Informe provisional - Informe núm. 359, Marzo 2011

1. 506. The Committee examined the substance of this case on five occasions [see 330th, 336th, 342nd, 348th and 351st Reports], the last of which was at its November 2008 meeting when it submitted an interim report to the Governing Body [see 351st Report,
   • paras 849–860, approved by the Governing Body at its 303rd Session].
2. 507. The Guatemalan Trade Union, Indigenous and Campesino Movement (MSICG) sent information regarding the issues arising in the present case in a communication dated 14 June 2010.
3. 508. The Government sent its observations in communications dated 25 May, 14 June, 6 and 20 September and 29 December 2010.
4. 509. 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. 510. At its November 2008 meeting, the Committee made the following interim recommendations relating to the allegations presented by the complainant organizations [see 351st Report, para. 860]:
   • (a) The Committee once again urges the Government to take the necessary steps to send without delay full and detailed information regarding all the pending recommendations and to implement the objective to which the Government has referred of setting up a tripartite commission to undertake the independent investigations suggested.
   • (b) With regard to the allegations concerning assaults, death threats and acts of intimidation against trade unionists, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent full observations, and strongly requests the Government to refer these cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard. The Committee invites the Government to enter into contact with UNSITRAGUA with a view to providing a detailed reply regarding the case relating to the alleged raid, in 2002, on the headquarters of the trade union at the company ACRILASA and burning of documents.
   • (c) With regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the Labour Inspectorate, the Committee once again requests the Government to take the necessary measures without delay to sanction the entity responsible, to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.
   • (d) With regard to the allegations concerning the dismissal of trade unionists at the company ACRILASA and the violation of the collective agreement, the Committee once again urges the Government to send without delay any judicial decisions that are handed down on the dismissal of trade unionists, including the members of the executive committee, and on the violation of the collective agreement, as well as its observations on the allegations of pressure on union leaders and members to resign from their jobs or from the union.
   • (e) With regard to the allegations relating to the Municipality of El Tumbador concerning the reinstatement proceedings ordered by the judicial authority, the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios, and the request for measures to be taken to ensure that all wages owed to union leader Mr Gramajo are paid without delay, the Committee requests the Government to send information without delay on the proceedings still pending and to take the necessary measures to ensure that all wages owed to Mr Gramajo are paid without delay.
   • (f) With regard to the allegation concerning the dismissal of union leader Mr Fletcher Alburez by the Ministry of Health in April 2001, the Committee urges the complainant organization to indicate whether Mr Alburez actually initiated ordinary reinstatement proceedings.
   • (g) With regard to the alleged unilateral imposition by the Supreme Electoral Tribunal of an organization manual (dealing with matters related to employees’ duties, posts and salary levels) and acts of anti-union discrimination in the application of the said manual, the Committee requests the Government to keep it informed without delay of the results of the Conciliation Tribunal which has been recently set up to deal with these issues. As for the alleged refusal of the Tribunal to meet the union leaders in order to negotiate a collective agreement, the Committee one again requests the Government as a matter of urgency to meet the parties in order to find a solution to the problems that have arisen and to send its observations on the matter.

B. Additional information from the complainant organizations

1. 511. As to the alleged refusal of the Tribunal to meet the union leaders in order to negotiate a collective agreement, the MSICG states in its communication dated 14 June 2010 that, on 3 July 2001, the Trade Union of the Supreme Electoral Tribunal (STTSE) requested the General Labour Inspectorate to transfer the draft collective agreement on working conditions to the Higher Electoral Court so that it could be negotiated directly, in accordance with the procedure established under Guatemalan law. In the light of the refusal by the Higher Electoral Court to negotiate directly, the trade union approached the Labour Inspectorate on 22 August 2002.
2. 512. On 30 October 2002, the trade union lodged a complaint regarding the refusal of the Higher Electoral Court to negotiate the draft collective agreement on working conditions presented by the trade union. The MSICG states that during the processing of the complaint, the State of Guatemala lodged two special procedural conditions as a point of law and brought legal proceedings to have documents declared null and void with the sole aim of delaying the process. All of these proceedings were declared groundless and an appeal was lodged with the constitutional courts through an amparo (enforcement of constitutional rights) appeal, involving two more instances in each of these delaying actions initiated by the State.
3. 513. Finally, the Conciliation Tribunal issued recommendations dated 13 April 2009 which were accepted by the trade union and rejected by the Higher Electoral Court. On 20 April 2009, the trade union requested the Conciliation Tribunal to rule on the legality of the strike, with the Conciliation Tribunal having to carry out the respective count in order to do so. On 17 June 2009, the Conciliation Tribunal ordered that the count be carried out, commissioning the General Labour Inspectorate in the capital city and sending communiqués to the judges in the various offices of the Supreme Electoral Tribunal.
4. 514. The MSICG states that to date, the count has not been carried out owing to the inefficiency of the various tribunals commissioned to complete the task. As a result the ruling on the legality of the strike has been delayed for over a year now since the count was carried out and almost eight years since the State of Guatemala, through the Supreme Electoral Tribunal, avoided a collective bargaining process with the trade union.
5. 515. The MSICG highlights that the practical effect of the actions of the tribunals and officials has been to deny the worker members of STTSE their right to collective bargaining and to strike, following lengthy legal procedures in this regard lasting years.

