Informe provisional - Informe núm. 343, Noviembre 2006

799. The Committee last examined this case at its November 2005 meeting [see 338th Report, paras. 891-942, approved by the Governing Body at its 294th Session].

1. 800. The Government sent new observations in communications dated 3 November 2005, and 1 February, 28 June and 18 July 2006.
2. 801. 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. 802. In its previous examination of the case, the Committee made the following recommendations [see 338th Report of the Committee, paragraph 942]:
2. (a) Noting the contradiction between the allegations and the Government’s response denying interference by the Labour Inspectorate in the extraordinary general assembly of the Trade Union of the Portuaria Quetzal enterprise, during which trade union leaders were removed from their positions in the absence of a quorum, the Committee requests the Government to keep it informed of any administrative or judicial decision that is taken in regard to this matter and, in particular, in regard to the contested decisions of the trade union assembly presented by 113 of the 600 members.
3. (b) The Committee requests the Government to guarantee in the future that, when the Portuaria Quetzal enterprise intends to dismiss employees, the Joint Board be convened as provided for in the collective agreement.
4. (c) As regards the alleged practice by the Ministry of Education of promoting subcontracting by the “Fe y Alegría” Movement association through parent associations with a view to weakening the trade union, by making renewal of the subcontracted employees’ contracts conditional upon their not joining the trade union, and paying a higher salary than that received by other employees, the Committee requests the Government to carry out an independent investigation into these alleged anti-union practices and to keep it informed in this respect.
5. (d) The Committee requests the Government to inform it of the specific grounds for terminating the employment relationship of the trade union member Mr. Yuri de León Polanco by the Crédito Hipotecario Nacional.
6. (e) The Committee requests the Government to inform it of the outcome of the remedy of amparo initiated in connection with the dismissal of 18 employees of the municipality of Comitancillo.
7. (f) The Committee requests the Government, after consulting the most representative workers’ and employers’ organizations, to forward without delay its observations on the allegations to which it has not responded and which are listed hereafter:
8. – Portuaria Quetzal enterprise: restructuring (voluntary resignation plan) of the company for anti-union purposes and without consultation, and practices contrary to the right to bargain collectively;
9. – dismissal of employee Víctor Manuel Cano Granados who is a member of the Trade Union of the Supreme Electoral Tribunal; and
10. – criteria for representation of employers at the Tripartite Commission for International Affairs, infringing Convention No. 87.
11. (g) The Committee requests the Government to forward its observations without delay on the most recent allegations by the ICFTU contained in its communication dated 2 August 2005 and emphasizes its concern over the gravity of these allegations.
12. B. The Government’s reply
13. 803. In its communications dated 3 November 2005 and 1 February, 28 June and 18 July 2006 the Government sent the following observations.
14. 804. With regard to subparagraph (d) of the recommendations, in which the Committee requested the Government to inform it of the specific grounds for terminating the employment relationship of trade union member Yuri de Leon Polanco by the Credito Hipotecario Nacional, the Government states that it was because Mr. Polanco’s contract came to an end on 31 December 2004, and that he had been paid the compensation and other benefits required by law. Mr. Polanco signed the form signifying the end of his contract.
15. 805. With regard to subparagraphs (a), (b) and (f) containing allegations with respect to the restructuring of Portuaria Quetzal for anti-union purposes and in violation of the right to bargain collectively, the Government enclosed a copy of a communication from the general manager of the enterprise indicating that its Executive Board, consisting of government delegates and of workers delegates appointed at a meeting of unionized and non-unionized workers, announced the voluntary retirement plan in August 2004. All those who agreed to the plan received full compensation plus benefits. As to the alleged deduction of up to 95 per cent of the wages and the enterprise’s refusal to authorize overtime, the enterprise denies the claim, pointing out that such deductions, which can amount to no more than 35 per cent of employees’ wages, can only be made by court order and that, by the very nature of port work, overtime is a common occurrence.
16. 806. Regarding the alleged failure to appoint a Joint Board, the enterprise states that it was the workers’ fault. As to the alleged refusal to negotiate a collective agreement, the enterprise states that negotiations were held in 2004 and an agreement was adopted in September 2004. With regard to the alleged selective dismissal of workers, the enterprise states that, in the few cases of dismissal for gross negligence that occurred, due process was observed, with the workers being given the opportunity to justify their mistakes; moreover, not one reinstatement order had been issued by the courts.
