Informe provisional - Informe núm. 363, Marzo 2012

1. 645. The complaint is contained in two communications from the Trade Union of Workers of Guatemala (UNSITRAGUA) dated 26 August 2010. The complainant organization sent new allegations in communications dated 10 September and 4 and 10 November 2010.
2. 646. The Government sent its observations in communications dated 23 September 2010 and 14 June 2011.
3. 647. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 648. In its communication dated 26 August 2010, the complainant indicates, in connection with the Trade Union of the National Institute of Forensic Sciences (SITRAINACIF), that the notification of trade union immunity of the members of the Executive Committee was issued on 26 January 2010 but took effect on 20 January. However, on 4 May 2010, Ms Nilda Ivette González Ruiz, who is a member of the Executive Committee and acts as the Social Welfare Secretary at the office in the municipality of Cobán, in the department of Alta Verapaz, was informed that, until further notice, she would have to report for work at the office in the municipality of Poptún, in the department of Petén. The transfer constitutes a change of working conditions and, in the opinion of the complainant, a clear violation of ratified ILO Conventions in retaliation for her trade union activities. The complainant states that Ms Nilda Ivette González Ruiz filed a complaint with the Ministry of Labour, and the corresponding summonses were issued for the purpose of bringing together the parties in a conciliation meeting at which no agreement was reached.
2. 649. In a communication dated 10 September 2010, the complainant states that ever since the Union of Employees of the municipality of Chimaltenango, in the department of Chimaltenango, was established on 9 November 2007, it has been the target of dismissals and anti-union practices. In 2008, following the municipal elections, there was an unjustified mass dismissal of nearly 200 workers, including 55 unionized workers, of whom 36 initiated complaint proceedings before the Labour, Social Welfare and Family Court of First Instance of Chimaltenango department. The complainant reports that following a series of challenges by the employer side, which were dismissed or declared inadmissible, 12 of the 36 workers were reinstated. However, the 12 reinstated workers were then dismissed by the mayor of the municipality of Chimaltenango, who said in an oral statement that there was no way all of the trade union members would be able to return to their jobs. Further complaints concerning the dismissals were filed with the Labour, Social Welfare and Family Court of First Instance of Chimaltenango department.
3. 650. In its communication dated 4 November 2010, the complainant states that: (a) the collective agreement between the Trade Union of Workers of the Higher Electoral Court (SITTSE) and the Higher Electoral Court expired on 13 July 2011; (b) after exhausting the direct channels available for negotiating the collective agreement, SITTSE launched strike action and applied to the Fifth Court of Labour and Social Welfare of the First Economic Zone for the strike movement to be declared legal; (c) to count the strikers, the Court commissioned the labour inspectorate and the magistrate’s courts, which failed to carry out the count as instructed, thereby delaying the negotiation of the collective agreement; and (d) the workers lodged a complaint with the Judicial Service Council.
4. 651. In its communication dated 10 November 2010, the complainant refers to the dispute between the Palo Gordo Agricultural, Industrial and Refining Company and the Union of Workers of the Palo Gordo Sugar Refinery, and in particular to the following events: (a) in June 2010, a group of around 250 workers entered the offices of the administrative headquarters of the Palo Gordo sugar refinery with the intention of talking to the chief of agro-industrial relations about the work situation during the so-called repair period (between harvests) provided for in the collective agreement signed by both parties; (b) the trade union indicated that it knew that private enterprises had been hired to carry out repair work without regard for the content of the collective agreement, thereby causing disruption and a number of incidents; (c) in August 2010, the Executive Committee and the Advisory Board of the trade union sent a note to the representative of the Ministry of Labour and Social Welfare in the region of Suchitepéquez, indicating their opposition to the decision taken by the employer’s administration to add contractors and staff to the enterprise’s payroll, given that suitable and capable workers were available who had worked during harvest periods and had performed those tasks for years; and (d) negotiations were held on 4 November 2010 during which it was agreed that the harvest would start on 20 November 2010 and that, after the forthcoming general assembly, the trade union side would transmit the corresponding notice to the employer side for direct negotiation of the collective agreement on working conditions.
5. 652. Lastly, the complainant refers to its internal dispute in July and August 2010, which was examined under Case No. 2708.