C. The Government’s reply

1. 516. As to the dismissal of union leader Mr Fletcher Alburez by the Ministry of Health in April 2001 (recommendation (f)), the Government states in its communication dated 25 May 2010, that it requested information from the Third Labour and Social Welfare Court of the Department of Guatemala and that said court transmitted a copy of Ruling No. 294/2002 reinstating Mr Fletcher Alburez in his post with payment in damages of the unpaid wages.
2. 517. As for the alleged refusal of the Tribunal to meet the union leaders in order to negotiate a collective agreement (recommendation (g)), the Government enumerates in its communication dated 29 December 2010, the reasons for the delay in the recount of the number of workers in favour of the strike: (a) the procedure started on 5 November 2002; (b) a resolution was promulgated on 16 June 2009 ordering the count of the number of workers at the national level; (c) notifications have been delivered on time to the departments concerned and noting that notifications had not been processed, the court decided to grant a period of ten days for the applicants to indicate the exact addresses where notifications could be sent to workers of the Supreme Electoral Tribunal; (d) on 26 August, the court decided, as a result of the return of several notifications due to the vacations period, that for a better administration of justice, judges should be commissioned; and (e) on 3 September, the Supreme Electoral Tribunal was also ordered to provide addresses corresponding to the Procedure No. 2768-2002 to ensure that all notifications had been delivered and, to date, none have been returned and the requested information is still awaited. Furthermore, in a communication dates 20 September 2010, the Government recognizes the delay in the recount that has been requested.
3. 518. In addition, the Government provided a copy of the declaration of the partial unconstitutionality of the organization manual unilaterally imposed by the Supreme Electoral Tribunal (Rules of the Labour Relations of the Supreme Electoral Tribunal).
4. 519. With regard to the allegations concerning the dismissal of trade unionists at the company Industrias Acrílicas de Centroamérica SA (ACRILASA) and the violation of the collective agreement (recommendation (d)), the Government states in its communication dated 6 September 2010 that the Trade Union of Workers of the Enterprise Industrias Acrílicas de Centroamérica brought a collective socio-economic dispute which was examined in the first instance by the Sixth Labour and Social Security Court which ruled on 5 September 2000 that: (i) the collective dispute had been brought; (ii) both parties were prohibited from taking reprisals against each other; and (iii) it was prohibited to terminate labour contracts without the permission of the labour judge who would ultimately hear the case regarding the dispute.
5. 520. The Government adds that, in the interests of the above, the Higher Court of Justice referred the case to the Fourth Labour and Social Prevention Court to be heard. On examining the facts in the main proceedings, the judge noted that there existed a collective agreement on working conditions which was in force and which had the force of law for both parties to the dispute, and he held that the action filed by the Trade Union of Workers of the Enterprise Industrias Acrílicas de Centroamérica did not involve a collective socio-economic dispute, but rather violations of labour standards contained in the collective agreement in force. For this reason and based on the power granted to him by the law, the judge amended the proceedings (ruling dated 11 September 2000), revoking the ruling of the Court of the First Instance.
6. 521. The Government states that it was for that reason that the reinstatements requested by the workers who had been dismissed became inadmissible, with the Higher Court of Justice consequently granting the amparos requested by the Enterprise Industrias Acrílicas de Centroamérica (amparos Nos 532/2001, 533/2001 and 534/2001) given that the workers enjoy the right to reinstatement only when the employer has been summoned regarding a collective socio-economic dispute.

