Rapport intérimaire - Rapport No. 348, Novembre 2007

788. The complaints are presented in a communication from the Trade Union of Workers of Guatemala (UNSITRAGUA) dated 16 January 2007 and in a joint communication from the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) dated 25 January 2007. The ITUC and the ITF submitted additional information in a communication dated 12 February 2007.

1. 789. The Government sent its observations in communications dated 16 February, 22 March, 3 and 4 May and 16 October 2007.
2. 790. 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 complainants’ allegations

1. 791. In its communication of 16 January 2007, UNSITRAGUA alleges that on the night of 15 January 2007, as Mr Pedro Zamora Alvarez, Secretary-General of the Trade Union of Workers of the Puerto Quetzal Harbour Company (STEPQ), and his youngest son were travelling home from the Puerto Quetzal Harbour Company premises, they were stopped at the village of Las Morenas in the municipality of Iztapa, department of Escuintla, by armed men, who killed Mr Zamora Alvarez and wounded his son. This act is further proof that the State of Guatemala does not ensure the minimum conditions that are necessary for the exercise of freedom of association. UNSITRAGUA requests that the Committee on Freedom of Association ask the State of Guatemala as a matter of urgency to investigate this murder and determine whether it is related to the labour dispute involving the trade union organization in which Mr Zamora Alvarez was Secretary-General. UNSITRAGUA also requests that the Committee on Freedom of Association ask the Government as a matter of urgency to take the necessary steps to safeguard the lives and physical integrity of all the members of the executive committee and advisory council of the STEPQ.
2. 792. In their communication of 25 January 2007, the ITUC and the ITF also refer to the murder of trade union official Mr Pedro Zamora.
3. 793. The ITUC and the ITF allege that Mr Pedro Zamora was shot dead on 15 January 2007 at approximately 7.50 p.m. as he returned home in his pick-up truck, with his two youngest children, from the portworkers’ clinic, which is located on the company’s premises. Approximately 50 metres from his home, a car carrying five people, which had been following him since he left the port area, was waiting for him. The five people fired 100 bullets at Mr Pedro Zamora’s car and Mr Zamora himself was shot 20 times. Although
4. Mr Zamora tried to protect his children by getting them to lie down on the floor of the vehicle, his three-year-old son, Angel, was wounded (he is now out of danger).
5. Mr Zamora, by then badly wounded, ended up crashing into a wall. One of the attackers approached him and fired the coup de grâce. The way in which Mr Pedro Zamora was murdered and the number of shots fired clearly indicate that the act was carried out by professionals and bring to mind the methods often used by paramilitaries during the dark days of Guatemala’s past.
6. 794. The five members of STEPQ’s executive committee and their families have been intimidated and attacked during the past year. Mr Zamora, who was elected Secretary-General in December 2005, was the main target of these attacks and acts of intimidation which appeared to be an attempt to make him give up certain contentious areas of his trade union activities. From 9 January to March 2006, he was followed on a regular basis by a variety of vehicles, from a Toyota Yaris to a pick-up truck. Strangers had also been to his family home on a number of occasions inquiring as to his whereabouts. On 2 November 2006, the occupants of a vehicle following Mr Zamora drew their weapons and fired shots into the air. He described the car as a black or grey Chevrolet with tinted windows. He had also reported being followed constantly for the entire month of December, a situation which had forced him to make regular changes to his routine.
7. 795. Mr Pedro Zamora was fighting to prevent the port being privatized without the involvement and participation of the workers and without consultation with the trade union and was campaigning to stop the constant violation of portworkers’ trade union rights. He had fought against the refusal of the harbour company’s management to negotiate a collective labour agreement and had recently opposed the company’s plans to build a new container terminal for fear that this could lead to future privatization and the loss of jobs. His trade union had also called for the dismissal of the general manager, who was responsible for the privatization plans. Mr Zamora was also campaigning for the reinstatement of nine workers – all former trade union officials – who had been unfairly dismissed on 10 October 2006 for participating in a peaceful demonstration. On two occasions, the general manager of the Puerto Quetzal Harbour Company had sent plain-clothes police officers to threaten workers at demonstrations and had told them that they had to stop opposing the company’s management. It should be noted that the trade union made a formal complaint in this regard, as the police officers, when questioned by trade union members, admitted that they had been sent.
