Informe provisional - Informe núm. 348, Noviembre 2007

755. The Committee examined this case at its November 2006 meeting and presented an interim report to the Governing Body [see 343rd Report of the Committee, paras 861–905, approved by the Governing Body at its 297th Session (November 2006)]. The Government sent new observations in communications dated 22 March, 30 April, 4 May and 28 June 2007.

1. 756. The General Confederation of Workers of Guatemala (CGTG) presented allegations in communications dated 9 April and 22 May 2007.
2. 757. 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. 758. At its November 2006 meeting, the Committee made the following recommendations on the allegations that remained pending [see 343rd Report, para. 905]:
2. (a) Recalling that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are respected, the Committee deplores the murder of the trade union officials Rolando Raquec and Luis Quinteros Chinchilla, the attempt against the life of the trade unionist Marcos Alvarez Tzoc and the trade union official Imelda López de Sandoval, and requests the Government to inform it urgently and without delay of the developments in the inquiries and procedures under way and expects that those responsible will be severely punished.
3. (b) The Committee requests the Government to take immediately all the necessary measures to safeguard the lives of the wife and children of the murdered trade unionist Rolando Raquec, from the death threats that, according to the allegations, they have received.
4. (c) The Committee requests the Government to take measures to ensure that an independent inquiry is carried out without delay on the allegations of death threats against the secretary-general of the Trade Union Association of Itinerant Vendors of Antigua and to inform it in this respect.
5. (d) The Committee requests the Government to communicate the outcome of the inquiries carried out by the National Police and the Prosecutor-General for Human Rights on the allegation concerning the selective surveillance and theft of laptop equipment belonging to José E. Pinzón, secretary-general of the CGTG.
6. (e) The Committee requests the Government to take appropriate steps to resolve the question of payment of wages and other benefits ordered by the judicial authority in favour of the trade unionists from the San Lázaro Estate and the Municipality of Livingston, and to promote collective bargaining between the El Carmen Estate and the trade union.
7. (f) The Committee requests the Government to send, without delay, detailed observations on the allegations to which it did not reply, which are listed here below:
8. – dismissals for attempting to establish a trade union (Municipality of Río Bravo, Clermont Estate – where, furthermore, there was failure to comply with a judicial order of reinstatement of dismissed workers – and the Municipality of San Miguel Pochuta);
9. – dismissals for having submitted lists of claims to negotiate a collective agreement (Municipality of Samayac, El Tesoro Estate – where a judicial order for reinstatement had been issued);
10. – dismissal of trade unionists (Los Angeles and El Arco Estates) and non-compliance with judicial orders for the reinstatement of trade unionists (Municipality of Puerto Barrios);
11. – failure to pay statutory benefits to trade unionists, as ordered by the judicial authority (Mi Terra Estate, Municipalities of Chiquimulilla and Cuyotenango Suchitepéquez); and
12. – refusals by the Municipality of Cuyotenango Suchitepéquez to grant trade union licences as provided for under the legislation.
13. (g) The Committee reminds the Government that the ILO’s technical assistance is at its disposal. The Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which shall include sufficiently dissuasive sanctions and prompt means of redress emphasizing reinstatement as an effective means of redress.
14. B. Allegations presented by the CGTG
15. 759. In its communication dated 9 April 2007, the CGTG alleges violations of the trade union rights of the Civil Aeronautical Trade Union (USTAC) and its Secretary-General, Ms Imelda López de Sandoval, who had been subjected to an investigation by the human resources department which resulted in, among other things, a document containing non-standard information (credit card data, names of contact persons, details of legal proceedings against her). She was also ordered to move her vehicle and found it with one of its windows down. The official record of a meeting between representatives of the trade union and the human resources department indicates that, according to the human resources department, the vehicle was simply moved by Ms López de Sandoval, that it is not the policy of the General Directorate of Civil Aviation to conduct investigations into the trade union and its members, and that it had simply been collecting data to update the institution’s database (which had also been done with regard to other employees). The meeting in question concluded with an agreement to promote dialogue and communication between the department and the trade union and to draw up a timetable of meetings to settle any disputes that might arise.
