Interim Report - Report No 340, March 2006

813. The Committee last examined this case at its June 2005 meeting and presented an interim report to the Governing Body [see 337th report, paras. 894-917]. The Trade Union of Workers of Guatemala (UNSITRAGUA) presented further allegations in communications dated 28 April and 11 May 2005. The WCL sent additional information in a communication dated 31 August 2005.

1. 814. The Government sent its observations in communications dated 5 July, 23 and 31 August, 28 October 2005, and 10 February 2006.
2. 815. 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. 816. At its June 2005 meeting, the Committee made the following recommendations [see 337th Report, para. 917]:
2. (a) As to the anti-union dismissal of the worker Macedonio Pérez Julián by the enterprise La Comercial S.A., the Committee requests the Government to keep it informed as to the outcome of the legal procedure under way.
3. (b) Concerning the allegations concerning the enterprise La Comercial S.A. regarding: (1) the refusal by the enterprise to recognize and enter into collective bargaining with the enterprise’s trade union unless it gives up its affiliation to UNSITRAGUA; and (2) the refusal by the enterprise to deduct union dues from workers’ wages, the Committee requests the Government to send its observations in this respect.
4. (c) As to the allegation regarding the dismissal of the worker Marco Antonio Estrada López, a member of the Union of Workers of La Comercial S.A., the Committee, noting that the complainant organization states that the judicial authority ordered that he be reinstated in August 2004, requests the Government to ensure that the worker in question is reinstated in his post.
5. (d) As to the alleged harassment by the enterprise La Comercial S.A. of members of the Union of Workers of La Comercial S.A., Distribuidora de Productos Alimenticios Diana S.A. and other enterprises belonging to the same economic unit because of the union’s opposition to the illegal deductions from the workers’ wages made by the enterprise, the Committee, taking into account the fact that, according to the Government, the enterprise states that some workers do not hand over the money they have made from the sale of the enterprise’s goods but instead keep it and, in order not to have to dismiss these workers, the enterprise makes deductions from their monthly wages by way of reimbursement of the money owed to the enterprise with their consent, will not make any further examination of these allegations, unless the complainant organizations provide more information in this respect.
6. (e) As to the allegations that were pending concerning the anti-union harassment of the members of the Union of Workers of Rafael Landivar University by the university authorities after the union submitted a draft collective agreement on working conditions (according to the complainants, the members of the union were aggressed verbally and physically and its secretary-general, Mr. Timoteo Hernández Chávez, was attacked by armed men on his way home), the Committee requests the Government to conduct an investigation in order to determine those truly responsible for the acts of anti-union harassment and ensure that they are appropriately punished so that this kind of discrimination is avoided in the future within the university. The Committee requests the Government to keep it informed in this respect.
7. (f) As to the dismissal of 50 workers belonging to the Union of Workers of the Asociación Movimiento Fe y Alegría in the work centres located in the department of Guatemala on 31 October 2001 in reprisal against the trade union, the Committee requests the Government to keep it informed as to the final outcome of the appeal lodged against the legal ruling ordering that six workers be reinstated (according to the Government, only eight workers requested to be reinstated before the law courts).
8. (g) As to the allegations of the anti-union dismissal of Mr. Edgar Alfredo Arriola Pérez and Mr. Manuel de Jesús Dionicio Salazar on 23 October 2002 after they applied to join the Union of Workers of the Higher Electoral Tribunal on 17 October of the same year, the Committee requests the Government to state the nature of the disciplinary faults committed by the workers which gave rise to their dismissal.
9. B. Further allegations and additional information from the complainant organizations
10. 817. In a communication dated 28 April 2005, in connection with allegations regarding the enterprise La Comercial S.A.’s refusal to recognize and to enter into collective bargaining with the enterprise’s trade union and the refusal by the enterprise to deduct union dues, UNSITRAGUA alleges that the enterprise La Comercial S.A. has refused since 1999 to negotiate with the Union of Workers of La Comercial S.A. and has negotiated with an ad hoc committee of workers, simulating the signature of an agreement, despite the fact that the trade union organization represents over 70 per cent of employees. The trade union organization alleges that it became aware of this negotiation and signature of an agreement with non-unionized workers when proceedings were initiated to bring the dispute before the Fifth Labour and Social Security Court, and called upon the enterprise to enter into collective bargaining. On that occasion, the enterprise refused and stated that an agreement already existed. Although a request was made to the labour inspectorate to revoke the decisions endorsing these agreements, the labour inspectorate has not as yet rendered its decision.
11. 818. According to the complainant, the enterprise has in addition initiated a slander campaign and coerces workers to sign a new agreement and the labour inspectorate, which has been informed of this matter, has not yet taken any action.
12. 819. In a communication dated 11 May 2005, the complainant organization alleges that in 2005 the court dismissed the following members of the Trade Union of Employees of the Higher Electoral Court: Ulalio Jiménez Esteban (initially suspended for 15 days) and Víctor Manuel Cano Granados, while another trade union member, Pablo Menéndez Rodas, was suspended for 15 days.
