Rapport intérimaire - Rapport No. 78, 1965

159. This case was examined by the Committee at its meetings in November 1963 and June 1964, when certain allegations concerning acts of anti-union discrimination against workers in the GINSA factory remained pending. At its last meeting the Committee, in paragraph 333 of its 76th Report, recommended the Governing Body:

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2. (c) with reference to the acts of discrimination against trade unionists in the GINSA factory, to request the Government to be good enough to forward its observations on this aspect of the case as soon as possible.
3. 160. This report was approved by the Governing Body at its 159th Session (June-July 1964) and communicated to the Government on 25 June 1964.

A. A. The complainants' allegations

1. 161. The Government forwarded its observations by a communication dated 13 July 1964.
2. 162. According to the allegations of the complainants there was, in the GINSA factory, a rubber workers' union which represented the majority of the workers (219 workers in the factory belonged to it) but which, nevertheless, could not obtain its registration by the labour authorities, although they recognised a union sponsored by the employers (SIGINSA). The first union was practically destroyed by the management acting in collusion with the Ministry of Labour and using every form of coercion, including the dismissal of workers who did not wish to join the employer-backed union. Immediately after the recognition by the authorities of this last-mentioned union reprisals were started against the members of the Rubber Workers' Union in the form of mass dismissals, without the authorities taking measures to protect them. On 6 September 1963 a group of executives of the factory toured the premises urging the workers to sign on with the SIGINSA union, as they had orders to dismiss all those who failed to do so. In the face of this attitude many workers signed against their will, while others elected to resist doing so, whereupon they were dismissed. The General Secretary and the Disputes Secretary of the Rubber Workers' Union in the GINSA factory were forced to leave the factory under the threat that a bomb would be placed in a boiler and they would be accused of having done it. The complainants sent a list of the workers who were dismissed for not wishing to change their union membership, as well as a list of those who changed under pressure in order to keep their jobs.
3. 163. In its reply the Government states that the Ministry of Labour and Social Welfare suggested to the two unions parties to the dispute (the GINSA Factory Workers' Union, SIGINSA, and the Rubber and Related Workers' Union, SITRACS) conciliation procedures to settle their differences, which were rejected. The Government finally recognised the legal personality of the Rubber and Related Workers' Union (SITRACS) in view of its having fulfilled the legal requirements. At present the majority of workers in this field of economic activity and, in particular, the majority of workers employed by the GINSA factory, are members of SITRACS, so that there is no longer any problem of a trade union character in that undertaking. The Government states that, in accordance with section 211 (c) of the Labour Code, it may, for reasons of public interest and in order to avoid serious disputes between industrial associations, refuse to authorise a trade union under the conditions laid down in the article; however, in this particular case, the Government did not avail itself of this faculty. Consequently, there have been no acts of discrimination against trade unionists in the GINSA factory, as alleged by the complainants.

B. B. The Committee's conclusions

1. 164. As regards the Government's statement concerning the power conferred upon it by section 211 (c) of the Labour Code under which the authorities may refuse to authorise and grant legal personality to a union, the Committee notes that the relevant provision lays down that the Ministry of Labour may take such action " if another association comprising more than three-fourths of the total number of employees in the undertaking has already been legally recognised therein."
2. 165. On previous occasions the Committee has accepted that the law of a country may draw a distinction between the most representative trade union organisations and other trade union organisations, provided that such distinction does not accord to the most representative organisations privileges extending beyond the privilege of priority, on the ground of its having the largest membership, in representation for such purposes as collective bargaining or consultation by governments or for the purpose of nominating delegates to international bodies. In other words if a government wishes to take measures to avoid the harmful effects which could result from a multiplicity of trade unions, respect for the principles of freedom of association requires that such measures do not reach the point of hindering the existence of minority organisations and preventing them from defending the interests of their members before the authorities and the employers, since this would constitute an infringement of the provisions of Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), according to which employers and workers have the right to establish and join organisations " of their own choosing ".
3. 166. The Committee notes that in the present instance the Government did not avail itself of the powers conferred upon it by section 211 (c) of the Labour Code. In these circumstances the Committee recommends the Governing Body to take note of the foregoing and to invite the Government to consider the possibility of amending its legislation in order to bring it into line with Convention No. 87.
4. 167. As regards the alleged acts of anti-union discrimination and coercion against workers in the GINSA factory the Committee notes that there appears to be a discrepancy between the information communicated by the complainants and the observations of the Government. The complainants state that such acts occurred against the members of the Rubber Workers' Union in favour of the SIGINSA organisation; that the Rubber Workers' Union had 219 members and was the majority organisation in the undertaking but that it was destroyed as soon as SIGINSA was recognised as a result of measures taken against its members. The Government on its side states that the Rubber and Related Workers' Union is the majority organisation, that its legal personality has been recognised, and that there is no longer any problem of a trade union character in the GINSA factory.
5. 168. As regards the basic problem the Committee notes that the Government has not forwarded its observations on the acts of anti-union discrimination denounced in some detail by the complainants, who submitted, inter alia, a list of the persons who were forced to change their union membership and who are still working in the undertaking and a list of the persons who were dismissed for refusing to change their membership.
6. 169. The Committee has always attached the greatest importance to the principle laid down in Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has been ratified by Guatemala, that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment; and that such protection shall apply more particularly in respect of acts calculated to make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership, or to cause the dismissal or otherwise prejudice a worker by reason of union membership or because of participation in union activities.