17. 807. With respect to subparagraph (f) concerning the criteria for representation of employers on the Tripartite Commission for International Affairs, the Government states that the criteria were the outcome of the direct contacts mission carried out by the ILO in May 2004 and were designed to establish a rapid response mechanism for examining complaints addressed to the ILO so as to try and find a solution to any problems within 15 days, before the complaints were sent to the ILO. The Government emphasizes that it was not a compulsory preliminary mechanism for submitting complaints and that the Tripartite Commission for International Affairs was set up in accordance with the law, since its members were free and independent representative organizations enjoying the right to freedom of association (the Government enclosed a copy of government agreement No. 285-2004 which provided for the establishment of the Tripartite Commission and, in its section 1, stipulates that its members shall be representatives of the Government, employers and workers through their most representative organizations.) The Government adds that the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) coordinates Guatemala’s most representative chambers and associations of employers, which also constitute the country’s eight most important economic activities in terms of their contribution to its gross domestic product. These are: (1) the Chamber of Industry of Guatemala; (2) the Chamber of Agriculture of Guatemala; (3) the Chamber of Finances of Guatemala; (4) the Chamber of Construction of Guatemala; (5) the Association of Sugar Mills of Guatemala; (6) the Non Traditional Export Products Trade Association; (7) the Chamber of Tourism of Guatemala; (8) the Federation of Small and Medium-sized Enterprises; (9) the National Coffee Association; (10) the Employers’ Chamber of Commerce and Services; and (11) the National Network of Management Groups. These chambers and associations represent over 60,000 organized employers spread over more than 120 trade committees.
18. 808. With regard to subparagraph (g), which refers to the allegations submitted by the ICFTU on 2 August 2005 concerning the raid on the headquarters of the Education Workers’ Trade Union of Guatemala (STEG) and subsequent theft of communication equipment, fax machines, telephones and files, the Government states that there is not sufficient evidence to determine who was responsible for the incident; this was confirmed by the Office of the Special Attorney for Crimes against Journalists and Trade Unionists. With regard to the harassment of Jovial Acevedo, the organization’s Secretary-General, in a communication sent to the Vice-Minister (with a copy for the Government) the Office of the Special Attorney states that no investigation is being conducted into any infringement of Jovial Acevedo’s rights.
19. 809. With regard to the allegations submitted by the ICFTU concerning the raid on the National Coordinating Committee for Peasant Organizations (CROC) and the theft of 15 computers containing important data belonging to the organization, the Government states that the CROC is not a trade union organization, since its purpose is to acquire land, and that allegations concerning it should therefore not be examined in the present case.
20. 810. With regard to the alleged threats against the Executive Committee of the Workers’ Trade Union of the Credito Hipotecario Nacional (STCHN), the Government states that the Office of the Attorney-General does not indicate in its report who was the perpetrator. On the contrary, the trade unionists’ claim that the manager of the bank had threatened them was contradicted by an inspector who was present.

C. The Committee’s conclusions

1. 811. The Committee recalls that the allegations relate to interference by the Labour Inspectorate in the internal affairs of the Trade Union of Portuaria Quetzal, the illegal banning of seven members of the Executive Committee from carrying out their trade union duties, the restructuring (voluntary retirement plan) of the enterprise for anti-union purposes and without consultation, and practices contrary to the right to bargain collectively, the dismissal of union members in violation of the collective agreement, the subcontracting of teachers from the “ Fe y Alegría” Movement association for anti-union purposes by the Ministry of Education, mass anti-union dismissals at the Credito Hipotecario Nacional, dismissals in the municipality of Comitancillo (department of San Marcos) in violation of a court reinstatement order, the dismissal of a member of the Trade Union of the Supreme Electoral Tribunal, and the application of criteria contrary to Convention No. 87 for the representation of employers. In its previous examination of the case the Committee also took note of allegations presented by the ICFTU on 2 August 2005 concerning the raiding of trade union headquarters, the theft of union assets and the use of threats and intimidation against trade union members, including the issue of a warrant against one of them.
2. 812. With regard to the alleged interference by the Labour Inspectorate in the extraordinary general assembly of the Portuaria Quetzal Trade Union, during which trade union leaders were removed from their position in the absence of a quorum, and concerning which the Committee had requested the Government to keep it informed of any administrative or judicial decision that was taken, particularly with regard to the fact that decisions of the trade union assembly were challenged by 113 of the 600 members, the Committee observes that the Government has not sent its observations on the subject and requests it to do so without delay.
3. 813. With regard to the other allegations concerning the restructuring of the enterprise for anti-union purposes and without consultation by means of a voluntary retirement plan and practices contrary to the right to bargain collectively, the Committee notes that, according to the Government, the retirement plan was voluntary and the workers who accepted it were paid the corresponding compensation. The Committee notes further that the Government adds that the retirement plan was decided upon by the enterprise’s Executive Board, which is composed of government delegates and of workers’ delegates appointed by an assembly of unionized and non-unionized workers. Without derogating from the point of view expressed by these delegates of the enterprise’s Executive Board, the Committee observes that, although there are worker members (trade union members and non-members) on the Executive Board, the views of the trade union organization – which is the legitimate representative of the workers – were not taken into account in deciding upon the voluntary retirement plan. The Committee recalls that rationalization and staff reduction processes should involve consultations or attempts to reach agreement with the trade union organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 936]. The Committee regrets that the Government has not taken this principle into account and expects that the Government will duly consult the trade union organizations in the future.
