Report in which the committee requests to be kept informed of development - Report No 343, November 2006

836. The Committee last examined this case at its meeting in March 2006 [see 340th Report, paras. 890 to 908]. The UNSITRAGUA sent new allegations in a communication dated 29 May 2006.

1. 837. The Government sent certain observations in communications dated 7 February, 6 April and 10 May 2006.
2. 838. 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. 839. In its previous examination of the case, the Committee made the following recommendations [see 340th Report, para. 908]:
2. (a) Given the contradictory accounts of the events that occurred during the demonstration of 14 March 2005 (according to the complainant, the national civil police intervened during the event and started to fire tear gas at the demonstrators while, according to the Government, a disturbance of public order occurred during the demonstration and private property was damaged), the Committee requests the Government to take measures to carry out an independent, in-depth investigation of the events that occurred and to keep it informed in this respect.
3. (b) As regards the alleged arrest warrants against the leaders who organized the protest of 14 March 2005, the Committee requests the Government to provide information as to whether the judicial authority had indeed issued search warrants and, if so, to provide information on the status of the trials of the persons involved.
4. (c) As regards the alleged repression on 15 March 2005 by members of the national army and of the national civil police of demonstrators from trade unions and other organizations, on the SELEGUA V Bridge at kilometre 287.5 of the Interamerican highway, in the village of Los Naranjales, municipality of Colotenango, Department of Huhuetenango, killing Juan Esteban López, leader of the Committee of Peasant Unity and member of the National Coordination of Peasant Organizations and the workers José Sánchez Gómez, Pedro Pablo Domingo García and Miguel Angel Velásquez Díaz, and gravely wounding a further 11 workers (the complainant organization lists their names), the Committee deplores the death of a leader and other workers and the injuries suffered by a number of demonstrators and urges the Government to take the necessary measures to conduct promptly an independent inquiry into the alleged facts in order to ascertain responsibilities and, where appropriate, to punish those responsible and to keep it informed in this respect.
5. (d) As regards the alleged disrespectful statements by the President of the Republic in the media about trade union leaders and violence against participants in the demonstrations, the Committee, observing the contradictory statements made, requests the Government to carry out an investigation into these allegations and to keep it informed in this respect.
6. (e) As regards the allegation that the coordinator of the UNSITRAGUA Commission and Legal Office was prevented from leaving the country on 16 March 2005, the Committee requests the Government to carry out an investigation and to send its observations in regard to this allegation.
7. (f) Lastly, the Committee regrets that the Government has not sent its observations on the following allegations: (1) the dismissal of 23 workers who attempted to establish a trade union in the Finca El Cóbano (it is alleged that court orders exist for reinstatement that have been ignored by the enterprise); (2) dismissal of five workers belonging to the Trade Union of Workers of the municipality of San Juan Chamelco, department of Alta Verapaz (it is further alleged that the judicial authorities ordered the reinstatement of the dismissed workers, but that the municipality refused to comply with the order); (3) dismissal of a worker belonging to the Trade Union of Workers of the San Vicente Tuberculosis Sanatorium, in violation of the provisions of the collective agreement; (4) dismissal of two workers belonging to the Trade Union of Workers of the municipality of El Tumbador, San Marcos, in the context of a collective dispute during the negotiation of a collective agreement; and (5) lockout at Bocadelli S.A. following the submission of a draft collective agreement by the enterprise’s trade union. In this respect, the Committee requests the Government: (1) where orders exist for the reinstatement of dismissed trade union members, to take steps to ensure that these orders are immediately enforced; and (2) promptly to send its observations on all pending allegations.
8. B. New allegations by the complainant
9. 840. In its communication of 29 May 2006, the Trade Union of Workers of Guatemala (UNSITRAGUA) made the following allegations:
10. – Anti-CAFTA demonstration on 14 March 2005. The complainant states that it does not concur with the arguments communicated by the Government with regard to these allegations, and once again sets out the details of the events that took place during the demonstration. The UNSITRAGUA again asserts that police actions cost human lives, and states that, to date, no independent investigation has been undertaken to establish responsibility for these incidents, owing to the fact that the President’s Office and the Ministry of Governance are directly responsible. However, there is currently no organization in Guatemala, with the exception of the Office of the Human Rights Prosecutor, capable of carrying out such a task, at least not independently.
