Informe provisional - Informe núm. 355, Noviembre 2009

1. 775. The complaint is contained in communications from the Movement of Trade Unions, Indigenous Peoples and Agricultural Workers of Guatemala (MSICG) dated 4 November 2007. This organization presented new allegations in communications of 22 November 2007, 24, 29 and 30 October 2008, and 13 March, 20 April and 27 and 28 May 2009. The Government responded to a limited number of the allegations in communications of 26 November 2007, and 24 January, 15 April and 23 June 2008.
2. 776. At its June 2009 meeting, the Committee observed that, despite the time which had elapsed since the submission of the complaint, it had not received the observations that the Government had been requested to provide. The Committee issued an urgent appeal to the Government drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of this case at its next meeting, if the requested observations had not been received in full and in due time. Accordingly, it urged the Government to send its observations as a matter of urgency [see 354th Report, para. 9]. Since then, the observations of the Government concerning the complaint have not yet been received in full.
3. 777. 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. 778. The MSICG (representing the Highlands Committee of Agricultural Workers (CCDA), the General Confederation of Agricultural and Urban Workers (CTC), the General Confederation of Workers of Guatemala (CGTG), the Unified Trade Union Confederation of Guatemala (CUSG), the National Coordinating Body of Agricultural Workers’ Organizations (CNOC), the National Trade Union and People’s Coordinating Body (CNSP), the Trade Union Federation of Bank and Service Industry Employees (FESEBS), the Trade Union Federation of Agricultural Workers (FESOC), the Trade Union Federation of Food and Allied Industry Workers (FESTRAS), the National Front for the Defence of Public Services and Natural Resources (FNL), the National Union of Healthcare Workers of Guatemala (SNTSG), the Union of Workers of the Western Electricity Supply Company SA (SITRADEOCSA), the Guatemalan Union of Workers (UGT) and the Trade Union of Workers of Guatemala (UNSITRAGUA)), alleges in its communications of 4 and 22 November 2007, 23, 24, 29 and 30 October 2008, and 13 March, 20 April and 27 and 28 May 2009 that, under the current administration, there has been an increase in the number of murders and cases of harassment against trade unionists and union rights defenders, primarily affecting the MSICG, as well as an increased use of mechanisms to criminalize the exercise of freedom of association and collective bargaining and an increased repression of social protests. Furthermore, a climate of impunity is being fostered. The Ministry of Labour and Social Welfare has attempted to promote social dialogue in bad faith, rendering the role of workers’ organizations in social partnership ineffective, and has failed to fulfil its legal duty to oversee the effective and full enforcement of labour legislation. Although the rights to freedom of association, collective bargaining and to strike are recognized in domestic legislation, there is an absence of effective compliance with these rights because of the ineffectiveness of the labour justice system, caused both by slowness and a lack of adherence in law to the decisions issued by the labour and social welfare courts, the chambers of the Labour and Social Welfare Appeals Court and the Supreme Court of Justice in protection of constitutional rights (amparo) cases relating to labour guarantees.
2. 779. The complainant organization expresses its deep concern that the murders of union leaders that took place in 2007 and 2008 have affected mostly the constituent organizations of the MSICG. These crimes are committed as part of a policy of trade union repression by employers that is very often backed and enforced by the Government of Guatemala itself. This is reflected in the increased number of murders and other crimes against trade unionists and in the weakening by the Government of the penal system’s capacity to identify and punish the perpetrators of these crimes. Although the Office of the Public Prosecutor for Offences against Journalists and Trade Unionists was created in 2001 as a result of pressure by the trade union movement, including at the international level, it has now has been closed down, pursuant to General Agreement No. 03-2005 of the Council of the Department of Public Prosecution dated 9 March 2005. Currently, only one unit in the Office of the Public Prosecutor for Human Rights is responsible for investigating and conducting criminal proceedings against those charged with committing criminal acts against journalists, trade unionists, administrators of justice or human rights activists. Consequently, less importance is attached to investigating crimes committed against trade unionists, a reduced budget is allocated to such investigations and there are fewer experts to carry out the investigations.
3. 780. The complainant organization alleges that, on 23 September 2007, at 5.45 a.m., while making his way from his home to his workplace, both located on the Yuma estate in the municipality of Morales, in the department of Izabal, Marco Tulio Ramírez Portela, Secretary for Culture and Sport and General Secretary of the Yuma estate sub-branch of the Izabal Banana Workers’ Union (SITRABI) was murdered in the presence of his wife and two daughters.
4. 781. The crime was perpetrated by heavily armed men, whose faces were masked with balaclavas, on the premises of the Guatemala Banana Growers’ Company SA, an enterprise that is commercially known as BANDEGUA and which is a subsidiary of the multinational fruit-producing company Del Monte Fresh; these premises were under the surveillance of BANDEGUA security guards.
5. 782. What is remarkable is that, in order to get to the place where the crime was committed, it is necessary to pass two security posts, which are tasked with controlling both the entrance and exit. These posts are manned by employees of the private security firm known as SERPROP, which also patrols the premises and is contracted by BANDEGUA to provide its security services. It is, therefore, implausible that the killers could have gained access to the premises, carried out the murder and left without being detected or detained by the private security guards, given that the two entrances and exits are controlled by two security posts.
6. 783. In previous months, relations between the trade union leader in question and the employer had deteriorated to the point where he had been threatened with dismissal because of his union activities, on the basis of an accusation that he had instigated measures to sabotage production at the estate (a reason often given by employers in the country to dismantle or undermine unions). The investigations into his murder have not progressed as would have been expected with regard to the identification, arrest and prosecution of the perpetrators and instigators.
7. 784. The complainant organization also states that, on 28 September 2007, between 8 p.m. and 11 p.m., unidentified persons armed with AK-47 firearms rode through the Yuma estate on motorbikes, intimidating the inhabitants.
8. 785. Since 1 October 2007, Noé Antonio Ramírez Portela, General Secretary of SITRABI and brother of the murdered union leader, has been harassed by a vehicle which frequently circles and observes his home.
9. 786. Noé Antonio Ramírez Portela received phone calls at night from staff of the BANDEGUA enterprise requesting that the union sign a document absolving the enterprise of any liability for the murder of Marco Tulio Ramírez Portela, which took place on its premises, under the surveillance of its security guards.
10. 787. The complainant organization alleges that, in Guatemala, circumstances do not allow the full exercise of freedom; rather, the conditions of violence have escalated to the point that, by 2008, the following trade unionists had been murdered:
    • – Jaime Nery González, former member of the executive committee (Deputy General Secretary and regular member) of the Union of Commercial Vendors of Jutiapa department was shot at 7.30 a.m. on 30 October 2008.