8. 796. On 10 January 2007, the trade union’s executive committee attended a meeting in the Congress of the Republic, at which the Minister for Transport announced that the nine workers who had been unlawfully dismissed for taking part in a peaceful demonstration against the construction project in October 2006 were to be reinstated. This had deeply annoyed the general manager. The trade unionists had apparently been followed by a dark-coloured Toyota as they left the Congress. Mr Pedro Zamora told his colleagues that from that day onwards, he had been followed every day. One year before, STEPQ had lodged a formal complaint about threats and intimidation with the Office of the Attorney-General and Office of the Human Rights Ombudsman. Unfortunately, as subsequent events show, this proved to be in vain.
9. 797. On 18 January, the ITUC and the ITF received reports indicating that the five remaining members of STEPQ’s executive committee had received telephone calls addressing death threats to them and their families. Lázaro Noe Reyes Matta (organization secretary), Max Alberto Estrada Linares (labour and disputes secretary), Eulogio Obispo Monzón Mérida (treasurer), Oscar Giovanni González Donado (minutes and agreements secretary) and Arturo Granados Hernández (inter-union relations secretary) are constantly being watched and followed, like Pedro Zamora. On 17 January 2007, Oscar Giovanni González Donado and Lázaro Noe Reyes Matta received a total of three anonymous calls to their mobile telephones between 1.45 p.m. and 8 p.m. The caller’s voice had been electronically distorted and had told them that their colleagues and families would be killed within nine days. According to information from Amnesty International, a pick-up truck with tinted windows has been seen in recent days parked near the home of Eulogio Obispo Monzón Mérida.
10. 798. Unfortunately, this climate of abuse, violence and impunity is longstanding. The formal and representative democracy introduced 20 years ago has not brought about many changes for the trade union movement in terms of security and the respect of workers’ fundamental rights. The General Confederation of Workers of Guatemala (CGT) states that this is clear from the dozens of trade unionists who have been murdered and the failure of the Office of the Attorney-General to resolve a single one of those cases.
11. 799. Portworkers in Puerto Quetzal have been constantly repressed by the harbour company. This persecution has been so persistent that workers and trade union officials have been forced to resign. Although the trade union had tried to establish dialogue with a view to resolving this difficult situation, the company refused to cooperate. Having exhausted that option, the trade union called a strike on 11 September 2006. In the first week, workers went on strike for one hour, with the strike time increasing by one hour each week. On 9 October 2006, the Government sent in 350 riot police. The scheduled meeting between the trade unionists and the Minister for Communication was cancelled and the nine workers mentioned above were arrested for striking illegally. In October 2006, the ITF wrote to the President of Guatemala to protest about the Puerto Quetzal crisis.
12. 800. Moreover, the management has encouraged the establishment of a group of pro-management workers, some of which have left STEPQ (the trade union states that only 25 or 30 workers are involved). According to STEPQ, the management favours these workers and hopes they will take over the leadership of STEPQ or acquire enough power to be able to insist that they have the right to negotiate the next collective agreement.
13. 801. In their communication of 12 February 2007, the ITUC and the ITF state that an international mission sent by both organizations to Puerto Quetzal and Guatemala City noted that the labour situation in Puerto Quetzal was very tense. There are plans to build a new terminal and to decommission the one already in existence, which would involve privatizing the service and would affect Puerto Quetzal portworkers. It is hoped that the project will be completed before the changeover of President of the Republic. STEPQ is opposed to this project and favours modernization, but with the participation of the workers.
14. 802. The ITUC and the ITF attach a list, submitted by STEPQ, of the nine workers who were dismissed four months earlier, all of whom have been working for between nine and 11 years. During this four-month period, these workers have met with ministers and parliamentary groups and sent letters to the President, all to no avail. The harbour company’s strategy involves intimidating the workers and calling them to meetings at night in Guatemala City (more than 100 km from Puerto Quetzal). Two judicial bodies have already ruled in favour of the workers and have ordered their reinstatement by the harbour company, yet the latter has not done this, preferring instead to pay a fine. Moreover, the workers have been offered a nine-month contract on the condition that they leave the trade union and relinquish all their employment benefits. The workers – who are in a difficult economic situation despite the trade union’s support and who cannot even enrol their children in school – have refused this offer.
15. 803. The ITUC and the ITF state that it was not possible to obtain copies of any of the complaints filed by Mr Pedro Zamora or by other STEPQ members, or a copy of the report referring to the time when two armed police officers entered the harbour company and were forced to identify themselves. The harbour company uses special police officers – those belonging to the port and airport police – and ordinary police officers cannot enter the premises unless they have been given special orders to do so.