11. – Anti-CAFTA demonstrations on 15 March 2005. The UNSITRAGUA states that, to date, no independent investigation has been carried out to establish responsibility for the incidents that occurred during the demonstration because the President’s Office and the Ministry of Governance are directly responsible. However, it is the complainant’s opinion that there is currently no organization in Guatemala, with the exception of the Office of the Human Rights Prosecutor, capable of carrying out such a task, at least not independently.
12. – Disrespectful statements by the President of the Republic against trade union leaders and violence against demonstrators. To date, no independent investigation has been undertaken to establish responsibility for these incidents, owing to the fact that the President’s Office and the Ministry of Governance are directly responsible. In the opinion of the complainant, there is currently no organization in Guatemala, with the exception of the Office of the Human Rights Prosecutor, capable of carrying out such a task, at least not independently. The President’s statements are reproduced in the press editions for the days on which they were spoken and can also be found in national television and radio archive footage for the days in question.
13. – San Vicente Tuberculosis Sanatorium. The worker Héctor Salvador Mendizábal Vega has been dismissed. An application for reinstatement is currently being considered by the Sixth Labour and Social Security Court of the First Economic Zone and its progress has been slowed by the delaying tactics employed by the Office of the Attorney-General of the Nation.
14. – Municipality of El Tumbador, San Marcos. The municipality of El Tumbador, San Marcos, in order to evade liability with regard to the reinstatement of workers, has chosen to keep them in work for no wages, imposing forced or unpaid labour practices in an effort to generate desperation and force them to back down. Those workers who have resisted have been dismissed again.
15. – Finca El Cóbano. With regard to the Government’s comments, the UNSITRAGUA indicates that, at no point in the resolution ordering the modification of the name of the trade union, is the inspection carried out by the General Labour Inspectorate cited as proof or as a supporting argument. The UNSITRAGUA therefore considers the Government’s allegations to be untrue. Moreover, although an inspection may have been conducted, the names of the affected workers were not given, constituting an absolute violation of their fundamental right to a defence and further highlighting the bias of the Ministry of Labour and Social Security in this case.
16. – Bocadelli de Guatemala S.A. This enterprise was established with capital from the Salvadorian multinational Productos Alimenticios Bocadelli S.A. de C.V., which issues labour policy directions for Guatemala. In this case, the enterprise has illegally maintained the cessation of activities for a total of nine months to date, without any ruling from the courts to resolve the workers’ situation. In order to avoid being affected, the Salvadorian multinational has continued to operate in Guatemala via the enterprise KARANTE S.A.. Given the documentary evidence of the existence of directions issued by the Salvadorian multinational, the workers urged the court to call Productos Alimenticios Bocadelli S.A. de C.V. as a co-defendant. The case of the illegal cessation of activities, identified under the case No. 33-2005 and being heard by the Second Labour and Social Security Court of the First Economic Zone, is currently at a standstill and it is not known whether the delay is the result of negligence on the part of the Supreme Court of Justice of Guatemala, the Ministry of Foreign Relations of Guatemala, the judiciary in El Salvador or the Ministry of Foreign Relations of that country. During this time, the Salvadorian multinational has sought rapprochement with the trade union but to no avail, owing to the multinational's decision not only not to reinstate workers but also to grant them only about 30 per cent of their total severance payments (currently the subject of a claim in the courts of the Republic of Guatemala). Similarly, the multinational has sought to negotiate individually with certain workers with the aim of persuading them to sign a document changing arrangements for worker representation. In this regard, the UNSITRAGUA requests the Committee to urge the Government to hasten the progress of the proceedings and ensure that decisions are impartial and that the rulings issued are acted upon.
