Informe provisional - Informe núm. 337, Junio 2005

894. The Committee examined this case at its June 2004 meeting and presented an interim report to the Governing Body [see 334th Report, paragraphs 508-526, approved by the Governing Body at its 290th Session (June 2004)]. The WCL sent additional information in a communication dated 17 September 2004. UNSITRAGUA sent additional information in communications dated 27 May, 26 July and 11 August 2004.

1. 895. The Government sent further observations in communications dated 29 April, 4 November and 2 December 2004 and 19 January, 16 March and 25 April 2005.
2. 896. 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. 897. At its June 2004 meeting, the Committee made the following recommendations [see 334th Report, paragraph 526]:
2. (a) Regarding the alleged anti-union dismissal of the secretary-general of the Union of Workers of the Municipality of San Juan Chamelco, Alta Verapaz, Mr. Edwin Roderico Botzoc Molina, on 19 August 2002, the Committee calls on the Government to take all the steps within its power to ensure that the union official is reinstated in his post, with payment of the wages due to him. The Committee further calls on the Government to keep it informed of the outcome of the judicial proceedings that have been initiated in this connection.
3. (b) Regarding the anti-union dismissal of Mr. Macedonio Pérez Julián by La Comercial S.A. and the initiation of criminal proceedings against him by the enterprise, the Committee requests the Government to send its observations without delay on the criminal proceedings under way, indicating whether the worker concerned is still under arrest or has been released, and on the judicial proceedings initiated by the worker with respect to his dismissal.
4. (c) Regarding the alleged anti-union harassment of Ms. Rocío Lily Fuentes Velásquez by La Comercial S.A. and her transfer to a lower level post, the Committee, while taking note of the information provided by the Government, calls on the Government to take steps for a full and independent inquiry to be made into these allegations and, if they are confirmed, to take steps to ensure that the anti-union acts cease immediately and that those responsible are duly punished.
5. (d) Regarding the alleged arrest – since June 2003 – and trial in violation of due process and restricting the regime concerning visits (on charges of fraud and possession of stolen goods) of Mr. Rigoberto Dueñas Morales, the deputy secretary-general of the General Central of Workers of Guatemala (CGTG) and deputy representative of the Guatemalan Union of Workers (UGT) on the Board of Directors of the Guatemala Social Security Institute (IGSS), after this worker denounced abuse of privilege, influence peddling, corruption and absence of accountability within the Institute, the Committee, observing that the complainant organizations state that a person charged with the offences of which Mr. Rigoberto Dueñas Morales is accused can be released from prison on oath or on bail and above all that, as the Government confirms, the Office of the Attorney-General requested that the charges against the union official concerned be provisionally dropped, considers that steps should be taken to have him released and calls on the Government to take such action immediately. The Committee further expresses the firm expectation that due process will be observed in the continuing trial of Mr. Dueñas and calls on the Government to keep it informed of the final outcome.
6. (e) The Committee regrets that the Government has not sent its observations on the following allegations: (a) the anti-union dismissal of Mr. Edgar Alfredo Arriola Pérez and Mr. Manuel de Jesús Dionicio Salazar on 23 October 2002 after they applied to join the Union of Workers of the Higher Electoral Tribunal on 17 October of the same year; (b) the refusal of La Comercial S.A., Distribuidora de Productos Alimenticios Diana S.A. and other enterprises belonging to the same economic unit to recognize and enter into collective bargaining with the works’ union unless it gives up its affiliation to UNSITRAGUA; (c) the harassment by La Comercial S.A. of members of the Union of Workers of La Comercial S.A., Distribuidora de Productos Alimenticios Diana S.A. and other enterprises belonging to the same economic unit because of the union’s opposition to the illegal deductions from the workers’ wages made by the enterprise. Specifically, it is alleged that the enterprise exerts pressure on workers belonging to the union (threatening them with dismissal, refusing to supply them with goods for sale or to allow them to engage in the sale of goods, etc.), that Mr. Manuel Rodolfo Mendizábal has been harassed by people in unmarked vehicles to discourage him from playing an active part in the union and that other union members have been the victims of a series of thefts and aggressions. Finally, the enterprise is alleged to have refused to deduct union dues from workers’ wages; (d) the anti-union harassment of the members of the Union of Workers of Rafael Landivar University by the university authorities after the union submitted a draft collective agreement on working conditions (according to the complainants, the members of the union were aggressed verbally and physically and its secretary-general, Mr. Timoteo Hernández Chávez, was attacked by armed men on his way home); and (e) the dismissal of 50 members of the Union of Workers of the Asociación Movimiento Fe y Alegría in the work centres located in the department of Guatemala on 31 October 2001 in reprisal against the trade union for the activities carried out in order to obtain equality of remuneration between the permanent and contract workers. The Committee calls on the Government to send its observations on these allegations without delay.
