions appropriate to the seriousness of the offence committed, and to make amends for the anti-union acts confirmed. The Committee requests the Government to keep it informed in this respect, as well as in respect of the result of the judicial processes under way.
6. (e) With regard to the allegations relating to the El Tumbador Municipality (refusal to comply with the judicial order to reinstate workers who had been dismissed, pressure on union members to resign from their union and on union leaders to cease promoting the reinstatement of those dismissed), the Committee requests the Government to carry out an investigation into the allegations and to inform it of the results of the judicial processes under way.
7. (f) With regard to the allegations relating to Finca La Torre (employer’s refusal to comply with judicial orders to reinstate dismissed workers), observing that the Government refers to a different problem (suspension of individual contracts), the Committee requests the Government to take measures to ensure effective compliance with the judicial reinstatement orders.
8. (g) With regard to the allegation relating to the dismissal of union officer Mr. Fletcher Alburez from the Ministry of Public Health in April 2001 and the slowness of the proceedings due to delaying tactics, the Committee deplores the authorities’ delay and requests the Government to take measures to ensure that a ruling is given urgently on the dismissal in question.
9. (h) With regard to the allegations relating to Chevron-Texaco (unilateral imposition of a code of ethics without consultation adding new causes for dismissal, refusal to negotiate on the part of the company), the Committee notes that, according to the Government, the company stated that it was willing, if a complaint had been submitted, to comply with the workers’ requests. The Committee requests the Government to meet with the parties to find a solution to the problems mentioned and keep it informed in this respect.
10. (i) The Committee regrets that the Government has not responded to the allegations relating to the Supreme Electoral Tribunal (unilateral imposition of an organization manual dealing with matters related to employees’ functions, posts and salary grades and acts of discrimination in the application of the said manual, as well as the Tribunal’s refusal to meet with officers and negotiate a draft collective agreement). The Committee requests the Government to send its observations in this respect, and to meet with the parties to find a solution to the problems.
11. (j) The Committee observes in a general manner that, as far as can be gathered from this and other complaints, not only are judicial orders for the reinstatement of dismissed union members frequently not complied with, but also the number of judicial bodies that can successively deal with an anti-union dismissal (three or four) means that procedures frequently take years. The Committee requests the Government to revise the process of protecting union rights provided for in legislation in order to bring it into line with the principles given in the general conclusions to the present case.
12. (k) The Committee invites the Government to consider requesting the technical assistance of the Office in order to improve the implementation of Conventions Nos. 87 and 98.
13. B. New allegations
14. 410. In its communications dated 16 October 2003, 14 November 2004 and 14 January 2005, the Trade Union of Workers of Guatemala (UNSITRAGUA) alleges that:
15. – no information is available to date on whether the legal proceedings concerning trade union leader Gustavo Santiesteban had a favourable outcome;
16. – with regard to the Agrícola Santa Cecilia enterprise, the Labour Appeals Court revoked the order to reinstate the Agrícola Santa Cecilia employees issued by the first-level judicial authority, leaving these workers in a totally unprotected position;
17. – as regards the Industrias Acrílicas de Centroamérica enterprise, the employer’s organization appealed against the reinstatement orders. Further to this appeal, eight dismissals were resolved in favour of the employer, based on the argument that there was no need to give workers prior notification of their dismissal. The remaining dismissals concerning union leaders and other first-level members have not been resolved more than a year after the start of the judicial proceedings;
18. – with respect to the Municipality of El Tumbador, UNSITRAGUA states that after union leader Byron Clodomiro Gramajo had been dismissed, he took legal action to be reinstated, the reinstatement was approved but implementation thereof was then suspended. Prior to this, he applied to the Labour Tribunal of Malacatán for the part-payment of wages and benefits which had been unpaid because of the dismissal and this request was accepted. On 1 April 2004, Mr. Gramajo was actually reinstated in his post but despite this, when payday arrived, he did not receive his wages. Furthermore, the mayor refused to pay the wages and benefits which had been unpaid owing to the dismissal, whereupon the worker filed a suit for contempt of court before the competent authorities since the issue of wage payments was still not settled. In view of the situation, Mr. Gramajo asked the labour inspectorate to intervene but the latter, despite holding meetings with both parties, has so far been biased in its conduct. After this meeting with the labour inspectorate, the mayor dismissed another six union officials: Cesar Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and Cesar Adolfo Castillo Barrios;
19. – with regard to Finca La Torre, the refusal to implement the reinstatements ordered by the first-level labour tribunal of the department of Quetzaltenango reportedly resulted in the crushing of the workers’ resistance and the breaking up of the trade union;
20. – the situation of union leader Dick Fletcher Alburez, who is still dismissed and has not been reinstated in his post, has not yet been resolved; nor has he been paid the wages or benefits which were unpaid as a result of the dismissal;
21. – the Chevron-Texaco company closed and the union was broken up;
22. – the Supreme Electoral Tribunal has stepped up anti-union reprisals, dismissing workers and obstructing their right to collective bargaining.
