Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 350, Junio 2008

1. 873. The complaint is contained in a joint communication from the Trade Union for Technical and Administrative Support Workers of the Institute for Criminal Law Legal Aid (STATAIDPP) and the Federation of Bank and Insurance Employees (FESEBS), which is affiliated to UNI–Américas, dated 28 February 2007. These organizations sent additional information in a communication dated 22 May 2007. The Government sent its observations in a communication dated 19 June 2007.
2. 874. 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 complainants’ allegations

1. 875. In their communication dated 28 February 2007, the STATAIDPP and the FESEBS, which is affiliated to UNI–Américas, state that, on 28 June 2006, the technical and administrative workers of the Institute for Criminal Law Legal Aid established the STATAIDPP and notified the General Labour Inspectorate of its establishment on 29 June 2006 with the sole aim of safeguarding the protection against dismissal granted by section 209 of the Labour Code.
2. 876. The complainants also state that, on 6 July 2006, the union’s officials brought the Institute for Criminal Law Legal Aid before the Seventh Labour Court through a joint suit of a social and economic nature with the aim of also safeguarding the employment stability of workers who were not involved in the establishment of the trade union and are not members thereof. On the same date, the judge of the Seventh Labour and Social Security Court handed down a decision ordering the parties not to carry out any reprisals against each other and furthermore ordering the employer not to dismiss workers without the authorization of the judge familiar with the dispute in question. According to the complainants, as a result of the establishment of the union, the employer ordered the transfer of Mr Manuel de Jesús Ramírez (General Secretary of the union) and Mr José René Veliz (Secretary for Labour and Disputes) on 3 July 2006 and of Mr César Rolando Alvarez Arana (Secretary for Records and Agreements) on 4 July 2006. When these officials did not follow the transfer order, the employer initiated administrative proceedings against them. On 4 August 2006, officials Mr Manuel de Jesús Ramírez and Mr César Rolando Alvarez Arana were dismissed; they subsequently initiated legal proceedings for their reinstatement. On 8 August 2006, the judicial authority ordered their immediate reinstatement; however, the employer did not carry out this order and took the matter before the Labour and Social Security Court of Appeals. Although the Court confirmed the order to reinstate the official Mr José René Veliz, the employer still refuses to reinstate him and has lodged an extraordinary appeal for constitutional protection (recurso extraordinario de amparo). The complainants point out that the petitions filed by the employer before the Court of Appeals against the reinstatement order handed down in the first instance in favour of officials Mr Manuel de Jesús Ramírez and Mr César Rolando Alvarez Arana are still pending.
3. 877. In their communication dated 22 May 2007, the complainants indicate that the situation has not evolved since the complaint was presented to the Committee on Freedom of Association. They add that the employer is refusing to negotiate the draft collective agreement of which it was officially notified on 25 April 2007.

B. The Government’s reply

1. 878. In its communication of 19 June 2007, the Government states that the allegations made by the complainants are currently being processed by the courts. The Government also points out that the Public Prosecutor’s Office for Human Rights intervened in this case; however, it suspended its action when the allegations were brought to the attention of the competent judicial authorities.

C. The Committee’s conclusions

1. 879. The Committee observes that, in this complaint, the complainants allege: (1) the transfer of three union officials as a result of the establishment of the complainant organization; (2) the dismissal of two of these officials (Messrs Manuel de Jesús Ramírez and Mr César Rolando Alvarez Arana), who obtained a court order for their reinstatement, against which the employer lodged an appeal before the Court of Appeals; (3) the employer’s failure to comply with the order issued by the Court of Appeals to reinstate the official Mr José René Veliz in the job he held before being transferred and its decision to lodge extraordinary amparo proceedings to prevent his reinstatement; and (4) the employer’s refusal to negotiate the list of demands presented by the union. The Committee notes that the Government merely indicates that these matters are before the relevant jurisdictional bodies.
2. 880. The Committee deeply regrets that, despite the fact that the alleged acts occurred in July 2006, the legal proceedings concerning the transfer of union official Mr José René Veliz and the transfer and dismissal of union officials Messrs Manuel de Jesús Ramírez and César Rolando Alvarez Arana following the establishment of the union are still pending. The Committee observes that the three officials obtained a court order for their reinstatement in the first instance and that the employer lodged appeal or amparo proceedings which are still to be resolved.
3. 881. The Committee must stress that: “Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned.” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 826].
4. 882. In these circumstances, while voicing its concern over the excessive slowness in administering justice, the Committee expects that the legal proceedings concerning these union officials will be concluded without delay and requests the Government to keep it informed in this regard and, if the court of appeal confirms the ruling of first instance, to take the necessary measures without delay to reinstate the dismissed or transferred union officials in their posts.
5. 883. With regard to the refusal of the employer (the Institute for Criminal Law Legal Aid) to negotiate the list of demands presented to it by the complainant organization by means of an official notification on 25 April 2007, the Committee regrets that the Government merely indicates that the matters relating to this case are currently before the jurisdictional bodies. The Committee reminds the Government that, by virtue of Convention No. 98, where necessary, it is required to take the appropriate measures to encourage and promote collective bargaining, and requests it to take measures without delay to promote collective bargaining between the Institute for Criminal Law Legal Aid and the complainant organization, and to keep it informed in this regard.