4. 814. With regard to the convening of the Joint Board provided for in the collective agreement at Portuaria Quetzal, the Committee notes that, according to the Government, it was the workers’ fault that the Board was not set up. In this connection, the Committee stresses the importance of the Government and the social partners making the necessary effort in good faith to set up the Joint Board so that it can carry out the functions assigned to it in the collective agreement properly, especially where it is a matter of deciding upon collective dismissals.
5. 815. With regard to subparagraph (c) concerning the alleged practice by the Ministry of Education of encouraging subcontracting from the “Fe y Alegria” Movement association through parent associations in order to weaken the trade union, by making renewal of the subcontracted employees’ contracts conditional upon their not joining the union, in which connection the Committee had requested the Government to carry out an independent investigation into these alleged anti-union practices, the Committee observes that the Government has not sent its observations on the subject and requests it to do so without delay.
6. 816. With regard to subparagraph (d) of the recommendations concerning the termination of the employment relationship of trade unionist Yuri de Leon Polanco by the Credito Hipotecario Nacional, the Committee notes the Government’s statement that this was due to the fact that Mr. Polanco’s contract had come to an end on 31 December 2004, that he had been paid the compensation and other benefits required by law and that he had signed a document to the effect that his contract was terminated.
7. 817. With regard to subparagraph (e) of the Committee’s recommendations in which it requested the Government to inform it of the outcome of the appeal for trade union immunity that had been lodged in connection with the dismissal of 18 employees of the municipality of Comitancillo, the Committee observes that the Government has not sent its observations on the subject and requests it to do so as soon as it learns of the decision handed down.
8. 818. With regard to subparagraph (f) of the recommendations concerning the dismissal of Victor Manuel Cano Granados, who is a member of the Trade Union of the Supreme Electoral Tribunal, the Committee regrets once again that the Government has not sent its observations on the subject and requests it to do so without delay.
9. 819. With regard to the criteria for representation of employers on the Tripartite Commission for International Affairs, the Committee notes the Government’s statement that the Commission was set up in accordance with the law, since its members were free and independent representative organizations enjoying the right to freedom of association. The Committee notes that government agreement No. 285-2004 provides for the establishment of the Commission and, in its section 1, stipulates that its members shall be representatives of the Government and of employers and workers through their most representative organizations, and that the Government adds that the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) coordinates Guatemala’s most representative chambers and associations of employers, which in turn constitute the country’s eight most important economic activities in terms of their contribution to its gross domestic product. Finally, the Committee notes that, according to the Government, these chambers and associations represent more than 60,000 organized employers spread over 120 trade committees.
10. 820. With regard to the ICFTU’s allegations concerning the raiding of trade union headquarters, the theft of union assets and the use of threats and intimidation against trade unionists, including the issuing of a warrant against one of them, the Committee notes the Government’s statement that the evidence presented with respect to the raid of the headquarters of the Education Workers Trade Union of Guatemala (STEG) and subsequent theft of communication equipment, fax machines, telephones and files is not sufficient to determine who were the perpetrators of the incident, as was confirmed by the Office of the Special Attorney for Crimes against Journalists and Trade Unionists. The Committee observes that these are serious allegations of anti-union acts against a trade union organization and one of its officials. The Committee regrets that the Government does no more than state that the evidence is not sufficient to determine who were the perpetrators of the raid and theft of assets. The Committee expects that the Government will take the necessary steps to avoid any recurrence of such incidents.
11. 821. Regarding the harassment of the union’s Secretary-General, Jovial Acevedo, and, in particular, the warrant for his arrest following protests against the Free Trade Agreement, the Committee, noting that according to the Government no investigation is being conducted, requests the Government to conduct an inquiry into the matter and to inform it of the outcome, particularly if there is still a warrant for his arrest.
12. 822. With regard to the serious allegations concerning death threats and intimidation against the Executive Committee of the Workers Trade Union of the Credito Hipotecario Nacional (STCHN), the Committee notes the information supplied by the Government to the effect that the Attorney-General’s report does not indicate who were the perpetrators of the incident, and that the trade unionists’ claim that the manager of the bank made death threats against them was contradicted by an inspector who was present. Given the contradictions between the allegations of the trade union organization and the statement of the Government, the Committee requests the Government to take the necessary steps to confirm the facts of threats and to conduct an appropriate investigation, and to keep it informed of the outcome.