7. B. Further allegations and additional information from the complainant organizations
8. 898. In a communication dated 17 September 2004, the WCL states that Mr. Rigoberto Dueñas, deputy secretary-general of the CGTG was freed and all the charges against him dismissed.
9. 899. In a communication dated 27 May 2004, UNSITRAGUA alleges that the Asociación Movimiento Fe y Alegría initiated a legal procedure requesting authorization for the termination of the employment contract of Mr. Juan Miguel Angel González, a member of the Union of Workers of the Asociación Movimiento Fe y Alegría, with the aim of suppressing his trade union activities and weakening the trade union. The complainant organization states that the judicial authority authorized the dismissal and that that ruling may be appealed against through an amparo (enforcement of constitutional rights) appeal.
10. 900. In its communication dated 27 May 2004, UNSITRAGUA refers to events that were examined by the Committee in its 334th Report.
11. 901. In its communication dated 11 August 2004, UNSITRAGUA alleges that on 14 June 2004 the worker Marco Antonio Estrada López, a member of the Union of Workers of La Comercial S.A., was dismissed despite the fact that the enterprise was subject to the rules of prior notification within a collective dispute of an economic and social nature. UNSITRAGUA adds that the judicial authority ordered the worker to be reinstated in August 2004, but that the enterprise refused to comply.
12. C. The Government’s reply
13. 902. In its communications dated 29 April, 4 November, 2 December 2004 and 19 January, 16 March and 25 April 2005, the Government states the following:
14. – The case of Edwin Roderico Botzoc Molina. Through Decision No. 32-2003-Of. 2º-November 2º, of 9 January 2004 issued by the First Chamber of the Court of Appeals for Labour and Social Security, the individual in question was reinstated in his post, as recorded in Ruling No. 003-2004 of 16 January 2004 of the Book of General Rulings (Libro de Actas Generales) currently kept by the Ministry of Labour and Social Security.
15. – The case of Macedonio Pérez Julián. The Lower Criminal Court for Drug-related and Environmental Offences issued an indictment for the offences of embezzlement, possession of stolen goods and concealment against the worker in question on 1 August 2002. Likewise, bail was set at 25,000 quetzales. On 12 August 2002, the enterprise known as La Comercial S.A. put itself forward as an adhering complainant. On 6 November 2002, the Office of the Attorney General requested that the case be provisionally dropped in favour of Macedonio Pérez Julián and, on 19 November 2002, the case was provisionally dropped in his favour. Likewise the enterprise La Comercial S.A. abandoned its stance as an adhering complainant.
16. – The case of Rocío Lily Fuentes Velásquez. The Government requested that this case be closed in light of the fact that the enterprise La Comercial S.A. has stated that the complainant is no longer a member of the trade union and no longer has an employment relationship with the enterprise. The Government states that the enterprise and the trade union stated that Mrs. Fuentes Velásquez left both the trade union and the enterprise, having been paid all of her benefits and is currently in the United States.
17. – The case of the Asociación Movimiento Fe y Alegría. The Government requests that the case of Mr. Miguel Angel González Rodríguez be closed because the request to terminate his contract was granted by the judicial authority and no amparo (enforcement of constitutional rights) appeal was lodged against the ruling. As to the 50 workers who were dismissed, only eight requested to be reinstated before the law courts. With regard to six of those eight workers, the Fourth Court of Labour and Social Security ordered that they be reinstated. Only three have taken up their posts again. On 9 December 2003, the defendant lodged an appeal against the ruling issued by the abovementioned Fourth Court. On 17 December 2003 the appeal was accepted, the parties were notified and the case was sent before the First Chamber of the Court of Appeal to be ruled on.
18. – The case of the enterprise La Comercial S.A. The Government states that the enterprise states the following: (1) as to the alleged illegal deductions from the workers’ wages made by the enterprise, in certain cases wherein workers do not hand over the money they have made from the sale of the enterprise’s goods but instead keep it, the enterprise makes monthly deductions from those wages with the authorization of the worker by way of reimbursement and with the intention that the worker should continue with his/her labour activities; (2) as to the allegations that unionized workers are not supplied with sufficient goods to sell, or allowed out of the enterprise to engage in the sale of goods, the question arises as to how an enterprise dedicated to selling goods could survive if it prevented its sales staff from making sales; (3) with regard to the case of Mr. Rodolfo Mendizábal Guevara, the said worker worked for about a year at the enterprise and he did not meet his sales targets. A few months ago he resigned from the enterprise and was paid the benefits to which he was legally entitled, as well as compensation for length of service. Furthermore, the enterprise denies that the worker in question was harassed by people in unmarked vehicles; (4) as to the accusation regarding an increase in the number of assaults, the enterprise finds it strange that sales staff, when the time comes to pay in the money made through sales, do not do so, arguing that they have been assaulted. The enterprise adds that when an offence has been committed, it must be reported immediately to the National Police, or the Office of the Attorney General.
19. – The case of Rigoberto Dueñas. Following a trial which took place before the Eleventh Court on 19 August 2004, Mr. Rigoberto Dueñas, former worker representative on the Board of Directors of the Guatemala Social Security Institute (IGSS), was absolved of the offences of fraud and possession of stolen goods and was freed immediately after the ruling was read out. Since 26 August 2004, Mr. Rigoberto Dueñas, who is a member of the workers’ section of the Tripartite Committee on International Labour Affairs, has participated in the meetings that take place every week on Thursday.
20. – The case of the Higher Electoral Tribunal. Dismissal of the workers Edgar Alfredo Arriola Pérez and Manuel de Jesús Dionicio Salazar. The two abovementioned individuals were dismissed by the Tribunal, for duly justified causes, in light of the disciplinary faults they committed whilst carrying out their respective functions as drivers working for the judicial system, in accordance with article 21 of the collective agreement on working conditions concluded between the Higher Electoral Tribunal and its workers. The dismissals in question are in line with the exercise of the right to impose sanctions contained in article 125, item (ñ), of the Electoral and Political Parties Law and article 48, item (d), of the abovementioned collective agreement and consequently neither do they constitute, nor can they be held to be retaliatory acts, or acts against freedom of association and collective bargaining, rights which this Tribunal recognizes and respects unconditionally.
21. – The Rafael Landivar University case. The Government refers to the ongoing legal case concerning the presentation of a list of grievances and does not send information regarding the allegations that were pending. With regard to the anti-union harassment of the members of the Union of Workers of Rafael Landivar University by the university authorities after the union submitted a draft collective agreement on working conditions, the Government indicates that the university categorically denies the denunciations, that the union is a minority one, without any representativeness to allow it to bargain collectively, reason for which the university refused to negotiate with it. Despite this, the trade union continued to raise collective disputes and had recourse to justice on various occasions. In all cases their claims were rejected. As for the violent acts in particular, the university indicates that it denounced the contract with the Wackenhut de Guatemala S.A. company in 2004 and that the university is not responsible for the acts committed by employees of the service providing companies outside the university campus and that the harassed workers can have recourse to the judicial authority to denounce these acts. The university also indicates that it did not request in any way the employees of the Litza S.A. company (which had a contract for the provision of services in the university), to insult the workers who were members of the trade union.

D. The Committee’s conclusions

1. 903. The Committee recalls that in this case there were allegations of acts of anti-union discrimination (mainly dismissals), as well as physical and verbal aggression and the arrest of trade union leaders. The Committee notes that the further allegations that have been presented also refer to anti-union dismissals.
2. 904. At its June 2004 meeting, the Committee requested the Government to take all the steps in its power to ensure that the secretary-general of the Union of Workers of the Municipality of San Juan Chamelco, Alta Verapaz, Mr. Edwin Roderico Botzoc Molina, dismissed in August 2002, be reinstated in his post, with payment of the wages due to him. In this regard, the Committee notes with satisfaction that the Government states that the trade union leader in question was reinstated in his post in January 2004.
3. 905. As to the allegation concerning the arrest and prosecution in June 2003 (in violation of due process and restricting his visiting rights, on charges of fraud and possession of stolen goods) of Mr. Rigoberto Dueñas Morales, the deputy secretary-general of the General Central of Workers of Guatemala (CGTG) and deputy representative of the Guatemalan Union of Workers (UGT) on the Board of Directors of the Guatemala Social Security Institute (IGSS), after the abovementioned trade union leader denounced abuse of privilege, influence peddling, corruption and absence of accountability within the Institute, the Committee notes with satisfaction that the WCL and the Government state that, following a trial which took place on 19 August 2004, the trade union leader in question was absolved and freed after the ruling was read out.
4. 906. As to the anti-union dismissal of the worker Macedonio Pérez Julián by the enterprise La Comercial S.A. and the initiation of criminal proceedings against the abovementioned individual by the enterprise, the Committee had requested the Government to send without delay its observations concerning the ongoing criminal proceedings, indicating whether the worker in question was under arrest or whether he was free, as well as observations concerning the legal procedure initiated by the worker regarding his dismissal. The Committee notes that the Government states that: (1) the worker in question was tried for supposedly committing the offences of embezzlement, possession of stolen goods and concealment; (2) on 19 November 2002 the case was provisionally dropped at the request of the Office of the Attorney General; and (3) the enterprise La Comercial S.A. abandoned its stance as a complainant. This being the case, the Committee requests the Government to keep it informed as to the outcome of the legal procedure initiated by the worker concerning his dismissal.
5. 907. As to the alleged anti-union harassment of the worker Rocío Lily Fuentes Velásquez by the enterprise La Comercial S.A., and her demotion, the Committee notes that the Government states that the worker in question resigned from the trade union and the enterprise, having been paid all her benefits and is currently in the United States. Taking this information into account, the Committee will not make any further examination of these allegations.
6. 908. As to the alleged harassment by the enterprise La Comercial S.A. of members of the Union of Workers of La Comercial S.A., Distribuidora de Productos Alimenticios Diana S.A. and other enterprises belonging to the same economic unit because of the union’s opposition to the illegal deductions from the workers’ wages made by the enterprise, the Committee notes the Government’s indication states that the enterprise has stated that some workers do not hand over the money they have made from the sale of the enterprise’s goods but instead keep it and, in order not to have to dismiss these workers, the enterprise makes deductions from their monthly wages by way of reimbursement of the money owed to the enterprise with their consent. Taking this information into account, the Committee will not make any further examination of these allegations, unless the complainant organization provides more information in this respect.
7. 909. As to the alleged refusal by the enterprise La Comercial S.A. to provide workers belonging to the trade union with goods to sell, the Committee notes that, according to the Government, the enterprise states that it could not survive if it were to prevent its sales staff from making sales. Taking this information into account, the Committee will not make any further examination of these allegations.
8. 910. With regard to the alleged harassment of Mr. Manuel Rodolfo Mendizábal Guevara by people in unmarked vehicles attempting to dissuade him from participating in the activities of the Union of Workers of La Comercial S.A., and the thefts and assaults affecting members of that trade union, the Committee notes that, according to the Government, the enterprise states that: (1) Mr. Rodolfo Mendizábal Guevara has resigned from the enterprise and has been paid all the benefits he is legally entitled to and compensation for length of service; the enterprise denies that he was subject to harassment by people in unmarked vehicles; and (2) as to the accusation concerning the rising number of assaults, the enterprise states that when called on to hand over the money they have made through sales, some sales staff do not do so but instead claim that they have been assaulted. Taking this information into account and, noting that there seems to be no link between these allegations and the exercise of trade union rights, the Committee will not make any further examination of these allegations.
9. 911. As to the other allegations which were pending, also related to the enterprise La Comercial S.A., concerning: (a) the refusal by the enterprise to recognize and enter into collective bargaining with the enterprise’s trade union unless it gives up its affiliation to UNSITRAGUA; and (b) the refusal by the enterprise to deduct union dues from workers’ wages, the Committee again requests the Government to send its observations in this respect.
10. 912. As to the further allegations concerning the dismissal from the enterprise La Comercial S.A. of the worker Marco Antonio Estrada López, a member of the Union of Workers of La Comercial S.A., despite the fact that the enterprise was subject to the rules of prior notification within a collective dispute of an economic and social nature (which according to legislation excludes any dismissal), the Committee notes that the Government has not sent observations in this respect. This being the case, given that the complainant organization states that the judicial authority ordered his reinstatement in August 2004, the Committee requests the Government to ensure that the worker in question is reinstated in his post.
11. 913. As to the allegations of the anti-union dismissal of Mr. Edgar Alfredo Arriola Pérez and Mr. Manuel de Jesús Dionicio Salazar on 23 October 2002, after they applied to join the Union of Workers of the Higher Electoral Tribunal on 17 October of the same year, the Committee notes that the Government states that they were dismissed for duly justifiable causes, in light of the disciplinary faults they committed whilst carrying out their respective functions, in accordance with the terms of article 21 of the collective agreement on working conditions. Taking this information into account, the Committee requests the Government to state the nature of the disciplinary faults committed by the workers which gave rise to their dismissal.
12. 914. As to the allegations which remained pending concerning the anti-union harassment of the members of the Union of Workers of Rafael Landivar University by the university authorities after the union submitted a draft collective agreement on working conditions (according to the complainants, the members of the union were aggressed verbally and physically and its secretary-general, Mr. Timoteo Hernández Chávez, was attacked by armed men on his way home), the Committee takes note of the information provided by the Government according to which the alleged violent acts were in reality the work of two companies which provide or used to provide services within the university. The Committee recalls that no person should be prejudiced in his or her employment by reason of membership of a trade union, even if that trade union is not recognized by the employer as representing the majority of workers concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 701]. In these conditions, the Committee requests the Government to conduct an investigation in order to determine those truly responsible for the acts of anti-union harassment and ensure that they are appropriately punished so that this kind of discrimination is avoided in the future within the university. The Committee requests the Government to keep in informed in this respect.
13. 915. As to the dismissal of 50 workers belonging to the Union of Workers of the Asociación Movimiento Fe y Alegría in the work centres located in the department of Guatemala on 31 October 2001 in reprisal against the trade union for the activities carried out in order to obtain equality of remuneration between the permanent and contract workers, the Committee notes that the Government states that: (1) only eight of the 50 workers requested to be reinstated before the law courts; (2) the judicial authority ordered that six of those eight workers be reinstated; (3) three have been reinstated; and (4) the defendant lodged an appeal against the ruling ordering the reinstatement, with a decision on this appeal currently pending. This being the case, the Committee requests the Government to keep it informed as to the final outcome of the appeal lodged against the legal ruling ordering that the six workers be reinstated.
14. 916. As to the allegation that the Asociación Movimiento Fe y Alegría initiated a procedure requesting authorization to terminate the contract of Mr. Juan Miguel Angel González, a member of the Union of Workers of the Asociación Movimiento Fe y Alegría, with the aim of suppressing his trade union activities and weakening the trade union, the Committee notes that the Government states that the judicial authority authorized the dismissal and that no appeal was lodged against the legal ruling. Taking this information into account, the Committee will not make any further examination of these allegations.