16. 760. In its communication of 22 May 2007, the CGTG presents a complaint by Ms Imelda López de Sandoval to a representative of the Prosecutor-General for Human Rights. According to the complainant, at midday on 22 February 2007 she was on her way to her car, a white Toyota Yaris assigned to the union, in the car park used by employees of the General Directorate of Civil Aviation, when she noticed that the front window on the driver’s side was wide open, which caused her concern. After inspecting the outside of the vehicle, she got in with some trepidation as she did not know whether her car had been tampered with or whether anything had been placed inside it. She considers this to be an act of harassment and intimidation by the civil aviation authorities. Subsequently, she was informed by a colleague that she was being investigated, for no reason whatsoever, to the point of being harassed and kept under surveillance by General Directorate staff. The complainant indicates that, in the days that followed, she learned from a commercial agency that the head of airport security had gained access, through an enterprise called Infornet, to all her data, including information on her legal status, loans she had taken out and other facts potentially prejudicial to her. When she asked the authorities the reason for the investigation, she was told that its sole purpose was to obtain up to date information; however, that would not have warranted such an extreme investigation.
17. 761. Furthermore, according to the complainant, on 15 May 2007, workers held a lunchtime protest in front of the building of the General Directorate of Civil Aviation, calling for the dismissal of the General Directorate’s head of human resources for his constant abuse and bullying of the institution’s employees. These workers were threatened by the General Directorate’s chief maintenance officer, who said that any worker who was five minutes late back to work would be reported and subsequently dismissed, and then took a number of photographs of those present. The complainant also states that, on 18 May 2007, participants attending the union’s extraordinary general assembly unexpectedly encountered two security officers at the entrance to the General Directorate’s function room (where there is usually no security officer), the door to which was closed. The security officers asked the participants where they were going and what was going on, which alarmed them and caused them concern. Two additional security officers, including the chief of security, were found in another area known as “Falcon 26” (another entrance to the room, on the street side), which was interpreted as a form of harassment and intimidation against the participants.
18. C. The Government’s reply
19. 762. In its communication of 22 March 2007, the Government sent a list of the cases involving trade unionists which have been referred to the Office of the Special Public Prosecutor for Offences against Journalists and Trade Unionists, which include the allegations of acts of violence and threats contained in the present case. In its communication of 30 April 2007, the Government indicates that, according to information provided by the Sacatepéquez Public Prosecutor’s Office, on 19 March 2005, five members of the Trade Union of the Informal Sector in the City of Antigua, namely Higinia Concepción López, Moisés González Buc, Albina Chumes Tash, Sonia Sofía Buc Sajvin and Gladis Judith Chumes Tash, indicated in a complaint that they had been threatened and then physically assaulted and that property had been confiscated by unidentified municipal tourism officials. As part of the criminal proceedings, an inquiry was carried out which began with forensic medical examinations of the victims. On the basis of the results of those examinations, the case was referred to the local Justice of the Peace on 3 May 2005.
20. 763. In its communication of 4 May 2007, the Government indicates that the judicial authority ruled in favour of reinstating the workers who had been dismissed from the El Carmen Estate (municipality of Coatepeque) but that it had not been possible to notify the defendant because the workers who had filed the complaint had not supplied the defendant’s address.
21. 764. With regard to the allegations relating to the San Lázaro Estate (Sololá Department), the Government reports that, although the judicial authority ruled in favour of the workers, the matter has not yet been resolved because the workers have not taken steps to have the ruling implemented.
22. 765. With regard to the allegations relating to the Mi Tierra Estate, the Government reports that the relevant ruling has been duly implemented.
23. 766. With regard to the allegations relating to the Los Angeles Estate, the employer’s application for authorization to dismiss workers is currently before the Chamber of Amparo of the Supreme Court of Justice, as the decision of the Fourth Chamber of the Court of Appeals for Labour and Social Security was challenged.
24. 767. With regard to the allegations relating to the municipality of Río Bravo (application for reinstatement submitted by workers of the municipality of Río Bravo), the Government reports that the case is currently before the Chamber of Amparo of the Supreme Court of Justice.
25. 768. With regard to the allegations relating to the municipality of Samayac, Suchitepéquez Department (El Tesoro Estate) (application for reinstatement submitted by the workers), the problem has been resolved by the parties.
26. 769. With regard to the allegations relating to the non-payment to trade unionists of benefits ordered by the judicial authorities (municipality of Cuyotenango, Suchitepéquez Department), the Government reports that a ruling was issued in favour of Mr Juan Pablo Hernández Elvira and other individuals against the municipality of Cuyotenango. The competent court has indicated that it has ordered the payment of the employment benefits claimed by the complainants.
27. 770. As for the allegations relating to Agropecuaria El Tesoro SA, the Government indicates that, because they were wrongly advised, the workers did not bring the case before the court which had issued the ruling but to another court which was not competent to implement the ruling. The Government requests the Committee to invite the complainant organizations to call on the competent court to implement the decision.
