Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 323, Novembre 2000

1. 214. The Committee examined this case for the second time at its November 1999 meeting as part of the follow-up to the effect given to its recommendations (see 318th Report, paras. 57-62, adopted by the Governing Body at its 276th meeting (November 1999)).
2. 215. The International Confederation of Free Trade Unions (ICFTU) which had previously presented new allegations in a communication dated 22 October 1999 submitted further allegations and information in communications dated 24 November and 2 December 1999. The Government presented its observations in communications dated 6 January, 25 February, 4, 17 and 24 May and 26 October 2000.
3. 216. 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. Previous examination of the case

1. 217. The allegations pending refer to the dismissal of hundreds of workers from the Mopá, Panorama, Alabama and Arizona banana plantations in the context of a conflict between the SITRABI trade union and the Bandegua enterprise, which was marked by violent acts, declarations that strikes were illegal, violations of collective agreements and criminal proceedings instigated by the employers. At its November 1999 meeting, the Committee formulated the following conclusions and recommendations (see 318th Report, para. 62):
2. The Committee takes note of the development recorded in the dispute surrounding the Mopá and Panorama plantations and hopes that the parties involved, with assistance from the authorities if appropriate, can rapidly find a permanent solution. With regard to the second recommendation, the Committee notes with interest the legal recognition of the workers' unions of the Alabama and Arizona plantations. Finally, concerning the dismissal of the workers at the Alabama and Arizona plantations (more than 500 workers according to the complainant) and the criminal proceedings started by the employers, the Committee takes note of the negotiations arranged by the authorities with the parties in connection with the dismissals and observes that, according to the Government's reply, reinstatement of the workers is not feasible because it has been judged inadmissible by the courts through their declaration that the strike was illegal and since the plantations are no longer functioning as productive enterprises. The Committee requests the Government to send it a copy of the ruling that the strike in the Alabama and Arizona plantations was illegal and to inform it of the progress of the criminal proceedings instigated by the employers. The Committee further requests the Government to immediately send its observations on the latest information communicated by the ICFTU in a communication dated 22 October 1999.
3. B. New allegations by the complainant
4. 218. In its communication of 22 October 1999, the International Confederation of Free Trade Unions (ICFTU) states that since 27 September 1999 the Izabal Banana Workers' Trade Union (SITRABI) has been beset by problems as the Bandegua enterprise, a subsidiary of the Del Monte multinational, decided on that date to dismiss 918 workers in violation of the Collective Agreement on Working Conditions which was in force between the enterprise and the trade union.
5. 219. Faced with this situation, the trade union requested the intervention of the Ministry of Labour to try and reach an agreement with the employer. During the meetings held at the Ministry, the trade union put forward various solutions which entailed greater efforts on the part of the workers for the same pay. It further mentioned that SITRABI had already made concessions as a result of the problems caused in the plantations by Hurricane Mitch, which meant inter alia that its workers had forgone a salary increase to which they had been entitled under the collective agreement. The enterprise did not make concessions, arguing on the contrary that it had to maintain the unjustified dismissal order owing to problems attributable to the Government, which was charging it fees for port services that were never rendered and was pursuing various legal cases against it.
6. 220. In response the trade union, invoking a clause in the collective agreement, requested unpaid leave of ten days to assemble before the enterprise's offices and to demand that it meet its obligations and reinstate the dismissed workers. From that moment, Bandegua began a campaign against the trade union. It appealed to the Chamber of Commerce of Morales, Izabal, for help, accusing SITRABI of closing down its operations in Guatemala. According to Mr. Carlos Castro, President of the Chamber of Commerce of Morales, the Chamber could not permit such a situation to prevail, and so it began dangerous and criminal acts against the trade union and its leaders:
7. - On 13 October 1999, Mr. Marel Martínez, General Secretary of the trade union, was threatened at gunpoint and violently taken from his home to the SITRABI headquarters, where he was forced against his will to carry out acts aimed at destroying the trade union.
8. - With 200 heavily armed, hostile persons having nothing to do with the trade union present, Mr. Martínez's life was threatened as a means of forcing the rest of the Executive of the trade union and of the Bobos branch plantations, a Bandegua holding, to come to the headquarters. If they failed to do so he was told he would be killed.