    • – Lucy Martínez Zúñiga, General coordinator of the Union of Penitentiary System Workers and member of the CGTG, died as a result of multiple gunshot wounds at around 10 a.m. on 18 October 2008.
    • – Edmundo Noé Herrera Chávez, member of the Union of Workers of the Rafael Landívar University (SINTRAURL) and of UNSITRAGUA, was shot dead at 4 a.m. on 18 October while he was on his way to work.
    • – José Israel Romero Ixtacuy, General Secretary of the union of the municipal electricity company, which is affiliated to UNSITRAGUA, was murdered at noon on 21 September 2008 while having lunch in the canton of San Luis, in zone No. 5 of Retalhuleu, by two people who were driving a Passola motorcyle and who entered the premises with the sole purpose of murdering him.
    • – Freddy Morales Villagrán, a member of the Union of Workers of the Empresa Distribuidora del Petén (SITRAPETEN), was attacked by armed men on 8 June 2008. He was badly injured, had to be hospitalized. And died as a result of his injuries. The union was in the midst of a bitter dispute with the employer that had begun in February when SITRAPETEN had initiated proceedings to register the union in strict compliance with the procedure set out in the Labour Code and in international standards. The response of the enterprise and of the Ministry of Labour has given rise to an overt campaign involving harassment, repression and even death threats against SITRAPETEN members.
    • – Marvin Leonel Arévalo Aguilar, board member of the Heavy Goods Transport Workers’ Union, was brutally murdered, in what is presumed to be an extrajudicial killing on 6 May 2008 in connection with a strike against the ban on heavy goods transport. The Government has been asked to provide an explanation for the possible extrajudicial killing, as members of the army and the national police force were deployed in the place where the strike took place.
    • – Sergio Miguel García, member of the SNTSG and secretary responsible for the organization and records of the vector-borne diseases branch in the municipality of Puerto Barrios, was murdered on 13 May 2008 by identified assailants, who shot him while he was riding his motorcycle to work.
    • – Mario Caal (leader of the Committee of United Agricultural Workers), was extrajudicially beaten to death by the joint forces of the army and the national civil police in Puntarenas, Río Dulce, within the context of a military operation involving the deployment of more than 500 troops to the area. Despite the overwhelming evidence and the statement by the Human Rights Ombudsperson pointing to an extrajudicial execution, the Government still maintains that it knows nothing about the incident and had nothing to do with it.
    • – Miguel Ángel Ramírez Enríquez, co-founder of the Southern Banana Workers’ Union (SITRABANSUR) (member of UNSITRAGUA), was murdered on 2 March 2008. Criminal proceedings have been carried out against the union’s leaders in relation to his death further to communications by the enterprise Frutera del Atlántico SA, which indirectly blame the murder on the union leaders and suggest that criminal proceedings may be instigated against the leadership of UNSITRAGUA, as happened in the case of the Union of Workers of Corporación Bananera SA. More specifically, the complainant organization alleges that the employer urged the relatives of the murdered leader of SITRABANSUR, Miguel Ángel Ramírez, to inform the Department of Public Prosecution that the unionists Víctor Manuel Gómez Mendoza and Efraín López were responsible for the murder, in order to turn the dispute into a criminal case. Without further investigation, the court requested and ordered the arrest of the unionists in question. Under the circumstances, UNSITRAGUA is covering the cost of their criminal defence and, given the biased nature and the shortcomings of the investigation carried out by the Department of Public Prosecution, has initiated its own investigation, which enabled it to locate Roberto Dolores, who, on 20 August 2008, upon appearing as a witness with regard to Case No. MP059/2008/2060 before agency No. 2 of the Escuintla District Prosecutor’s office, stated among other things: that he, together with his colleague Miguel Ángel Ramírez, had been hired by Otto Noac (the estate’s head of security) and Luis Calderón (contractor at the Olga Maria estate) to monitor the union’s members and kill its leaders, specifically Óscar Méndez, Víctor Manuel Gómez Mendoza and Efraín López; that they were initially on the payroll but were subsequently paid directly by Otto Noac; that when Miguel Ángel Ramírez was murdered he began to fear for his life and took refuge at the house of Miguel Ángel Ramírez’s widow, and that Otto Noac showed up there in a pick-up truck, but upon seeing him reversed and drove away; that this scared him so he fled to Guatemala City and, eight days after he had left, four men arrived in the same vehicle with the intention of killing him; and that, from then on, he began to receive threatening phone calls telling him that if he could not be found they would kill his children. He said that eight days after receiving the threats, his youngest daughter María Antonia Dolores López, aged 13, disappeared. According to witnesses, she was kidnapped by individuals in a black vehicle, a fact which was reported to the police, together with a statement that the contractor Luis Calderón and the estate’s head of security, Otto Noac, are responsible for the murder of union leader Miguel Ángel Ramírez. To date, the Department of Public Prosecution has not issued an arrest warrant for Otto Noac and Luis Calderón and the whereabouts of the minor María Antonia Dolores López are still unknown. The MSICG is concerned about the safety and physical integrity of the witness Roberto Dolores and his family and asks the ILO to request the Government to provide adequate protection and to carry out a prompt and effective investigation into the whereabouts of María Antonia Dolores López, as it fears for her life and physical integrity, as she has been missing for over five months.
    • – Israel Romero Estacuy, general secretary of the union of the Retalhuleu municipal electricity company, who was murdered on 21 September 2008.
11. 788. The current situation shows an escalation of violence against trade unionists and to date the Department of Public Prosecution has not been effective in shedding light on the causes of such murders or in identifying and punishing those responsible for the bloodshed.
12. 789. Alarmingly, these murders have almost exclusively affected the constituent organizations of the MSICG. On 29 April 2008, between noon and 1 p.m., during his lunch break, Carlos Enrique Cruz Hernández was murdered at his workplace, plant No. 12 of the Chikasaw El Peligro estate, which is owned by the enterprise BANDEGUA, a subsidiary of the multinational Del Monte Fresh. Mr Cruz Hernandez worked for BANDEGUA and was a member of SITRABI. This is not the only action against SITRABI members; it also came to light that acts of intimidation have been carried out against Danilo Méndez, who is also a union member, by armed men wearing balaclavas who surrounded his home and that one of the sons of the Secretary General of SITRABI lives in the same area.
13. 790. Furthermore, the trade unionist Bartolomé Mo Tax, membership secretary of the healthcare branch of the National Union of Healthcare Workers of Guatemala in the department of Alta Verapaz, was threatened and intimidated on 4 May 2009 by representatives of the employer, which in this case is the Government of Guatemala. The threats have been made because this worker is conducting a campaign to promote full respect for the workers’ labour and trade union rights. At 12.30 a.m. on 21 May, unidentified men fired about 30 shots in front of the worker’s home, which is located in Barrio San Jorge in Alta Verapaz. Since the threats were issued by the employer, vehicles with tinted windows and without licence plates have circled the house of this unionist late at night to the point that, as a security measure, it has been necessary for him and his family to move out of the house.