17. C. The Government’s reply
18. 841. In its communication of 6 April 2006, the Government provides information with respect to the allegations concerning Bocadelli S.A., to the effect that on 8 August 2005, the Ministry of Labour received documents reporting on the difficulties at Bocadelli Guatemala. This document was sent to the Labour Dispute Resolution Unit of the Ministry of Labour and Social Security (RAC). The date was set for 10 August and both parties were invited to a meeting early on 12 August. On 11 August, the head of the RAC ordered an inspector to accompany two UNSITRAGUA members to the enterprise to assess the workers’ employment situation. At one of the meetings, the employer and worker groups had set out proposals and had accordingly been invited to a subsequent meeting. The employer group changed its position, making different proposals and indicating that talks should not be concluded. The trade union members broke off dialogue on hearing the new proposal from the employer. Attempts were made to agree on a new meeting but this was not possible because of the parties’ failure to attend, and the case was consequently withdrawn owing to lack of interest. The Government states that the Ministry of Labour and Social Security, through the inspection section of the General Labour Inspectorate, the RAC and the Office of the Second Vice-Minister, have made every possible effort within the law to resolve the difficulties that have arisen at Bocadelli.
19. 842. As regards the allegations concerning Finca El Cóbano, the Government reports that the General Labour Directorate was requested to report on the administrative procedures initiated to authorize the registration of the Trade Union of Workers of Finca El Cóbano, Ingenio Magdalena, Sociedad Anónima, the name of which was partially modified for reasons considered at the appropriate time and which are described in official notice No. 48-2005, dated 6 July of the current year (the official document has been sent in incomplete form). The Government requests that this case be closed, since the Ministry of Labour and Social Security complied fully with the law and has made serious efforts to safeguard the free exercise of trade union rights.
20. 843. In its communication of 10 May 2006, the Government declares, with regard to the allegation concerning denial of freedom of movement to the coordinator of the UNSITRAGUA committee and legal office, that the Ministry of Labour requested the General Department for Migration to supply information on the trade union leader Jorge Estrada y Estrada’s inability to leave the country. The Department reported that, on 16 March 2005, the union leader in question had been prevented from travelling to Nicaragua because of a restriction order banning him from leaving the country, issued by the Second Lower Criminal Court and in force on the date of the trip. Mr. Estrada y Estrada had visited the “restriction orders unit” on 16 March 2005 and requested information on the restriction order to which he was subject. On that occasion, it was found that he had indeed been subject to a restriction since 2 February 1999, although a further order dated 31 March 2000 was later found, releasing Mr. Estrada from the abovementioned restriction order. An IT problem had prevented registration of the later order until 17 March 2005.
21. 844. In its communication of 7 February 2006, the Government requests the complainant to supply the names of the trade union leaders for whom arrest warrants are alleged to have been issued with a view to undertaking a more effective investigation.

D. The Committee’s conclusions

1. 845. The Committee observes that the matters still pending in this case concern allegations relating to the violent repression by the forces of law and order of trade union demonstrations in March 2005 against the signing of a free trade agreement, and to various other acts of anti-union discrimination.
2. 846. The Committee takes note of the new allegations of UNSITRAGUA, dated 25 May 2006, and observes that the Government’s response does not refer to these allegations since its response predates them. Nonetheless, the Committee underlines that the new allegations concern issues already raised since the complaint was submitted (March-August 2005) and the Committee had requested the Government to send its observations in the last examination of this case.
3. Trade union rights and public freedoms
4. 847. As regards the events that took place during the demonstrations on 14 March 2005 (according to the complainant, the national civil police intervened during the event and started to fire tear gas at the demonstrators while, according to the Government, a disturbance of public order occurred during the demonstration and private property was damaged), the Committee had requested the Government to take steps to carry out an independent, in-depth investigation and to keep it informed in this respect. The Committee notes the complainant’s statement to the effect that it does not share the Government’s view of the events that took place and that the investigation requested by the Committee has not been conducted. Under these circumstances, the Committee regrets that the independent investigation it requested has not been carried out and urges the Government to take immediate steps to initiate one. The Committee requests the Government to keep it informed of the outcome of this investigation.