23. C. The Government’s reply
24. 411. In its communications dated 29 August 2003, 9 January 2004, 29 April 2004, 4 November 2004 and 2 December 2004, the Government states that, with respect to the legal proceedings concerning union leader Gustavo Santiesteban, the latter was reinstated on 5 August 2001, the official reinstatement order being issued on 7 August 2001. The respondent appealed to the Office of the Attorney-General but the reinstatement was confirmed on 21 January 2002. On 10 April 2002, the Executive Minister reinstated Gustavo Santiesteban, who has been working since that date.
25. 412. As regards Agrícola Santa Cecilia, the Government states that the labour inspectors placed on record the declaration by a group of 43 workers that they had been dismissed indirectly. The competent authority therefore delivered an official letter to the employer via the office manager, who refused to take receipt of it and sign it, but this still constituted official notification of the employer by the inspectors. The employer alleges that the workers were dismissed as from 31 January 2001, and this is being examined by the judicial authority, but the workers argue that since 24 January 2001 they appeared at their workplace as usual but were not assigned any work, and so they have received neither wages nor benefits, though they continue to occupy their housing. The case is currently before a labour tribunal.
26. 413. With respect to Industrias Acrílicas de Centroamérica, the Government indicates that the case is before the Fourth Labour Tribunal and that in September 2000 the judge amended the proceedings on account of the fact that the union members were not seeking a social and economic conflict but the denunciation or violation of an existing collective agreement on working conditions. Consequently, the case was transferred to the First Chamber of the Labour Appeals Court.
27. 414. With regard to the Municipality of El Tumbador, the Government states that union leader Mr. Gramajo was the recipient of a judicial order for reinstatement and for the payment of outstanding wages but the municipality is opposing the said payment.
28. 415. With respect to Finca La Torre, the Government notes that there had been dismissals of unionized workers, bans on the entry of workers’ vehicles to the plantation, and reports had been received from workers to the effect that the enterprise had contracted other people to harvest and clean the coffee crop. With regard to this matter, the labour inspectors were denied entry by the employer.
29. 416. As regards the situation of union leader Dick Fletcher Alburez, the Government explains that ordinary proceedings began in the Third Labour Court in July 2002. On 17 October 2002, the first hearing was due to be held but the State submitted a conflict of jurisdiction, and so the first hearing was held on 21 April 2003, including a deposition by the complainant. A ruling on the case is pending.

D. The Committee’s conclusions

1. 417. The Committee observes that the allegations refer to the following matters: acts of violence and intimidation against trade unionists, dismissal of union leaders, employers’ refusal to comply with reinstatement orders, undue delay of current proceedings relating to dismissed workers, and other acts of interference by employers in the activities of unions established by workers.