14. 791. The complainant organization adds that, on 29 May 2008, César Orlando Jiménez Cárdenas, secretary of the Hermano Pedro de Betancourt Hospital branch, affiliated to the FNL, received a threatening text message on his mobile phone. On 6 May 2008, he received another written death threat. The relevant complaints were filed with the Department of Public Prosecution. The Government, whose response has been passive, has failed to shed light on the matter and to identify those responsible; on the contrary, it has delayed the investigation procedures and played down their importance.
15. 792. On 10 March 2009, Maritza Elosay Pérez Carrillo, the wife of union leader César Orlando Jiménez Cárdenas, was kidnapped and tortured by a group of men, with the following message for César: “Tell your husband to leave the union or your children will be next”.
16. 793. Furthermore, at around 7.30 p.m. on Wednesday, 1 April 2009, the home of trade unionist Edgar Neftaly Aldana Valencia, secretary general of the San Benito District Hospital branch of the SNTSG, which is affiliated to the FNL, a member of the MSICG, was hit by nine bullets. The house, which was occupied at the time by the unionist’s whole family, was left with serious damage, including broken windows. The attack endangered the lives of the whole family, including a minor. Minutes after the attack, the unionist received a death threat (against himself and his family) by phone. This incident was reported to the authorities.
17. 794. In the morning of 6 April 2009, approximately 50 officers of the municipal police and civil national police of the department of Coatepeque of Guatemala City evicted the informal sector workers of that locality using excessive force. It is worth mentioning that several of the officers wore balaclavas to cover their faces and carried high-calibre weapons. During the eviction, the state security forces injured 13 people with their firearms. The armed attack specifically targeted the unionists Diego Gustavo Chiti Pu and Sergio Alejandro Ramírez Huezo, who died as a result of the injuries caused by the state security forces. Both of the victims of this extrajudicial murder were members of the Coatepeque Workers’ Union, a union that is affiliated to the CGTG (which is a member of the MSICG) and they had worked in the sector for over eight years. These murders were reported to the authorities but the facts have not been clarified.
18. 795. On 28 May 2009, Victoriano Zacarías Míndez, Deputy General Secretary of the CGTG, was kidnapped by armed men who made him get into a car. Fortunately, he managed to escape.
19. 796. On 22 August 2008, the mayor of the municipality of Coatepeque, Quetzaltenango department, initiated the demolition of the central market, the Placita Barrios market, market No. 2 and the bus station, all of which were located in the municipality of Coatepeque. The demolition work was carried out without warning any of the informal sector workers at the markets or the Commercial Workers’ Union of Coatepeque.
20. 797. At the same time as the demolition work, the mayor completed the construction of a new market within the jurisdiction of the Las Conchitas estate. The new market is located 300 metres away from the municipal dump, at which approximately 35 tonnes of rubbish is deposited every day, which is incinerated continuously without any environmental control; furthermore, about 100 metres away, there are two local cemeteries, an open septic tank and a channel of raw sewage.
21. 798. When he found out that the informal sector workers continued to trade in the old market, and with the support of the departmental governor, the mayor mobilized about 5,000 officers from the civil national police, 5,000 soldiers from the Guatemalan army and some parallel groups including, among others, the so-called “neighbours in action”. The aim of the operation was to coerce the vendors to move to the new market, and the result was, among other things, several injured workers and a loss of merchandise.
22. 799. Since the outset of this problem, the mayor has made use of the public forces to evict the vendors from the old market facilities.
23. 800. The complainant organization provides a detailed description of the acts of intimidation that have been carried out since September 2008 against Lesbia Guadalupe Amézquita, regional coordinator of the trade union branch of the Friedrich Ebert Foundation simply because she provided technical support to trade unions, in particular with regard to setting up the complainant organization. Since 18 July 2008, Ms Amezquita has been followed repeatedly and intimidated by vehicles with tinted windows and motorcycles. Her car has been damaged and her personal belongings (mobile phone, keys, etc.) have been stolen. These incidents were reported but further damage was caused to her car, she was repeatedly and overtly harassed while she was driving and she received threatening telephone messages. Despite the seriousness of these events, the investigations carried out have not yielded any results. The complainant organization also alleges that repeated death threats were issued in 2009 against the UNSITRAGUA member Efrén Sandoval.
24. 801. The complainant organization also alleges that trade union organizations such as the Union of Penitentiary System Workers, the Union of Workers of the Municipality of Rio Bravo and the Union of the Ministry of the Environment and Natural Resources were refused legal status. Sometimes such status is refused on the grounds of requirements that are not stipulated by law.
25. 802. According to the complainant organization, the Ministry of Education has refused to allow the Union of Education Workers of Guatemala to hold its general assembly. Likewise, constraints have been imposed on the exercise of the right to bargain collectively in the municipalities, ministries, public agencies and state enterprises.
26. 803. The Ministry of Labour has limited the duration of union leave in the Ministry of Public Health and Social Assistance, in violation of the collective agreement. Since 2004, the latter has withdrawn the check-off facility.
27. 804. Furthermore, the labour rights situation in the maquila sector is extremely serious. There are only three active trade unions and two collective agreements. Several maquilas have closed down because of indications that a union is being set up. These are: Textiles del Mundo SA; Don Bang Industrial; Cambridge Industrial SA; H. I., SA; Chuckie, SA; Modas do Sool, SA; and You Won, SA.
28. 805. In order to prevent the organization of trade unions and reduce labour costs, the Government of Guatemala has, for several years, been hiring workers and establishing a labour relationship with them based on contracts that disguise the nature of the working relationship. These contracts are referred to as professional services (delivery) contracts and for accounting purposes come under budget lines 029, 022 and 082, among others. Under these contracts, workers are hired to work for a year or for a period of months and then their contracts are renewed. This method of disguising the employment relationship has two objectives: first, it makes it impossible for workers to form or join a union, and it even makes them avoid union activities in order to keep their jobs and enjoy the possibility of contract renewal; and second, it deprives workers of any of the rights that are afforded to workers in an employment relationship.
29. 806. The complainant organization alleges that threats were made against leaders of the Union of Workers of Actividades de Servicios e Instalaciones Cobra SA and DEOCSA and affiliated and related enterprises, which is a member of the Federation of Rural and Urban Workers (FETRACUR). In this regard, a complaint was filed with the Office of the Public Prosecutor for Offences against Journalists and Trade Unionists and to the Human Rights Ombudsperson because unidentified persons in vehicles with tinted windows were allegedly seeking the leaders out in the western part of the country.
