Informe provisional - Informe núm. 340, Marzo 2006

890. The complaint is contained in communications dated 17 March, 19 April, 11, 13 and

1. 27 May, 13 July and 30 August 2005 from the Trade Union of Workers of Guatemala (UNSITRAGUA).
2. 891. The Government sent its observations in communications dated 5 and 7 July 2005.
3. 892. 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. The complainant’s allegations

1. 893. In its communications dated 17 March, 19 April, 11, 13 and 27 May, 13 July and
2. 30 August 2005, the Trade Union of Workers of Guatemala (UNSITRAGUA) alleges the following:
3. Freedom of association and public freedoms
4. – On 14 March 2005, the trade union organizations of Guatemala, together with peasant, indigenous, gender, human rights and student organizations convened a national stoppage and a march terminating in the Plaza de la Constitution in protest against the free trade agreement with the United States. During the course of the march, the national civil police intervened, on orders from the President of the Republic, and began to fire tear gas at the demonstrators. In addition, the complainants allege that the Government ordered the arrest of the leaders of the protesting organizations.
5. – On 14 March 2005, the President of the Republic used the media to refer in disrespectful terms to the leaders of the CGTG and the CNSP trade union organizations and stated that he was sorry that only one person had died during the demonstration.
6. – On 15 March 2005, members of the national army and of the national civil police fired on demonstrators from trade unions and other organizations, on the SELEGUA V Bridge at kilometre 287.5 of the Interamerican highway, in the village of Los Naranjales, municipality of Colotenango, Department of Huhuetenango, killing
7. Juan Esteban López, leader of the Committee of Peasant Unity and member of the National Coordination of Peasant Organizations and the workers José Sánchez Gómez, Pedro Pablo Domingo García and Miguel Angel Velásquez Díaz, and gravely wounding a further 11 workers (Esteban Velásquez Jiménez, Alfonso Ramiro García López, Marcos Pérez Ramos, Santiago Pablo Morales, Domingo Ramos Gabriel, Ricardo Leiva, Julián García Mendoza, Pascual Sales Méndez, José Sánchez Gómez, Pedro Pablo Domingo García and Miguel Angel Velásquez Díaz).
8. – On 16 March 2005, the coordinator of the UNSITRAGUA Commission and Legal Office was prevented from leaving the country.
9. Acts of anti-union discrimination
10. Ingenio Magdalena S.A., finca El Cobano
11. – On 28 January 2005, workers jointly proposed collective bargaining to the employer and requested the Labour Inspectorate to forward their list of demands. The Labour and Welfare Court in Escuintla cautioned the parties to refrain from taking mutual reprisals. On 7 February 2005, upon learning of the workers’ intention to engage in collective bargaining and to establish a trade union, the enterprise dismissed 18 workers. On 11 March 2005, the judicial authorities ordered the reinstatement of the workers and the enterprise appealed against the order, stating that they were not employees of the undertaking. On 17 March 2005, the trade union was recognized. On 23 March 2005, a further three workers were dismissed, thereby completing the dismissal of all the workers who had been involved in establishing the trade union. The judicial authorities ordered that these workers also be reinstated and again the enterprise appealed against the order, on the grounds that they were not employees. Lastly, the undertaking lodged an appeal to revoke the resolution recognizing legal personality and adopting the articles of incorporation of the Trade Union of Workers of the finca El Cobano Ingenio Magdalena S.A. (SITRAFECIMASA) and the Ministry of Labour, ignoring rules of due process, decided to modify the name of the trade union by deleting the reference to Ingenio Magdalena S.A.
12. Municipality of San Juan Chamelco, department of Alta Verapaz
13. – On 5 January 2005, five workers were dismissed (their names are listed by the complainant organizations) belonging to the Trade Union of Workers of the municipality of San Juan Chamelco, department of Alta Verapaz. On 29 April 2005, the judicial authorities ordered the reinstatement of the dismissed workers, but the municipality refused to comply with the order.
14. San Vicente Tuberculosis Sanatorium
15. – On 14 April 2005, the worker Hector Salvador Mendizabal Vega, member of the Trade Union of Workers of the San Vicente Sanatorium, was dismissed. According to the complainant organization, this was a violation of the collective agreement on working conditions which provided that nobody could be dismissed without a court decision confirming that grounds existed for dismissal.
