Informe provisional - Informe núm. 330, Marzo 2003

1. 793. The complaint is contained in a communication from the Trade Union of Workers of Guatemala (UNSITRAGUA) dated 31 May 2002. This organization sent new allegations in a communication dated 26 October 2002. The Government sent its observations in communications dated 27 September and 30 December 2002.
2. 794. 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. 795. In its communications dated 31 May and 26 October 2002, UNSITRAGUA alleges that Mr. Gustavo Santisteban, member of the Union of Workers of the General Property Registry, was dismissed. The judicial authority ordered his reinstatement and the Registry reinstated him, but it began a disciplinary action on the same day for an alleged offence which he never committed. Two weeks later this member, who in the meantime had become an officer, was again dismissed illegally on 2 July 2002. The Registry has also committed acts of interference (distributing ballot papers for the election of union executives and employing measures to prevent the new executive board from taking up its duties); furthermore, the Registry destroyed the headquarters of the union in the workplace.
2. 796. UNSITRAGUA adds that the company Agrícola Industrial Finca Santa Cecilia S.A. stopped assigning work to 43 union members when the union, during a dispute, asked for payment of the minimum salaries in force. These members were notified of their dismissal and judicial actions for their reinstatement have not yielded results. Union officer Mr. Baudilio Reyes received a death threat because of these events.
3. 797. In the context of collective bargaining, the company Industrias Acrílicas de Centro América S.A. (ACRILASA) illegally dismissed a union member; the company has broken the collective agreement by suspending workers illegally for eight working days without payment of salary, refusing union licences, and refusing to pay “bonus fourteen” and full holiday pay; on 18 June 2001 a further eight union members were dismissed. The union has received death threats against its head of finance from two individuals and has been the subject of intimidation (police indignation directed towards the general secretary for alleged telephone death threats to a representative of the administration and for the kidnapping of the son of a female worker; assaults on two members of the union’s executive board; surveillance, threats and assaults on union members and officers – Ms. Castillo, Ms. Alcántara, etc. – by company officials or a security company). At the end of 2001 members of the union’s executive board were dismissed (including Ms. Alcántara, who was pregnant) together with all ordinary members who would not sign a resignation from the union; the judicial processes have been seriously delayed and the company has not complied with the judicial reinstatement order. The company had previously paid money to two officers (Ms. Tzubán and Ms. Barrios) to leave their posts on the union’s executive board. The company has managed to eliminate the union in spite of the (unpaid) fines imposed by an inspection and the (not definitive) rulings of the judicial authority. The union has also begun a criminal action against a representative of the company who forced the doors of the union’s headquarters, raided union property and burnt all the union’s official books and documents.
4. 798. In the Municipality of El Tumbador (San Marcos region) pressure has been placed on union members to resign from their union and on union officers not to continue with the reinstatement processes ordered by the judicial authority. Intimidation has been particularly employed in the case of union member Ms. Nora Luz Echeverría Nowel who was blackmailed with a criminal trial if she did not convince union leaders to abandon the matter of reinstatements. The union’s general secretary received a death threat to make him abandon the reinstatements; the criminal action he brought has yielded no result.
5. 799. At Finca La Torre, the workers who were dismissed en masse during a collective dispute have not been reinstated, despite reinstatement orders given by the judicial authority. The manager has made death threats against union officers.
6. 800. In addition, the Ministry of Public Health dismissed union officer Mr. Fletcher Alburea on 25 April 2001, despite the fact that he enjoyed union privileges. The authorities drew out the proceedings with delaying tactics.
7. 801. UNSITRAGUA also alleges that it is systematically harassed by plain-clothes individuals who control the area around the union’s headquarters and that it receives telephone death threats against its leaders from the same organization. Union officer Mr. Carlos Enrique Cos was pursued by three individuals as he left UNSITRAGUA headquarters.
8. 802. The company Chevron-Texaco imposed a code of ethics applicable within the company, adding new causes for dismissal without discussing the matter with the union. The company has not responded to the draft collective agreement submitted by the union. Imminent closure of the company is feared.
9. 803. On 1 January 2002 the magistrates of Supreme Electoral Tribunal, in violation of the collective agreement and without consulting the union, imposed on the institution an “organization manual” (agreement No. 455-2001) dealing with functions, posts and salary grades. The application of this manual has led to acts of anti-union discrimination with regard to promotions and to access to certain posts being denied to union members. The institution refused to negotiate a draft collective agreement or to meet union officers.

