Rapport intérimaire - Rapport No. 342, Juin 2006

499. The Committee last examined this case at its March 2005 meeting when it submitted an interim report to the Governing Body [see 336th Report, paras. 405-430]. The Government sent its observations in communications dated 8 and 30 March, 25 April, 15 June, 5 July and 16 August 2005, and 5 January 2006.

1. 500. 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. 501. At its March 2005 meeting, the Committee made the following interim recommendations relating to the allegations presented by the complainant organization [see 336th Report, para. 430]:
2. (a) The Committee requests the Government to take the necessary measures to order urgent investigations into the allegations concerning assaults, death threats and intimidation of trade union members, and the attacks on trade union headquarters. The Committee stresses the gravity of these allegations and urges the Government to refer these cases urgently to the Office of the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this respect.
3. (b) The Committee reiterates its previous request to the Government to take the necessary measures to remedy the violations observed by the labour inspectorate at the General Property Registry (employer interference in union elections) and requests the Government to keep it informed in this respect.
4. (c) With regard to the proceedings relating to the dismissal of 34 members of Agrícola Santa Cecilia, the Committee observes that UNSITRAGUA points out that the judicial authority of first instance ordered the reinstatement but that the judicial authority of second instance issued a ruling revoking the reinstatement order. The Committee requests the Government to send information in this respect, and particularly the text of the second-instance ruling.
5. (d) The Committee requests the Government to send without delay the text of any ruling handed down with respect to the dismissal of trade unionists at Industrias Acrílicas de Centroamérica and the violation of the collective agreement in force.
6. (e) The Committee requests the Government to send observations on the allegations concerning the Municipality of El Tumbador: pressure on union members to resign from their union and on union leaders not to continue with procedures for the reinstatement of dismissed workers ordered by the judicial authority, and dismissal of union officials Cesar Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and Cesar Adolfo Castillo Barrios. The Committee urges the Government to take measures to ensure that all wages owed to union leader Mr. Gramajo are paid without delay and to send its comments on the dismissal of the six union leaders mentioned above.
7. (f) The Committee requests the Government to take the necessary measures to ensure compliance with the judicial orders for the reinstatement of workers at La Torre Estate.
8. (g) The Committee urges the Government to communicate any ruling issued with respect to the dismissal of union leader Fletcher Alburez by the Ministry of Public Health in April 2001.
9. (h) With regard to Chevron-Texaco (unilateral imposition without consultation of a code of ethics adding new grounds for dismissal, refusal to negotiate on the part of the company), the Committee requests the Government and the complainant organization to send information on whether the parties reached an agreement before the closure of the company and on the current situation of the workers.
10. (i) The Committee once again requests the Government to send without delay its observations on the allegations concerning the Supreme Electoral Tribunal: unilateral imposition of an organization manual dealing with matters related to employees' duties, posts and salary levels and acts of anti-union discrimination in the application of the said manual, as well as the Tribunal's refusal to meet union leaders and negotiate a draft collective agreement. It also requests the Government to meet the parties in order to find a solution to the problems, including those referred to by UNSITRAGUA in its new allegations (anti-union dismissal of workers and denying them the right to collective bargaining).
11. (j) The Committee urges the Government to revise the procedure for the protection of union rights provided for under the law in order to bring it into line with the principles set forth in the general conclusions to the present case, inasmuch as the Committee observes in general that, as far as can be gathered from this and other complaints, not only are judicial orders for the reinstatement of dismissed union members frequently not complied with, but also the number of judicial bodies that can deal in succession with an anti-union dismissal (three or four) means that proceedings often take years.
12. (k) The Committee has been informed that a direct contacts mission took place in Guatemala at the request of the Conference Committee on the Application of Standards in connexion with the application of Conventions Nos. 87 and 98. The Committee trusts that the Government will implement the conclusions of the mission and that significant progress will be observed in the near future.
13. B. The Government’s new replies
14. 502. In its communications dated 8 and 30 March, 25 April, 15 June, 5 July and 16 August 2005, and 5 January 2006, the Government sends its observations regarding the allegations in this case.