16. Municipality of El Tumbador, San Marcos
17. – On 19 and 20 April 2005, the workers Victor Hugo Lopez Martinez and Julio Rene de Leon Estrada, belonging to the Trade Union of Workers of the Municipality of El Tumbador, San Marcos, were dismissed during a collective dispute in connection with the negotiation of a collective agreement on working conditions. The workers in question applied for reinstatement before the Court of Labour and Social Security and the Family of the First Instance, in the municipality of Malacatlan, in the Department of San Marcos.
18. Enterprise Bocadelli S.A.
19. – The Trade Union of Workers of Bocadelli of Guatemala S.A. (SITRABOCADELLI) drew up a draft collective agreement on working conditions which was forwarded to the enterprise for negotiation, through the General Labour Inspectorate, on 11 July 2005. During the following months, the enterprise’s employees initiated court proceedings for payment of their wages. Workers obtained access to an internal company document entitled “Guatemala Ostrich Plan” outlining a plan to evade responsibilities for paying benefits to workers and an illegal stoppage was anticipated. On 11 August 2005, the company staged a lockout, barring access to workers. The complainants criticize the passivity of the Ministry of Labour authorities who, in their view, could have sought ways to establish a dialogue between the parties. Lastly, the complainant states that the president of the trade union was pursued by vehicles without licence plates and with tinted windows and that the First Labour and Social Security Court of the First Economic Zone placed an embargo on company assets in August 2005 when it became aware of the existing threat to workers’ rights.
20. (The Committee observes that the complainant has submitted allegations relating to the undertaking La Comercial S.A. and the Higher Electoral Court which are considered in connection with Case No. 2241.)
21. B. The Government’s reply
22. 894. As to the allegations relating to the stoppage and demonstration against the free trade agreement, the Government states in its communication dated 5 July 2005 that Guatemalan legislation does not reduce the guarantees provided for in ILO Convention No. 87. The rights of trade unions (of employers and of workers) include the right to engage in work stoppages and strikes, as regulated in the following articles of the Constitution: 104 for workers and employers in private enterprise and 116 for State employees, and subsequently regulated in the respective ordinary laws.
23. 895. The Government adds that the right to strike is enjoyed by workers, for the purpose of improving or defending common economic interests against their respective employer, subject to compliance with legal requirements. The right to carry out stoppages is exercised by employers or trade unions of employers, for the purpose of defending their economic interests against their employees. Hence, Guatemalan legislation contains no regulation of the concept of “national stoppage”, which is the term employed by UNSITRAGUA in reference to the demonstration held in Guatemala City on 14 March of this year.
24. 896. No demands were made on the State of Guatemala during the demonstration in regard to matters such as employment conditions or improvements of a socio-economic nature, in its capacity as boss or employer. If UNSITRAGUA is of the view that its right to freedom of association has been infringed, it must first apply to the competent jurisdictional body which will then issue a decision which determines or declares that the State of Guatemala has violated said freedom of association. The activity engaged in by these groups on 14 March 2005 contravenes the constitutional provision contained in article 33 of the national Constitution, in that it disturbed public order and caused damage to private property, and thus ceased to be a demonstration or manifestation of peaceful resistance and, according to domestic legislation, those responsible should be brought before the courts.
25. 897. According to the Government, the accusations formulated by UNSITRAGUA relate to situations that must be proven, in conformity with domestic legislation. In this regard, the Government makes the following observations: (a) UNSITRAGUA, in an irresponsible manner, used minors, older persons and pregnant women in its demonstrations (in all events they would need to demonstrate that these persons are members of the participating trade unions); (b) UNSITRAGUA states that the Government issued orders for the arrest of leaders of the movement; this is untrue, since arrest warrants are issued by the jurisdictional bodies and not by the Government; (c) the words of the President of the Republic have been misrepresented by UNSITRAGUA and he had in fact said that “he regretted that a person had died”; and (d) the alleged murder of Juan Esteban Lopez must be established in a criminal trial, brought by the prosecution service, subsequent to the corresponding investigation.
