Rapport définitif - Rapport No. 147, 1975

1. 126. The Committee has already examined this case at its 66th Session (February 1964), when it submitted to the Governing Body interim conclusions contained in paragraphs 123-136 of its 143rd Report. That Report was adopted by the Governing Body at its 193rd (May-June 1974) Session.
2. 127. Guatemala has ratified both 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. A. The complainants' allegations

1. 128. The complainants state that the trade union movement in Guatemala is encountering great hardship and that there is a concerted campaign on the part of employers to destroy trade unionism in the country by forcing workers to relinquish membership in trade unions or else be dismissed.
2. 129. The complainants provide several examples of such, action. They allege, for instance, that on 30 June 1972 the workers of the Fábricas Electrónicas Unidas company established a union. The President of the company is alleged to have responded by mass dismissals (130 to date) and threatened to continue this policy of dismissal if the union were not dissolved.
3. 130. The complainants also allege that on 11 November 1972 a union of the workers of the Fábrica de Plásticos Zelaya Zimeri y Cia. Ltda was formed. The management summarily dismissed all workers who became members of the union, including the officers of the Executive Committee. As a result the union has ceased to exist.
4. 131. Similarly, on 4 December 1972 the workers at the Laboratorios Pierre Bonin Sucesores Cia. Ltda established a union, but because of the immediate wave of dismissals which followed the rest of the workers showed no further interest in joining the union.
5. 132. The complainants stress that this is only a partial list and that very large numbers of workers have been sanctioned by various managements on the sole grounds of having joined a trade union.
6. 133. Complaints in respect of these cases have been filed with the national labour authorities; but, the complainants allege, no effort has been made to force the employers to comply with the laws forbidding such acts of anti-union discrimination.
7. 134. The Government replied by transmitting the reports of various departments of the Ministry of Labour and Social Security. The officer in charge of the Workers' Protection Department of the Ministry of Labour and Social Security stated that departmental policy had always been to ensure compliance with the statutory provisions protecting freedom of association and to help the workers to unionise in every way possible. If in certain cases the authorities had been slow to act, the officer continued, this was usually because of a lack of co-operation on the part of the unions themselves, since they did not comply with the requirements of the law when submitting complaints.
8. 135. The National Department of Labour Inspection for Industry, Commerce and Services stated that the allegations made by the FASGUA concerning the inaction of the labour authorities were untrue. It went on to say that all the legal formalities in the trade union field had been undertaken, such, for example, as checking the number of workers at work on the date of the election, the denouncing of collective agreements, collective bargaining warnings to employers to reinstate dismissed union officers and legal proceedings before the competent court with a view to penalties being imposed.
9. 136. The same Department also stated that its function was to act as conciliator in occupational disputes and to seek solutions to them through the application of Guatemalan labour legislation. It pointed out that sanctions were applicable to employers committing breaches of the right to organise freely. Its competence was limited by the provisions of the Labour Code, and once all possibilities of administrative intervention had been exhausted without resolving the dispute, the latter had to be referred to the labour courts. In certain cases where breaches of the law had been committed the General Inspectorate of Labour instigated court proceedings with a view to securing the imposition of appropriate penalties. The Department also stated that where delay occurred in the handling of cases this was not the fault of the Department, but of the unions, which did not comply with the relevant provisions of the law.
10. 137. On the basis of these statements the Government affirmed in conclusion that its general policy was one of support for freedom of association and the right of workers to organise and that the appropriate government departments had taken all necessary and possible steps to ensure the protection of those rights.

B. B. The Committee's conclusions

1. 138. The Committee noted the statements of the Government concerning the latter's general policy in labour matters but noted also that the Government had not provided any information concerning the specific allegations made by the complainants and the steps taken by the labour authorities in the cases of the workers of the Fábricas Electrónicas Unidas, the Fábrica de Plásticos Zelava Zimeri y Cia. Ltda and the Laboratorios Pierre Bonin Sucesores Cia. Ltda, who had been allegedly dismissed on the sole grounds of being members of a trade union.
2. 139. The Committee therefore recommended the Governing Body to request the Government to be good enough to provide precise information concerning the specific allegations made by the complainants and the steps taken by the labour authorities in connection therewith.
3. 140. The Government replied in a communication dated 7 August 1974. It states that the Ministry of Labour and Social Welfare made a thorough investigation of the matters raised and established that the workers' unions in the undertakings referred to in the complaint had not obtained the approval of their statutes or permission to register as unions on the grounds that they did not have the minimum number of members required for the establishment of a union under the Labour Code. It points out that the facts referred to occurred in 1972 and 1973 and that at present there is no outstanding request on this subject from the trade union federation which submitted the complaint to the ILO.
4. 141. In the first place, it is clear from the information available that officials of the Ministry of Labour can intervene in matters such as those referred in the complaint. In this connection, the Committee took note, in an earlier case concerning Guatemala, of information from the Government stating that any person who had been the victim of a discriminatory measure was fully free to lodge a complaint on the matter with the Inspectorate-General of Labour so that the latter could warn the employer concerned and if necessary bring the case before the courts. The Committee drew attention to article 62 (c) of the Guatemalan Labour Code, which states that an employer shall not "compel or endeavour to compel an employee, by any means whatsoever, to withdraw from the lawfully constituted trade union or group to which he belongs or to join any such union or group". Article 272 of the Code stipulates the penalties for breaches of this provision.
5. 142. The Committee also pointed out that under article 223 (d) of the Labour Code the dismissal of the members of the Executive Committee of a union (a maximum of five persons) is prohibited during their period of office unless the employer first furnishes evidence, in accordance with the usual procedure for the termination of a contract, that sufficient grounds exist. To this end the Labour and Social Welfare Tribunals are required to deal with cases of this kind as speedily as possible. The same protection is extended to all the members of the provisional executive Committee of a trade union which is being set up, on condition that they are not more than nine in number and that they have given prior notice of their election to the Inspectorate-General of Labour.
6. 143. In the case under consideration the complainants allege that on numerous occasions the intervention of the government authorities had been vainly sought to secure compliance with the law. They quote three cases in which employers dismissed large numbers of members of unions in process of establishment. The Government has replied that complaints of this type are given priority treatment; that the Labour Inspectorate had instituted the necessary proceedings; and that the fault for any delays lies with the unions themselves, which have not complied with the law. The Government also states that, in the particular cases referred to in the complaint, the organisations concerned had not obtained approval of their statutes or permission to register as trade unions because they did not have the minimum numbers of members stipulated in the Labour Code (article 216 of which states that there must be at least twenty workers to form a trade union).
7. 144. The Government has not supplied any specific information on the measures taken by the Labour Inspectorate in the cases referred to by complainants or on the outcome of those measures. In addition, it is not impossible that the failure of these unions to reach the minimum number of twenty members may be due to the dismissal of members by the employer for having taken part in the establishment of the said unions.
8. 145. The Committee has already recalled the principle, laid down in Article 1 of Convention No. 98, that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment and that such protection shall apply particularly in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership.
9. 146. The Committee notes that Guatemalan legislation contains a number of provisions designed to protect workers against acts of anti-union discrimination. In the present case, however, there are grounds for doubting whether in fact "adequate protection" against such acts has in fact been provided; in fact, the acts committed appear to have led to the actual disappearance of the unions concerned, since each of them consisted of workers in a single undertaking.