Informe provisional - Informe núm. 284, Noviembre 1992

721. The complaints comprising the present cases are contained in communications from the Trade Union Federation of Bank Employees of Guatemala (FESEB) dated 15 May 1991, the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) dated 21 June 1991 (Case No. 1588), the General Centre of Workers of Guatemala (CGTG) dated 2 July 1991, and the World Confederation of Labour (WCL) dated 5 July and 30 August 1991 (Case No. 1595). The Committee was obliged to postpone consideration of these cases on three occasions in view of the Government's failure to reply; it made an urgent appeal at its May 1992 meeting, stating that, in accordance with the procedure set forth in paragraph 17 of its 127th Report approved by the Governing Body, the Committee might submit a report on the substance of the matter at its next meeting, even if the observations requested from the Government had not been received in due time. The Government sent its observations in communications dated 8 and 10 September 1992.

1. 721. The complaints comprising the present cases are contained in communications from the Trade Union Federation of Bank Employees of Guatemala (FESEB) dated 15 May 1991, the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) dated 21 June 1991 (Case No. 1588), the General Centre of Workers of Guatemala (CGTG) dated 2 July 1991, and the World Confederation of Labour (WCL) dated 5 July and 30 August 1991 (Case No. 1595). The Committee was obliged to postpone consideration of these cases on three occasions in view of the Government's failure to reply; it made an urgent appeal at its May 1992 meeting, stating that, in accordance with the procedure set forth in paragraph 17 of its 127th Report approved by the Governing Body, the Committee might submit a report on the substance of the matter at its next meeting, even if the observations requested from the Government had not been received in due time. The Government sent its observations in communications dated 8 and 10 September 1992.
2. 722. 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

• Case No. 1588
  723. 723 In its communication dated 15 May 1991, the Trade Union Federation of Bank Employees of Guatemala indicates that on 12 March 1988 the Workers' Union of the Banco del Ejército S.A. was set up and that on 15 March 1988 the General Labour Inspector issued resolution No. 002230 in which employers were informed that, in accordance with the law, members of the union's executive committee enjoyed temporary protection against removal from office. The complainants add that on 18 March 1988, the Banco del Ejército S.A. appealed to the General Labour Inspectorate in the hope that this privilege would be withdrawn, stating that the bank employees were military specialists, and adding that in April of the same year, the Office of the Legal Adviser of the Technical Council and of the Ministry of Labour and Social Welfare had upheld the appeal, ordered the repeal of resolution No. 002230 issued by the General Labour Inspectorate and decided not to uphold the temporary protection. When considering the appeal, the Deputy Minister of Labour and Social Welfare indicated that, in accordance with the terms of the Government Agreement of April 1977, issued by the Ministry of National Defence, employees at the Banco del Ejército S.A. were considered to be military specialists and hence members of the Guatemalan army, as provided for in section 6 of Decree No. 26-86 (the Army Act), which states that specialists, troops and other personnel belonging to the permanent forces are considered to be members of the army.
  724. 724 In particular, the complainants state that:
       • - the Government Agreement of April 1977 was issued on the same day as the very first attempt was made to set up the trade union in the Banco del Ejército S.A.;
       • - the Act establishing the Guatemalan army does not consider employees at the Banco del Ejército to be military specialists;
       • - the Fourth Labour and Social Welfare Court rejected the appeal lodged by the Banco del Ejército;
       • - the case is being heard in the first division of the Court of Appeal;
       • - finally, the complainants allege that on 26 May 1988 the General Secretary of the trade union, Mr. Augusto Mendoza Money, was physically assaulted and that the other trade union leaders and legal advisers were threatened and harassed.
  725. Case No. 1595
  725. 725 In its communication dated 2 July 1992, the General Centre of Workers of Guatemala states that the national labour legislation officially recognises workers' right to organise, but that it is necessary to go before the courts to set up a trade union.
  726. 726 In particular, the complainants allege the following violations of the right to organise and of collective bargaining, and anti-union dismissals:
       • - the Palin Municipal Workers' Union (Municipality of Palin): the complainants allege that just when the legalisation of the trade union was going before the courts, 53 workers who supported its creation were dismissed. This was an act of repression by the mayor prompted by the workers' request that a collective agreement be signed and that job stability be guaranteed for the executive committee members. The courts of first and second instance endorsed the decision to consider the workers' contracts terminated;
       • - the Guatemala Fiesta Hotel Workers' Union: the complainants allege that the undertaking refuses to renegotiate the collective agreement on conditions of employment, since it maintains that there is no trade union, despite the fact that the union has enjoyed trade union status for seven years. Similarly, they allege that all trade union leaders have been dismissed, and state that even though the courts ordered their reinstatement, the undertaking refuses to comply;
       • - Workers' Union of the Fábrica Pundu S.A.: the complainants allege that unlawful dismissals have taken place and state that it seems likely that the undertaking will close in the near future, which appears like a combined attempt to break up a trade union movement in the "maquila" (in-bond) industry, where employers have obstructed the establishment of trade union organisations. In particular, the complainants indicate the following undertakings: Sam Agliano y Don San (free trade area, Department of Izabal), Manufacturera Integridad S.A., Koram S.A., Booco and Cía., Ltda., Diseños Panamericanos S.A. and Confecciones Isabel S.A.;
       • - Workers' Union of the el Trapichito Farm: the complainants allege that all members of the union have been dismissed. Similarly, they indicate that although the courts have ordered the reinstatement of Julian Aguilar Santana, the undertaking refuses to comply;
       • - Workers' Union of the el Naranjo Farm: the complainants allege that 55 workers, members of the undertaking's trade union, were dismissed when it tried to join the General Centre of Workers of Guatemala;
       • - Union of Peasant Workers of the la Patria Farm: the complainants state that in view of the union's decision to join the CGTG and to take legal action againt the undertaking to put a stop to the mass dismissals, the undertaking with the assistance of the national army, repressed the workers, killing one of them on 5 August 1989. The complainants allege that 40 members of the trade union were dismissed;
       • - the Workers' Union of the Compañia Centroamericana Administradora de Hoteles y Turismo S.A., Hotel Ritz Continental: the complainants allege that the undertaking has requested the withdrawal of the union's legal personality and that it has refused to negotiate a collective agreement on conditions of employment;
       • - Union of Automobile and Allied Drivers of Guatemala: the complainants allege that the urban transport companies Union, Bolivar, EGA, la Fe and Morena, are trying to hinder the establishment of trade union organisations;
       • - the San Antonio Suchitepéquez Municipal Workers' Union and the Villa Nueva Municipal Workers' Union: the complainants allege that their unions have been dissolved by municipal officials.