D. The Committee’s conclusions

1. 522. The Committee once again regrets that the Government’s reply was incomplete despite the fact that the allegations refer to events which took place several years ago and include acts of violence against trade unionists, as well as acts of anti-union discrimination and interference. The Committee regrets the lack of cooperation on the part of the Government and the fact that it disregarded the Committee’s previous recommendation, and is therefore urging the Government to implement the objective to which it has referred of setting up a tripartite commission to undertake the independent investigations suggested by the Committee on Freedom of Association.
2. 523. As to the dismissal of the trade union leader Mr Fletcher Alburez by the Ministry of Health in April 2001, the Committee notes with interest that the Third Labour and Social Welfare Court of the Department of Guatemala issued Ruling No. 294/2002 reinstating Mr Fletcher Alburez in his post with payment in damages of the unpaid wages. The Committee asks the Government to confirm that the trade union leader concerned has been reinstated in application of the above ruling.
3. 524. As to the alleged refusal of the Supreme Electoral Tribunal to meet the union leaders in order to negotiate a collective agreement, the Committee notes that in its new allegations the MSICG recalls that this refusal took place in 2001 and was followed by delaying tactics, such as the rejection by the employer in 2009 of the recommendations of the Conciliation Tribunal. Furthermore, the MSICG states that when it attempted to declare a strike (2009) it was impossible to carry out a count of strikers because of the inefficiency of the authorities who were supposed to complete that task. Furthermore, the Committee notes the reasons given by the Government to recount the number of workers in favour of the strike and that it recognises a delay in this regard. The Committee notes that for several years now the parties have failed to conclude a collective agreement and that when the trade union attempted to declare a strike within the framework of the law, on various occasions the authorities failed to carry out a count of the workers in favour of strike action. The Committee highlights that “The conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations”, and that “The legal procedures for declaring a strike should not be so complicated as to make it practically impossible to declare a legal strike” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition (revised),
   • paras 547–548]. The Committee regrets the time that has passed and the obstacles and delays to the collective bargaining process and requests the Government to promote collective bargaining between the Supreme Electoral Tribunal and the Guatemalan Workers’ Trade Union (UNSITRAGUA).
4. 525. With regard to the alleged unilateral imposition by the Supreme Electoral Tribunal of an organization manual (dealing with matters related to employees’ duties, posts and salary levels) and acts of anti-union discrimination in the application of the said manual, the Committee takes note of the partial declaration of unconstitutionality of the organization manual and highlights that the matters of common interest to the employer and the workers should be the subject of in-depth consultation with the trade union concerned. The Committee invites the complainants to provide information as to whether all issues relating to the allegations have been resolved.
5. 526. With regard to the allegations concerning the dismissal of trade unionists at the company ACRILASA, the Committee notes that the Government states that: (i) the members of the Trade Union of Workers of the Enterprise Industrias Acrílicas de Centroamérica brought a collective socio-economic dispute which was examined in the first instance by the Sixth Labour and Social Security Court; (ii) the Higher Court of Justice referred the case to the Fourth Labour and Social Prevention Court; (iii) on examining the facts in the main proceedings, the judge noted that there existed a collective agreement on working conditions which was in force and which had the force of law for both parties to the dispute, and he held that the action filed by the Trade Union of Workers of the Enterprise Industrias Acrílicas de Centroamérica did not involve a collective socio-economic dispute; (iv) the judge amended the proceedings, revoking the ruling of the Court of the First Instance (provisionally); (v) it was for that reason that the reinstatements requested by the workers who had been dismissed became inadmissible, with the Higher Court of Justice consequently granting the amparos requested by the company. The Committee notes furthermore that the Government failed to provide information on the alleged pressure exerted by the company on union leaders and members to resign from their jobs or from the union and draws the Government’s attention to the fact that these practices constitute a grave violation of Convention No. 98.
6. 527. As to the remaining allegations, in the absence of the Government’s observations, the Committee yet again reiterates its previous recommendations which are reproduced below and urges the Government to send the information or take the actions requested:
   • – as regards the allegations concerning acts of violence and intimidation against trade unionists, as well as attacks on union headquarters (UNSITRAGUA alleged 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 SA; 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 and 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; 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; intimidatory surveillance of UNSITRAGUA headquarters and pursuit of union leader Mr Carlos Enrique Cos), the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent full observations, and strongly requests the Government to refer these cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard. The Committee once again invites the Government to enter into contact with UNSITRAGUA with a view to providing a detailed reply regarding the case relating to the alleged raid, in 2002, on the headquarters of the trade union at the company and burning of documents;
   • – with regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the Labour Inspectorate, the Committee once again requests the Government to take the necessary measures without delay to sanction the entity responsible, to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard;
   • – with regard to the allegations relating to the Municipality of El Tumbador concerning the reinstatement proceedings ordered by the judicial authority, the dismissal of union officials César Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and César Adolfo Castillo Barrios, and the request for measures to ensure that all wages owed to union leader Mr Gramajo are paid without delay, the Committee requests the Government to send information without delay on the proceedings still pending and to take the necessary measures to ensure that all wages owed to Mr Gramajo are paid without delay.