28. 771. With regard to the allegations relating to the El Arco Estate, the Government indicates that the dismissals date back to 1994 and that the judicial authority ordered the reinstatement of the dismissed workers and doubled the penalty imposed on the estate. The judicial authority does not know whether the dismissed workers were reinstated in their posts, since they have not brought any action before it.
29. 772. In its communication of 28 June 2007, the Government provides information originally supplied by the General Directorate of Civil Aviation on 4 June 2007, which can be summarized as follows:
30. – The General Directorate of Civil Aviation, through its department of human resources, has an obligation to the State, arising from the policy on the modernization of public administration and the national and international commitments undertaken by the State in the area of security, to create and update staff databases; the need for this has been highlighted by other state authorities and by the fact that the new automated human resources management system requires such an upgrade.
31. – In order to fulfil its obligations, the General Directorate of Civil Aviation, through its department of human resources, sent out the following circulars to all its departments: No. GRH-011-2007, indicating that up to date information had to be provided for the purpose of issuing new social security cards; No. GRH-008-2007, requesting data for the purpose of restructuring posts and salaries; and No. 37-2006 on a human resources inventory, which states specifically that: “The purpose of the present circular is to inform staff that a survey of human resources in the public sector at the national and municipal levels will be conducted on 4, 5 and 6 October 2006, to be coordinated by the Presidential Commission for State Reform (COPRE), for which the presence of staff is crucial and compulsory. This activity will be conducted in the function rooms of the General Directorate of Civil Aviation; the day and time are to be determined by the human resources department.” In spite of this, Ms López de Sandoval did not show up at any time to update her information.
32. – It is worth noting that failure by an employee to fulfil his or her obligations does not exempt the administration from fulfilling its own obligations, and the General Directorate has therefore sought alternative ways of doing this. It has engaged a company which supplies public-domain information and plays a key role in the Directorate’s activities by verifying the accuracy of information supplied by new staff and obtain up to date information when, as in the present case, it is not provided. This information is placed in the file of the worker concerned, is closely safeguarded and is available to the worker concerned on request.
33. – With the sole purpose of fulfilling its obligations, the General Directorate of Civil Aviation, through its human resources department, requested up to date information on Ms Imelda López de Sandoval, who did not show up at the arranged time despite being under an obligation as an employee to do so. At no point has Ms Imelda López de Sandoval been investigated with the aim of harassing her.
34. – When she learned that the human resources department was taking steps in cooperation with the airport security unit to obtain up to date information on her, Ms Imelda López de Sandoval applied directly to the CGTG and the National Federation of Public Servants (FENASEP) (avoiding direct dialogue with the General Directorate). Both of these bodies requested information on the steps being taken. Following that request, and in accordance with the Government’s policy of dialogue, a meeting was held at the General Directorate on 19 March 2007 between representatives of the CGTG, FENASEP, USTAC and the General Directorate of Civil Aviation to address this issue. The official record of the meeting is contained in the file.
35. – The CGTG asked the General Directorate to conduct an investigation into what had happened and to apply such corrective measures as it deemed appropriate. In line with the Government’s policy of dialogue and transparency with regard to trade union organizations, the General Directorate conducted the investigation as requested, and the results are set out in Official Note No. DG-257-07 of the General Directorate, dated 23 April 2007 (attached).
36. – The above note demonstrates that the requested information was never used in any way to harass or intimidate an employee, and certainly not Ms Imelda López de Sandoval. In any case, the information in question is in the public domain and can be consulted by any interested party; if Ms Imelda López de Sandoval does not agree with the information on file, she should take the necessary steps against the service and/or information providers. At the meeting on 19 March 2007, Ms de Sandoval was asked to review the file to verify the information required. That has not yet been done.
37. – It should also be noted that the General Directorate has always endeavoured to support its employees and to create a cordial working environment in which the personal and work-related needs of employees are met.
38. – Ms Imelda López de Sandoval not only presented her allegations to the General Directorate; she took them to the high-level authorities of the Ministry of Communications, Infrastructure and Housing, which also rejected them because of a lack of tangible evidence. The General Directorate accordingly asked the complainant to indicate the specific facts of the case, but received no response; instead, the complainant has conducted a campaign against the General Directorate, and especially against the head of human resources, in an attempt to have him dismissed, basing her action on subjective considerations and undermining the dignity of that individual by treating him like a common criminal.
