Informe provisional - Informe núm. 372, Junio 2014

1. 297. The complaint is contained in three communications dated 1 June 2012 from the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG).
2. 298. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case four times and has made three urgent appeals to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the requested information or comments had not been received in time [see 368th Report, para. 5; 370th Report, para. 6; and 371st Report, para. 6]. To date, the Government has not sent any information.
3. 299. 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. 300. In its three communications of 1 June 2012, the complainant organization alleges that:
   • (i) a number of provisions of the Criminal Code (sections 256, 292, 294, 390 and 414) promote the criminalization of peaceful labour protests by laying down an excessively general and subjective characterization of offences such as obstructing public transport, stopping or disrupting the activities of enterprises that contribute to the economic development of the country and occupying buildings;
   • (ii) several provisions of the Labour Code (sections 220(c), 223(d) and 226) relating to, inter alia, the motives for the dissolution of trade union organizations and the possibility of the labour administration imposing amendments to trade union statutes restrict the freedom of trade union organizations to establish their statutes independently, to organize themselves at the international level and to perform their social and political functions;
   • (iii) Ministerial Resolution No. 126/2012, which lays down the “regulations governing the appointment of representatives and substitutes from workers’ and employers’ organizations to participate in national and international committees”, establishes criteria of representativeness which impede the exercise of freedom of association on the basis of the legitimacy recognized in Article 10 of ILO Convention No. 87 and which restrict the freedom of such organizations to elect freely their representatives;
   • (iv) seventeen leaders and members of the Trade Union of Workers of the Municipality of Nuevo San Carlos in the Department of Retalhuleu were the victims of anti-union dismissals in May 2012 and the Ministry of Labour and Social Welfare did not intervene to halt this violation of freedom of association.

B. The Committee’s conclusions

1. 301. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times, including through several urgent appeals, to present its comments and observations on this case.
2. 302. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is obliged to present a report on the substance of the case without being able to take account of the information that it had hoped to receive from the Government.
3. 303. 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 ensure respect for trade union rights in law and in practice. The Committee is confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning the allegations brought against them [see First Report of the Committee, para. 31]. The Committee requests the Government to be more cooperative in the future.
4. 304. The Committee notes that this case refers firstly to allegations that a number of provisions of the Criminal Code and the Labour Code, as well as a Ministerial Resolution, impede the exercise of freedom of association and, secondly, that 17 leaders and members of the Trade Union of Workers of the Municipality of Nuevo San Carlos in the Department of Retalhuleu were the victims of anti-union dismissals in May 2012 and the Ministry of Labour and Social Welfare did not intervene to halt these violations of freedom of association.
5. 305. As to the legislative and regulatory provisions mentioned in the complaint, the Committee takes note of the concern expressed by the complainant organization that the provisions in question, inter alia, promote the criminalization and prohibition of peaceful labour protests and restrict the freedom of trade union organizations to establish their statutes independently, to organize themselves at the international level and to perform their social and political functions. Hence, recalling the importance of ensuring that domestic legislation complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions, and that the application of the legislation does not impede the exercise of freedom of association, the Committee requests the Government to send its observations on the legislative and regulatory provisions mentioned in the complaint without delay.
6. 306. Also recalling that “the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures, which should be prompt, impartial and considered as such by the parties concerned” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 817], the Committee urges the Government to conduct an independent inquiry into the dismissals mentioned in the complaint without delay and, should it be found that the dismissals were anti-union in nature, to reinstate the workers concerned to their posts or, should this prove impossible, to pay them adequate compensation so as to constitute a sufficiently dissuasive sanction.