5. 848. As regards the allegations that arrest warrants were issued against the leaders who organized the protest of 14 March 2005, the Committee had requested the Government to provide information as to whether the judicial authority had indeed issued arrest warrants and, if so, to provide information on the status of the trials of the persons involved. In this regard, the Committee observes that the Government has requested the complainant to communicate the names of the trade union leaders in question in order to enable the appropriate independent investigation to be carried out. The Committee requests the complainant to communicate the information requested by the Government.
6. 849. As regards the alleged repression on 15 March 2005 by members of the national army and of the national civil police of demonstrators from trade unions and other organizations, on the SELEGUA V Bridge at kilometre 287.5 of the Interamerican highway in the village of Los Naranjales, municipality of Colotenango, Department of Huhuetenango, resulting in the death of Juan Esteban López, leader of the Committee of Peasant Unity and member of the National Coordination of Peasant Organizations, and of the workers José Sánchez Gómez, Pedro Pablo Domingo García and Miguel Angel Velásquez Díaz, and in serious injuries to a further 11 workers (mentioned by name by the complainant), the Committee in its previous examination of the case deplored the death of the leader and other workers and the injuries suffered by a number of demonstrators, and urged the Government to take the necessary measures to conduct promptly an independent inquiry into the alleged facts in order to ascertain where responsibility lies and, where appropriate, to punish those responsible, and to keep it informed of the outcome of that inquiry. The Committee notes the report from the complainant that the investigation has not been carried out. The Committee deeply regrets that, with alleged events as serious as these, the investigation it requested has still not been launched, and urges the Government to take steps to initiate such an investigation immediately.
7. 850. As regards the alleged disrespectful statements by the President of the Republic in the media about trade union leaders and violence against participants in the demonstrations, the Committee, observing the contradictory statements made by the complainant and the Government, requested an independent investigation into these allegations to be carried out and to be kept informed in this respect. The Committee notes the report from the complainant that the investigation has not been carried out. The Committee once again requests the Government to take steps to initiate the investigation it requested and to keep it informed of the outcome.
8. 851. As regards the allegation that the coordinator of the UNSITRAGUA Commission and Legal Office was prevented from leaving the country on 16 March 2005, the Committee had requested the Government to carry out an investigation and to send its observations on this allegation. The Committee notes the Government’s report that, according to the General Department for Migration: (1) on 16 March 2005, Mr. Jorge Estrada y Estrada was banned from leaving the country by order of the criminal judicial authority and that, although the order was lifted in March 2000, this was not logged in the computer records; and (2) on 17 March 2005, the order lifting the ban on Mr. Estrada y Estrada leaving the country was entered into the computer records. The Committee regrets this incident which prevented the trade unionist for technical faults from leaving the country.
9. Acts of anti-union discrimination
10. Finca El Cóbano Ingenio Magdalena S.A.
11. 852. As regards the allegations concerning the appeal lodged by the enterprise against the resolution recognizing legal personality and approving the by-laws of the Trade Union of Workers of the Finca El Cóbano Ingenio Magdalena S.A. (SITRAFECIMASA), and the resolution of the Ministry of Labour which, disregarding the rules of due process, modified the name of the trade union by deleting the reference to Ingenio Magdalena S.A., the Committee noted the Government’s statement that the enterprise Ingenio Magdalena had argued in an appeal that the workers who had established the trade union in question were not employees of the enterprise and that this was confirmed by means of an inspection, for which reason the change in the trade union name had been ordered. In this regard, the Committee notes that the complainant alleges that, in the resolution ordering the change in the trade union name, no reference is made to an inspection by the General Inspectorate of Labour and that, although such an inspection may have been carried out, there was no reference to the affected workers, constituting an infringement of the right to a defence. The Committee notes the Government’s information to the effect that the trade union name was partially modified for the reasons set out in official notice No. 48-2005 (sent in an incomplete form). Under these circumstances, the Committee requests the Government to send it a copy of Order No. 48-2005, together with a copy of the resolution referred to by the complainant and the relevant labour inspection report, indicating why the workers who formed the trade union were not interviewed during the inspection.