39. – Attention is drawn to the contents of the official record which is in the file, in particular paragraph 9 which states: “Paragraph 9: Agreements: After all the participants at the meeting presented their views, it was agreed as follows: (a) the employer and the representatives of the employees undertake to foster ongoing dialogue and to keep a written record of any requests made; (b) steps will be taken to improve communication between trade union officials and the human resources department, and a timetable of joint meetings will be drawn up to analyse and resolve any disputes that may arise in contractual relations.” The General Directorate has endeavoured to comply with this by inviting USTAC to draw up a timetable of meetings to promote communication as a mechanism to facilitate the settlement of the problems which arise in the different administrative units of the General Directorate (a copy of the invitation letter is attached); regrettably, USTAC had not responded.
40. – Ms Imelda López de Sandoval has presented various complaints to the Public Prosecutor’s Office, none of which have been upheld.

D. The Committee’s conclusions

1. 773. The Committee notes that the pending issues relating to the present case refer to murders or acts of violence against trade unionists, anti-union dismissals, non-payment of salaries and benefits ordered by the judicial authority, obstacles to collective bargaining, refusal to grant trade union leave, and acts of harassment against trade unionists.
2. 774. With regard to the alleged murders and acts of violence, including attempts on the lives of or threats against trade unionists, the Committee deeply regrets that, except in one case (death threats against the Secretary-General of the Trade Union Association of Itinerant Vendors of Antigua), the Government has confined itself to stating that the allegations are being examined by the Office of the Special Public Prosecutor for Offences against Journalists and Trade Unionists. It also deeply regrets that no information has been provided on whether or not measures were taken to safeguard the lives and personal safety of the wife and children of the murdered trade unionist Rolando Raquec. In these circumstances, taking into account the seriousness of these allegations, the Committee expresses its deep concern about this situation of violence and the deplorable acts that have been reported. The Committee points out once again, as it did during its previous examination of the case, that “freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed” and that “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”. Lastly, the Committee emphasizes that justice delayed is justice denied, and reiterates its previous recommendations, which are set out below:
3. – Recalling that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are respected, the Committee deplores the murder of the trade union officials Rolando Raquec and Luis Quinteros Chinchilla, the attempt against the life of the trade unionist Marcos Alvarez Tzoc and the trade union official Imelda López de Sandoval, requests the Government to inform it urgently and without delay of the developments in the inquiries and procedures under way and expects that those responsible will be severely punished.
4. – The Committee requests the Government to take immediately all the necessary measures to safeguard the lives of the wife and children of the murdered trade unionist Rolando Raquec, from the death threats that, according to the allegations, they have received.
5. – The Committee requests the Government to communicate the outcome of the inquiries carried out by the National Police and the Prosecutor-General for Human Rights on the allegation concerning the selective surveillance and theft of laptop equipment belonging to José E. Pinzón, secretary-general of the CGTG.
6. 775. With regard to the alleged death threats against the Secretary-General of the Trade Union Association of Itinerant Vendors of Antigua, the Committee notes the Government’s statements according to which not one but five trade unionists presented a complaint that they had been threatened, followed by further complaints indicating that they had been physically assaulted and property had been confiscated by municipal officials; the case has been referred to the local Justice of the Peace. The Committee expects that the proceedings in question relating to the threats and assaults will be concluded in the near future and requests the Government to keep it informed in this regard.
7. 776. With regard to the alleged non-payment of benefits ordered by the judicial authority to trade unionists of the Mi Tierra (municipality of Chiquimulilla) and San Lázaro Estates, the Committee notes with interest the Government’s statements according to which the court ruling relating to the Mi Tierra Estate has already been duly implemented and, in the case of the San Lázaro Estate, the judicial authority ruled in favour of the workers, and it is now up to them to take action to have the ruling implemented.
8. 777. With regard to the alleged non-payment of statutory benefits ordered by the judicial authority to trade unionists in the municipality of Cuyotenango Suchitepéquez, the Committee notes the Government’s statements according to which the judicial authority ruled in favour of the payment of benefits claimed by the complainant workers and the same authority ordered that payment be made. The Committee requests the Government to ensure that the payment has now been made.
9. 778. With regard to the alleged dismissal of trade unionists at the El Arco Estate (municipality of Puerto Barrios), the Committee notes the Government’s statements according to which the dismissals date back to 1994, the judicial authority ordered reinstatement and doubled the penalty imposed on the estate, and the judicial authority does not know whether the dismissed workers have been effectively reinstated in their posts, as they have not initiated any legal proceedings. The Committee requests the complainant organizations to inform it whether or not the workers have been reinstated in their posts.