15. 503. With regard to clause (c) of the recommendations, which concerns the dismissal of 34 members of Agrícola Santa Cecilia, in respect of which UNSITRAGUA had pointed out that the judicial authority of second instance had handed down a ruling revoking the reinstatement order, the Government sent a copy of the ruling of the Fourth Chamber of the Labour and Social Welfare Appeals Court of 4 November 2003 which revokes the reinstatement order issued by the Court of First Instance. The Government indicates in an additional communication that the workers had lodged an appeal in defence of their constitutional rights (amparo), but that it was rejected.
16. 504. With regard to clause (d) of the recommendations, in which the Committee requested the Government to send without delay the text of any ruling handed down on the dismissal of trade unionists at Industrias Acrílicas de Centroamérica and on the violation of the collective agreement in force, the Government states that the company lodged an appeal in defence of its rights (No. 534-2001) on 2 October 2001 against the ruling of 12 September 2001 of the First Chamber of the Labour and Social Welfare Appeals Court. On 5 September 2002, the appeal was upheld but a further appeal was lodged against the ruling by a third party. At the end of 2003 (the Government refers to 18 September and 18 November 2003), the Constitutional Court handed down a ruling confirming the decision in favour of the company.
17. 505. With regard to clause (e) of the recommendations, concerning the municipality of El Tumbador (pressure on union members to resign from their trade union and on union leaders not to continue with procedures for the reinstatement of dismissed workers ordered by the judicial authority, dismissal of union officials, Cesar Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and Cesar Adolfo Castillo Barrios, and the request that measures be taken to ensure that all wages owed to union leader, Mr. Gramajo, are paid without delay), the Government indicates that the dismissed workers, Bartolón Martínez and Castillo Barrios, lodged an appeal for their reinstatement on 21 January 2005 and that, on 24 January 2005, it was ruled that their immediate reinstatement should be enforced by the local magistrate; however, it was impossible to implement this ruling because of the opposition of the mayor of the municipality who lodged an appeal against it that was subsequently rejected. The Government states that, on 15 February 2005, the municipality requested that all legal actions brought since 5 December 2003 be annulled, given that prior to lodging their appeals the workers had not tried all the direct approaches available. The judicial authority accepted this request.
18. 506. With regard to clause (g) of the recommendations, in which the Government was requested to communicate any ruling issued with respect to the dismissal of union leader, Fletcher Alburez, by the Ministry of Public Health in April 2001, the Government sent a copy of the Supreme Court of Justice’s ruling on the appeal in defence of his rights that Mr. Alburez lodged against a ruling that denied him the right to appeal against an earlier ruling ordering Mr. Alburez’ reinstatement but denying him payment of wages owed to him. The appeal in defence of his rights was rejected by the Supreme Court of Justice on the grounds that it was not the proper judicial channel.
19. 507. With regard to clause (h) of the recommendations, concerning the unilateral imposition without consultation of a code of ethics adding new grounds for dismissal, and the company’s refusal to negotiate, in which the Committee had requested the Government and the complainant organization to send information on whether the parties reached an agreement before the closure of Chevron-Texaco and on the current situation of the workers, the Government states that, according to the enterprise, the Trade Union of Workers of the Texas Petroleum Company has not been destroyed and that its legal personality is registered with the relevant department of the General Labour Directorate and is currently valid. The cessation of activities in the refinery was due to the fact that the license granted by the Government had expired. The company has never had any intention of undermining the trade union rights of the workers and has not done so, as collective agreements continued to be concluded while the refinery was still operating.

C. The Committee’s conclusions

1. 508. The Committee notes the Government’s new observations relating to the issues that remained pending during the last examination of the case. In general terms, the Committee notes that the Government has not responded to several of the allegations presented despite the fact that it has been asked to send its observations on a number of occasions and that, in other instances, the observations it has sent are not sufficiently clear. The Committee recalls the importance for governments to send precise replies to the allegations made by the complainant organization so that the Committee can carry out an objective examination. In these circumstances, the Committee requests the Government to take the necessary steps to send its observations on all of the pending allegations without delay.
2. 509. With regard to clause (a) of the Committee’s previous recommendations, concerning allegations of assaults, death threats and acts of intimidation against trade unionists, as well as attacks on union headquarters, the Committee deeply regrets that, despite the seriousness of the allegations, the Government has not sent its observations on the matter. The Committee recalls that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 46] and again requests the Government to refer these cases to the Special Prosecutor for Offences against Trade Unionists and to keep it informed in this regard.