9. - Once the members of the trade union Executive gathered, the abovementioned Mr. Castro, speaking on behalf of the Chamber of Commerce, said that the Chamber would not permit Bandegua to close down because of the trade union, and ordered them to resign from it. Another person who was notorious in the area and who was heavily armed crudely pointed out in no uncertain terms that the problem would disappear if he killed the trade union leaders.
10. - The trade union leaders Marel Martínez and Enrique Villeda were then brought against their will to the Radio Banana Stereo radio station and forced to broadcast a message to all the workers of the Bandegua enterprise to the effect that the labour problem stemming from the dismissal of the 918 workers from the Bobos branch plantations had been resolved through an agreement with the Chamber of Commerce of the Municipality of Morales. All the workers of the Motagua branch were therefore to turn up for work on 14 October 1999 at 6.00 a.m., and the workers of the Bobos branch plantations were to collect their severance pay and leave the plantations where they were working. The entire message was sent under the threat of death.
11. - Following the radio message, they were forced to sign documents drawn up and legalized by a notary who himself was told what to do under threats, whereby they resigned from the Executive and from the Bandegua enterprise.
12. - On 13 October, at about 4.00 p.m., Mr. Teodoro Jiménez Falla, who held a management post in the Bandegua administration, met various persons who were responsible for the above incidents. It may thus be assumed that the enterprise was no innocent bystander in these criminal acts.
13. - The incidents occurred between 6.00 p.m. on Wednesday, 13 October, and 2.00 a.m. on Thursday, 14 October, at the union headquarters located about 400 metres from the National Civil Police station, without the police intervening or even approaching to enquire as to what was happening. This substantiates suspicion of complicity on their part.
14. - Lastly, five trade union leaders of SITRABI and CUSG (the Trade Union Confederation of Guatemala) (Marel Martínez (General Secretary of the trade union and secretary for agricultural affairs of the CUSG); Jorge Agustín Palma Romero (SITRABI secretary of organization); Leonel McIntosh (SITRABI secretary for relations); Oscar Leonel Guerra Evans (general secretary of the SITRABI branch); and Angel Enrique Villeda Aldana (SITRABI and CUSG disputes secretary)), were forced with their families to leave their homes in the Municipality of Morales, bringing to 28 the number of people who are currently housed in a hotel in Guatemala City because they fear for their lives after having received threats. They have had to request the protection of the United Nations Verification Mission in Guatemala (MINUGUA) and of the national Office of the Human Rights Procurator.
15. 221. In its communication of 24 November 1999, the ICFTU states that the Ministry of Labour has taken some measures that it considers positive; nonetheless, they are not sufficient to resolve the problem. It has done the following: made public its recognition of the fact that the trade union leaders were forced to resign; provided lodging for the trade union leaders and their families; and initiated proceedings against the Bandegua enterprise for violation of the Labour Code and the collective agreement which was in force. Despite these measures, the labour dispute has not been resolved, and the 918 illegally dismissed workers have still not been reinstated. On the contrary, the enterprise is implementing a new method of managing the plantations with national producers, lowering wages and eliminating benefits which workers had achieved through collective bargaining. Eviction proceedings have been initiated against workers and trade union leaders who are still awaiting the decision of the Labour Court concerning the legitimacy of the dismissals. What is more, the enterprise has set up a guard post to deny SITRABI trade union leaders access to the plantations. The ICFTU emphasizes that the Izabal Labour Court has not dealt with Cases Nos. 67-99 brought by SITRABI and requesting the reinstatement of the 918 dismissed workers in accordance with the law, which further complicates the resolution of the problem through the courts. In addition, the Government of the United States has notified the Guatemalan authorities of its concern for this case, stating that if it was not resolved in a manner consistent with a State governed by the rule of law it would suspend the benefits of the General System of Preferences.
16. 222. In its communications of 2 December 1999 and 16 February 2000, the ICFTU states that the Government Procurator's Office had requested arrest warrants for Messrs. Jorge Antonio Salguero, Julio César Rodríguez Sagastume, Obdulio, Edwin and Haroldo Mendoza Mata, Carlos and Luis Castro, Mario Alvarez (father) and Mario Alvarez (son), who were some of the members of the group responsible for the death threats, the abductions and forced resignations of five trade union leaders from the SITRABI Executive and 22 constituent trade union leaders from their trade union functions and from their posts at the Bandegua enterprise, a subsidiary of Del Monte. In this case there is abundant evidence to which reference is made by the Government Procurator's Office to indicate that various crimes have been committed, the most serious of which is abduction and forcibly detaining a person in order to force the victim to do things against that person's will. Depending on the circumstances, this crime can even be punishable by the death penalty. Yet for no explainable reason, instead of issuing arrest warrants, the Judge of the First Instance Criminal Court of Puerto Barrios, Izabal, merely charged the defendants with the offence of coercion and freed them on a bail of 5,000 quetzals, thus demonstrating the level of impunity in the country. The offenders maintained a public disinformation campaign in an attempt to distort the facts, to give the impression that no criminal acts took place and that, on the contrary, the trade union leaders resigned of their own free will.
