Informe definitivo - Informe núm. 380, Octubre 2016

1. 512. The Committee last examined this case at its March 2014 meeting, and on that occasion presented an interim report to the Governing Body [see 371st Report, approved by the Governing Body at its 318th Session (March 2014), paras 523–537].
2. 513. The Government sent its observations in communications dated 20 and 26 May, 9 September and 12 November 2015, and 3 August 2016.
3. 514. 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. Previous examination of the case

1. 515. At its October 2014 meeting, the Committee made the following recommendations [see 371st Report, para. 537]:
   • (a) The Committee again regrets that the Government’s reply remains incomplete, despite the fact that the pending allegations refer to events which took place several years ago and include serious acts of violence against union members, and acts of anti-union discrimination and interference. The Committee urges the Government to provide information on all the pending issues in the very near future.
   • (b) With regard to the allegations concerning assaults, death threats and acts of intimidation against union members, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the matter, the Government has not sent observations since the Committee’s last examination of the case. The Committee firmly expects that the commitments undertaken by the Government in the Memorandum of Understanding signed in March 2013 will be translated into actions and tangible results with respect to the allegations of violence and threats contained in this case, and urges the Government to refer these allegations as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard.
   • (c) The Committee again invites the Government to enter into contact with UNSITRAGUA with a view to providing a detailed reply regarding the case relating to the alleged raid in 2002 involving the burning of documents at the headquarters of the trade union operating at the enterprise ACRILASA.
   • (d) With regard to the obstacles and significant delays to the collective bargaining process between the Supreme Electoral Tribunal and UNSITRAGUA, as well as the obstacles to the union’s exercise of the right to strike, the Committee urges the Government to take all the necessary measures to significantly expedite the judicial procedures to determine the lawfulness of strikes and, in general, to settle collective disputes involving public officials exercising authority in the name of the State.
   • (e) As regards the allegations in relation to the municipality of El Tumbador concerning the reinstatement proceedings for dismissed workers ordered by the judicial authority and the dismissal of several union officials, the Committee notes with regret that the Government has not provided information in relation to the dismissal of Mr César Augusto León Reyes, Mr José Marcos Cabrera, Mr Víctor Hugo López Martínez, Mr Cornelio Cipriano Salic Orozco and Mr Romeo Rafael Bartolón Martínez. The Committee deplores these excessive delays and firmly expects that proceedings to reinstate the dismissed workers will be completed in the very near future. The Committee requests the Government to keep it informed of future rulings on this matter and to provide evidence of the reinstatement of the aforementioned workers, or, if reinstatement is not possible due to the time elapsed, the payment of adequate compensation which would constitute a sufficiently dissuasive sanction.
   • (f) As regards the remaining allegations, in the absence of observations from the Government, the Committee yet again reiterates its previous recommendations, which are reproduced below, and urges the Government to send the information and take the actions requested without delay:
     • – noting that the Government has not provided any information concerning wages owed to the union leader Mr Gramajo, the Committee urges the Government once again to take steps to ensure that all outstanding wages are paid without delay and to keep it informed in this regard; and
     • – with regard to the allegations concerning employer interference in union elections at the General Property Registry, which was confirmed by the labour inspectorate, the Committee once again requests the Government to take the necessary measures without delay to sanction the entity responsible, to provide for adequate compensation for the damages suffered and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.