13. 820. In a communication dated 31 August 2005, the World Confederation of Labour (WCL) alleges that Mr. Rigoberto Dueñas, deputy secretary-general of the CGTG, who, as noted by the Committee in its earlier consideration of the case, had been absolved of offences of embezzlement, fraud and complicity [see 337th Report, para. 902], was convicted by the First Appeal Chamber, in an appeal brought by the Guatemalan Social Security Institute, for the offence of abuse of authority and sentenced to three years imprisonment. This sentence may be commuted at a cost of 100 quetzals per day. The WCL alleges that the appeal was based on facts for which Mr. Duenas had never been tried.
14. C. The Government’s reply
15. 821. In communications dated 5 July, 23 and 31 August, 28 October 2005, and 10 February 2006, the Government states the following:
16. – The case of Marcedonio Pérez Julián. The Government states that the case brought by this worker against La Comercial S.A. was scheduled for 1 July 2003, but could not proceed because it had not been possible to notify the defendant and because Marcedonio Pérez Julián failed to attend.
17. – Refusal by the enterprise La Comercial S.A. to negotiate with the Union of Workers of La Comercial S.A. and the appointment of an ad hoc committee of workers with which the signature of an agreement had been simulated, and pressure on workers to sign a collective agreement. As regards the establishment of an ad hoc committee, the Government states that, pursuant to Convention No. 87, Article 2, it is not the role of the labour inspectorate to intervene in negotiations between that body and the enterprise, by reason of the fact that workers have the right to organize as they see fit. The Government states that it has not been demonstrated that the ad hoc committee was supported by the employer. It further states that the agreement concluded with that committee is in compliance with legislation and with Convention No. 154 and that the trade union cannot enjoy exclusive bargaining powers. The Government adds that the labour inspectorate had considered the matter but had not seen fit to sanction the workers. Regarding the enterprise’s refusal to negotiate with the trade union organization, the Government states that this is to be attributed to a series of flaws including failure to exhaust direct channels and to notify how many workers belong to the trade union. The Government adds that the collective dispute brought before the judicial authorities and which is being tried by the Second Labour and Social Security Court of the First Instance, registration number L1-2005-505, was found admissible on 7 June 2005, but the judicial authority raised the objection that a prior agreement existed and that direct channels had not been exhausted and that the number of union members had not been notified.
18. – The case of the Asociación Movimiento Fe y Alegría. The Government states, as regards the dismissal of 50 workers from the work centres located in the Department of Guatemala, that the First Chamber of the Labour and Social Security Appeal Court, in a ruling dated 22 March 2004, accepted reinstatement proceedings brought by Claudia Griselda Perez Bolanos, and rejected the case involving Leonel Miguel Castillo, Luis Alberto Cifuentes Samayoa and Hisleni Masiel Blanco Monterroso by reason of the fact that they had fixed-term contracts and that therefore the company did not require authorization to dismiss them. As regards Ms. Perez Bolanos, the Government states that she was summoned by the Court so that she could be informed of the decision, but failed to appear.
19. – The case of the Higher Electoral Court. The Government states that, according to information provided by the Higher Electoral Court, Edgar Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar, employed by the Court, were dismissed for failure to report to work, under the powers provided by the electoral law to appoint, dismiss and sanction officials and staff, in particular in the case of employees in positions classified as being “of trust”. The Government adds that the employees requested the review of the decision but took no further action. The Government rejects the allegation, which is vague and confused, regarding the dismissal of Mr. Ulalio Jiménez Esteban, member of the Trade Union of Employees of the Higher Electoral Court and requests that it be found inadmissible. According to the Government, the allegations initially stated that an application was made to the court for authorization to terminate the labour relationship with the employee, imposing a penalty of 15 days without wages, but it was subsequently stated that an agreement exists in the Higher Electoral Court under which he can be dismissed and, finally, it was stated that the Higher Electoral Court threatened the employee with dismissal, with no proceedings being required.
20. – The case of Rigoberto Dueñas. The Government indicates that, in a decision of
21. 23 January 2006, the Supreme Court (Criminal Chamber) found Mr. Dueñas not guilty of abuse of power.

D. The Committee’s conclusions

1. 822. The Committee recalls that this case refers to allegations of anti-union discrimination, including dismissals, aggression and detention of trade union leaders.
2. 823. As to the anti-union dismissal of the worker Macedonio Pérez Julián by the enterprise La Comercial S.A., the Committee notes that the Government states that the case brought by this worker against La Comercial S.A. was scheduled for 1 July 2003, but could not proceed because it had not been possible to notify the defendant and because Mr. Perez Julian failed to attend.
