Informe provisional - Informe núm. 334, Junio 2004

1. 581. The complaint is contained in communications from the Trade Union of Workers of Guatemala (UNSITRAGUA) dated 28 August, 24 September, 3 and 8 October, 5 December 2003 and 31 March 2004. The complainant organization sent new allegations in communications dated 15 and 26 April 2004.
2. 582. The Government sent its observations in communications dated 3 September, 17 October and 2 December 2003 and 9 January 2004.
3. 583. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 584. In its communication of 28 August 2003, the complainant organization alleges that on 29 December 2002 a socio-economic conflict was laid before the judicial authorities against the Committee for the Blind and the Deaf of Guatemala, in accordance with articles 379 and 380 of the Labour Code. (Article 380 of the Labour Code establishes that from the time of the summons, all employment contract terminations in the enterprise where the conflict has taken place should be authorized by the court.) In retaliation, the institution dismissed 38 workers without cause, the latter belonging to the two trade unions in the institution, who began the legal action in which the reinstatement of the workers was ordered. The institution refused to comply with the order and lodged two successive appeals for annulment which were rejected; after the second rejection of appeal, the institution lodged an appeal with the First Chamber of the Court of Appeals for Labour and Social Security, which, while it had only been called upon to decide the legitimacy of the appeal for annulment, decided to rescind the order to reinstate the workers.
2. 585. In its communication of 24 September 2003, the complainant organization alleges that, on 18 September 2003, 47 workers at Carrocerías Rosmo S.A. were dismissed without cause from the production centre in the Department of Quetzaltenango. These workers belong to the Trade Union of Workers of Carrocerías Rosmo S.A. The dismissals took place in violation of the collective agreement on labour conditions in force and as a means of intimidating the trade union, given that more than 50 per cent of its members were affected.
3. 586. In its communication of 3 October 2003, the complainant organization alleges that the not?for-profit civil organization known as the Trade Unions’ and People’s Action Unit (UASP), established in February 2002, has been recognized by the Government as having trade union representative status on various occasions. The Government has allowed it to participate in collective bargaining, for example, in the context of a recent conflict of teachers; it authorized it, in the Tripartite Committee on International Labour Affairs, to act as a delegate at the International Labour Conference in 2002; and it has allowed it to take part in tripartite discussions, which are exclusively reserved for trade unions. According to the complainant, this shows damaging permissiveness and even sponsorship on the part of the Government in replacing trade union organizations with not-for-profit civil organizations in violation of Conventions Nos. 87 and 98. The complainant organization emphasizes that civil organizations are governed by general law and not by labour law and they seek to ensure that the specific interests of their members prevail. Although its members are workers, this institution should not act as a trade union, and even less should it assume responsibility for the legitimate representation of workers.
4. 587. In its communication of 8 October 2003, the complainant organization alleges that on 10 September 2003 the documentation referring to the request for registration of the officials of the Trade Union of Workers of El Rosario Farm S.A. and Other Companies making up the Economic Unit was submitted to the General Labour Directorate of the Ministry of Labour and Social Security. Although the documents complied with all the legal prerequisites, the Directorate demanded that a prerequisite not laid down in legislation be complied with, thereby unnecessarily delaying the process by more than a month and causing the trade union organization to remain without an executive committee or representatives.
5. 588. In its communication of 5 December 2003, the complainant organization alleges that on 29 November 2003, the Palo Gordo Agricultural, Industrial and Refining Company S.A. dismissed 50 workers without cause at its labour centre in the Municipality of San Antonio Suchitepéquez. The dismissals affected solely the members of the Workers’ Trade Union of the Palo Gordo Refinery Company and were clearly in retaliation against the trade union’s fight for equal pay and against the illegal withholding of wages. The institution received a summons for its refusal to negotiate in a collective conflict to appear before the Labour and Social Security Court of First Instance.
6. 589. Finally, in a communication dated 31 March 2004, the complainant organization alleges that on that same day, the Quetzal Harbour Company, a decentralized state institution, dismissed four workers belonging to the Trade Union of Workers of the Quetzal Harbour Company shortly before the trade union was to submit a draft collective agreement to the institution.