30. 807. Thirty-three of the founding members of the Union of Workers of Actividades de Servicios e Instalaciones Cobra SA and DEOCSA and affiliated and related enterprises have been dismissed; although the Quetzaltenango Labour Court has ordered their reinstatement, the employer has refused to comply with the court order.
31. 808. The complainant organization notes that, in the National Institute of Forensic Sciences (INACIF), a public institution that operates autonomously, the authorities have resorted to disguising employment relationships by hiring the majority of the staff on a temporary basis, simply to avoid having to set money aside for labour liabilities and to keep workers in a constant state of job insecurity in order to prevent them from forming or joining a trade union or remaining a trade union member. For this reason, the workers decided to set up a union. On 15 April 2008, they notified the General Labour Inspectorate that they were in the process of establishing a union but, on the same day, the workers who were promoting the establishment of the union were prevented from entering their place of work, without being given any explanation whatsoever, and the private security guards told them that they had been ordered not to let them in; they were subsequently informed that they were dismissed.
32. 809. Similarly, INACIF proceeded to dismiss 13 other workers who were involved in setting up the union. These were: Byron Estuardo Minera, Carlos Peña Rubio, Ellison Pedro Alvarado Barillas, Flavio Alexander de Jesús Montufar Díaz, Irma Dolores Álvarez Palma, Jorge Armando Loranca Hernández, Leonel Pérez Pérez, Lesly Johana Aragón Escobar, Lucrecia del Carmen Franco Solórzano, María de los Ángeles Leiva Girón, Mario Samuel Martínez Yaguas, Minor Daniel Gómez Ruano and Oscar Guillermo Reyes Velásquez. In response to their dismissal, the workers filed an application for reinstatement with the labour and social welfare courts, which ruled in their favour; nevertheless, the INACIF authorities have refused to comply with the reinstatement orders.
33. 810. On 30 April 2008, Miriam Dolores Ovalle Gutiérrez de Monroy presented a petition to the Director General of Labour objecting to the establishment of the Union of Workers of INACIF (SITRAINACIF), an act that in itself constitutes a clear violation of freedom of association and of the principle of non-interference. From 17 to 19 April 2008, the interim General Secretary of SITRAINACIF was subjected to harassment and persecution by an unidentified person riding a motorbike and by individuals in a pick-up truck who followed him until his arrival at UNSITRAGUA headquarters and also when he left. A complaint was filed with the Department of Public Prosecution, but to date the union leader has not even been summoned to confirm the validity of his complaint.
34. 811. In response to the fact that the workers are exercising freedom of association, the employer has undertaken to institute criminal proceedings against the workers Evelyn Jannette García Caal and María de los Ángeles Leiva Girón.
35. 812. The complainant organization states that, for the purpose of reducing its operating costs by establishing a category of workers who are not afforded the benefits provided under the collective agreement on working conditions in the Quetzal Port Company and for the purpose of preventing workers from enjoying job stability and, consequently, from forming or joining a union and from proposing that the Quetzal Port Company engage in collective bargaining, the enterprise resorted to disguising the employment relationship by using third-party working relationships through a dozen enterprises that provide the necessary services; nevertheless, the Quetzal Port Company invoices a portion of the fees charged to vessels that require these services and it should be noted that the rates are set by the Quetzal Port Company itself.
36. 813. Under these conditions, the dock workers are not covered by the benefits of collective bargaining with the Quetzal Port Company, are not protected by the Guatemalan Social Security Institute and, in general, work in conditions that are insecure and that pose a threat to their lives and physical integrity.
37. 814. On 27 January 2008, the Union of Dockers and Workers involved in Related Activities in Quetzal Port (SIGRETEACOPQ) was established and appropriate notice was given to the General Labour Inspectorate on 1 February 2008. The reaction of the various docking enterprises was to dismiss the workers who had participated in the establishment of the union and all those workers who had supported the process. Apart from dismissal, workers have been denied employment in each and every one of the enterprises providing a docking service at Quetzal Port, which suggests that a strategy is in place to prevent the emergence of union organization. To date, 167 of a total of 168 of the union’s members have been dismissed and, although reinstatement orders have been handed down in most cases, the different docking companies have refused to enforce them.
38. 815. In the municipality of Chiquimula, five unionized workers were dismissed and have not yet been reinstated; furthermore, workers have continued to be hired under budget line No. 029, with the consequences described above.
39. 816. To date, the Department of Public Prosecution has carried out the dismissal of at least 50 workers who are protected by law against such action, even though the institution has been involved in a collective dispute of an economic and social nature, brought about by the workers in response to the refusal by the employer to negotiate with the union. Although reinstatements have been promoted and mandated by the courts of the first instance, the Department of Public Prosecution and the National Office of the Attorney-General have developed a joint strategy to delay the process.
40. 817. Moreover, on 22 September 2007, a group of workers formed the Union of Workers of the Municipality of Chimaltenango, in the department of Chimaltenango. The workers took advantage of the immunity provided by law to those establishing a trade union to send the mayor of Chimaltenango a list of demands in order to negotiate with him directly (even though the then mayor expressed his willingness to negotiate with the workers, the negotiation did not take place). On 17 January 2008, the new mayor dismissed the members of the executive committee and the advisory board of the union (eight workers) and he refuses to comply with court orders to reinstate them. Subsequently, the mayor proceeded to dismiss on different dates and by various municipal agreements a further 70 unionized workers. However, without any legal justification, the court has so far refused to order the reinstatement of more than 40 workers, despite the fact that this should have been done in the 24 hours following the submission of the complaint concerning the dismissal.
41. 818. In the Hotel Las Américas SA, three members of the workers’ union were dismissed on grounds of reorganization following the signature of a collective agreement on working conditions.
42. 819. Furthermore, at about 3.30 p.m. on 23 July 2008, Miguel Ángel Pedrosa Orellana, a member of the advisory board of the Union of Workers of the Eastern Electricity Supply Company SA (SITRADEORSA), received a phone call in which a death threat was issued against him and his family for defending workers.
43. 820. The complainant organization also alleges that, as a means of preventing the free organization of workers, the Olga María estate has set up a system whereby it uses independent producers and has disguised the employment relationship through subcontracting, creating legal uncertainty as regards the identity of the employer and formally releasing itself from the employment relationship. When a union was established, the General Labour Directorate of the Ministry of Labour and Social Welfare hindered the recognition of the union’s legal status. It must be pointed out that the identity of the workers who formed the union was known only by the General Labour Directorate and the General Labour Inspectorate. Nevertheless, on 15 November 2007, representatives of the employer at the Olga María estate embarked on a campaign to harass and detain the interim leaders of the union, threatening them with the closure of the estate if they did not resign from the enterprise and abandon their plans to continue with the union. On 16 November 2007, several estate managers were dismissed, allegedly for not having detected or broken up the workers’ movement before they formed the union.