B. The Government’s reply

1. 516. Concerning the alleged raid in 2002 of the headquarters of the trade union operating in Industrias Acrílicas de Centroamérica SA (ACRILASA), in respect of which the Committee had again requested the Government to contact the Trade Union of Workers of Guatemala (UNSITRAGUA) to enable it to provide a detailed reply, the Government states that: (i) on 17 April 2015, the Ministry of Labour and Social Welfare organized a meeting with UNSITRAGUA to obtain more details on the allegation; (ii) UNSITRAGUA representatives failed to attend the meeting and, despite agreeing to telephone to reschedule it, they did not contact the Ministry of Labour and Social Welfare again; (iii) the mediator for the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining (hereinafter the Committee for the Settlement of Disputes) informed the Ministry of Labour and Social Welfare that it had been in contact with the union officials at ACRILASA trade union and UNSITRAGUA regarding this allegation, but that neither of the two organizations appeared before the Committee for the Settlement of Disputes; and (v) it is clear from the above that the complainants have shown no interest to date in resuming dialogue with the Ministry’s authorities in order to shed light on the facts presented in this allegation.
2. 517. Regarding the alleged dismissal of union officials by the municipality of El Tumbador, in respect of which the Committee had requested the Government to provide information on the situation of Mr César Augusto León Reyes, Mr José Marcos Cabrera, Mr Víctor Hugo López Martínez, Mr Cornelio Cipriano Salic Orozco and Mr Romeo Rafael Bartolón Martínez, the Government states that: (i) on 24 July 2015, the mediator for the Committee for the Settlement of Disputes met in the municipality of El Tumbador with representatives of the United Municipal Employees Union of El Tumbador and the Workers’ Union of the Municipality of El Tumbador; (ii) those representatives reported that the reasons for filing the complaint had already been resolved in the ordinary courts; (iii) in November 2015, the municipality of El Tumbador reported that Mr Víctor Hugo López Martínez, Mr Cornelio Cipriano Salic Orozco and Mr Romeo Rafael Bartolón Martínez were currently working in the municipality; and (iv) the municipality further reported that the employment of Mr César Augusto León Reyes and Mr José Marcos Cabrera had been terminated in November 2004 for reasons unrelated to their union membership, and payment of their employee entitlements and compensation had been made as required under the law.
3. 518. With respect to the payment of wages owed to union leader Mr Gramajo, a former worker in the municipality of El Tumbador, the Government states that: (i) the mediator from the Committee for the Settlement of Disputes made a second visit to the municipality of El Tumbador in August 2015, during which he met with Mr Gramajo; and (ii) Mr Gramajo confirmed both orally and in writing that he had received payment of the unpaid wages and that he was still working in the municipality.
4. 519. With regard to employer interference in union elections at the General Property Registry, the Government submits a communication from the Head of the General Property Registry, in which she states that: (i) the alleged events occurred under a different management team; (ii) the current General Property Registry management team fully respects trade union rights; (iii) there are no conflicts with the two unions operating in the institution, both of which are able to conduct their electoral processes freely; and (iv) a collective agreement on working conditions concluded between the parties is in force in the institution. In its communication of August 2016, the Government submits a letter from the mediator of the Committee for the Settlement of Disputes requesting that the examination of this allegation not be pursued.