16. B. The Government’s reply
17. 804. In its communications dated 16 February, 22 March, and 3 and 4 May 2007, the Government stated that the death of Mr Pedro Zamora was being investigated by the Office of the Attorney-General with a view to establishing who was responsible for the act and determining the criminal and civil liabilities involved. In this respect, on 31 January 2007, the Office of the Attorney-General stated that:
18. Agency No. 3, the Office of Crimes against Journalists and Trade Unionists, received the police report set forth in official letter No. 25/2007, dated 15 January 2007, from the national civil police, substation No. 31-32, of the municipality of Puerto Iztapa in the department of Escuintla, reporting the murder of Mr Pedro Zamora Alvarez, who was shot dead on 15 January 2007 in the village of Las Morenas in the municipality of Puerto Iztapa, department of Escuintla. Accordingly, an investigation was opened into these events on the basis of evidence found at the scene of the crime, statements from eye-witnesses and ballistic surveys and comparisons. It is important to note that according to the investigation carried out to date, it is not true that 100 shots were fired at the vehicle or that Mr Pedro Zamora was shot 20 times, and forensic tests show no signs of a coup de grâce, as was alleged by the Secretary-General of the International Trade Union Confederation. In fact, the body has eight bullet wounds, the majority of which are on the upper extremities, and it was a shot fired at the victim’s back which caused the mortal wound, the cause of death being pulmonary cardio-aortic perforation.
19. 805. The Government states that the police are taking steps to ensure the safety of Mr Lázaro Reyes, acting Secretary-General of the STEPQ, and have set up security around the perimeter of the trade union’s headquarters. It should be noted that according to the documentation provided, this protection is justified by the complaints received by an ILO technical assistance mission to the country and by the obligation to comply with ILO Conventions Nos 87 and 98. According to the complaints, Mr Lázaro Reyes was being subjected to stalking and telephone death threats. The Government also provided a report by the Puerto Quetzal Harbour Company, dated 13 March 2007, concerning the present complaint, which reads as follows:
20. The labour situation in the Puerto Quetzal Harbour Company is not tense; on the contrary, it could be described as harmonious. Nor have any acts of intimidation been carried out; on the contrary, we respect freedom of association, as evidenced by the three workers’ trade unions in the company, which are allowed to carry out their activities extensively. We have insisted on continuing to negotiate the collective agreement, even though the trade union has been responsible for the breakdown of talks on three occasions, first by engaging in a collective dispute, then by opposing extension work, and finally by calling a de facto and illegal strike.
21. Despite the foregoing, the company has insisted on continuing to negotiate the new collective agreement. To date, 105 of the draft’s 111 articles have been approved.
22. Puerto Quetzal is extending its facilities owing to the increasing use of containers in international maritime transport. All the ports in the region are focusing their attention on the heavy flow of maritime container transport, for which vessels require deeper docks and a separate specialized terminal, as this type of cargo is handled differently from traditional cargo. The extension work is essential and in no way affects the workers; on the contrary, it involves new work opportunities that could benefit many people and, if it is not carried out, Puerto Quetzal risks losing its competitiveness in the region.
23. At the end of September and beginning of October 2006, the Trade Union of Workers of the Puerto Quetzal Harbour Company organized a de facto strike which they called a “permanent assembly” (an institution which does not exist by law and which is prohibited by Congress Decree No. 35/96). This strike was therefore illegal and severely punishable under the “Unionization and Regulation of Strike Action by State Employees Act”, Decree No. 71/86, as amended by Decree No. 35/96 of the Congress of the Republic, and under Governmental Agreement No. 700-2003, which defines the operation of the port as an essential public service.
24. Despite direct talks, the trade union did not want to abandon its stance, which was resulting in serious losses for the country’s economy. In fact, far from changing its unlawful stance, the trade union obstructed freedom of movement by blocking the passage of vehicles and preventing the departure of vessels that had concluded their operations in the port. This forced the company to take administrative measures, in full compliance with the abovementioned laws. The executive body, for its part, sent members of the national civil police to maintain order and ensure the smooth functioning of the port. These measures culminated in the de facto strike.
25. The Puerto Quetzal Harbour Company has always respected labour rights and we have always acted within the boundaries of the law. In the case of the nine workers who were dismissed, this decision was taken because their line managers and the port security department had reported them as being the most rebellious and provocative workers and the law obliges us to act in order to maintain the essential public service provided by the port. All these individuals were grass-roots workers, none were trade union officials, and following their dismissal they sought reinstatement through the labour court. It is not true that two judicial bodies have ruled in favour of the workers. On the contrary, the Puerto Quetzal Harbour Company, wishing to reach a satisfactory settlement in this dispute, maintained dialogue and after a number of initiatives concluded an administrative settlement contract with each of the workers, through which the company annulled the dismissal agreements and the workers withdrew their demands to be reinstated. At present, the nine workers are employed in their respective posts in Puerto Quetzal.