B. The Government’s reply

1. 653. In its communication dated 14 June 2011, the Government indicates, with regard to the delay in declaring the strike legal or illegal, and the resulting missed opportunity to negotiate a collective agreement on working conditions in the Higher Electoral Court, that the judiciary was asked for information on why the worker count had been delayed, and had received a list of all competent magistrates’ courts of first instance, which specified the following on 11 January 2011: (a) the listing provided by the Ministry of Labour and Social Welfare indicates that 195 courts, some of which were mentioned twice or three times, failed to process the court order; (b) the magistrates’ courts in El Tejar (Chimaltenango), Colotenango (Huehuetenango), Livingston (Izabal), and Tectitán (Huehuetenango) returned the court order unprocessed because the offices of the Electoral Court were closed; (c) the magistrate’s court in Flores (Petén), returned the court order unprocessed because there are no electoral roll offices in that city; (d) the magistrate’s court in Chinautla returned the court order unprocessed because the address of the office of the Higher Electoral Court was wrong; (e) the listing included the town of Pueblo Nuevo Tiquisate yet there is no such municipality in the department of Suchitepéquez, although the department of Escuintla does include a municipality called Pueblo Nuevo Tiquisate, where the court complied with the requirement of the Fifth Court of Labour and Social Welfare; and (f) the Fifth Court of Labour and Social Welfare indicated that, on 15 February 2011, the strike movement led by SITTSE was declared legal, and the Higher Electoral Court appealed against that ruling before the Third Chamber of Labour and Social Welfare, which is where the case now stands.