2. 418. As regards the allegations concerning acts of violence and intimidation against trade unionists, the Committee recalls that the complainant organization has made the following allegations [see 330th Report, paras. 812-813, approved by the Governing Body at its 286th Session (March 2003)]:
   • – destruction of the headquarters of the union operating in the General Property Registry;
   • – death threats against Mr. Baudilio Reyes, officer of the union operating at Agrícola Industrial Santa Cecilia S.A.;
   • – death threats against the general secretary of the union operating in the El Tumbador Municipality;
   • – death threats against the general secretary and the head of finance of the union operating at ACRILASA, as well as against union officers Ms. Castillo and Ms. Alcántara and against union members; acts of intimidation against the general secretary; assaults on two members of the executive board and on union members; raiding with force of the union’s headquarters and sacking or burning of property and/or documents (the union has brought a criminal action in this matter);
   • – death threats against officers of the union operating at Finca La Torre;
   • – intimidation of union member Ms. Nora Luz Echeverría Nowel at the El Tumbador Municipality, in the form of blackmail with a criminal trial if she did not convince the union leaders to abandon the matter of reinstatement of persons dismissed;
   • – intimidatory surveillance of UNSITRAGUA headquarters and pursuit of union leader Mr. Carlos Enrique Cos by three individuals and death threats against officers of the organization (according to the Government, this point has been referred to the Attorney).
3. 419. In its previous examination of the case, the Committee urged the Government to take measures to order urgent investigations into these allegations, to refer these cases to the Office of the Special Prosecutor for offences against trade unionists, and to keep it informed in this respect. The Committee underlines the gravity of these allegations, deeply regrets that the Government has not sent its observations on these matters and therefore reiterates its conclusions from its previous examination of the case. The Committee once again urges the Government to refer these cases urgently to the Office of the Special Prosecutor for offences against trade unionists.
4. 420. As regards the dismissal of union official Gustavo Santiesteban, the Committee notes with interest that Mr. Santiesteban was actually reinstated upon decision of the judicial authority. Furthermore, in view of the lack of information from the Government, the Committee reiterates its previous request to the Government to take the necessary measures to remedy the violations observed by the labour inspectorate at the General Property Registry (acts of interference by the employer in union elections) and to keep it informed in this respect.
5. 421. As regards the dismissal of 43 members of the union at Agrícola Santa Cecilia, the Committee observes that UNSITRAGUA indicates that the first-level judicial authority issued a reinstatement order but that the second-level judicial authority handed down a ruling revoking it. The Committee requests the Government to send information in this respect and in particular the text of the second-level ruling.
6. 422. With respect to Industrias Acrílicas de Centroamérica (failure to comply with the collective agreement, dismissal of nine union members and of most members of the executive committee, failure to comply with judicial reinstatement orders and pressure on union officials and members to relinquish their posts or their membership), the Committee urged the Government to take the necessary measures to ensure that the law is observed in the company in question, including through sanctions which reflect the gravity of the offences committed, and to make amends for the anti-union acts confirmed. The Committee requested the Government to keep it informed in this respect and with regard to the outcome of the judicial proceedings under way. The Committee notes the statement by UNSITRAGUA that eight dismissals were resolved in favour of the enterprise and that the judicial authority has not ruled on the remaining dismissals of union members. The Committee notes that the Government does not refer to the dismissals but only to the violation of a collective agreement in force concerning working conditions, a matter which will be examined by the judicial authority. The Committee requests the Government to send without delay the text of any ruling issued on the dismissals of union members or on the violation of the collective agreement, as well as observations on the allegations of pressure on union officials and members to relinquish their posts or their membership.