B. The Government's reply

• Case No. 1588
  727. 727 In its communication dated 10 September 1992, the Government states that on 14 March 1988 representatives of the Workers' Union of the Banco del Ejército S.A. went before the General Labour Directorate to request that the Union's legal personality be recognised. The request went through the proper legal channels, and after verifying that the members of the provisional executive committee had the status of active workers the committee's temporary protection against removal from office was decreed. The Government adds that the Bank applied for reconsideration of the decision, basing their appeal on a Government Agreement dated 13 April 1977 according to which the Bank employees are classed as military specialists and hence members of the Guatemalan army, and are not therefore entitled to present collective petitions or establish trade unions. The appeal was taken through the correct legal channels and was upheld by the Ministry of Labour.
  728. 728 Finally, the Government states that the trade union insisted on its request that the legal personality of the union be recognised, whereupon the Banco del Ejército S.A., in view of the ruling issued by the Ministry, appealed to the Administrative Court. The Government stresses that the employers and workers have exercised their constitutional right of petition, have availed themselves of all legally recognised means of appeal, and that the assertion by the complainant organisation that the Government has violated legal standards relating to the right to organise and collective bargaining is false since the rulings have always been based on the law in force and the workers have had all the legal channels of appeal at their disposal.
• Case No. 1595
  729. 729 In its communication dated 8 September 1992, the Government states that the Republic's Labour Code needs to be brought up to date, which is why the Ministry of Labour and Social Welfare introduced fundamental reforms, including reforms designed to bring the legislation more into line with Conventions Nos. 87 and 98. The proposed reforms currently before the National Congress aim to make it simpler and easier for trade unions to register, grant the Ministry of Labour the authority to promote negotiations between the parties, and make provision for the setting up of conciliation and arbitration tribunals. The Government states that there may have been some delay in dealing with petitions presented by workers' organisations but that this is because current legislation makes means of appeal more accessible.
  730. 730 Furthermore, as regards the specific allegations made by the complainant organisations, the Government provides the following information:
       • - Palin Municipal Workers' Union, Muncipality of Esquinita: legal personality was recognised in February 1989 and the final registration of the executive members took place on 13 March 1991. When a dispute arose between workers and the municipality, the latter went to court to request authorisation to terminate the contracts of employment of a group of workers, and the request was upheld. The Government states that the workers have been able to champion their rights, given that legal remedies have been available to them and for this reason it cannot be said that there have been unjustified mass dismissals.
       • - Union of Workers and Employees of the Municipality of San Antonio Suchitepéquez, Department of Suchitepéquez: there are two unions, both of which are recognised as legal personalities. The Government states that only one of the unions is still active, and registered its executive members in August 1992.
       • - Workers' Union of the Pundu Fábrica S.A.: the union's legal personality was recognised in October 1986, but registration of its executive members expired in February 1991 and the union has taken no steps to re-register. The Government indicates that there are a range of problems that workers need to deal with in the "maquila" (in-bond) undertakings, which is why the Ministry of Labour organised a meeting between representatives of various sectors which resulted in the signing of two agreements on regarding strict compliance with labour legislation, advice from the General Labour Inspectorate with regard to work for women and minors and on trade union issues for employers to encourage them to allow the free establishment of trade unions in their respective undertakings.
  731. 731 Finally, the Government states regarding the other allegations presented by the complainants, that the aforementioned trade unions had their legal personality recognised in due course, and although they are currently having problems in carrying out their activities, all legal channels (administrative and judicial) are available to them to defend their rights.