B. The Government’s reply

1. 804. In its communications dated 27 September and 30 December 2002, the Government makes the following observations:
   • – General Property Registry: 16 complaints have been received by the General Labour Inspectorate; after analysing them, it has been determined that there was a breach of labour rights, so labour inspectors have accompanied workers and given evidence of the said breaches, giving rise to a collective dispute which has been brought before a judicial body; in addition, there has been some conciliation with officials to find the best solution to the problem;
   • – the case of Agrícola Industrial Finca Santa Cecilia: two complaints have been received regarding this matter; the first asks the General Labour Inspectorate to give notification of the collective agreement on working conditions, and the second to establish the workers’ situation regarding their jobs. In both cases inspectors from the headquarters at Suchitepéquez consistently fulfilled their function of protecting the rights of workers in the company during the administrative process, including accompanying officers to the offices of the government department to find a mutual solution to their complaints, until the workers decided that that avenue had been exhausted and took their complaints into the judicial arena (the results are pending);
   • – Industrias Agrícolas de Centro América S.A. (ACRICASA): a total of 131 complaints were identified, of which 72 were brought before the courts for violation of labour and social provision regulations; 59 were referred to the penalization section of the General Inspectorate, as new reforms to the Labour Code had come into force. All the steps taken in these cases ended in this way since none of the inspectors concerned were allowed to enter the company’s premises at any time. Furthermore, the General Labour Inspector, in his eagerness for mediation to take place, summoned officials of the company but they did not respond to his summons. The most recent information received indicates that the union leaders from the company have brought their case for reinstatement before a judicial body, since they were eventually dismissed by their employer without the necessary judicial authorization;
   • – El Tumbador Municipality, San Marcos: suffice it to say that the country’s municipalities enjoy autonomy and that the Labour Inspectorate acts as a mediator if complaints arise; however, consultations with the Labour Inspectorate with offices in El Tumbador revealed they had received no union complaints; the union had submitted the case directly to the judicial authority, where it is currently being dealt with;
   • – Finca La Torre: in this case a complaint was received about the suspension of individual contracts; the General Inspectorate supported the workers. The workers then went to another authority to have their requests fulfilled. In the last few days, representatives of the employer have been invited to help achieve a favourable outcome to the complaints;
   • – accusations of threats and harassment against UNSITRAGUA officials: the accusations do not fall within the authority of the Ministry of Labour; Guatemalan workers now have the protection of the Special Attorney for Offences against Journalists and Trade Union Members in cases such as this. The Government’s report on Case No. 1970 provides updates on cases relating to union matters;
   • – Chevron-Texaco: there have been no complaints to date. However, when rumours of the company’s closure spread through the trade union movement, a representative of the company visited the Ministry of Labour and Social Security to establish whether any complaints had been received by the General Labour Inspectorate, and used the opportunity to indicate that they were quite willing to comply with the workers’ wishes if a complaint had been made.