C. The Committee’s conclusions

1. 654. The Committee observes that in this case the complainant alleges that a trade union official was the victim of an anti-union transfer in the National Institute of Forensic Science, anti-union dismissals took place in the municipality of Chimaltenango, the negotiation of a new collective agreement in the Higher Electoral Court was impeded, and the provisions of a collective agreement in the agricultural sector were violated.
2. 655. Regarding the anti-union transfer of a trade union official in the National Institute of Forensic Science, the Committee notes that the complainant states that: (a) on 4 May 2010, Ms Nilda Ivette González Ruiz, who is a member of the Executive Committee and acts as the Social Welfare Secretary of the SITRAINACIF, in its offices in the municipality of Cobán, in the department of Alta Verapaz, was informed that until further notice she would have to report for work at the office in the municipality of Poptún, in the department of Petén; and (b) the trade union official filed a complaint with the Ministry of Labour but the conciliation process was unsuccessful.
3. 656. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 799]. Regretting that the Government has provided no information on the alleged anti-union transfer of the trade union official Ms Nilda Ivette González Ruiz, the Committee urges the Government to do so without delay and to take the necessary steps to ensure that the abovementioned principle is respected. The Committee requests the Government to keep it informed in this regard.
4. 657. Regarding anti-union dismissals in the municipality of Chimaltenango, the Committee notes that the complainant states that: (a) in 2008, nearly 200 workers, including 55 members of the Union of Employees of the municipality of Chimaltenango, were dismissed; (b) 36 of the 55 members filed a complaint and 12 reinstatement orders were issued; and (c) the 12 reinstated workers were again dismissed. The workers submitted new complaints of dismissal before the Labour, Social Welfare and Family Court of First Instance of Chimaltenango department.
5. 658. Regretting that the Government has provided no information on the allegation in question, the Committee stresses 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 urges the Government to send without delay its observations concerning this allegation and inform it of the current status of the dismissal cases brought before the Labour, Social Welfare and Family Court of First Instance of Chimaltenango department.
6. 659. With regard to the impediments to the negotiation of a new collective agreement, the Committee notes that the complainant states that: (a) the collective agreement between the SITTSE and the Higher Electoral Court expired on 13 July 2011; (b) after exhausting the direct channels available for the negotiation of the collective agreement, SITTSE launched strike action and applied to the Fifth Court of Labour and Social Welfare of the First Economic Zone for the strike movement to be declared legal; (c) to count the strikers, the Court commissioned the labour inspectorate and the magistrates’ courts, who failed to carry out the count as instructed, thereby delaying the negotiation of the collective agreement; and (d) the workers lodged a complaint with the Judicial Service Council.
7. 660. The Committee notes the Government’s corresponding reply, which states that: (a) following various checks, the count took place and, on 15 February 2011, the strike movement led by SITTSE was declared legal; and (b) the Higher Electoral Court appealed against that ruling before the Third Chamber of Labour and Social Welfare, which is where the case now stands. The Committee requests the Government to keep it informed with regard to the appeal submitted by the Higher Electoral Court to the Third Chamber of Labour and Social Welfare. Recalling that unjustified delays in collective bargaining are incompatible with respect for the principle of bargaining in good faith, the Committee requests the Government to keep it informed of developments in the area of the negotiation of the new collective agreement between the Court and the SITTSE.
8. 661. Regarding the violation of the provisions of a collective agreement in the agricultural sector, the Committee notes that the complainant refers to the dispute between the Palo Gordo Agricultural, Industrial and Refining Company and the Union of Workers of the Palo Gordo Sugar Refinery, and in particular to the following events: (a) in June 2010, a group of around 250 workers went to the administrative management offices of the Palo Gordo sugar refinery with the intention of talking to the chief of agro-industrial relations about the work situation during the so-called repair period provided for in the collective agreement signed by both parties; (b) the trade union indicated that it knew that private enterprises had been hired to carry out repair work without regard for the content of the collective agreement; (c) in August 2010, the Executive Committee and the Advisory Board of the trade union sent a note to the representative of the Ministry of Labour and Social Welfare in the region of Suchitepéquez, indicating their opposition to the decision taken by the employer’s administration to add contractors and staff to the enterprise’s payroll even though suitable and capable workers were available who had worked during harvest periods and had performed those tasks for years; and (d) negotiations were held on 4 November 2010 during which it was agreed that the harvest would start on 20 November 2010 and that, after the forthcoming general assembly, the trade union side would transmit the corresponding notice to the employer side for the direct negotiation of the collective agreement on working conditions.
9. 662. Regretting that the Government has provided no information on this allegation, the Committee emphasizes that agreements should be binding on the parties and that the failure to implement a collective agreement, even on a temporary basis, violates the right to bargain collectively, as well as the principle of bargaining in good faith [see Digest, op. cit., paras 939 and 943]. The Committee urges the Government to send without delay its observations and interested parties, including the concerned enterprise through the relevant employers’ organization, to indicate whether all outstanding issues have been resolved.
10. 663. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • (a) Regarding the alleged anti-union transfer of the trade union official Ms Nilda Ivette González Ruiz, the Committee regrets that the Government has provided no information on this allegation and urges it to do so without delay and to take the necessary steps to ensure that the abovementioned principle is respected. The Committee requests the Government to keep it informed in this regard.
    • (b) Regarding the alleged anti-union dismissals in the municipality of Chimaltenango, the Committee regrets that the Government has provided no information on this allegation and urges it to do so without delay and to keep it informed of the current status of the dismissal cases brought before the Labour, Social Welfare and Family Court of First Instance of Chimaltenango department.
    • (c) Regarding the impediments to negotiating a new collective agreement between the Higher Electoral Court and the SITTSE, the Committee requests the Government to keep it informed with regard to the appeal submitted by the Court to the Third Chamber of Labour and Social Welfare, and developments in the negotiation of the new collective agreement between the Court and the SITTSE.
    • (d) Regarding the violation of the provisions of a collective agreement in the agricultural sector, and regretting that the Government has provided no information on the allegation in question, the Committee urges the Government to do so without delay and interested parties, including the concerned enterprise through the relevant employers’ organization, to indicate whether all outstanding issues have been resolved.