44. 821. On 17 November 2007, a collective dispute of a socio-economic nature was brought before the Labour and Social Welfare Court of the First Instance of the department of Escuintla, whereby a set of demands was addressed to the employer for collective bargaining.
45. 822. In the days that followed, armed guards from the enterprise’s private security company, with the intention of causing intimidation, started to circulate in the village of El Semillero, where the majority of the workers, who were involved in establishing the trade union live. The estate’s owner called a meeting of all the workers of the estate to tell them that, because of the workers who were establishing the union, the estate would close and they would lose their jobs. Leaflets sending the same message began to circulate among the workers.
46. 823. On 20 November 2007, the workers who were forming the union were taken by armed security guards of the enterprise to the administrative offices, where they were subjected to threats and intimidation to leave the enterprise and to drop the court proceedings (it should be noted that only the court and the Labour Inspectorate, to which the respective notices were given, knew about the proceedings).
47. 824. In the face of such pressure, one group of workers was intimidated into signing the enterprise’s document. Nevertheless, another group of workers stood by its decision, despite being detained on the estate; in view of the possibility that UNSITRAGUA might intervene in the workers’ favour, they were released during the night.
48. 825. On 21 November 2007, the workers who refused to drop the proceedings were informed of their dismissal and expelled from the estate. The relatives of the union members who worked on the estate were also dismissed.
49. 826. Since his expulsion from the estate premises, the unionist Francisco del Rosario López, a founding member and member of the interim executive board of the union, has not been seen. In view of his unknown whereabouts, there are fears for his life and physical integrity. The Office of the Human Rights Ombudsperson in Escuintla has launched a missing person search in the hope of finding him. The authorities have indicated that he is alive, but to date there has been no evidence at all of his whereabouts.
50. 827. In the light of the dismissals, and given that steps were being taken to establish a union, an application for reinstatement was filed with the First Labour and Social Welfare Court of the department of Escuintla. Although the court ruled favourably in this regard, the employer refuses to comply with the reinstatement orders.
51. 828. Subsequently, the judicial authorities did not confirm the reinstatements and the workers had to file an application for amparo for the violation of their constitutional guarantees, which is currently before the Supreme Court of Justice.
52. 829. Similarly, a contractor threatened the members of the union by saying: “If the estate is closed down, you will be found floating in the river”, which is clearly a death threat against the workers. In addition, the UNSITRAGUA activists in the region are aware that they are being followed by unidentified persons, and for this reason there are fears for both the safety and the lives of union members and UNSITRAGUA activists.
53. 830. On 29 November 2007, the General Secretary of the union appeared before the Department of Public Prosecution to file a complaint concerning the threats to his life and physical integrity and to those of his colleagues and relatives. That same day, the Department of Public Prosecution sent an official letter to the chief of national civil police station No. 31 in the municipality of Tiquisate, in the department of Escuintla, seeking to appoint staff to provide security services for members of the executive committee of SITRABANSUR, who had received death threats for having formed the union. The response of the national civil police was that, because of staff shortages, it could not provide round-the-clock security, but that it would do everything in its power to help; however, it offered its services only once. No progress has been made in the investigation.
54. 831. On 17 February 2008, a new complaint was filed with the Department of Public Prosecution concerning the rape of the General Secretary of the union’s stepdaughter by four men, who she recognized as being private security guards from the estate. The following day, she told her mother what had happened and they both agreed that they would not report the incident, to avoid putting Germán Aguilar Ábrego (the General Secretary) at risk. It was not until 11 March 2008 that they decided to report it. To date, the Department of Public Prosecution has not made any progress with the investigation.
55. 832. Furthermore, on 8 March 2008, several men who arrived in a car and on several motorcycles burst violently into the home of unionist Alberto López Pérez (union leader), who found these individuals in his home and alerted his family. His small son overheard the intruders say to each other that their aim was to kill Mr López Pérez. The whole family managed to escape. They reported the incident to the police, noting that there was evidence of the attack at their home and that the barbed wire fence surrounding the house had been cut. Nevertheless, the Department of Public Prosecution has not conducted an investigation to date.
56. 833. The Union of Workers of Productos Alimenticios René SCA, a Mexican-owned enterprise, is being reduced to its minimum trade union expression, due to the fact that the enterprise is breaking itself up into several internal satellite enterprises, each with a limited number of workers, below the minimum number required to form a union. In order to prevent the workers from joining the existing union, they are given different contracts. There is currently a collective dispute of a socio-economic nature that has been brought against 32 enterprises.
57. 834. With regard to the Union of Workers of the Los Ángeles and Argentina estates, the enterprise has dismissed members from the Los Ángeles estate; the court has ruled in favour of the payment of employment benefits (dismissal) and this ruling was confirmed in the second instance by the Second Chamber of the Labour and Social Welfare Appeal Court of Mazatenango, Suchitepéquez. The case involves a new way of dissolving a union through legal channels, without calling it dissolution. The workers are only awaiting a ruling by the Supreme Court of Justice in amparo proceedings. The enterprise, which is dissatisfied with the court rulings in favour of the union, has applied to the Ministry of Labour and Social Welfare to dissolve the union through administrative channels.
58. 835. Members of the Union of Agricultural Workers of the El Carmen estate in the municipality of Colomba in the department of Quetzaltenango have still not been reinstated, despite a court-issued reinstatement order, and the process of negotiating the collective agreement on working conditions has come to a standstill. The enterprise claims that it no longer owns the El Carmen estate. The members decided to change the name of the union, calling it the Union of Workers of the Agricultural Enterprises of the South West, which is now carrying out trade union activities and which has a branch comprising the workers of the El Porvenir estate.
59. 836. The members of the El Porvenir branch (Chicacao municipality) were dismissed for presenting to their employer a list of demands for negotiation. The enterprise refuses to negotiate the demands for better working conditions and has upheld its decision to dismiss the 12 union members. When they asked to be reinstated, the court refused on the grounds that, according to the business register, the enterprise against which the complaint had been lodged does not exist, despite the fact that the workers provided copies of social security certificates. The worst thing is that, on appeal, the Fourth Chamber of the Labour and Social Welfare Appeals Court and the Supreme Court handed down decisions that left the workers helpless.
60. 837. As for the Union of Workers of the Olas de Moca and Carmen Metzabal estates, the 80 workers from the San Lázaro SA enterprise have not yet been reinstated. A proposed settlement has been put forward for the partial payment of unpaid wages and other benefits. The court approved it and the enterprise filed an appeal and adopted delaying tactics.
61. 838. The worker Evelyn Mansilla, who was subject to anti-union dismissal, is a member of the Trade Union of Workers of the Secretariat of Public Works of the First Lady of the Republic (SITRASEC). She was reinstated by her employer on the basis of a court order, but she has not received the employment benefits that were specified by the judicial authority.
