Informe provisional - Informe núm. 336, Marzo 2005

1. 466. The Committee last examined this case at its June 2004 meeting [see 334th Report, paras. 581-599]. UNSITRAGUA sent new allegations in communications dated 15 and 26 April 2004. In a communication dated 26 July 2004, the complainant organization sent comments and information on the observations sent by the Government and new allegations in communications dated 28 July 2004 and 24 January 2005. The Government sent its observations in communications dated 4 November 2004 and 19 January 2005.
2. 467. 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. Previous examination of the case

1. 468. In its June 2004 meeting, the Committee formulated the following provisional recommendations relative to the allegations presented by the complainant organization [see 334th Report, para. 599]:
   • (a) With regard to the allegation of the dismissal of 47 workers at the Carrocerías Rosmo S.A. company without cause, the Committee requests the Government to keep it informed of developments.
   • (b) With regard to the allegation relating to the Trade Unions’ and People’s Action Unit (UASP), 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.
   • (c) The Committee requests the Government to send 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).
   • (d) The Committee requests the Government to send its observations on the new allegations submitted by the complainant organization in its communications dated 15 and 26 April 2004.
   • (e) 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.

B. The complainant’s new allegations

1. 469. In its communication dated 15 April 2004, the complainant refers to its allegation relating to the illegitimate nature of the constitution of the Tripartite Committee on International Labour Affairs, in that the not-for-profit civil organization known as the Trade Unions’ and People’s Action Unit (UASP), founded in February 2002, was recognized as having trade union representative status and allowed to participate in the Committee’s work. The complainant also states that UNSITRAGUA was excluded from the aforementioned Committee because, although it complies with the requirements of legitimacy (in the form of its affiliated organizations and 19 years of constant struggle) and representativity, it does not fulfil the requirement of legality because it is not registered as a trade union organization. The complainant adds that, as it has already pointed out to the ILO, it has not been able to register as a trade union organization because Guatemalan legislation imposes a vertical structure which does not make allowance, either in qualitative or quantitative terms, for the horizontal structure through which UNSITRAGUA carries out its activities. The complainant states that article 3 of Governmental Agreement No. 27-2004, published in the Diario Oficial on 13 January 2004, replaces the principles of legitimacy and representativity with that of legality, thus making it impossible for organizations which do not fulfil the criteria of legality (even though they are legitimate and representative) to participate in the work of the aforementioned Committee, despite the fact that, in the past, no such limit had been set on freedom of association. The provision is even more restrictive, in that it means that only legally registered active trade union federations may apply to participate in the Committee’s work. UNSITRAGUA also alleges that, when adopting this provision, which is contrary both to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and Convention No. 87, the Government did not take into account the objections put forward, or the proposal submitted by UNSITRAGUA to the Ministry of Labour and Social Security. The complainant states that the Government ignored the proposed alternative draft decree.
2. 470. In its communication dated 26 April 2004, the complainant organization alleges non compliance with judicial orders for the reinstatement of 29 workers belonging to the Workers’ Trade Union of Golan S.A. company. The complainant organization states that Golan Group S.A. company is a private security firm, constituted in accordance with Guatemalan law. Twenty-nine workers who participated in the formation of the trade union (including the members of the executive committee and the interim consultative council) were immediately dismissed when the firm found out about the formation of the trade union. The workers took their case for reinstatement to court, with the courts finding in their favour, both in the first instance and in the case of the subsequent appeals lodged by the employer (appeal to the Second Chamber of the Court of Appeals for Labour and Social Security; application for amparo (enforcement of constitutional rights) to the Supreme Court of Justice; appeal to the Constitutional Court which confirmed that the amparo application made by the employer was not justified). Finally, on 14 January and 12 February 2003 (27 and 28 months after the dismissals had taken place, respectively), the workers, accompanied by public servants of the court, went to the firm’s premises in order to ensure that the workers who had been dismissed were reinstated. However, the employer refused to comply with the judicial orders. The complainant organization states that non-compliance with judicial orders is made possible by the lack of a substantial sanction under law in particular, as well as by the fact that, in such cases, the employer faces no more than a small fine. Finally, the complainant organization stresses the fact that, at the time that the complaint was sent, the workers had already waited for over 40 months without being reinstated in their posts, despite the existing judicial order to this effect and recalls that, as has been repeatedly pointed out by the Committee on Freedom of Association, justice delayed is justice denied.
3. 471. In its communication dated 28 July 2004, the complainant organization alleges that Governmental Agreement No. 121-2004, modifying the model of contract applying to 13,000 teaching staff at pre-primary and primary level, had a direct effect on the future existence of the Teachers’ Trade Union of Guatemala (SITRAMAGUA), which was in the process of being formed. Rather than being referred to as “permanent staff” (budget line 011), the teaching staff concerned were hired as “supernumerary staff”, with annually renewable contracts. Although the trade union being formed had over 3,000 members, it was not even possible to elect a definitive executive committee, such was the extent of the disruption to the formation process caused by workers’ fears of dismissal, or of their contracts not being renewed.