C. The Committee's conclusions

1. 732. As regards Case No. 1588, the Committee observes that the complainants allege that after having obtained, through the General Labour Inspector, provisional protection against removal from office for members of the executive committee of the trade union of the Banco del Ejército S.A. (resolution No. 002230), the Bank appealed to the Inspectorate, which ruled in its favour, as it considered the employees to be "military specialists" and therefore covered by the Army Act; the complainants and the Government state that the question is currently before judicial authorities. The Committee considers that employees of the Banco del Ejército whose work is of a civilian rather than military nature should enjoy the right to establish and join trade union organisations, and that the founding members and officials of these organisations should enjoy adequate protection against acts of anti-union discrimination, in the same way as all other trade union members and leaders in the country. The Committee notes that the case is currently before the courts and requests the competent authorities to take this criterion into account.
2. 733. As regards the alleged physical attack on 26 May 1988 against the General Secretary of the trade union, Mr. Augusto Mendoza Money, and the threats and harassment of other trade union leaders and legal advisers, the Committee observes that the Government has not sent its observations in this regard and requests it to open judicial inquiries with a view to determining responsibility and punishing the guilty parties. The Committee also requests the Government to keep it informed of the outcome of such inquiries, and to take the necessary measures to guarantee the safety of the trade union leaders who have been threatened and harassed.
3. 734. As regards Case No. 1595, the Committee observes that the complainants allege that there have been a number of anti-union dismissals in various undertakings, that there has been a refusal to renegotiate collective agreements, that restrictions have been placed on the establishment of trade union organisations and that unions have been dissolved. As regards the alleged dismissal of 53 workers who supported the creation of the Palin Municipal Workers' Union, the Committee notes the Government's statement that, during a dispute between workers and the municipality, the latter went to court to request the termination of the workers' contracts and that the courts ruled in its favour. In view of the fact that the Government has not mentioned the reason behind the dismissals and that they took place when the trade union was in the process of being legalised, the Committee has to conclude from all the above that these dismissals were linked to the establishment of the trade union. The Committee therefore stresses the principle that no person should be prejudiced in his or her employment or dismissed by reason of his or her trade union activities. The Committee requests the Government to do its utmost to ensure that the workers dismissed for activities related to the establishment of a trade union are reinstated in their jobs.
4. 735. The Committee observes that the Government provides only partial information on some of the many allegations presented by the complainants (Union of Workers and Employees of the Municipality of San Antonio and Workers' Union of the Fábrica Pundu S.A.) and with regard to the remaining allegations (concerning the trade unions Workers' Union of the Guatemala Fiesta Hotel, trade unions at the undertakings: Sam Agliano y Don San; Manufacturera Integridad S.A.; Koram S.A.; Booco and Cia. Ltd.; Diseños Panamericanos S.A. and Confecciones Isabel S.A.; the Workers' Union of the el Trapichito Farm; Workers' Union of the el Naranjo Farm; Union of Peasant Workers of the la Patria Farm, Workers' Union of the Compañía Centroamericana Administradora de Hoteles y Turismo S.A., Hotel Ritz Continental; and the Union of Automobile and Allied Drivers of Guatemala), states merely that those organisations which are having difficulty in carrying out their activities may avail themselves of the appropriate administrative and judicial means of appeal. The Committee emphasises the seriousness of the allegations and requests the Government to send, without delay, detailed observations on each of the allegations; and draws the Government's attention to the fact that Article 3 of Convention No. 87 states that "public authorities shall refrain from any interference which would restrict the rights recognised in this Convention". In addition, no worker should be subjected, at the time of his employment, to discrimination on the grounds of his trade union membership or activity, whether past or present. (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 551.)
5. 736. Furthermore, the Committee requests the Government to instigate a judicial inquiry into the alleged murder of a worker on 5 August 1989 at the la Patria Farm when workers were demanding a halt to the mass dismissals and were repressed by the army. The Committee requests the Government to keep it informed in this regard.