26. 898. Lastly, the Government states that, in view of the above, this case should not be considered admissible by reason of the fact that the allegations are of a political nature and the situations invoked are excessively vague and failed to provide sufficient evidence to justify the complaint.
27. 899. In its communication of 7 July 2005, the Government states, as regards the allegations concerning the registration of the Trade Union of Workers of the finca El Cobano, Ingenio Magdalena, S.A., that the employer submitted a request to the Ministry of Labour and Social Security to have the registration of the trade union revoked, as a result of which the Ministry of Labour and Social Security modified the name of the trade union organization. According to the Government, the Ministry of Labour and Social Security acted in keeping with the law, after verifying the facts in situ, through the Labour Inspectorate. Specifically, the undertaking Ingenio Magdalena S.A. stated that the workers who had established the trade union in question were not employees of the undertaking, for which reason the change of name was requested. On the basis of this information, and following an in situ inspection, the application to have registration revoked was found to be justified and the name of the trade union was therefore changed, deleting the words Ingenio
28. Magdalena S.A.

C. The Committee’s conclusions

1. 900. The Committee observes that the complainant organization alleges: that the forces of law and order violently repressed trade union demonstrations (accompanied by associations of peasants and other human rights organizations) in March 2005, protesting against the signature of the free trade agreement, resulting in the death of workers (including a peasant worker leader), while a further 11 were injured; that arrest warrants had been issued against trade union officials; that the coordinator of the UNSITRAGUA Commission and Legal Office was prevented from leaving the country; and that the President of the Republic had used the media to refer in disrespectful terms to trade union leaders. In addition, the complainant organization alleges anti-union dismissals at the Ingenio Magdalena S.A., finca El Cóbano (alleging moreover that the management of the enterprise appealed against the decision granting legal personality to the enterprise’s trade union and that the administrative authority settled the appeal in favour of the enterprise in an irregular manner), in the municipality of El Tumbador, San Marcos, in the municipality of San Juan Chamelco, Department of Alta Verapaz and in the San Vicente Tuberculosis Sanatorium. Lastly, the complainant organization alleges that a slander campaign was directed against the trade union and a lockout staged at the Bocadelli S.A. enterprise, after the enterprise’s trade union submitted a draft collective agreement on working conditions.
2. 901. As regards the alleged repression by the forces of law and order during the demonstration of 14 March 2005, undertaken in the context of a national stoppage called by the trade union and other organizations to protest the signature of a free trade agreement with the United States, the Committee notes that the Government states that: (1) the rights of trade unions (of employers and of workers) include the right to engage in work stoppages and strikes, as regulated in articles 104 and 116 of the national Constitution, but that there is no regulation of the concept of national stoppage, which is the term employed by UNSITRAGUA in reference to the demonstration held on 14 March 2005; (2) no demands of a socio-economic nature were made to the State during the demonstration in question; and (3) the activity engaged in by these groups on 14 March 2005 contravenes the constitutional provision contained in article 33 of the national Constitution, in that it disturbed public order and caused damage to private property, and thus ceased to be a demonstration or manifestation of peaceful resistance and, according to domestic legislation, those responsible are liable for prosecution. In this regard, the Committee recalls that, whilst purely political strikes do not fall within the scope of the principles of freedom of association, organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and all workers in general, in particular as regards employment, social protection and standards of living [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 480 and 482]. The Committee considers that the signature of a free trade agreement may have consequences for the members of workers’ organizations and workers in general, and that consequently they should be permitted to stage demonstrations in support of their views. Nonetheless, given the contradictory nature of the accounts of the events that occurred during the demonstration of 14 March 2005 (according to the complainant, the national civil police intervened during the event and started to fire tear gas at the demonstrators while, according to the Government, a disturbance of public order occurred during the demonstration and private property was damaged), the Committee requests the Government to take measures to carry out an independent, in-depth investigation of the events that occurred and to keep it informed in this respect.
3. 902. As regards the allegations that arrest warrants were issued against the leaders who organized the protest of 14 March 2005, the Committee notes that the Government denies that it issued warrants, given that this is done by the courts. In this regard, the Committee requests the Government to provide information as to whether the judicial authority had indeed issued arrest warrants and, if so, to provide information on the status of the trials of the persons involved.