17. 223. The [cc1]ICFTU states that the decision taken by Mr. Miguel Hidalgo Quiroa in his capacity as judge of the First Instance Criminal Court of Puerto Barrios, Izabal, to allow those charged with committing offences against the STRABI trade union leaders to go free was challenged by the Government Procurator's Office and that to date the matter has not been dealt with in accordance with the law and thus the persons who violated the rights of the workers continue to be free. Since the file has not been sent to the Sixth Chamber of the Court of Criminal Appeals, the case is paralysed and those responsible for the crimes have not been tried. Furthermore, there is a new judge of the First Instance Criminal Court of Puerto Barrios, Izabal, whose name is Eddy Cáceres, who is responsible for the fact that the case has been unlawfully paralysed, thus benefiting the authors of the offences. Furthermore, the Government Procurator's Office has requested that warrants of arrest be issued against other persons involved in these crimes. The warrants for their arrest have already been issued; however, the persons have not been arrested because the police has not received the respective orders, since the judge Eddy Cáceres has unlawfully paralysed the proceedings. It is not correct to say that the Government Procurator's Office only made charges of coercion since it also brought other charges involving the crimes of threats, abduction and unlawful detention. The Government Procurator has pointed out that the Government Procurator's Office will continue to act according to the law, although it is also afraid since each time it attends a hearing, in addition to the trade union, a group of between 12 and 15 heavily-armed persons arrives to await the ruling of the judge in the waiting room of the court. In addition to these persons, there is another group which waits outside the court, inside expensive cars with tinted windows and cellular telephones. It is assumed that the occupants of the vehicles also have large-calibre guns.
18. 224. According to the ICFTU, workers falsely representing themselves as union members are accusing the trade union leaders of mismanagement of union funds and of committing offences, and are calling for their right to travel abroad to be withdrawn. Although the trade union leaders are able to show that they have properly managed the trade union funds and have submitted their records for the appropriate supervision, in the circumstances, with the corruption of the Izabal criminal judge, they could be sent to prison for acts they have not committed and could be killed while incarcerated.
19. 225. The ICFTU further alleges that the trade union leader Gumersindo Loyo Martínez, who was receiving medical treatment for a traffic accident at the Guatemalan Social Security Institute, was forced to stop his medical treatment and leave the town of Morales out of fear for his life, after being threatened by Mr. Obdulio Mendoza Mata (one of those responsible for the abduction of the SITRABI trade union leaders). The same Mr. Obdulio Mendoza Mata also went to the home of a son of Marel Martínez (one of the SITRABI trade union leaders) named Amilcar Martínez Ortiz, but did not find him; later the abovementioned trade union leader was sought by armed men in his workplace. He had to flee, and moved to another city to protect his life and physical safety.
20. 226. In the opinion of the ICFTU, the Government has minimized the problem in statements to the press, reducing it to a labour dispute between SITRABI and the Bandegua enterprise and concealing a criminal act, which strengthens the impunity of the offenders.
21. C. The Government's reply
22. 227. In its communication of 6 January 2000, the Government states that the conflict referred to by the ICFTU began as a result of the dismissal on 27 September 1999 of 897 workers from three plantations run by the Bandegua company. According to a statement later made by the Ministry of Labour and Social Security, with this mass dismissal, Bandegua violated the Collective Agreement on Working Conditions which was in force between the enterprise and the trade union.