C. The Government’s reply

1. 472. In its communication dated 4 November 2004, the Government states that the new Tripartite Committee on International Labour Affairs was established through Governmental Agreement No. 285-2004 of 16 September 2004 which was approved by tripartite consensus. The Government states that, as a part of the constitution process, it invited all trade union federations (25 in total) to nominate candidates for appointment to the new Committee as representatives. Appointments were carried out on the basis of tripartite consultation in accordance with Convention No. 144, taking into account the criterion of most representative organizations based on the records of the General Directorate of Labour. The Government also states that, on 18 October 2004, the aforementioned Committee was constituted for the period of October 2004 to October 2006, with the following individuals acting as representatives of the workers’ sector: (1) incumbents: Rigoberto Dueñas Morales (the General Confederation of Workers of Guatemala – CGTG), Reynaldo Federico Gonzáles (the Federation of Bank and Insurance Employees – FESEBS), Néstor Estuardo de León Mazariegos (the Trade Union Federation of Public Employees of Guatemala – FENASTEG), Angélico Sofoifa Barrios (the Trade Unions’ and People’s Action Unit – UASP); and (2) deputies: Everildo Revolorio Torres (the Unified Trade Union Confederation of Guatemala – CUSG), Manuel Mejía Juárez (the Trade Union Federation of Food, Agro-Industry and Related Workers – FESTRAS) and Carlos Enrique Díaz López (UNSITRAGUA).
2. 473. In its communication of 15 January 2005, the Government sends information from the Carrocerías Rosmo S.A. company in which it is indicated that, due to the difficult economic situation of the company and in order to avoid its closure, it was decided to reduce the number of employees. An agreement was reached through negotiations with the workers to pay the wage plus labour benefits as recorded in the agreement. Trade union membership was not taken into consideration. As for the allegations concerning the Palo Gordo Agricultural, Industrial and Refining Company S.A., the latter indicates that it stopped recruiting casual workers because there was no need for their services and that this recruitment takes place at the beginning of each harvest season in the enterprise except for the executive staff (very small). All workers are trade union members.

D. The Committee’s conclusions

1. 474. As to the allegation relating to the illegitimate nature of the constitution of the Tripartite Committee on International Labour Affairs which included the not-for-profit civil organization known as the Trade Unions’ and People’s Action Unit (UASP) as an organization representing the workers, with UNSITRAGUA being excluded for not fulfilling the requirement of legality (given that it has not been legally registered), the Committee notes the adoption on 16 September 2004 of governmental Agreement No. 285 2004, repealing governmental Agreement No. 27-2004, which was challenged by the complainant organization and which retains the criterion of most representative organization with regard to selection for participation in the aforementioned Committee. Likewise, the Committee notes that the Government states that it invited all the trade union federations (25 in total) to nominate candidates for the constitution of the aforementioned Committee and that the appointment of representatives was carried out on the basis of tripartite consultation in accordance with Convention No. 144, taking into account the criterion of the most representative organization, based on the records of the General Labour Directorate. The Government also states that, on 18 October 2004, the Committee was constituted for the period of October 2004 to October 2006 and that, of the representatives of the workers’ sector, Mr. Angélico Sofoifa Barrios (the Trade Unions’ and People’s Action Unit – UASP) is incumbent in the position of worker representative and Mr. Carlos Enrique Díaz López (UNSITRAGUA) holds the position of deputy representative. The Committee notes with interest that UNSITRAGUA was able to present candidates for the Tripartite Committee on International Labour Affairs and has not been excluded from the said Committee and requests the Government to send documentation on the UASP which will make it possible to determine whether it is a trade union organization or not (statutes, affiliated organizations, representativity, activities, etc.).
2. 475. With regard to the alleged dismissal without cause of 47 workers from the Carrocerías Rosmo S.A. company, the Committee takes note of the agreement signed with the workers who accepted their dismissal and the payment of labour benefits in fractions because of the economic difficulties of the company. It also notes that according to the company, trade union membership was not taken into account.
3. 476. With regard to the allegations pending concerning the Palo Gordo Agricultural, Industrial and Refining Company S.A. (dismissal of 50 workers), the Committee notes that according to the enterprise: (1) it stopped recruiting casual workers because there was no need for their services and that this recruitment takes place at the beginning of each harvest season; and (2) except for the executive staff (very small), all workers of the enterprise are trade union members. The Committee requests the Government to communicate any decision handed down on this matter. The Committee observes that the Government has not sent its observations regarding the allegations concerning the dismissal of four workers at the Quetzal Harbour Company, the non-compliance with judicial orders for the reinstatement of 29 workers belonging to the Workers’ Trade Union of Golan S.A. company and the process of forming the Teachers’ Trade Union of Guatemala (SITRAMAGUA). The Committee requests the Government to communicate its observations without delay.
4. 477. As regards the statement made by the complainant organization that the non-compliance with judicial orders is made possible by the fact that, in such cases, the employer faces no more than a small fine, the Committee underlines that the existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 742]. The Committee requests the Government to keep it informed on the legislation and the practice in this regard.