Informe provisional - Informe núm. 360, Junio 2011

1. 642. The complaint was presented in a communication dated 20 April 2009 by the Movement of Trade Unions, Indigenous Peoples and Agricultural Workers of Guatemala (MSICG), represented by the following organizations: the Altiplano Agricultural Workers’ Committee (CCDA), the General Confederation of Workers of Guatemala (CGTG), the Unified Trade Union Confederation of Guatemala (CUSG), the National Trade Union and People’s Coordinating Body (CNSP), the National Front for the Defence of Public Services and Natural Resources (FNL) and the Guatemalan Workers’ Trade Union (UNSITRAGUA). The International Trade Union Confederation (ITUC) expressed support for the complaint in communications dated 27 August 2009 and 17 February 2010.
2. 643. In the face of the Government’s failure to respond, the Committee was twice obliged to postpone examination of the case. At its meeting of March 2011 [see 359th Report, para. 5], the Committee made an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report (1972), approved by the Governing Body, it might present a report on the substance of this case at its next meeting even if the observations or information requested had not been received. To date, the Government has not provided any information.
3. 644. 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. Allegations of the complainant organization

1. 645. In its communication of 20 April 2009, the MSICG states that the National Institute of Forensic Sciences (INACIF), a public institution operating autonomously, was established to carry out investigations and scientific analyses of crimes and evidence. On its establishment, it took control of services such as the State morgues and laboratories, which had previously been run by the Department of the Public Prosecutor. Its work involves high risks for workers’ health and requires appropriate safety and hygiene equipment, which have not been provided.
2. 646. By the same token, the INACIF is a permanent institution carrying out permanent tasks in support of scientific forensic investigations; the nature of the tasks it performs requires specialized personnel, but INACIF officials have resorted to disguising the employment relationship by hiring the majority of staff on a temporary basis, simply to avoid having to set money aside for labour liabilities and to keep workers in a constant state of job insecurity and thereby prevent them from forming or joining a trade union.
3. 647. Given these working conditions and the non-existence of a trade union organization defending their basic rights, the workers decided to found a union. The complainant organization states that the workers ultimately notified the General Labour Inspectorate, on 15 April 2008, that they were in the process of establishing a union. On the same day, the employees promoting the union’s establishment were prevented from entering their place of work and were told by the private security guards that they had been ordered not to let the workers in. On 16 April, the General Labour Inspectorate was asked to assign a labour inspector to observe the working conditions of the employees (Ms Evelyn Jannette García Caal, Ms Dora María Caal Orellana and Ms Ana Verónica Lourdes Morales). The labour inspectors presented themselves to the INACIF personnel department in an endeavour to ascertain the employees’ working conditions, but the INACIF officials refused to provide any information, saying this would be done in a conciliatory hearing. In the face of this situation, the labour inspectors presented themselves on 18 April 2008, with the employees, directly at their places of work, where the security agents handed them internal work note No. 031-2008, which barred the employees from entering on the grounds that they were no longer employed by the INACIF, even though until that time the employees had received no notification that they had been dismissed.
4. 648. The MSICG states that, having ascertained that they had indeed been dismissed, the employees asked the labour and social welfare courts to reinstate them. In the same manner, the INACIF dismissed 13 other employees who had helped found the trade union. These were: Mr Byron Minera, Mr Carlos Rubio, Mr Ellison Barillas, Mr Flavio Díaz, Ms Irma Palma, Mr Jorge Hernández, Mr Leonel Pérez, Ms Lesly Escobar, Ms Lucrecia Solórzano, Ms María Girón, Mr Mario Yaguas, Mr Minor Ruano and Mr Oscar Velázquez. In response to their dismissal, the workers filed an application for reinstatement with the labour and social welfare courts, which ruled in their favour but, in executing the orders, the INACIF officials had recourse to what were in essence delaying tactics.
5. 649. The MSICG expresses particular concern that the employer had access to the list of workers participating in the union’s founding, which implies that the information was leaked in some way, either by the Inspectorate or the General Labour Directorate of the Labour and Social Welfare Ministry, given that the dismissals were selective and specifically targeted those who were organizing the union and those working most closely with them.
6. 650. The complainant organization states that, on 30 April 2008, Ms Miriam Gutiérrez de Monroy filed a petition with the General Labour Directorate objecting to the establishment of the Trade Union of INACIF (SITRAINACIF), an act that in itself constitutes a clear violation of freedom of association and of the principle of non-interference. In resolution No. 416-2008 of 6 May 2008, the General Labour Directorate declared the employer’s opposition to the founding of the trade union null and void. The latter appealed that decision. The outcome of the appeal has not been notified.
7. 651. The MSICG adds that, from 17 to 19 April 2008, the interim Secretary-General of SITRAINACIF, Ms Evelyn Jannette García Caal, was subjected to harassment and persecution by an unidentified person riding a motorbike and by individuals in a pick-up truck who followed her until her arrival at UNSITRAGUA headquarters and also when she left. A complaint was filed with the Department of Public Prosecution, but to date she has not even been summoned to confirm its validity. The INACIF officials are exerting pressure on the employees who were not dismissed for having taken part in the union’s founding, threatening them with dismissal. At the same time, in response to the fact that the workers are exercising their right to freedom of association, the employer has instituted criminal proceedings against the union’s interim Secretary-General and against Ms María Girón.
8. 652. The complainant organization states that the SITRAINACIF members have learned unofficially that the union’s application for registration has been definitely set aside on the grounds that it failed to meet certain prior requirements for registration stipulated by the General Labour Directorate, even though there is no legal basis for those requirements and the paperwork in the file makes them superfluous. According to the complainant organization, there has been no notification of the outcome of the appeal filed by the employer, of a deadline for meeting the requirements, or of a resolution indicating that the application was to be definitely set aside. In the face of this situation, the interim executive committee submitted a petition clarifying the matter of the requirements and renewing its application for the trade union’s registration. There was no response to that request and the union received no further information, even though more than a month went by. In March 2009, a forum for dialogue was set up at the Ministry of Labour and Social Welfare to seek solutions to the INACIF problem, but the trade union’s interim Secretary-General was prevented from attending because she refused to agree that the trade union did not exist and that it was functioning only as a “worker collective”. She was replaced by two colleagues whose participation was agreed to by the employer and who accepted the initial premise of the trade union’s non-existence. At that forum, at which representation for all workers had not been defined, the only point discussed was the reinstatement of workers who accepted the trade union’s non-existence, not that of those who insisted that the union was in the process of being established.
9. 653. The complainant organization considers that this situation, far from providing a solution to the problem of the violation of freedom of association, worsens it with the approval of the Ministry of Labour and Social Welfare itself. At the same time, an adjudicatory court revoked the reinstatement of the trade union’s interim Secretary-General on the same terms as it confirmed the reinstatement of an employee who is now helping to represent the “worker collective”.