23. 228. On 28 September 1999, the Executive of the SITRABI requested the intervention of the Ministry of Labour and Social Security to facilitate a dialogue between the enterprise and the trade union so as to reach a mutually acceptable solution. On the instructions of the President of the Republic, the Minister of Agriculture also took part as a facilitator. On 29 September the first meeting was held between the enterprise and the trade union in the presence of the Minister and the Vice-Minister of Labour and the Vice-Minister of Agriculture. On 11 October, the workers requested a pause in the negotiations. They called for a demonstration to be held on 14 October in the town of Morales, Izabal, and announced that they would block traffic on the Atlantic highway. The Ministry of Labour asked that they keep up the dialogue and refrain from resorting to de facto measures. For its part, the Bandegua enterprise let it be known to the population of Morales that if the problems which had been occurring for some time with the trade union were not resolved it would close down its operations in the area. On the night of 13 October, according to the complaint by the trade union leaders, in the trade union headquarters, a large group of inhabitants of Morales, armed with guns, forced the trade union leadership to resign from their union posts and from their jobs with the enterprise as a way of resolving the problem and preventing the enterprise from withdrawing from the area. On 17 October, two trade union leaders came to the National Civil Police substation in Morales to denounce the conditions in which they were forced to resign. That same day, the National Civil Police transferred the complaint to the Government Procurator's Office in Izabal, as required by law.
24. 229. According to the Government, an inquiry was begun as soon as the facts were known in the capital. The SITRABI Executive pointed out that as long as its main executives were not in the capital with sufficient guarantees of protection, it could not provide the names of the persons responsible for the events of that Wednesday night, as they feared for their personal safety. The National Civil Police assisted the trade union leaders, in accordance with their wishes, to move to the capital. The Ministry of Labour declared that the resignations were invalid if they were made under duress, and called upon both parties to resume their dialogue. On 18 October, representatives of the trade union leadership met the Vice-Minister of the Interior to report on the coercion and threats, but without providing the names of those presumed responsible for the criminal acts. The same day, the General Labour Inspector filed a complaint against Bandegua with the Sixth Labour and Social Welfare Judge of the First Economic Zone for mass dismissals carried out in violation of the Collective Agreement on Working Conditions.
25. 230. On 19 October, the Ministry of Labour, together with the Ministry of Agriculture, held a press conference and issued a press release, informing the press of the incident and the Government's position. Since the press did not provide coverage of the Ministry's press release, on 23 October it was published in paid advertising space. The same day, Bandegua published a statement in paid space in which it denied that it had anything to do with the events of 13 October in Morales and stated that if it were proven that the denunciations were obtained illicitly it would not consider them valid. The Ministry of Labour received a communication from the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) in which the organization expressed its gratitude for the Government's stance.
26. 231. The dialogue between the trade union and the enterprise resumed on 25 October, at the headquarters of the Ministry of Labour. The union presented a list of eight demands in which it accused Bandegua of responsibility for the incidents and requested the reinstatement of all the dismissed workers. The enterprise said it would reply on 27 October, on which date it rejected the assertions made by the union and stated that it would not be able to resume operations in the plantations affected by the dispute. The Minister of Labour pointed out that such an approach would cast doubt on the real will of the enterprise to find a solution to the labour problem and that it contradicted the enterprise's statement of 23 October that it was well disposed to begin negotiations with the union in good faith. For that reason, he considered that there was no sense in continuing the dialogue fostered by the Ministry, as long as the enterprise made no practicable proposals. The union took a similar position, pointing out that the position of the enterprise blocked the conclusion of an agreement.
27. 232. The Government adds that the executives of the SITRABI who moved to the capital asked for government assistance for lodging and security for themselves and their families. The Ministry of Labour immediately provided them with lodging as from 27 October, and the National Civil Police has provided them with round-the-clock protection since that date. On the same day the inhabitants of Morales published a press release in paid space in which they claimed to justify the action taken on 13 October.
28. 233. On 28 October the SITRABI trade union leaders handed over to the Director General of the National Civil Police and to detectives from the Criminal Investigation Section (SIC) a copy of the list of presumed perpetrators, which they had previously given to the national Office of the Human Rights Procurator. The same day, the United Nations Verification Mission in Guatemala (MINUGUA) issued a press release in which it called the incidents in Morales grave crimes, recognized that they did not reflect the state of labour relations in the country and pointed out that it was "first and foremost up to the Government Procurator's Office and subsequently the Judicial Body to act immediately and effectively to ensure the credibility of institutions". On 29 October, the National Civil Police transferred the relevant information to the Government Procurator's Office, which was responsible for directing the criminal investigation. The same day, the Government Procurator's Office sent two special investigators to Morales to investigate the details of the incidents involving death threats and intimidation as related by the SITRABI trade union and which had led 22 trade unionists to resign.