12. 853. As regards the allegations concerning the dismissal of 23 workers who attempted to establish a trade union at the Finca El Cóbano (it is alleged that court reinstatement orders have been disregarded by the enterprise), the Committee regrets that the Government has not sent its observations on this matter. The Committee requests the Government to carry out an investigation without delay and, if judicial orders for the reinstatement of dismissed trade union members are found to exist, to take steps to ensure immediate compliance with these orders and to keep it informed in this regard.
13. Municipality of San Juan Chamelco, Department of Alta Verapaz
14. 854. As regards the allegations concerning the dismissal of five workers belonging to the Trade Union of Workers of the municipality of San Juan Chamelco, Department of Alta Verapaz (it is also alleged that the judicial authorities ordered the reinstatement of the dismissed workers, but that the municipality refused to comply with the order), the Committee regrets that the Government has not sent its observations on this matter. The Committee urges the Government to carry out an investigation without further delay and, if judicial orders for the reinstatement of dismissed trade union members are found to exist, to take steps to ensure immediate compliance with those orders and to keep it informed in this regard.
15. San Vicente Tuberculosis Sanatorium
16. 855. As regards the alleged dismissal of a worker belonging to the Trade Union of Workers of the San Vicente Tuberculosis Sanatorium, in violation of the provisions of the collective agreement on working conditions, the Committee regrets that the Government has not sent its observations on this matter. At the same time, the Committee notes that, according to the complainant, the worker Héctor Salvador Mendizábal Vega remains dismissed and that the progress of the legal proceedings to secure his reinstatement has been slowed because of the delaying tactics employed by the Office of the Attorney-General of the Nation. In this regard, the Committee expects that the legal proceedings currently under way will soon be concluded and urges the Government to keep it informed of the outcome.
17. Municipality of El Tumbador, San Marcos
18. 856. As regards the alleged dismissal of two workers belonging to the Trade Union of Workers of the municipality of El Tumbador, San Marcos, in the context of a collective dispute during the negotiation of a collective agreement on working conditions, the Committee regrets that the Government has not supplied its observations on this matter. At the same time, the Committee notes that, according to the complainant, the municipality has chosen to keep workers on in unpaid work in order to force them to back down and those workers who have resisted have been dismissed again. The Committee requests the Government to take steps to conduct an investigation into the alleged events and to keep it informed in this regard.
19. The enterprise Bocadelli S.A.
20. 857. As regards the alleged lockout at Bocadelli S.A. following the submission of a draft collective agreement by the enterprise’s trade union, the Committee notes the efforts made by the authorities to resolve the dispute (Labour Inspectorate, Alternative Dispute Resolution Unit and the Office of the Second Vice-Minister) and the fact that an inspector was ordered to accompany the UNSITRAGUA representatives to the enterprise to assess the employment situation of the workers; according to the Government, after various meetings at which the parties made proposals and failed to reach an agreement, or which they did not attend, it was decided to withdraw the case. At the same time, the Committee notes that according to the complainant: (1) the illegal cessation of activities at the enterprise continues, without any ruling from the courts to resolve the workers’ situation (the complainants state that the legal proceedings are at a standstill); (2) the enterprise has sought rapprochement with the trade union but to no avail, owing to the refusal to reinstate workers and the proposal to grant them only about 30 per cent of their total severance pay; (3) the enterprise has sought to negotiate individually with workers. Under these circumstances, the Committee requests the Government to continue taking steps to bring about an agreement between the parties, expects that the abovementioned legal proceedings currently under way will soon be concluded, and requests to be kept informed in this regard.