C. The Committee’s conclusions

1. 805. The Committee observes with great concern that, in the present case, the complainant has made allegations of death threats, assaults and physical intimidation of union members in various companies, as well as new acts of anti-union discrimination and employer interference and violations of the right to collective bargaining.
   • I. General conclusions
2. 806. From the complaint it can be deduced that: (1) there have been a large number of anti-union dismissals which have been referred to the judicial authority and that, in many cases, the judicial authority has issued reinstatement orders which have not been fulfilled; (2) processes are being delayed by rulings being referred to a succession of different judicial authorities; and (3) there have been situations where the employer has refused entry to labour inspectors or refused to submit to administrative sanctions. The Committee’s attention is particularly drawn to the fact that the allegations refer to a very high number of death threats or assaults on union members, as well as pressure and intimidation. The Committee points out that the Government has not contradicted these serious allegations.
3. 807. The Committee must therefore draw the Government’s attention first and foremost to certain fundamental principles. With regard to the allegations of assaults, death threats, pressure and intimidation against union members, the Committee underlines that, in general, 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; furthermore, 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, 4th edition, 1996, paras. 46 and 47].
4. 808. With regard to the alleged acts of anti-union discrimination, the Committee draws the Government’s attention to the fact that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment; furthermore, the existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice; legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination to ensure the practical application of Articles 1 and 2 of Convention No. 98 [see Digest, op. cit., paras. 696, 742 and 743.]
5. 809. Lastly, given that, as far as can be gathered from this and other complaints, not only are judicial orders for the reinstatement of dismissed union members frequently not complied with, but also the number of judicial bodies that can successively deal with an anti-union dismissal (three or four) means that procedures frequently take years, the Committee requests the Government to revise the process of protecting union rights provided for in legislation in order to bring it into line with the principles given in the general conclusions to the present case.
6. 810. With regard to allegations of acts of interference, the Committee underlines that:
   • ... as regards allegations of anti-union tactics carried out by an enterprise, in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, the Committee considers such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration” [see Digest, op. cit., para. 760].
   • Also with regard to acts of interference, the Committee has indicated that legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations to ensure the practical application of Article 2 of Convention No. 98 [see Digest, op. cit., para. 764].
7. 811. The Committee requests the Government to make every effort to guarantee that these principles are respected.
   • II. Specific allegations of acts of violence
8. 812. With regard to the allegations of acts of violence and intimidation against union members, the Committee observes that the complainant has submitted the following allegations:
   • – destruction of the headquarters of the union operating in the General Property Registry;
   • – death threats against Mr. Baudilio Reyes, officer of the union operating at Agrícola Industrial Santa Cecilia S.A.;
   • – death threats against the general secretary of the union operating in the El Tumbador Municipality;
   • – death threats against the general secretary and the head of finance of the union operating at ACRILASA, as well as against union officers Ms. Castillo and Ms. Alcántara and against union members; acts of intimidation against the general secretary; assaults on two members of the executive board and on union members; raiding with force of the union’s headquarters and sacking or burning of property and/or documents (the union has brought a criminal action in this matter);
   • – death threats against officers of the union operating at Finca La Torre;
   • – intimidation of union member Ms. Nora Luz Echeverría Nowel at the El Tumbador Municipality, in the form of blackmail with a criminal trial if she did not convince the union leaders to abandon the matter of reinstatement of persons dismissed;
   • – intimidatory surveillance of UNSITRAGUA headquarters and pursuit of union leader Mr. Carlos Enrique Cos by three individuals and death threats against officers of the organization (according to the Government, this point has been referred to the Attorney).
9. 813. The Committee observes that the Government refers to the observations it sent under Case No. 1970 (which is not dealt with in the present report) regarding cases like those under examination (although in those observations it only mentioned the case of death threats against officers of UNSITRAGUA and not the rest of the allegations made in the present case) and recalls that a Special Attorney has recently been created for offences against journalists and union members. The Committee urges the Government to take measures to order urgent investigations into these allegations and to refer these cases to the Special Attorney for Offences against Union Members, and to keep it informed in this respect.
   • III. Specific allegations of anti-union discrimination or interference and of violations of the right to collective bargaining
10. 814. With regard to allegations relating to the General Property Registry, the Committee notes that, according to the Government, the Labour Inspectorate has confirmed non-compliance with labour rights after examining 16 complaints; there is also a collective dispute before the judicial authority. The Committee requests the Government to take the necessary measures to remedy the alleged situation (dismissal of union officer Mr. Gustavo Santisteban, acts of employer interference in union elections) and to keep it informed in this respect, as well as in respect of the result of any procedure before the judicial authority.
11. 815. With regard to the allegations relating to Agrícola Industrial Finca Santa Cecilia S.A. (dismissal of 43 union members), the Committee notes that, independently of the Ministry of Labour’s mediation, those dismissed were referred to the judicial authority and requests the Government to inform it of the final ruling in the judicial process.
12. 816. With regard to the allegations concerning ACRILASA (non-compliance with the collective agreement, dismissal of nine union members and the majority of members of the executive board, non-compliance with judicial orders to reinstate those dismissed and pressure for union officers and members to resign from their posts or from the union), the Committee notes with concern the Government’s statements that 131 complaints were made to the Labour Inspectorate, and that the company refused entry to the labour inspectors and did not appear at the mediation talks; of those complaints, 72 were referred to the judicial authority for breach of labour legislation and 52 gave rise to sanctions; the union officers appealed to the judicial authority for reinstatement, since their dismissal, contrary to legislation, had no judicial authorization. The Committee deplores ACRILASA’s anti-union behaviour and its total obstruction of the Labour Inspectorate’s investigations. The Committee urges the Government to take the necessary measures to ensure that legislation is respected in the company in question, including sanctions appropriate to the seriousness of the offence committed, and to make amends for the anti-union acts confirmed. The Committee requests the Government to keep it informed in this respect, as well as in respect of the judicial processes under way.
13. 817. With regard to the allegations relating to the El Tumbador Municipality (refusal to comply with the judicial order to reinstate workers who had been dismissed, pressure on union members to resign from the union and on union officers to cease promoting the reinstatement of dismissed workers), the Committee notes that, according to the Government, no union complaints have been submitted to the Ministry of Labour and certain matters have been referred to the judicial authority. The Committee requests the Government to carry out an investigation into the allegations and keep it informed in this respect, as well as in respect of the results of the judicial processes under way.
14. 818. With regard to the allegations relating to Finca La Torre (employer’s refusal to comply with judicial orders to reinstate dismissed workers), the Committee observes that the Government refers to a different problem (suspension of individual contracts). The Committee requests the Government to take measures to ensure effective compliance with the judicial reinstatement orders.
15. 819. With regard to the allegation relating to the dismissal of union officer Mr. Fletcher Alburea from the Ministry of Public Health in April 2001 and the slowness of the proceedings due to delaying tactics, the Committee observes that the Government has not sent its observations in this respect, deplores the authorities’ delay and requests the Government to take measures to ensure that a ruling is given urgently on the dismissal in question.
16. 820. With regard to the allegations relating to Chevron-Texaco (unilateral imposition of a code of ethics without consultation adding new causes for dismissal, refusal to negotiate on the part of the company), the Committee notes that, according to the Government, the company stated that it was willing, if a complaint had been submitted, to comply with the workers’ requests. The Committee requests the Government to meet with the parties to find a solution to the problems mentioned and keep it informed in this respect.
17. 821. In addition, the Committee regrets that the Government has not responded to the allegations relating to the Supreme Electoral Tribunal (unilateral imposition of an organization manual dealing with matters related to employees’ functions, posts and salary grades and acts of discrimination in the application of the said manual, as well as the Tribunal’s refusal to meet with officers and negotiate a draft collective agreement). The Committee requests the Government to send its observations in this respect, and to meet with the parties to find a solution to the problems.
18. 822. The Committee invites the Government to consider requesting the technical assistance of the Office in order to improve the implementation of Conventions Nos. 87 and 98.