29. 234. On Thursday, 4 November, the Government issued a press release in which it provided information on all the actions taken to resolve the problem, and stated that it agreed with the opinion expressed by the MINUGUA in its press release of 28 October.
30. 235. On 11 November the head of the Government Procurator's Office informed the Ministry of Labour that he had requested the Second Court of First Instance (Criminal) of the Department of Izabal to arrest ten persons presumed responsible for the threats and coercion. That court called upon the accused to file statements on Thursday, 25 November. On 24 November the Government, through the Ministry of Labour, issued a press release providing information on the progress of the investigation and stating that it "expects the judicial authorities to deal with the case with absolute adherence to the law, so that the acts which occurred will not go unpunished, and offers to the judicial authorities any assistance befitting the executive branch".
31. 236. The Government states that on 26 November the decision of the Second Court of First Instance (Criminal) of Izabal was handed down, bringing criminal charges for the crime of coercion against a number of persons, including Mr. Castro Castro García, who was named in the complaint presented by the ICFTU, and the following persons: Walter Obdulio Mendoza Mata, Haroldo Mendoza Mata, Luis Romero Castro, Mario Alvarez (father), Mario Alvarez (son) and Julio César Rodríguez Sagastume. The court rejected prima facie the charges of illegal detention, coercion, threats, kidnapping and aggravated unlawful entry which in the opinion of the special investigators of the Government Procurator's Office characterized the acts which occurred on the night of 13 October. The defendants were released on bail. The proceedings in the case are still under way.
32. 237. On Tuesday, 30 November the Minister and the Vice-Minister of Labour met the "Ad hoc Commission to Support and Follow Up on Strengthening of the Justice System" (which operates under the Peace Agreements) to seek support for the rapid and complete application of the law. As a result of this visit, the Commission published a statement setting out its position on the subject and requesting the judicial authorities "in hearing the cases, to analyse each in detail, given the consequences each will have for social peace and the precedent it will establish". The same day, the Government Procurator's Office lodged an appeal with the Sixth Chamber of the Court of Appeals against the decision to release without bail the two notaries who had legalized the resignations. It also contested the alternative measure (release on bail) accorded to the persons accused of the crimes of issuing threats and of coercion mentioned in the previous paragraph. On 9 December 1999 the Government Procurator's Office requested that Messrs. Teodoro Jiménez Falla, Carlos Regil Bekker, Milton Mendoza Mata, Carlos Enrique Hernández Díaz, Rogelio Arriaza, Minor Cappa Rosales, Pedro Antonio García Méndez and Samuel Mejía be detained, as the competent judge had not already done so. Days later, on 17 December 1999, the Government Procurator's Office challenged the Second Judge of the First Instance (Criminal, Drug Trafficking and Crimes against the Environment) of the Department of Izabal, as it considered that there had been delay with malicious intent and vested interests in the case, and on 21 December 1999 it: (1) lodged complaints with the Supreme Court of Justice and with the Sixth Chamber of the Court of Appeals of Zacapa for delay with malicious intent in the handling of the case by the Second Judge; and (2) challenged the Second Judge's competence to hear the case. The judge subsequently issued a decision ordering the detention of Messrs. Carlos Regil Bekker, Milton Mendoza Mata, Carlos Enrique Hernández Díaz, Rogelio Arriaza, Minor Cappa Rosales, Pedro Antonio García Méndez and Samuel Mejía. As the arrest warrant was not notified to the National Civil Police, no arrests were made. The defendant Teodoro Jiménez Falla left the country for Costa Rica. On 21 December the Second Judge notified the Government Procurator's Office of his decision to order the detention of the abovementioned defendants for the crimes of illegal detention, aggravated unlawful entry and sedition.
33. 238. On 22 December 1999 the Government Procurator's Office was informed that the two appeals challenging the lack of merit in the case of the notaries Jorge Antonio Salguero and Julio César Rodríguez Sagastume (i.e., challenging their innocence) had been accepted, but that the appeal against the release on bail of the other defendants had not. It is still pending. The challenge by the Government Procurator's Office of the judge's competence is also still pending.