3. 824. As to the refusal by the enterprise La Comercial S.A. to bargain collectively with the Union of Workers of La Comercial S.A. and the appointment of an ad hoc committee of workers with which the signature of an agreement has been simulated, and pressure on workers to sign a collective agreement, the Committee notes that the Government states that, pursuant to Convention No. 87, Article 2, it is not the role of the labour inspectorate to intervene in negotiations between that body and the enterprise, since workers have the right to organize as they deem fit. As regards the enterprise’s refusal to negotiate with the trade union, the Committee notes that the Government states that this refusal was prompted by the failure of the trade union organization to comply with certain prior requirements such as exhausting the remedy of direct settlement or providing information on the number of trade union members. The Committee notes that the judicial authority based its decision in regard to the collective dispute on the same arguments. In this regard, the Committee points out that “the Collective Agreements Recommendation, 1951 (No. 91), stresses the role of workers’ organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only when no organization exists. In these circumstances, direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted” [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 785] and that” collective agreements should not be used to undermine the position of trade union organizations” [324th Report, Case
4. No. 1973 (Colombia)]. Under these circumstances, the Committee requests the Government to take the necessary measures to enable the trade union to enter freely into negotiations; to ensure that workers are not subjected to intimidation to accept the collective agreement against their will and to ensure that the collective agreement with the non-unionized workers does not undermine the rights of workers belonging to the trade union. The Committee requests the Government to keep it informed in this respect.
5. 825. As to the pending allegations concerning anti-union harassment of the members of the Union of Workers of Rafael Landivar University by the university authorities, in regard to which the Committee had requested the Government to carry out an investigation without delay to determine those truly responsible for these acts, the Committee regrets that the Government has not forwarded information and repeats its request to be kept informed in this regard.
6. 826. As to the dismissal of 50 workers belonging to the Union of Workers of the Asociación Movimiento Fe y Alegría in the work centres located in the department of Guatemala on 31 October 2001, of which only eight workers had requested to be reinstated before the law courts, the Committee notes that the Government states that the First Chamber of the Labour and Social Security Appeal Court, in a ruling dated 22 March 2004, accepted reinstatement proceedings brought by Ms. Claudia Griselda Perez Bolanos, that she was summoned by the Court so that she could be informed of the decision, but that she failed to appear. The Committee notes that the Chamber rejected the cases involving Leonel Miguel Castillo, Luis Alberto Cifuentes Samayoa and Hisleni Masiel Blanco Monterroso by reason of the fact that they had fixed-term contracts and that therefore the undertaking did not require authorization to dismiss them.
7. 827. As to the allegations of the anti-union dismissal of Mr. Edgar Alfredo Arriola Pérez and Mr. Manuel de Jesús Dionicio Salazar on 23 October 2002 after they applied to join the Union of Workers of the Higher Electoral Tribunal on 17 October of the same year, the Committee notes that according to the Government and to information provided by the Higher Electoral Court, Edgar Alfredo Arriola Perez and Manuel de Jesus Dionisio Salazar were employed by the Court but had been dismissed for failure to report to work, under the powers provided by the electoral law to appoint, dismiss and sanction officials and staff, in particular in the case of employees in positions classified as being “of trust” and that the workers had submitted only one application for review. Noting that the dismissal occurred only six days after the workers joined the trade union and that the only reason offered by the Higher Electoral Court for the dismissal was that “they were not right for the job”, the Committee points out that dismissal of workers on grounds of membership of an organization or for trade union activities violates the principles of freedom of association [see Digest, op. cit., para. 702]. Under these circumstances, the Committee requests the Government to take the necessary measures to review the decision of the Higher Electoral Court to dismiss its employees, only six days after they had joined a trade union, and to keep it informed in this regard.
8. 828. As regards the dismissal, likewise by the Higher Electoral Court, of Ulalio Jiménez Esteban and Victor Manuel Cano Granados, and the suspension of Pablo Menéndez Rodas, the Committee notes that the Government considers as not receivable and rejects the allegation, as it considers it vague and confused, regarding the dismissal of union member, Mr. Ulalio Jiménez Esteban, given that the allegations initially stated that an application was made for authorization to terminate the labour relationship with the employee, that a penalty of suspension without wages was imposed, that an agreement exists under which he can be dismissed and, finally, that he was threatened with dismissal. On the basis of this information, the Committee requests the complainant organization to provide information on the exact employment situation of that worker. In addition, the Committee requests the Government promptly to send its observations regarding the alleged dismissal of Victor Manuel Cano Granados and the 15-day suspension of Pablo Rudolp Menéndez Rodas, who are members of the Trade Union of Employees of the Higher Electoral Court.
9. 829. As regards the new allegations submitted by the WCL to the effect that Mr. Rigoberto Dueñas, deputy secretary-general of the CGTG, who, as noted by the Committee in its earlier consideration of the case, had been absolved of offences of embezzlement, fraud and complicity [see 337th Report, para. 902], was convicted by the First Appeal Chamber, in an appeal brought by the Guatemalan Social Security Institute, for the offence of abuse of power, and sentenced to three years’ imprisonment, that the sentence may be commuted at a cost of 100 quetzals per day, that the WCL alleges that the appeal was based on matters for which Mr. Dueñas had never been tried, the Committee notes the information provided by the Government that the Supreme Court (Criminal Chamber) has found
10. Mr. Dueñas not guilty of abuse of power.