26. Nor is it true that the working conditions of Puerto Quetzal workers are “disastrous”; on the contrary, no public or private company in Guatemala pays better wages and allowances or has more benefits for its workers than Puerto Quetzal, as can be seen in the comparative table attached. The trade union’s executive committee has been assigned three petrol-driven vehicles, which it uses constantly to travel to the capital, but this is for trade union activities and not because the company has ordered it to do so. It has a building which it uses as its trade union headquarters, with secretaries, which is fully equipped with the latest in computer equipment. Seven of its members enjoy 30 days’ paid leave a month, special leave for non-officials, economic support for various activities and receive 100,000 quetzals a year for a Christmas party.
27. In general, the workers receive a basic salary higher than that in any other public or private company in Guatemala. They also enjoy a holiday bonus, a seniority bonus, an availability bonus, a responsibility bonus, an annual bonus, incentive payments, a family allowance, contributions towards school materials, education grants, bursaries for their children who are studying (in monthly payments), wage increments, Christmas hampers, medical insurance, life insurance, funeral expenses (including transport), canteen facilities and meals financed by the company, vehicles for transporting workers, economic benefits, medical services, including the services of a dentist and ophthalmologist, housing, overtime paid at double time, and 20–31 working days of holiday entitlement. Each year, the workers are given three pairs of shoes, four uniforms, a body warmer, a helmet, a jacket and toiletries, and receive 5 per cent of the company’s profits, which is distributed among them. They have a clinic, a crèche, a training centre and a pension and retirement plan, as well as all the statutory employment benefits, some of which have been increased, such as the Christmas bonus paid by the company, which is 25 per cent higher than that decreed by the State.
28. While remaining at your disposal should you require further information, in order to provide a clearer picture to the First Deputy Minister, I attach a copy of the current collective labour agreement, most of which has already been renegotiated by the negotiating committees.
29. 806. The Government confirms that the nine Puerto Quetzal Harbour Company workers who were dismissed have now been reinstated in their jobs.
30. 807. In its communication of 16 October 2007, the Government states that the action taken by the Office of the Attorney-General has allowed for an identification of the potential suspects in the murder of trade union official Pedro Zamora, and that the judicial authority has issued the corresponding arrest warrants in order to initiate the pertinent procedure.

C. The Committee’s conclusions

1. 808. The Committee notes with concern that the complainants have made the following serious allegations: (1) the murder of portworkers’ trade union official Mr Pedro Zamora and the wounding of one of his sons while the murder was being committed; and (2) that Mr Pedro Zamora and his family had received death threats and been stalked and intimidated (before his death), as had the five other members of the executive committee of the portworkers’ trade union and their families; according to the complainants, the formal complaint regarding threats and intimidation which had been lodged by the trade union with the Office of the Attorney-General one year prior to these events had not resulted in any action being taken. The Committee also notes that the complainants allege: (i) the dismissal of nine trade unionists who had participated in a peaceful demonstration in October 2006, and who were arrested; (ii) the company’s refusal to discuss the workers’ problems and the plans to restructure and privatize the company; and (iii) the setting up of a pro-management group of workers to replace the leadership of the portworkers’ trade union or to acquire enough power to claim the right to negotiate the next collective agreement.
2. 809. The complainants emphasize that these acts occurred in the context of a lack of dialogue on the part of the company and efforts by the portworkers’ trade union to prevent the port from being privatized without the participation of the workers and without consultation with the trade union, and to prevent the construction of a new container terminal which could contribute to this objective.
3. 810. The Committee takes note of the Government’s statements and notes with interest that protection has been provided to the acting Secretary-General of the STEPQ and that security has been set up around the perimeter of the trade union’s headquarters. The Committee also notes with interest that the nine workers who were dismissed for having participated in a trade union demonstration in October 2006 (which was peaceful, according to the complainants) have been reinstated in their jobs and that 105 of the 111 articles in the new collective agreement have already been renegotiated by the negotiating committees.