4. 903. As regards the alleged repression on 15 March 2005 by members of the national army and of the national civil police of demonstrators from trade unions and other organizations, on the SELEGUA V Bridge at kilometre 287.5 of the Interamerican highway, in the village of Los Naranjales, municipality of Colotenango, Department of Huhuetenango, killing Juan Esteban López, leader of the Committee of Peasant Unity and member of the National Coordination of Peasant Organizations and the workers José Sánchez Gómez, Pedro Pablo Domingo García and Miguel Angel Velásquez Díaz, and gravely wounding a further 11 workers (Esteban Velásquez Jiménez, Alfonso Ramiro García López, Marcos Pérez Ramos, Santiago Pablo Morales, Domingo Ramos Gabriel, Ricardo Leiva, Julián García Mendoza, Pascual Sales Méndez, José Sánchez Gómez, Pedro Pablo Domingo García and Miguel Angel Velásquez Díaz), the Committee notes that the Government states that the alleged murder of Juan Esteban López must be established in a criminal trial, brought by the prosecution service, subsequent to the corresponding investigation. In this regard, the Committee regrets that the Government has not sent specific information on these serious alleged cases of violence. The Committee recalls that it has emphasized on several occasions that “in cases in which the dispersal of public meetings or demonstrations by the police for reasons of public order or other similar reasons has involved loss of life or serious injury, [it] has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities” and that “the authority should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and the government should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace” [see Digest, op. cit., paras. 148 and 137]. Consequently, the Committee deplores the death of the leader and other workers and the injuries suffered by a number of demonstrators and urges the Government to take the necessary measures to conduct promptly an independent inquiry into the alleged facts in order to ascertain where responsibility lies and, where appropriate, to punish those responsible and to keep it informed in this respect.
5. 904. As regards the alleged disrespectful statements by the President of the Republic in the media about trade union leaders and violence against participants in the demonstrations, the Committee, observing the contradictory statements made, requests the Government to carry out an independent investigation into these allegations and to keep it informed in this respect.
6. 905. As regards the allegation that the coordinator of the UNSITRAGUA Commission and Legal Office was prevented from leaving the country on 16 March 2005, the Committee regrets that the Government has not sent any comment. It requests the Government to carry out an investigation and to send its observations on this allegation.
7. 906. As regards the allegations in respect of the appeal lodged by the enterprise to revoke the resolution recognizing legal personality and adopting the articles of incorporation of the Trade Union of Workers of the finca El Cobano Ingenio Magdalena S.A. (SITRAFECIMASA) where the Ministry of Labour, ignoring rules of due process, decided to modify the name of the trade union by deleting the reference to Ingenio
8. Magdalena S.A., the Committee notes the Government’s statement that the enterprise Ingenio Magdalena argued in the appeal for revocation that the workers who had established the trade union in question were not employees of the enterprise and that this was confirmed by means of an inspection, for which reason the change in the trade union name was ordered.
9. 907. Lastly, the Committee regrets that the Government has not sent its observations regarding the following allegations: (1) the dismissal of 23 workers who attempted to establish a trade union in the finca El Cóbano (it is alleged that court orders exist for reinstatement that have been ignored by the enterprise); (2) dismissal of five workers belonging to the Trade Union of Workers of the municipality of San Juan Chamelco, department of Alta Verapaz (it is further alleged that the judicial authorities ordered the reinstatement of the dismissed workers, but that the municipality refused to comply with the order);
10. (3) dismissal of a worker belonging to the Trade Union of Workers of the San Vicente Tuberculosis Sanatorium, in violation of the provisions of the collective agreement;
11. (4) dismissal of two workers belonging to the Trade Union of Workers of the municipality of El Tumbador, San Marcos, in the context of a collective dispute during the negotiation of a collective agreement on working conditions; and (5) lockout at Bocadelli S.A. following the submission of a draft collective agreement by the enterprise’s trade union. In this respect, the Committee requests the Government: (1) where orders exist for the reinstatement of dismissed trade union members, to take steps to ensure that these orders are immediately enforced; and (2) promptly to send its observations on all pending allegations.