62. 839. In December 2007, a collective agreement on working conditions was signed with the Union of Workers of the Municipality of Chicaman, in the department of El Quiché. To date, the Ministry of Labour and Social Welfare has not approved the agreement, as it ordered the workers first to settle certain points, which they will not be able to do, for the following reasons: (a) it will not be possible to obtain the original documents issued by the Supreme Electoral Court concerning the appointment of municipal officials, because the terms of office of those who signed the agreement ended on 15 January 2008, and the new officials are not union members; (b) it will not be possible to obtain documentation certifying that the municipal council representatives were appointed, as the agreement was signed with the full council: In other words, no representatives were appointed for the case; and (c) all the union members were dismissed on 20 January 2008 and therefore the union was completely dissolved. The obstacles imposed by the Ministry of Labour and Social Welfare have contributed to the arbitrary actions of the municipal authorities.
63. 840. The Union of Workers of the Ministry of the Environment and Natural Resources (SITRAMARN) was established on 6 July 2006 and its legal status was recognized on 3 August 2006. On 4 August 2006, the Ministry of the Environment and Natural Resources, as the appointing authority (employer), lodged an appeal to revoke the decision recognizing the union’s legal status. It should be noted that the argument used in this appeal was that the Government of Guatemala engages the services of individuals who are contractually bound under budget line No. 029 (professional services) and that some of those who formed the union might have been hired under that budget line. The Ministry of Labour and Social Welfare had no choice but to reject the appeal lodged by the Ministry of the Environment and Natural Resources, represented by the National Office of the Attorney-General, by Decision No. 197-2006, dated 3 October 2006. On 19 October 2006, the Supreme Court of Justice, acting as an amparo court within the context of amparo case No. 1124-2006, decided to grant provisional amparo and to temporarily suspend Decision No. 197-2006 of the Ministry of Labour and Social Welfare, on the grounds that it was likely to cause irreparable harm. On the basis of that decision and of the opinion issued by the Supreme Court of Justice acting as an amparo court, the authorities of the Ministry of the Environment and Natural Resources refused to recognize the union and, consequently, have prevented the union leaders from enjoying the trade union leave to which they are entitled under the Labour Code for the purposes of carrying out their union activities. To date, the amparo proceedings have not yet been concluded and, recently, as a further measure of anti-union repression, the Minister of the Environment and Natural Resources, taking advantage of the absence of Ana Josefina Velásquez Pérez, a member of the union’s executive committee, for a surgical procedure, ordered her transfer to another workplace, thereby violating her immunity.
64. 841. Furthermore, the 57 members of the Union of Workers of the Municipality of Zaragoza in the department of Chimaltenango have not yet been reinstated. The municipality’s lawyer has taken legal action before the court to delay or prevent the court from issuing a reinstatement order, and has appealed to the Ministry of Labour and Social Welfare to request the dissolution of the union through administrative channels.
65. 842. None of the members of the executive committee and the advisory council of the Union of Workers of the Municipality of San Antonio Huista, in Huehuetenango, have been reinstated. The mayor called a public meeting to force people to resign from the union and from the municipality, at which workers were almost lynched to death by mobs. Subsequently, the workers appeared before the Labour and Social Welfare Court of the First Instance of Huehuetenango to claim the invalidity of their resignations and to request their reinstatement, but the court decided to reject their case.
66. 843. For several years, heavy goods transport workers have been subjected to multiple violations of their labour rights. Consequently, the Union of Heavy Goods Transport Drivers, which is affiliated to the CGTG, attempted on several occasions to enter into a dialogue with the municipal authorities of Guatemala City, who refused to cooperate. Under the circumstances, and given the closure of channels of dialogue, the general assembly of the union agreed to take peaceful action to ensure that the workers’ labour rights and job security did not continue to be violated. The agreed action was essentially peaceful and consisted of parking vehicles at the side of the main roads and refusing to continue their journeys until a solution could be found to the problem, which had dragged on for years. The authorities, at both the municipal and central government levels, refused to reach any sort of settlement, and therefore the action continued for several days, until on 7 May 2008, the President of the Republic called for a dialogue with the union. However, when he arrived at the negotiating table, the President said that dialogue could take place only if the union suspended its action and then threatened the workers’ representatives with the use of public force if they did not immediately end their action; they were even given a deadline in hours to comply with the President’s demands. This situation was brought to the attention of the union’s general assembly, which, faced with the heavy-handed attitude of the President and, given that the action was peaceful, agreed to continue with the action and called on the President for social dialogue in an atmosphere of good faith.
67. 844. Upon the expiry of the ultimatum issued by the President to the union, the national channel announced the issuance of Governmental Agreement No. 1-2008 imposing preventive measures (known as a “state of prevention”) with immediate effect, suspending certain fundamental civil guarantees such as the right to freedom of assembly, the right to demonstrate, the right to protection from arrest without a warrant from a competent court, the right to appear before a court within six hours, the right to protection from extrajudicial interrogation and the right to strike, among others. Minutes after the President, with some of his ministers, had announced the state of prevention on the radio and television, members of the police force and the army rounded up the workers on the various main roads, arresting a total of 49 workers, who were subjected to criminal proceedings.
68. 845. With regard to SITRAPETEN, the bottling company for the brand of water known in Guatemala as Agua Pura Salvavidas, which is marketed and distributed by Empresa Distribuidora del Petén, given that they were unable to continue to hamper the efforts of the workers to form a union, on 2 May 2008, the employer’s representatives ordered the workers to go in groups to different hotels to attend an activity on 3 May, at the same time. Upon arriving at these hotels, private security guards closed the doors of the function rooms, announcing that no one could leave or make phone calls. Shortly thereafter, representatives of Empresa Distribuidora del Petén, accompanied by heavily armed men, told the workers that they had to resign from the enterprise, as it had gone bankrupt, and that they would be transferred to other enterprises. It is currently not known whether any workers agreed to this, but those who did not returned to their jobs and were surprised to find that about 50 lorries had been taken to another enterprise that supplies Agua Pura Salvavidas, located in zone No. 18, at the 7.5 kilometre mark along the Atlantic highway. Soon afterwards, the workers left the hotels and decided to take over the enterprise’s premises in three groups, with one group at each entrance and another inside. At 12.30 p.m., the workers who were demonstrating peacefully in front of the enterprise’s premises were kidnapped and beaten by private security guards hired by the enterprise, who used metal pipes, guns, kicks and punches. The following workers were the most affected: Adrián Francisco Tale, Marco Antonio Franco, Freddy Valdemar Jerónimo and Juan Pablo González, as well as Edwin Álvarez, the interim General Secretary of the union being formed, affiliated to FESTRAS.