4. 811. With regard to the murder of trade union official Mr Pedro Zamora on 15 January 2007, the Committee notes the Government’s initial statements according to which: (1) the murder is currently being investigated by the Office of the Attorney-General with a view to establishing who was responsible for the act and determining the criminal and civil liabilities involved; and (2) evidence has been gathered from the scene of the crime, statements have been taken from any eye-witnesses, and ballistic surveys and comparisons have been carried out; it has been determined that the body presented fewer wounds than had been alleged by the complainants. The Committee also notes that the action taken by the Office of the Attorney-General has allowed for an identification of the potential suspects in the murder of trade union official Pedro Zamora, and that the judicial authority has issued the corresponding arrest warrants in order to initiate the pertinent procedure.
5. 812. The Committee strongly condemns the murder of trade union official Mr Pedro Zamora and the wounding of his 3-year-old son particularly in light of the fact that, as concerns this trade union official, the portworkers’ trade union had, according to the complainants, filed a complaint with the Office of the Attorney-General concerning threats and intimidation, and Mr Pedro Zamora himself, together with the five remaining members of the trade union’s executive committee (and their families), had received death threats and been stalked and intimidated.
6. 813. The Committee draws the Government’s attention to the principle whereby a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty; 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, and 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, paras 43–45 and 52]. Moreover, the Committee recalls that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.
7. 814. In these circumstances, the Committee urges the Government to do everything within its power to step up the current investigation and actions to arrest the suspected perpetrators of the murder of trade union official Mr Pedro Zamora, and to ensure that investigations are also carried out into the death threats, stalking and intimidation to which this trade union official and the five remaining members of the executive committee and their families were subjected. The Committee asks the Government to keep it informed in this respect and emphasizes the importance of resolving these crimes without delay and identifying and punishing the guilty parties. The Committee also asks the Government to indicate how the complaint regarding threats and intimidation, filed by the trade union with the Office of the Attorney-General prior to the murder of trade union official Mr Pedro Zamora, was followed up. Lastly, the Committee requests the Government to take all necessary steps to protect the members of STEPQ’s executive committee who are being threatened and to keep it informed in this respect.
8. 815. With regard to the company’s alleged refusal to discuss the workers’ problems and the plan to restructure and privatize the company, the Committee notes that according to the Puerto Quetzal Harbour Company, there are three trade union organizations in the company, the labour situation is harmonious, not tense, it is not true that the working conditions are “disastrous” (the company has provided information in this respect) and, through collective bargaining, 105 of the 111 articles in the draft collective agreement have been approved; furthermore, according to the company, the extension of the company’s facilities for international container transport involves new work opportunities that could benefit many people. The Committee requests the Government to ensure that in the event of the restructuring or privatization of the Puerto Quetzal Harbour Company, full, frank and in-depth consultations are held with the trade union organizations.
9. 816. With regard to the allegations concerning the strike in Puerto Quetzal in 2006, the Committee notes the company’s indication in the report sent by the Government that the strike was illegal under national legislation, in particular Governmental Agreement No. 700-2003, which defines the operation of the port as an essential public service; according to the company, the executive branch sent members of the national civil police to maintain order and ensure the smooth functioning of the port.
10. 817. In this respect, the Committee wishes to point out that on previous occasions it has not considered transport generally and ports (loading and unloading) to be essential services in the strict sense of the term [see Digest, op. cit., para. 587]. It considers, however, that in the event of the suspension of a service that is not essential in the strict sense of the term, the imposition of a minimum service may be justified in a sector of vital importance to the country, such as port loading and unloading and transport generally [see Digest, op. cit., para. 616]. However, the workers’ and employers’ organizations concerned must be able to participate in determining the minimum services which should be ensured, and in the event of disagreement as to the service that should be maintained, legislation should provide that the matter be resolved by an independent body having the confidence of the parties concerned and not by the administrative authority.
11. 818. In these circumstances, the Committee requests the Government, in consultation with representatives of workers’ and employers’ organizations, and taking into consideration the particular circumstances of the country, to take the necessary measures to review and amend the legislation pertaining to essential services, which prohibits strikes in the port sector so as to bring it into conformity with Conventions Nos 87 and 98.
12. 819. As for the alleged intervention of the national civil police during the strike, the Committee notes that, according to the company, the purpose of the police intervention was to maintain order and ensure the smooth functioning of the port (the company states that the strikers blocked the passage of vehicles and prevented vessels from leaving port). In this respect, given that neither the complainants nor the Government have provided more detailed information on the alleged acts, the Committee would merely recall in general the principle that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest, op. cit., para. 140].
13. 820. The Committee asks the Government to respond to the allegation that the Puerto Quetzal Harbour Company favours a particular group of workers so that it might replace the leadership of STEPQ or acquire enough power to claim the right to negotiate the next collective agreement.