3. 510. With regard to clause (b) of the recommendations, concerning employer interference in union elections at the General Property Registry, which has been confirmed by the Labour Inspectorate, the Committee notes with regret that the Government has again not sent its observations. The Committee requests the Government to take the necessary measures to sanction the entity responsible and to ensure that similar acts do not occur in future. The Committee requests the Government to keep it informed in this regard.
4. 511. With regard to clause (c) of the recommendations, concerning the dismissal of 34 members of Agrícola Santa Cecilia, the Committee notes that the ruling of 4 November 2003 of the Fourth Chamber of the Labour and Social Welfare Appeals Court revoked the reinstatement order of the judicial authority of first instance and that the workers’ appeal in defence of their constitutional rights was rejected.
5. 512. With regard to clause (d) of the recommendations, concerning the dismissal of trade unionists at Industrias Acrílicas de Centroamérica and the violation of the collective agreement, the Committee notes that the Government refers to various rulings but does not give any details of these rulings or specify which of the two allegations they concern, and does not send the text of the rulings. The Committee recalls that the allegations concerned non-compliance with the collective agreement, the dismissal of nine union members and the majority of the union’s executive board (of which eight dismissals were resolved in favour of the employer), non-compliance with judicial reinstatement orders and pressure on union leaders and members to resign from their posts or from the union. Under these circumstances, the Committee again requests the Government to send without delay any judicial decisions on the dismissal of the trade unionists and on the violation of the collective agreement, as well as its observations on the allegations of pressure on union leaders and members to resign from their jobs or from the union.
6. 513. With regard to clause (e) of the recommendations, concerning allegations against the municipality of El Tumbador (pressure on union members to resign from their trade union and on union leaders not to continue with procedures for the reinstatement of dismissed workers ordered by the judicial authority, dismissal of union officials Cesar Augusto León Reyes, José Marcos Cabrera, Víctor Hugo López Martínez, Cornelio Cipriano Salic Orozco, Romeo Rafael Bartolón Martínez and Cesar Adolfo Castillo Barrios, and the request that measures be taken to ensure that all wages owed to union leader Mr. Gramajo are paid without delay), the Committee notes that the judicial authority ordered the reinstatement of Bartolón Martínez and Castillo Barrios but that the mayor of the municipality lodged an appeal and then requested a partial nullification of the proceedings on the grounds of procedural errors which was accepted by the judicial authority. The Committee requests the Government to keep it informed of developments in the proceedings remaining before the judicial authority.
7. 514. With regard to clause (g) of the recommendations, concerning the dismissal of union leader Fletcher Alburez by the Ministry of Public Health in April 2001, the Committee notes that the Government sent the text of the Supreme Court of Justice’s decision on the appeal in defence of his constitutional rights that Mr. Alburez lodged against a ruling that denied him the right to appeal against an earlier ruling ordering his reinstatement but denying him payment of wages owed to him. The Committee notes that the Court rejected the appeal in defence of constitutional rights (amparo), not because Mr. Alburez was not entitled to demand the wages owed to him but because that form of appeal was not the proper judicial action to take. In these circumstances, the Committee reminds the complainant organization that Mr. Alburez is entitled to submit an ordinary appeal to the judicial authority and requests the Government to provide information as to whether such an appeal has been lodged.
8. 515. With regard to clause (h) of the recommendations, concerning the unilateral imposition without consultation of a code of ethics adding new grounds for dismissal and Chevron-Texaco’s refusal to negotiate, the Committee notes, according to information provided by the company to the Government, that the Trade Union of Workers of the Texas Petroleum Company has not been destroyed and its legal personality is registered with the corresponding department of the General Labour Directorate and is in force; the cessation of activities in the refinery was due to the fact that the license granted by the Government had expired; and the company had no intention of undermining the trade union rights of the workers and did not do so, as collective agreements were concluded so long as the refinery was operating. The Committee regrets that the complainant organization has not communicated the requested information.
9. 516. With regard to clause (i) of the recommendations, concerning the alleged unilateral imposition by the Supreme Electoral Tribunal of an organization manual (dealing with matters related to employees’ duties, posts and salary levels) and acts of anti-union discrimination in the application of the said manual, as well as the Tribunal’s refusal to meet union leaders and negotiate a collective agreement, for which purpose the Government had been requested to meet the parties in order to find a solution to the problems, the Committee again regrets that the Government has not sent its observations on the matter and requests it to do so without delay.