The Committee’s conclusions

1. 520. The Committee recalls that, in this case, the complainant organizations report a series of anti-union acts, including assaults, death threats and acts of intimidation against trade unionists, as well as interference in union elections and anti-union dismissals, and the employers’ refusal to comply with judicial orders for reinstatement.
2. 521. The Committee further recalls that, since the presentation of this complaint in 2002, the Committee has examined this case on eight occasions (March 2003, March 2005, June 2006, November 2007, November 2008, March 2011, June 2012 and March 2014). In each of its interim reports, it urged the Government to provide its observations on the numerous allegations of assaults, death threats and acts of intimidation against trade unionists contained in the complaint and requested it on six occasions to refer the cases as a matter of urgency to the Special Prosecutor for Offences against Trade Unionists. While noting the Government’s efforts since the last examination of the case in 2014 to provide information on several allegations in this case, the Committee regrets to note once again that the Government has failed to send its observations concerning the following allegations of anti union violence and threats in this complaint: (i) destruction of the headquarters of the trade union at the General Property Registry; (ii) death threats against Mr Baudilio Reyes, leader of the trade union operating in the enterprise Agrícola Industrial Santa Cecilia SA; (iii) death threats against the general secretary of the trade union operating in the municipality of El Tumbador; (iv) death threats against the general secretary and the head of finance of the union operating in ACRILASA, as well as against union officials Ms Castillo and Ms Alcántara and union members; (v) acts of intimidation against the general secretary; (vi) assaults on two members of the executive board and on union members; (vii) death threats against union officials operating in Finca La Torre; (viii) intimidation of union member of the municipality of El Tumbador, Ms Nora Luz Echeverría Nowel; and (ix) intimidatory surveillance of UNSITRAGUA headquarters.
3. 522. In the absence of information from the Government, the Committee can only conclude that, 14 years after the allegations, the reported assaults and threats have not led to investigations by the public authorities, which is a matter of deep concern, particularly in a context of frequent and serious acts of anti-union violence. In this regard, the Committee emphasizes that 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, para. 44]. The Committee also emphasizes that a climate of violence, such as that surrounding the murder or disappearance of trade union leaders, or one in which the premises and property of workers and employers are attacked, constitutes a serious obstacle to the exercise of trade union rights; such acts require severe measures to be taken by the authorities [see Digest, op. cit., para. 46]. The Committee recalls, in addition, the adoption in October 2013, as part of the follow-up to the complaint concerning non observance by Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), made by delegates to the 101st Session (2012) of the International Labour Conference under article 26 of the ILO Constitution, of a roadmap whereby the Government undertakes to ensure the timely trial and conviction of the perpetrators and instigators of the crimes against trade union officials and members and to strengthen prevention and protection mechanisms in respect of threats and attacks against trade union officials and members. The Committee therefore urges the Government in the strongest possible terms to ensure that, in future, any reports of acts of anti-union violence or threats against members of the trade union movement in the future, trigger immediate and effective investigations by the competent public authorities and the implementation of adequate protection measures. The Committee emphasizes that the taking of such measures is an essential element in upholding the rule of law.
4. 523. With regard to the alleged raid in 2002 of the headquarters of the trade union operating in ACRILASA, recalling that it had requested the Government on a number of occasions to contact UNSITRAGUA to enable it to provide a detailed reply, the Committee notes the Government’s response to the effect that both the Ministry of Labour and Social Welfare and the independent mediator of the Committee for the Settlement of Disputes invited representatives of UNSITRAGUA and trade unions operating in the enterprise, but that the union representatives failed to attend the proposed meetings. While noting recent initiatives, the Committee regrets that the proposal of a meeting by the Government came 13 years after the allegations. The Committee therefore urges the Government to ensure, in future, rapid and effective follow-up to the Committee’s requests in order to guarantee adequate protection of freedom of association.
5. 524. As regards employer interference in union elections at the General Property Registry, and in respect of which the Committee had requested that adequate sanctions be imposed, the Committee notes that the Government submitted the comments of the current Head of the General Property Registry, who states that: (i) the current management team of the General Property Registry fully respects trade union rights; (ii) there are no conflicts between the General Property Registry management and the two unions operating in the institution, both of whom are able to conduct their electoral processes freely; and (iii) a collective agreement on working conditions concluded between the parties is in force. While noting these facts, the Committee observes with deep concern that, despite the Committee’s repeated recommendations, the acts of interference by the General Property Registry management in 2002 have gone unpunished. Recalling that freedom of association implies the right of workers and employers to elect and designate their representatives in full freedom [see Digest, op. cit., para. 388], the Committee urges the Government to take the necessary steps to ensure that employers, whether public or private, fully respect the freedom of trade union organizations to hold independent elections, and that any infringements of this principle should lead to swift and enforced sanctions.
6. 525. Concerning the alleged dismissal of union officials by the municipality of El Tumbador, in respect of which the Committee had requested the Government to provide information on the situation of Mr César Augusto León Reyes, Mr José Marcos Cabrera, Mr Víctor Hugo López Martínez, Mr Cornelio Cipriano Salic Orozco and Mr Romeo Rafael Bartolón Martínez, the Committee notes the Government’s observations to the effect that: (i) on 24 July 2015, representatives of the United Municipal Employees Union of El Tumbador and the Workers’ Union of the Municipality of El Tumbador received a visit from the mediator for the Committee for the Settlement of Disputes and they informed him that the reasons for filing the complaint had already been resolved in the ordinary courts; (ii) in November 2015, the municipality of El Tumbador reported that Mr Víctor Hugo López Martínez, Mr Cornelio Cipriano Salic Orozco and Mr Romeo Rafael Bartolón Martínez were currently working in the municipality and that, furthermore, the employment of Mr César Augusto León Reyes and Mr José Marcos Cabrera had been terminated in November 2004 for reasons unrelated to their union membership, and payment of their employee entitlements and compensation had been made as required under the law.
7. 526. With respect to the payment of wages owed to union leader Mr Gramajo, a former worker in the municipality of El Tumbador, the Committee notes the information provided by the Government to the effect that Mr Gramajo confirmed both orally and in writing to the mediator of the Committee for the Settlement of Disputes that he had received payment of the unpaid wages and that he was still working in the municipality.