10. 779. The Committee notes the Government’s statements according to which the proceedings initiated by the dismissed workers at the Clermont Estate in the municipality of Río Bravo, who had obtained a judicial reinstatement order, and the application to the judicial authority by the employer for authorization to dismiss trade unionists at the Los Angeles Estate (municipality of Puerto Barrios) are currently before the Chamber of Amparo of the Supreme Court of Justice. The Committee requests the Government to inform it of the outcome of these proceedings and sincerely expects that they will be concluded without further delay.
11. 780. With regard to the alleged dismissal of trade unionists at the El Tesoro Estate (municipality of Samayac), despite a judicial reinstatement order, for having submitted lists of claims during negotiations on a collective agreement, the Committee notes the Government’s statements according to which the workers obtained a favourable ruling but mistakenly applied to a court without competence in the matter to implement the ruling. The Committee requests the trade union to which these trade unionists belong to request the competent legal authority to implement the ruling to reinstate the trade unionists dismissed by the El Tesoro Estate.
12. 781. The Committee notes with regret that the Government has not provided any information on the allegations relating to: (1) the workers dismissed for having tried to set up a trade union in the municipality of San Miguel Pochuta; (2) the refusal of the municipality of Cuyotenango Suchitepéquez to grant the trade union leave provided for by law; (3) non-payment of wages and other benefits ordered by the judicial authority to trade unionists in the municipality of Livingston; and (4) the absence of measures by the authorities to promote collective bargaining between the El Carmen Estate and the trade union. The Committee requests the Government to send the information requested without delay.
13. 782. With regard to the allegations relating to the abusive investigation conducted by the department of human resources against Ms Imelda López de Sandoval, Secretary-General of USTAC, which led among other things to a document containing her credit card data, names of contact persons and details of legal proceedings against her, as well as an order to move her vehicle, which she found with the front window on the driver’s side wide open, the Committee notes the statements made by the General Directorate of Civil Aviation and transmitted by the Government, and in particular, that: (1) the request to provide up to date information for the database was in response to security requirements and the requirements of the new automated human resources management system, which is why the presence of all staff was required; (2) the trade unionist Ms López de Sandoval did not show up but a company that supplies public-domain information had been engaged for such cases and in order to verify information provided by staff and obtain up to date information; (3) the file is available to the employee concerned upon request, and the employee may ask for it to be amended (Ms López de Sandoval has made no such request); (4) at no point has Ms López de Sandoval been investigated with the aim of harassing her; (5) because of the complaint lodged by trade union organizations, the General Directorate ordered an investigation, which demonstrated that the requested information has never been used to harass or intimidate any employee; (6) the allegations submitted by Ms López de Sandoval to high-level national authorities – including the Public Prosecutor’s Office – have been rejected; (7) the trade union of Ms López de Sandoval and the General Directorate reached an agreement in which they undertook to promote ongoing dialogue, improve communication and draw up a timetable of joint meetings to resolve any problems that might arise.
14. 783. The Committee notes that the documentation provided by the complainant organizations includes an official document containing credit card data for Ms López de Sandoval, names of contact persons, and giving details of legal proceedings against her; according to the allegations, she also found her vehicle with one of its windows wide open.
15. 784. In this respect, the Committee has considered that, while it is true that it is important for employers to obtain information about prospective employees, it is equally true that employees who previously belonged to a trade union or conducted trade union activities should be informed about the information held on them and given a chance to challenge it, especially if it is erroneous and obtained from an unreliable source [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 782]. The Committee notes that, in the present case, the Government has emphasized that all civil servants have the right to consult its database and to take steps to correct erroneous data. Nevertheless, the Committee recalls that trade union officials and trade unionists should have the same rights to privacy as all other people. The Committee notes with concern that, according to the documentation submitted as part of the complaint, the information collected on Ms López de Sandoval as part of the investigation into her includes her credit card data, names of contact persons and details of legal proceedings against her. The Committee therefore urges the Government to instruct the General Directorate of Civil Aviation without delay to delete this information on Ms López de Sandoval from its staff database.
16. 785. With regard to the alleged threats against the employees of the General Directorate of Civil Aviation who participated in a protest in front of the building against the constant abuse by the administration (according to the allegations, the General Directorate’s chief maintenance officer threatened that they would be reported and subsequently dismissed if they were five minutes late back to work, and then took photographs of them) and with regard to the intimidation by security officers against the members outside the room where the union’s general assembly was to be held, the Committee regrets that the Government has not sent its observations and urges it to do so without delay.
17. 786. Bearing in mind the high number of anti-union dismissals, the delays in proceedings and the failure to comply with judicial orders to reinstate trade unionists, the Committee once again reminds the Government that the ILO’s technical assistance is at its disposal and that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress.