Informe provisional - Informe núm. 355, Noviembre 2009

1. 751. The Committee last examined this case at its May 2008 meeting, when it presented an interim report to the Governing Body [see 350th Report, approved by the Governing Body at its 302nd Session in May 2008, paras 842–857].
2. 752. The Government sent its observations in communications dated 6 and 16 June, 29 September and 27 October 2008.
3. 753. 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. 754. At its May 2008 meeting, the Committee made the following recommendations [see 350th Report, para. 857]:
   • (a) The Committee requests the Government to provide a copy of the ruling rejecting the charges of verbal and physical abuse by the university authorities against the members of the Workers’ Union of the Rafael Landívar University.
   • (b) With reference to the allegations relating to the Higher Electoral Court, the Committee requests the Government to provide a copy of the ruling by the Labour and Social Insurance Appeal Court concerning the dismissal of trade union member Mr Víctor Manuel Cano Granados, as the ruling of the Supreme Court does not indicate the facts which, according to the Court of Appeal, amounted to unjustified dismissal.
   • (c) Moreover, noting that the Government has not provided information concerning the other pending allegations relating to the Higher Electoral Court, the Committee therefore reiterates its previous conclusions and recommendations and requests the Government to provide copies of the rulings relating to the 15-day suspension of the wages of the union member Pedro Rudolp Menéndez Rodas and the dismissal of the union member Ulalio Jiménez Esteban. Also, in view of the lack of information from the Government, the Committee also once again requests it to take measures to review the decision of the employer (the Higher Electoral Court) to dismiss Messrs Alfredo Arriola Pérez and Mr Manuel de Jesús Dionisio Salazar after they sought membership of the union and, if it is found that the dismissals were ordered for anti-trade union reasons, to take measures for their immediate reinstatement.
   • (d) The Committee requests UNSITRAGUA to provide the Government with a copy of the complaint lodged in relation to the threats of dismissal and the threats to the safety of trade union members in the context of the dispute that existed in the teaching sector between the union, on the one hand, and the Fundación Movimiento Fe y Alegría and the Fathers’ and Mothers’ Associations, on the other. Finally, the Committee regrets to note that the Government has not provided replies concerning the other pending allegations relating to these organizations. The Committee accordingly requests the Government to ensure that workers in these institutions are able to freely join, without intimidation of any type, the union, and that the report of the labour inspectorate on violations of trade union rights is furnished to the union and that labour relations are conducted in a climate free from intimidation and violence.

B. The Government’s reply

1. 755. In its communications of 6 and 16 June, 29 September and 27 October 2008, the Government sent a copy of the judicial ruling of 2002 on the complaint presented by the General Secretary of the Union of Workers at Rafael Landívar University alleging verbal and physical assaults by the university authorities. The ruling in question states that the complaint was rejected by the judicial authority at the request of the Department of the Public Ministry, in accordance with the legislation applicable in cases where it is “not possible to proceed”.
2. 756. As regards the allegation concerning the anti-union dismissal of Mr Víctor Manuel Cano Granados, the Government supplies a copy of the ruling given by the Supreme Court of Justice (Chamber for Constitutional Protection) and confirmation that Mr Víctor Manuel Cano Granados did not challenge that ruling. According to the ruling: (1) the dismissal was not considered to have been intended as a reprisal; (2) Mr Cano Granados had been fined, which in the view of the Higher Electoral Court constituted grounds for termination of employment according to the applicable legislation; and (3) in the public sector, there is no legislation for judicial authorization of dismissal except in cases of serious misconduct.
3. 757. With regard to the cases of the drivers Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar, the Government states that in order to seek a review of a decision by the public authority, it is important for those concerned to act through the legal channels available under the Constitution and laws of the country for seeking reinstatement, and in order to obtain reinstatement it is necessary to exhaust the judicial process provided for under national legislation and obtain a ruling for reinstatement, which must be duly enforceable and not subject to appeal. As regards the request by the Committee on Freedom of Association for a review of the Higher Electoral Court’s decision to dismiss the two drivers, they must apply to the national courts and demonstrate that their rights at work were violated by their employer, and in order to overturn the original decision it is essential to obtain a judicial ruling for reinstatement which is definitive and not subject to appeal and instructs the Higher Electoral Court to reinstate them, because without the judicial ruling, reinstatement is not possible.
4. 758. As regards the allegations concerning the Fundación Movimiento Fe y Alegría Fathers’ and Mothers’ Associations, the Government states that, with regard to the allegations of threats of dismissal and threats to the safety of trade unionists, the Public Prosecutor’s Office for Human Rights has stated that it has received no complaint in relation to any such allegations. The Special Investigator for Crimes against Journalists and Trade Unionists of the Department of the Public Prosecutor requested more data in order to be in a position to provide the information requested, as the data provided so far are insufficient to identify the complaint, although the relevant files were examined. The Government accordingly requests the complainant organizations to send more information on these allegations.

C. The Committee’s conclusions

1. 759. The Committee notes that the pending allegations in the present case refer to verbal and physical assaults against members of the Trade Union of Workers of Rafael Landívar University by the university authorities, the dismissal of members of the Trade Union of Workers of the Higher Electoral Court, and the suspension of one of those members for 15 days, as well as threats of dismissal and threats to the safety of trade unionists working at the La Esperanza Centre.
2. 760. As regards the allegations concerning Rafael Landívar University (according to the complainants, after the union had presented a draft collective agreement, union members were subjected to verbal and physical assaults and the General Secretary was attacked by armed men while on his way home) [see 337th Report, para. 917], the Committee takes note of the judicial ruling given in 2002, supplied by the Government, following a complaint made by the General Secretary of the Union of Workers of Rafael Landívar University alleging assaults committed by the university authorities. The Committee notes that the judicial ruling in question rejects the complaint (in response to a request by the Department of the Public Ministry) on the grounds that it was “not possible to proceed”. The Committee also notes that the ruling does not refer in detail to the specific facts that are the subject of the complaint, nor were the victims called on to give evidence. Under these circumstances, the Committee does not have at its disposal sufficient information to enable it to formulate any conclusions on these allegations of assault from 2002 and will not pursue its examination of the case. The Committee once again emphasizes in general terms, as it has done in previous examinations of the case, that a free and independent trade union movement can only develop in a climate free of violence, threats and pressure, and that it is for the Government to guarantee that trade union rights can develop normally.
3. 761. As regards the allegations concerning the Higher Electoral Court, the Committee takes note of the ruling of the Supreme Court of Justice (Chamber for Constitutional Protection) (supplied by the Government), which rejected the reinstatement of trade unionist Victor Manuel Cano Granados on the grounds that it had not been shown that the dismissal had been ordered as a retaliatory measure, and because Mr Cano Granados had been fined (no other details of this are given), a fact which, in the judgement of the Higher Electoral Court, constituted sufficient grounds for termination of employment under the terms of the applicable legislation. In this regard, according to the judicial authority, the fact that a collective dispute has been called in the public sector does not mean that judicial authorization is required for a dismissal in cases of serious misconduct. The Committee nevertheless reminds the Government that it had requested the ruling given by the second-level court (the Labour and Social Security Appeal Court) which gave details of the events leading to the dismissal. The Committee reiterates its request for prompt receipt of this information, with a view to being able to give an opinion on the allegations in full possession of the facts.
4. 762. As regards the alleged dismissal of trade unionist Ulalio Jiménez Esteban, and the suspension by the Higher Electoral Court of 15 days’ wages in the case of trade unionist Pedro Rudolp Menéndez Rodas, the Committee regrets that the Government has not communicated the rulings it had requested. The Committee therefore urges the Government to send copies of the rulings relating to these trade unionists without delay.
5. 763. As regards the Committee’s previous recommendation concerning the dismissal of Messrs Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar, according to the allegations, after they had applied to join the trade union representing employees of the Higher Electoral Court, the Committee had requested the Government to review the employer’s (the Court’s) decision to dismiss the trade unionists and, if the dismissals were found to have been carried out for anti-union motives, to take steps to ensure their immediate reinstatement at their places of work. The Committee notes the Government’s statements to the effect that, in order that the employer’s decision to dismiss them may be reviewed, those who were dismissed must apply to the courts. The Committee emphasizes that the dismissals in question occurred some years ago, and that the Government’s suggestion would probably mean that several more years would pass before a final judicial ruling were handed down. Taking into account the slowness of the judicial proceedings, the Committee requests the Government to ensure that the labour inspectorate carries out an investigation without delay, and, if the dismissals are shown to have been carried out for anti-union reasons, to take steps to ensure that the workers concerned are immediately reinstated in their places of work.
6. 764. As regards the allegations of threats of dismissal and threats to the safety of trade unionists in the course of a dispute in the teaching sector between the trade union and the Fe y Alegría movement of Fathers’ and Mothers’ Associations, at the La Esperanza Centre, the Committee notes the Government’s statements to the effect that the competent authorities in criminal matters have not received any complaints, and accordingly invites the complainant organizations to lodge a formal complaint regarding the facts alleged and provide as much information as possible. The Committee also reiterates its recommendation that the Government should ensure that workers in these institutions are able to join the union freely and without any form of intimidation, that the report of the labour inspectorate on violations of trade union rights is made available to the union, and that labour relations are conducted in a climate free from intimidation and violence.