69. 846. On 4 May 2008, 200 police officers privately hired by the enterprise and 200 members of the special (anti-riot) forces of the national civil police forcibly removed the workers who were inside. At 7 p.m. on 8 June 2008, in Colonia Las Ilusiones, in zone No. 18 of Guatemala City, barely one block away from his home, Freddy Morales Villagrán, a member of SITRAPETEN’s advisory council, was shot. In carrying out this further attack against a trade union leader, the gunmen used 7.62 mm calibre military weapons. He was taken to a private clinic for security reasons, and despite receiving medical care, died as a result of his injuries.
70. 847. According to the complainant organization, there is an enterprise in Guatemala called INFORNET which specializes in providing employers with a blacklist of workers, in return for financial compensation. This list contains general information relating to the identity of all the workers in the country who have been involved in forming a union, have exercised any trade union right or have simply filed a claim with the administrative or judicial authorities relating to their labour rights. The aim of employers who use this service is to ensure that they do not employ any workers who might try to organize a union, either by not hiring them or by dismissing them when they do realize. There are countless cases in which such selection criteria have been used for hiring or firing workers, including that of Albino Hernández García, who has applied for reinstatement in a complaint against the State of Guatemala for having been dismissed on the grounds of the blacklist, and who has repeatedly been denied employment on the basis of the background information provided about him by INFORNET. An extreme case is that of the wife of Dick Fletcher Alburez, a leader of the Union of Workers of the General Directorates of the Ministry of Public Health and Social Assistance and of the Federation of Unions of Workers of the Ministry of Public Health and Social Assistance (both of which are affiliated to UNSITRAGUA), who was refused credit in a banking institution because of an application for reinstatement filed by her husband against the Government.
71. 848. Furthermore, the complainant organization alleges that, on 9 December 2005, without prior consultation with the Tripartite Committee on International Labour Affairs, as provided for in ILO Convention No. 144, the President of the Republic submitted to the Congress of the Republic of Guatemala an initiative for the ratification of the ILO Part-Time Work Convention, 1994 (No. 175).
72. 849. Another important issue is the composition of the Tripartite Committee on International Labour Affairs. In what is an unprecedented event in national history, the two most important and representative union movements, namely the MSICG and the UGT, reached an agreement to make a joint proposal regarding the composition of the Tripartite Committee on International Labour Affairs. It is a fact that these organizations together are the most representative in the country with regard to industry, trade, services, the public sector, agriculture, the informal economy and rural workers engaged in temporary work. In this regard, the Ministry of Labour and Social Welfare received a joint proposal concerning the composition of the Tripartite Committee on International Labour Affairs. It was requested that, in view of the representativeness and legitimacy of the proposal, it be fully taken into account at the time of appointing the workers’ representatives in the tripartite body in question. The proposal in that regard was to appoint the following officials: as titular members: Carlos Enrique Mancilla García, Victoriano Zacarías Míndez, Luis Ernesto Morales Gálvez and Miguel Ángel Lucas Gómez; as substitute members: Luis Alberto Lara Ballina, Leocadio Juracan Salomé and Adolfo Lacs Palomo. Despite the above, and despite the fact that the terms of office of the former members of the Tripartite Committee on International Labour Affairs has ended, the Ministry of Labour and Social Welfare has not to date announced the appointment of the new members of the tripartite body and has so far ignored the most representative proposal, which raises the concern that the membership will include trade union voices that echo that of the current government.

B. The Government’s reply

1. 850. In its communications dated 26 November 2007 and 15 April 2008, the Government states in relation to the alleged murder of trade union leader Marco Tulio Ramírez Portela that the municipal public prosecutor’s office in Morales (Izabal) is conducting a murder investigation and that, according to this office, he was killed on political grounds and not because of his trade union activities. So far, no concrete element of conviction has been obtained which could lead to the conclusion that the suspects mentioned in the present case are the perpetrators of the murder. The general manager of BANDEGUA categorically denies that he and other persons from BANDEGUA have carried out acts of coercion, pointing out that, as they were concerned that the regrettable incident might affect the working atmosphere of the enterprise, they invited union leaders to a meeting to discuss a document which was apparently circulating among the staff, in which accusations were made against the enterprise, jeopardizing the good working atmosphere, but the union leaders did not attend. According to the investigations by the Department of Public Prosecution, there is no evidence of direct or indirect involvement by the enterprise in the death of Marco Tulio Ramírez Portela. The enterprise adds that the workers’ wages have increased on average by some 13 per cent more than what was negotiated in the collective agreement and are around 60 per cent higher than the national minimum wage in agriculture. The employers were invited by the SITRABI leaders to a meeting with the First Secretary of the Embassy of the United States and the AFL–CIO representative for Central America, and the SITRABI leaders said that they had no suspicions of any involvement by the enterprise in the death of Marco Tulio Ramírez Portela. As proof of the good working atmosphere in the enterprise, the enterprise sent a document dated 27 August 2007, signed jointly with the top SITRABI leaders, who attended voluntarily to indicate their support.
2. 851. In its communication of 24 January 2008, the Government states with regard to the allegations concerning the Olga María estate that, through the Ministry of Labour and Social Welfare, it took steps to settle the dispute at the estate. The inspectors in charge of the matter met the organized workers and the employers with the aim of examining labour–management relations. They also held meetings to clarify the events which had given rise to the complaint, but at one of the meetings the workers requested that the case opened by the Ministry of Labour and Social Welfare be referred to the Minister’s office. The employer stated that a collective dispute of a socio-economic nature had been brought against them in the Labour and Social Welfare Court of the First Instance of Escuintla. Due to the existence of the collective dispute and with a view to ensuring further progress in the matter, they argued a conflict of jurisdiction with regard to the administrative formalities undertaken in the present case by the Ministry of Labour and Social Welfare. In view of this legal action and according to the requirements of the law, the Ministry suspended its action in the present case until such time as the court rules on who has competence to continue it.
3. 852. In its communication of 23 June 2008, the Government states in relation to the allegations concerning Guatemala’s judiciary (the withdrawal of the trade union leave of four trade union leaders operating under the remit of the Supreme Court of Justice) that, by a Supreme Court ruling of 16 April 2008, the highest official in the section of the Supreme Court that deals with amparo cases stated that the amparo sought by the leaders in question and by the National Office of the Attorney-General, as the legal representative of the Government of Guatemala, was not granted. That ruling was duly notified to the parties. The National Office of the Attorney-General filed an appeal against this ruling, which is pending notification and referral to the Constitutional Court so that it can take cognizance of the appeal (the complainants argue that the Supreme Court was both judge and party to the case).