34. 239. On 29 December 1999, at the request of the SITRABI Executive, the Ministry of Labour convened a meeting between the Minister and representatives of Bandegua and the trade union. On that occasion, a review was made of the issues pending between the enterprise and the trade union, and the two parties stated their intention to continue the dialogue in order to resolve the dispute. The employer hoped for a new invitation in which the trade union representatives would put forward their claims with regard to the SITRABI executive officers affected by the incident at Morales and would take a position concerning the agreement in principle reached between Mr. Antonio Yoc of Del Monte Corporation and the IUF international trade union organization, under which Bandegua would put forward a proposal for the renegotiation of the collective agreement. The Government concludes by stating that it will inform the Committee of the outcome of the criminal and labour proceedings pending in the competent courts.
35. 240. In its communications of 25 February, 4, 17 and 24 May 2000, the Government states that after a long 19 months of fighting, on 8 February of this year, the labour dispute that started in February 1998 in the Mopá and Panorama plantations in Morales, Izabeal, was resolved. With the end of the dispute also came the legal disappearance of the Mopá and Panorama plantations, property of the company of banana growing (Bandegua), because the Fenando Bolaños enterprise rented the lands, that were renamed Panajachel one and Panajachel two plantations. At the same time, the employer allowed its 374 workers to form a union, which, in the presence of the Minister of Labour and Social Security, signed a collective agreement on conditions of work, which provides for improvements in salary, education and health. The Secretary-General of the new union of Panajachel one and Panajachel two plantations stated that the signing of the agreement demonstrates that collective bargaining can achieve better conditions for the workers. The Government states that it provided its best mediation efforts within its competence to achieve a resolution of the conflict and asks that the case be closed. As regards the Arizona and Alabama plantations, the Government states that the dismissed workers, with the support of the trade union movement, had recourse to the respective judicial bodies. An out-of-court settlement was achieved between the parties, contained in the "Final settlement agreement on the collective labour disputes which arose in the Arizona and Alabama banana plantations", signed on 7 December 1999. Within the framework of the previously mentioned agreement, of the workers involved in the dispute, 51 were to be reinstated on a permanent basis and 59 as casual workers, with the remainder being sent to other banana plantations owned by the Guatemalan Independent Banana Company (COBIGUA). For this purpose, the content of the Final settlement agreement on the labour disputes which arose in the Arizona and Alabama banana plantations was communicated to the trade union organizations and the representatives of the employers in the plantations of the Guatemalan Independent Banana Company (COBIGUA), which document was accepted and signed. At present, it has not been possible to reactivate the Arizona and Alabama plantations because of economic problems affecting the owner, but the dismissed workers are already working on other plantations pursuant to the agreement which has been signed. In a communication of 26 October 2000, the Government explains in detail the steps taken by the parties, with the help of the authorities, in particular the Ministry of Labour and Social Security, to solve the problems. The Government indicates that, on 3 October 2000, more than 500 workers out of those who worked in the three plantations reported for work. It adds that a collective agreement concerning the working conditions in these three plantations was signed on 6 October 2000.
36. 241. The Government sent a communication from the Government Procurator's Office dated 17 May 2000 which states that 23 persons have been accused of the crimes of breaking and entering, illegal detentions and coercion; others have been accused of kidnapping or abduction. In its communication of 26 October 2000, the Government indicates that the charges have been accepted and that the public hearing will take place on 14 February 2001.

D. The Committee's conclusions

1. 242. The Committee observes that the allegations pending refer to: (1) the dismissal of approximately 900 workers from the Bobos branch plantations in violation of the collective agreement; (2) death threats, coercion and acts of intimidation against trade union leaders and members to force them to back down from their demands, resign from their posts and break off their trade union action; a total of five trade union leaders and 22 workers have been forced to move to Guatemala City for fear of being killed; (3) the erection of a guard post to deny SITRABI trade union leaders access to the plantations; (4) the conduct of the judge of the First Instance Criminal Court of Puerto Barrios, who instead of issuing arrest warrants against those responsible for the above acts of violence merely accused them of coercion and freed them on a bail of 5,000 quetzals; (5) the false accusation brought against SITRABI trade union leaders by a group of union members alleging offences in the handling of trade union finances (although the Committee observes that the allegations mention no involvement by the enterprise or the Government in such accusations); (6) threats made against the trade union leader Gumersindo Loyo Martínez by one of those who took part in the violent acts mentioned above in order to force him to leave his city for fear of being killed; and (7) intimidation and harassment of Mr. Amilcar Martínez Ortiz, the son of trade union leader Mr. Marel Martínez.