B. The Committee’s conclusions

1. 654. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations even though it has been requested several times, including through an urgent appeal, to present its comments and observations on this case.
2. 655. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 656. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments, on their side, will recognize the importance of presenting, for objective examination, detailed replies concerning allegations made against them [see First Report, para. 31].
4. 657. The Committee urges the Government to send its observations on the allegations without further delay.
5. 658. The Committee observes that the complainant organization in this case alleges anti-union dismissals and acts of intimidation following the establishment of SITRAINACIF on 15 April 2008.
6. 659. The Committee notes in particular that the trade union organization states that: (1) given the working conditions at the National Institute of Forensic Sciences and the absence of a trade union organization to defend their rights, the Institute’s employees decided to establish a trade union; (2) 16 workers were dismissed and requested their reinstatement, which was ordered by the labour and social welfare courts; (3) without abiding by the reinstatement orders, the employer used delaying tactics when it came to implementing the orders; (4) a petition presented to the General Labour Directorate opposing SITRAINACIF’s constitution was declared null and void; (5) an appeal was filed but no notification given of the outcome; (6) the application for trade union registration was set aside definitively; (7) the interim Secretary-General of SITRAINACIF was harassed and persecuted, and those acts were denounced to the Department of the Public Prosecutor, which has to date taken no action; criminal proceedings have also been taken against her, in reaction to the exercise of the right to freedom of association; (8) workers who took part in the establishment of SITRAINACIF were threatened with dismissal; and (9) a forum for dialogue was set up in March 2009 at the Ministry of Labour and Social Welfare to find solutions, but the interim Secretary-General of the trade union was unable to attend because she did not accept that the trade union did not exist.
7. 660. With regard to the dismissal of the 16 INACIF workers, the Committee observes that, according to the allegations, their reinstatement was ordered by the labour and social welfare courts. The Committee requests the Government to indicate whether the workers have indeed been reinstated and, should this not be the case, to take the measures required to give effect to the court orders as soon as possible.
8. 661. With regard to SITRAINACIF’s application for registration as a trade union, the Committee observes, first, that a petition presented to the General Labour Directorate opposing SITRAINACIF’s constitution was declared null and void, second, that an appeal was filed but no notification given of the outcome, and lastly, that the application for registration was set aside definitively. The Committee recalls that Convention No. 87 applies to all workers with the sole possible exception of the armed forces and police. It has emphasized the importance that it attaches to the fact that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 310]. The Committee requests the Government to take all necessary measures without delay to ensure that the trade union is immediately registered if, as it appears, it meets all the legal requirements for registration.
9. 662. With regard to the alleged threats, harassment, persecution and judicial action owing to the exercise of trade union rights, the Committee observes that various acts were denounced to the Department of the Public Prosecutor but that, according to the allegations, no action has been taken to date. The Committee emphasizes that the exercise of trade union rights must be fully guaranteed and that this excludes any kind of pressure or threat. It requests the Government to communicate the status of the complaints made to the Department of the Public Prosecutor by the trade union’s interim Secretary-General.
10. 663. With regard to the alleged criminal proceedings against the trade union’s interim Secretary-General, the Committee requests the Government to forward its observations on the matter and to communicate the status of those proceedings.
11. 664. With regard to the forum for dialogue that met to seek solutions and at which, according to the allegations, the trade union’s interim Secretary-General was prevented by the Government from participating, the Committee requests the Government to take the measures required to ensure that the parties involved, in particular their freely chosen representatives (in the present case, the trade union’s interim Secretary-General, Evelyn Jannette García Caal), are able to attend for the purpose of reaching an agreement with no pressure and asks to be kept informed of developments in that regard.