4. 853. The Government also refers in a communication of 1 September 2008 to the allegation concerning the harassment of the General Secretary of SITRABI, Noé Antonio Ramírez Portela (the brother of the murdered union leader Marco Tulio Ramírez Portela), by a vehicle that frequently circled and observed his house, and the allegation that, on 20 July 2007, five soldiers from the Guatemalan army entered the SITRABI headquarters and illegally detained union members and questioned them extrajudicially about the names of the union leaders and members and their duties. The Government notes that, according to the municipal public prosecutor’s office in Morales, in the department of Izabal, a complaint has been filed by the members of the central executive committee of SITRABI; in December 2007, the official statement of César Humberto Guerra López, Noé Antonio Ramírez Portela, Jesús Martínez Sosa, Selfa Sandoval Carranza and José Antonio Cartagena Amador, with Noé Antonio Ramírez Portela acting on behalf of the others, indicated that, on 28 September 2008, unidentified and heavily armed motorcyclists rode through the BANDEGUA estate without the security staff of this enterprise intervening in the matter, and that, as they recognized one of these people, they filed an application to the then Interior Minister, Adela Camacho de Torrebiarte, requesting personal security and permanent patrols around the perimeter of the property by the joint forces of the national civil police and the army. The Minister responded to that request by ordering the installation of a mobile substation on the property. The union leaders have stated that these measures have led to a reduction in acts of intimidation and in the number of threats, as a result of the presence of the national civil police.
5. 854. With regard to the interrogation of workers, the Ministry of Defence of Guatemala has reported that the aim of the data requested from the Izabal Banana Workers’ Union by the second lieutenant of infantry Fredy Antonio Moscoso Morales, was to gather information so that the workers could be provided with the necessary support in the event of an emergency, for security purposes.

C. The Committee’s conclusions

1. 855. The Committee deeply regrets that, despite the time that has elapsed, the Government has not sent the requested observations, although it has been invited on several occasions, including by means of an urgent appeal, to present its observations on the case.
2. 856. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 857. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom, in law and in practice. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments, on their side, must recognize the importance of reporting, so as to allow objective examination and detailed replies to the allegations brought against them.
4. 858. The Committee notes with concern that the allegations presented in this case are extremely serious and include numerous murders of union leaders and members (16), one disappearance, acts of violence (sometimes also against the relatives of union members), threats, physical harassment, intimidation, the rape of a unionist’s family member, obstacles to granting legal status to unions, the dissolution of a union, a significant number of anti-union dismissals, criminal proceedings for carrying out trade union activities, obstacles to collective bargaining and social dialogue, blacklists and major institutional failures with regard to labour inspection and the functioning of the judicial authorities creating a situation of impunity in labour matters (for example, excessive delays, a lack of independence, failures to comply with reinstatement orders issued by the court) and in criminal matters. The Committee firmly expects that the Government will be more cooperative in the future because it cannot accept the absence of detailed answers on these very serious allegations, which have been presented since the end of 2007. The Committee urges the Government to send in full and without delay its observations on each of these allegations.
5. 859. The Committee notes the Government’s statements on a limited number of allegations, which reveal that: (1) the investigations have not made it possible to identify the perpetrators of the murder of union leader Marco Tulio Ramírez Portela; (2) there is a conflict of jurisdiction (between the authorities of the Ministry of Labour and the Labour and Social Welfare Court of the First Instance of Escuintla) on the facts underlying the complaint concerning the Olga Maria estate, and a decision by the judicial authority as to which authority is competent in this case is pending; (3) the issue of the withdrawal of the union leave of union leaders operating under the remit of the Supreme Court of Justice has been referred to the Constitutional Court following the Supreme Court’s decision to reject the union’s claims; and (4) there is evidence that Noé Antonio Ramírez Portela was harassed by armed individuals on motorcycles, but the Minister of the Interior implemented the requested security measures which has led, for the time being, to a reduction in acts of intimidation and in the number of threats, given the presence of the national civil police; likewise, the data requested from trade unionists in the SITRABI by a second lieutenant of infantry were to offer them the necessary support in the event of an emergency.
6. 860. The Committee regrets that very limited information was provided by the Government on a very small number of allegations, especially given that this information does not take into account the investigations that have made it possible to identify and punish those responsible for the murder of union leader Marco Tulio Ramírez Portela (the authorities maintain, however, that the motive was political rather than union related, without providing further details) and the fact that the two other allegations (relating to the Supreme Court and to the Olga Maria estate) are pending appeals or court decisions.
7. 861. The Committee concludes that these replies from the Government do not allow definitive conclusions to be reached with regard to these allegations and illustrate the excessive slowness of the procedures outlined by the complainant organization and the resulting climate of impunity.
8. 862. In these circumstances, the Committee urges the Government to send its observations in full, without delay, on these and the other pending allegations concerning acts of anti-union discrimination, and for this purpose to order that investigations be carried out into each of the many cases mentioned by the complainant organization. The Committee requests the Government to send the outcome of these investigations and any decisions or rulings by the authorities. The Committee urges the Government in the meantime to ensure the physical safety of trade unionists who are threatened or harassed and of protected witness Roberto Dolores and to confirm the whereabouts of the reportedly missing Francisco del Rosario López and the minor María Antonia Dolores López.
9. 863. Observing that in recent years it has had to examine in other cases recurring allegations of violence against trade union leaders and members, the Committee deplores the murder of the trade unionists mentioned in the allegations, the other acts of violence and intimidation and the death threats, and once again draws the Government’s attention to the principle whereby a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty; freedom of association can only be exercised in conditions in which fundamental rights and, in particular, those relating to human life and personal safety, are fully respected and guaranteed; the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 43–45 and 52]. Similarly, the Committee recalls that the excessive delays in the proceedings and the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.
10. 864. With regard to the numerous allegations of anti-union discrimination, the Committee notes that the allegations relate to excessive delays in the procedures for protection against anti-union discrimination, non-compliance with court orders to reinstate trade unionists and institutional failures with regard to labour inspection and in judicial proceedings; reference is also made to obstacles to the exercise of the right to bargain collectively. The Committee notes that it has had to consider allegations of this nature on previous occasions and recalls the principle that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 771]. The Committee also emphasizes the principle that employers, including governmental authorities in the capacity of employers, should recognize for collective bargaining purposes the organizations’ representative of the workers employed by them [see Digest, op. cit., para. 952]. The Committee highlights the importance of putting an end without delay to the numerous alleged acts of discrimination, should it be confirmed that they are of an anti-union nature, and the importance of effective and expeditious procedures.
11. 865. The Committee reiterates the recommendation it made in Case No. 2445 in which, bearing in mind the high number of anti-union dismissals, the delays in proceedings and the failure to comply with judicial orders to reinstate trade unionists, it reminded the Government that the ILO’s technical assistance is at its disposal and that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress [see 348th Report, para. 786]. The Committee extends this invitation to issues relating to criminal matters.