Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 349, Mars 2008

1. 859. The present complaint is contained in a communication from the Trade Union of Workers of Guatemala (UNSITRAGUA) dated 11 July 2007.
2. 860. The Government sent it observations in communications dated 14 September and 4 October 2007.
3. 861. 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 complainant’s allegations

1. 862. In its communication of 11 July 2007, the UNSITRAGUA indicates that, on 29 March 2007, workers of the Criminal Investigation Department of the Attorney-General’s Office (DICRI) initiated proceedings to establish a trade union, the Union of Workers of the Criminal Investigation Department of the Attorney-General’s Office (SITRADICMP), which was registered on 24 May 2007. On 6 July 2007, the union’s Executive Committee and Advisory Committee were established for a period of two years.
2. 863. According to UNSITRAGUA, as soon as proceedings were initiated to establish the union and after the Attorney-General had been sent a list of grievances aimed at improving the working conditions of investigators, members of the organization were subjected to acts of pressure and intimidation by the Attorney-General’s Office.
3. 864. The complainant adds that, on 9 July 2007, Messrs José Alejandro Reyes Canales (General Secretary), Javier Adolfo de León Salazar (Labour and Dispute Secretary), Axel Vinicio Lemus Figueroa (Finance Secretary) and Erick Daniel Santos Barrera (member of the Advisory Committee) were informed that, through Agreement No. 0376-2007 of 6 July 2007 issued by the Attorney-General, they had been transferred to workplaces far from the capital, where they were required to report in for duty the following day. According to the complainant, the transfers were made against the wishes of the workers concerned and are tantamount to an act of anti-union discrimination given that the people transferred are members of the union’s Executive Committee and Advisory Committee. The workers lodged an appeal before the Council of the Attorney-General’s Office, which, in accordance with the Organizational Act of the Attorney-General’s Office, should suspend the transfer. Nevertheless, the workers have been threatened with disciplinary action for dereliction of duties if they fail to report in at work.

B. The Government’s reply

1. 865. In its communications of 14 September and 4 October 2007, the Government indicates that the Attorney-General of the Republic stated that Messrs Jorge Gary García Herrera, Maynor Giovanni Garrido Véliz, Javier Adolfo de León Salazar, José Alejandro Reyes Canales, Carlos Roberto Sandoval López and Erick Daniel Santos Barrera described themselves as the “ad hoc committee” of united workers and as officials of the new trade union that they later established. According to the Attorney-General, on 11 June 2007, before the Executive Committee had been appointed, they submitted a list of grievances, which was rejected because it had not been submitted by the Executive Committee, as required by law and the by-laws of the trade union. The Attorney-General points out that there is a collective agreement in force between the Attorney-General’s Office and a pre-existing trade union.
2. 866. With specific reference to the transfer of workers, the Attorney-General indicates that, in accordance with sections 67 and 71 of the Organizational Act of the Attorney-General’s Office, he is authorized to transfer and rotate staff according to their availability and the needs of the service, which does not contravene the principle of immunity of union officials, according to which they cannot be dismissed without the corresponding judicial authorization.

C. The Committee’s conclusions

1. 867. The Committee notes that, in this case, the UNSITRAGUA alleges acts of intimidation and pressure against members of the SITRADICMP and that recently appointed members of the union’s Executive Committee were transferred against their wishes.
2. 868. The Committee notes that, according to the allegations, soon after the SITRADICMP was established, the Attorney-General issued Agreement No. 0376-2007, through which some members of the Executive Committee who had been appointed a few days earlier, namely Messrs José Alejandro Reyes Canales (General Secretary of the union), Javier Adolfo de León Salazar (Labour and Dispute Secretary), Axel Vinicio Lemus Figueroa (Finance Secretary) and Erick Daniel Santos Barrera (member of the Advisory Committee), were transferred to workplaces far from the capital, with effect from the following day. The Committee notes that the officials affected lodged an appeal against this decision, which suspends the transfers. Nevertheless, the head of the personnel department of the Attorney-General’s Office threatened them with disciplinary action for dereliction of duties if they failed to report in at work.
3. 869. The Committee notes that, according to the Government, the Attorney-General is authorized to transfer and rotate investigators according to their availability and the needs of the service and that this does not contravene the right to immunity enjoyed by union officials, given that this establishes that they cannot be dismissed without the corresponding judicial authorization.
4. 870. In this regard, while recognizing the Attorney-General’s authority to transfer and rotate staff, the Committee observes that, in this case, the transfer of union officials with immediate effect was announced, according to the information provided by the Government, soon after the trade union had been established and a few days after they had been appointed as members of the union’s Executive Committee. Furthermore, the transfer affected only the aforementioned members and, according to the allegations, occurred in an environment of intimidation and pressure targeting members of the trade union. The Committee cannot therefore rule out the possibility that these transfers may have occurred for anti-union reasons. The Committee recalls that protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 781]. Under these circumstances, bearing in mind that the untimely transfer of union officials immediately after their appointment could seriously affect the proper operation of the union, the Committee requests the Government, in the absence of any information to the contrary, to take the necessary measures to cancel the transfer of the Executive Committee members and to ensure that the union and its members can exercise their legitimate activities without being subjected to intimidation and persecution. The Committee requests the Government to keep it informed in this regard.