7. 423. As regards the case of the Municipality of El Tumbador, the Committee observes that UNSITRAGUA initially alleged that pressure had been put on union members to relinquish their membership and on union officials to abandon procedures for the reinstatement of dismissed workers ordered by the judicial authority. The Government replied that the labour inspectorate did not have any record of complaints from trade unionists, that the union had brought the case directly before the judicial authority, which was in the process of examining it. The Committee previously requested the Government to carry out an investigation into the allegations and also to provide information on the judicial proceedings under way. In its new allegations, UNSITRAGUA indicates that, after the dismissal of union official Byron Clodomiro Gramajo on 15 February 2000, it lodged a request for his reinstatement with the judicial authority and this was approved. However, outstanding wages for the periods before and after his dismissal were not paid, in contempt of the orders of the judicial authority. UNSITRAGUA alleges that the mayor of the Municipality of El Tumbador dismissed six other union officials: Cesar Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and Cesar Adolfo Castillo Barrios. In this respect, the Government replies that Mr. Gramajo has already been reinstated but says nothing concerning the payment of wages or the subsequent dismissals of six union leaders. The Committee urges the Government to take measures to ensure that all wages owed to union leader Mr. Gramajo are paid without delay and to send comments on the dismissal of the six union leaders mentioned above.
8. 424. With respect to Finca La Torre (employer’s refusal to comply with judicial orders to reinstate workers), the Committee had requested the Government to take measures to ensure effective compliance with the judicial reinstatement orders. UNSITRAGUA alleges that the employer refused to carry out the reinstatements and that the breaking up of the union ensued. The Government refers to dismissals of union leaders. The Committee expresses its concern at this situation and urges the Government to take the necessary measures to ensure that the judicial orders for the reinstatement of workers are implemented without delay.
9. 425. As regards the allegation concerning the dismissal of union leader Mr. Fletcher Alburez by the Ministry of Public Health in April 2001, and the slowness of the proceedings due to delaying tactics, the Committee deplored the authorities’ delay and requested the Government to take steps to ensure that a ruling was issued urgently on the dismissal in question. UNSITRAGUA alleges that Mr. Fletcher’s situation has not been resolved and that he has still not been reinstated. The Government states that proceedings concerning him are still under way and a ruling is pending. The Committee underlines the extended duration of the proceedings relating to the dismissal of this union leader and urges the Government to communicate any ruling which is issued.
10. 426. With regard to Chevron-Texaco (unilateral imposition of a code of ethics without consultation adding new causes for dismissal, refusal to negotiate on the part of the company), the Committee requests the Government and the complainant organization to send information on whether the parties reached an agreement before the closure of the company and on the current situation of the workers.
11. 427. As regards the Supreme Electoral Tribunal (unilateral imposition of an organization manual dealing with matters related to employees’ duties, posts and salary grades and acts of anti-union discrimination in the application of the said manual, as well as the Tribunal’s refusal to meet union leaders and negotiate a draft collective agreement), the Committee previously requested the Government to send its observations in this respect, and to meet the parties in order to find a solution to the problems. In its new allegations UNSITRAGUA reiterates that the Supreme Tribunal is continuing to apply the said manual unilaterally and obstruct collective bargaining. Given that the Government has not sent any observations in this respect, the Committee once again requests the Government to send without delay its observations on this case and meet the parties in order to find a solution to the problems, including those referred to by UNSITRAGUA in the new allegations (anti-union dismissal of workers and denying them the right to collective bargaining).
12. 428. The Committee observes in general that, as far as can be gathered from this and other complaints, not only are judicial orders for the reinstatement of dismissed trade unionists frequently not complied with, but also the number of judicial bodies that can deal in succession with an anti-union dismissal (three or four) means that procedures frequently take years. The Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 749]. The Committee urges the Government to revise the procedure for the protection of union rights provided for in law in order to bring it into line with the principles set forth in the general conclusions to the present case.
13. 429. The Committee has been informed that a direct contacts mission took place in Guatemala at the request of the Conference Committee on the Application of Standards in relation to the application of Conventions Nos. 87 and 98. The Committee trusts that the Government will implement the conclusions of the mission and that significant progress will be observed in the near future.