2. 243. The Committee notes that the Government states that: (1) the dismissal of 897 workers from three plantations run by Bandegua violated the Collective Agreement on Working Conditions which was in force between the enterprise and the trade union and that the General Labour Inspector therefore filed a complaint relating to the offence with the judicial authority; (2) at the union headquarters, a large group of inhabitants of Morales, armed with guns, forced the trade union leadership to resign from their union posts and from their jobs in order to prevent the enterprise's withdrawal from the area; (3) two trade union leaders filed complaints with the national police concerning the conditions in which they were forced to resign from their trade union posts and their jobs and moved to the country's capital out of fear for their personal safety; they have been given round-the-clock protection in the capital; (4) the Bandegua enterprise denies any link with the acts of violence while the trade union accuses it of being responsible for them; (5) the criminal judicial authority brought charges against eight persons for the crime of coercion, including Mr. Carlos Castro (President of the Morales Chamber of Commerce), rejecting charges of other crimes which, in the opinion of the Government Procurator's Office, had been committed, making it possible for the accused to be set free on bail and simply releasing the two notaries who took part in the legalization of the resignation of the trade union leaders from their posts; appeals were lodged against the latter two decisions by the Government Procurator's Office, which also challenged the competence of the judge on the basis of delay with malicious intent and for vested interests in the case; (6) subsequent to the initiative taken by the Government Procurator's Office, the judge issued an arrest warrant against seven other persons for the crimes of illegal detention, aggravated unlawful entry and sedition, which could not be enforced because it was not notified to the police; the action taken by the Government Procurator's Office against the release of the two notaries has also been accepted; (7) the representatives of Bandegua and the trade union met with the Minister on the various points that are subject to dispute, and reached an agreement.
3. 244. As regards the dismissal of approximately 900 workers from the plantations of the Bobos branch, the Committee observes that the complainant and the Government concur that the collective agreement in force was violated. The Committee points out the gravity of such mass dismissals, which have dramatic consequences for hundreds of families, and emphasizes that "agreements should be binding on the parties" (see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 818), and that the mutual respect for the commitment undertaken in the collective agreements is an important element of the right to bargain collectively (see 308th Report, Case No. 1919 (Spain), para. 325). However, the Committee notes that according to the Government, the dispute in the Mopá and Panorama plantations was resolved on 8 February 2000, that a collective agreement was signed and 374 workers were reinstated. As regards the dismissals at the Alabama and Arizona plantations, the Committee notes with satisfaction the out-of-court settlement between the parties (the dismissed workers with the support of the trade union movement and BANDEGUA/DEL MONTE), which was subsequently accepted by the trade union organizations, providing for the reinstatement of workers on these or other plantations. The Committee notes that, according to the Government, more than 500 workers have resumed work and a collective agreement covering this sector was signed on 6 October 2000.
4. 245. As regards the allegations concerning the death threats, coercion and acts of intimidation to which trade unionists and trade union leaders were subjected on 13 October 1999 specifically in order to force them to resign from their posts, the Committee strongly deplores these acts of violence, which moreover forced some 30 trade unionists and trade union leaders to move to the country's capital for fear of being killed. The Committee expresses its regret that the allegations and the Government's reply indicate that the judge who handled these cases in the first instance has not proved impartial, and notes that the Government Procurator's Office has taken action against him. Nonetheless, the Committee observes that 23 persons were eventually sued and accused in connection with the alleged acts, and requests the Government to communicate the judgements handed down. The Committee deplores the fact that because the judge did not communicate to the police the arrest warrant for eight of these persons, it has so far been impossible to detain them. The Committee requests the Government to take measures to establish the whereabouts of the accused persons who have fled and to keep it informed in this respect. The Committee emphasizes that the failure to punish the guilty would involve impunity which could only worsen the climate of violence, which is extremely prejudicial to the exercise of trade union rights.
5. 246. Lastly, the Committee observes that the Government has not responded to the allegations concerning the erection of a guard post to deny SITRABI trade union leaders access to the plantations, the threats against the trade union leader Mr. Gumersindo Loyo Martínez and the intimidation and harassment of Mr. Amilcar Martínez Ortiz, the son of the trade union leader Mr. Marel Martínez. The Committee urges the Government to guarantee access to the plantations for trade union leaders and to take measures so that a judicial inquiry be conducted into such threats, intimidation and harassment, and to keep it informed in this respect.