B. The Government’s reply

1. 590. With regard to the allegation relating to the Committee for the Blind and the Deaf of Guatemala, the Government provides information on why the First Chamber of the Court of Appeals for Labour and Social Security decided to rescind the reinstatement order issued by the Court of First Instance. According to the judicial authorities, the workers bringing the legal action of the collective conflict, mistakenly summoned in their complaint a different or inexistent company to the one in which they were working; the workers who were dismissed requested in this collective conflict that they be reinstated and the judge gave the reinstatement order against a company that, in reality, was not part of the conflict and that in practice had been neither formally nor legally notified of any conflict. The Court of Appeals decided that, owing to a substantial error in the proceedings the employer company had not been summoned before the judicial authorities, it was not subject to the obligation to request judicial authorization to dismiss the workers as laid down in article 380 of the Labour Code and, therefore, the order for reinstatement was not legitimate. The workers subsequently corrected the error that had been made so that the judicial authorities notified the company of the collective conflict on 5 August 2003, while the dismissals took place on 10 January 2003. Moreover, according to the Government, the reason for the dismissals was administrative reorganization and not, as alleged, retaliation because of the conflict. The Government moreover denies that there has been any violation of freedom of association or collective bargaining and indicates that there are currently two trade unions in the Committee for the Blind and the Deaf of Guatemala, one of which is negotiating with the employer. The judicial authority emphasizes that it acted in accordance with the law and with complete impartiality.
2. 591. With regard to the allegation of the dismissal of 47 workers without cause at the Carrocerías Rosmo S.A. company, the Government states that, owing to the intervention of the General Labour Inspectorate of Quetzaltenango, a payment agreement between the employer and the workers was signed relating to the payment of labour benefits to those workers affected, at the express request of the workers and the trade union of the company and, to date, no complaint with regard to non-compliance in the matter of amounts and dates of payment has been lodged.
3. 592. With regard to the allegation that the Trade Unions’ and People’s Action Unit (UASP) has been recognized by the Government on various occasions as a trade union representative, the Government confirms that it has certainly faced difficulties in determining the organizations for the purpose of the composition of the tripartite bodies, such as the Consultative Council for the Re-establishment of State Workers, for the purpose of the election of the labour representative for the 91st Session of the International Labour Conference and in relation to the draft governmental agreement for the constitution of the Tripartite Committee for International Labour Affairs. Such difficulties led to the inclusion in these bodies of organizations that did not strictly fulfil the criteria of worker representativeness. In order to correct these failings, the Government has begun to revise the provisions regulating, among other things, the composition of the Tripartite Committee for International Labour Affairs, by issuing a new regulation that lays down the form of election of representatives for the sectors so that the most representative may be elected. The Government indicates also that the current composition of the Tripartite Committee should be renewed in January 2004 and for this it will convene all employers’ and workers’ organizations. The Government indicates that according to the registration of trade union organizations in the national department for the protection of workers of the General Labour Directorate, neither the Trade Union of Workers of Guatemala (UNSITRAGUA) nor the Trade Unions’ and People’s Action Unit (UASP) is registered as a trade union organization, for which reason both organizations are outside the sphere of application of the judicial labour system and, as a result, the tripartite system.
4. 593. With regard to the delay in the registration of the directors of the Trade Union of Workers of the El Rosario Farm S.A. and Other Companies making up the Economic Unit, the Government states that the officials of the organization were registered on 15 October 2003.

C. The Committee’s conclusions

1. 594. With regard to the allegation relating to the dismissal of the members of the trade union in the Committee for the Blind and the Deaf of Guatemala, the Committee notes that according to the Government’s statement, the First Chamber of the Court of Appeals for Labour and Social Security decided to rescind the reinstatement order handed down by the Court of First Instance, given that the workers had made a basic error of fact in legally summoning the company in their complaint so that the company had not been notified of the existence of the conflict and, therefore, was not subject to the obligation to request legal authorization to dismiss at the time when the dismissals took place. Consequently, the request for reinstatement was not legitimate. The Committee notes, in this respect, that article 380 of the Labour Code provides that from the time of receiving the summons, all employment contract terminations in the company where the conflict has been taking place shall be authorized by the court. The Committee notes the Government’s statement that the employer company was only notified of the collective conflict complaint on 5 August 2003, while the dismissals took place on 10 January 2003. The Committee also notes that the Government emphasizes that the dismissals were a result of administrative restructuring and were not anti-union retaliation and that, in fact, there are currently two trade unions in the Committee for the Blind and the Deaf of Guatemala, one of which is negotiating with the employer. The Committee notes this information and will not proceed with a further examination of this matter.
2. 595. With regard to the allegation of the dismissal of 47 workers from the Carrocerías Rosmo S.A. company without cause, the Committee notes that according to the complainant organization these dismissals were in violation of the collective agreement on labour conditions in force and were a means of intimidating the trade union as the dismissals affected more than 50 per cent of its members. The Committee also notes that according to the Government, owing to the intervention of the General Labour Inspectorate of Quetzaltenango, a payment agreement between the parties was signed relating to the payment of labour benefits to those workers affected, at the express request of the workers and the trade union of the company, and that subsequently no complaints have been lodged. The Committee recalls the importance of complying with collective agreements that are freely signed between the parties and requests the Government to keep it informed of developments.
3. 596. With regard to the allegation relating to the trade union representative status recognized by the Government with regard to the Trade Unions’ and People’s Action Unit (UASP), the Committee notes that the Government confirms having had difficulties in determining the representative organizations for the purpose of the composition of the tripartite bodies, which led to the inclusion of organizations that do not strictly comply with the criteria of worker representativeness. The Committee also notes the Government’s statement that in order to correct these failings it has called for the regulatory provisions relating to the constitution of tripartite bodies to be updated, in particular the Tripartite Committee for International Labour Affairs, through a new regulation which establishes the form of election of representatives for the sectors in order that the most representative be elected, and that the current composition of the Tripartite Committee will be renewed in January 2004. The Committee recalls that the legislative or other measures necessary should be taken in order to ensure that organizations that are separate from trade unions do not assume responsibility for trade union activities and to ensure effective protection against all forms of anti-union discrimination. In this regard, the Committee requests the Government that, in the framework of revising the regulatory provisions on the constitution of tripartite bodies, in particular the Tripartite Committee for International Labour Affairs, it adopts, following full consultation with all trade union organizations, the necessary steps to ensure the appropriate designation of the most representative organizations, through the use of objective criteria, and to avoid recognizing non-trade union organizations as having trade union representative status, and to keep it informed in this respect.
4. 597. With regard to the delay in the registration of officials of the Trade Union of Workers of the El Rosario Farm S.A. and Other Companies making up the Economic Unit, the Committee notes the Government’s statement that this organization was registered by the General Labour Inspectorate on 15 October 2003. The Committee notes, however, that the Government has not sent its observations on the allegations relating to the Palo Gordo Agricultural, Industrial and Refining Company S.A. (dismissal of 50 workers), and the Quetzal Harbour Company (dismissal of four workers), and requests that it send its observations without delay.
5. 598. The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, on the questions at issue.