Rapport définitif - Rapport No. 323, Novembre 2000

1. 310. The complaint is contained in a communication dated 21 April 1999 from the International Organization of Employers (IOE), also acting on behalf of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF). The Government has submitted its observations in communications of 27 August 1999, 25 February and 4 May 2000.
2. 311. 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

1. 312. In their letter of 21 April 1999, the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) and the International Organization of Employers (IOE) draw attention to the incidents related hereinafter and, more specifically, to the fact that the Government of Guatemala violated ILO Convention No. 87 by permitting the occupation of, and damage to, three banana plantations - resulting in major unemployment and financial loss - and by disregarding the judicial decisions to evacuate them.
2. 313. The complainants explain that in February 1998 a group of persons invaded the Bananera Mopá and Bananera Panorama plantations in the Department of Izabal in the north-east of Guatemala. The economic losses amounted to millions, and hundreds of persons became unemployed. The occupation was carried out by a group of former workers of a contract labour firm; they were advised and led by the Trade Union of Banana Plantation Workers of Izabal (SITRABI) of the Banana Development Company of Guatemala, S.A. (BANDEGUA) which owns the land leased to independent producers (Bananera Mopá and Bananera Panorama) who, in turn, supply their produce to the abovementioned company. The former workers were persuaded by SITRABI to commit criminal acts and, by force and coercion together with a group of inhabitants of the village of El Cedro, took possession of vehicles and of all installations of the Bananera Mopá and Bananera Panorama plantations, thereby causing major damage to private property. The group of occupiers was led by SITRABI, a trade union which placed pressure on the BANDEGUA company to cancel the leases of the occupied plantations and to cede them to the occupiers; in the event of resistance, SITRABI threatened to pursue the occupation of the plantations and to halt all work on BANDEGUA operations until the plantations were transferred to the occupiers.
3. 314. The complainants add that, apart from the invasion of the Bananera Mopá and Bananera Panorama plantations, the same group of persons moved into the Bananera Panchoy o Paraíso plantation on 13 April 1998. That plantation's workers resisted the invasion and were surrounded by the intruders and confined to the plantation. Moreover, they were harassed and threatened day and night by the occupiers, as stated in the report of 16 April 1998 signed by the Labour Inspector, Mr. Francisco Duarte Aldana, one paragraph of which reads:
   • ... the workers voice the wish to appear in this report as representatives of the other 85 workers and they state that, at present, the latter are not organized in any way and that a group of workers that do not belong to the plantation are harassing them night and day, that they are surrounded within its installations which they are not permitted to leave; consequently, they request the labour, judicial and all competent authorities to intervene forthwith to protect them, as they fear that, at any moment, they may be in personal danger. Similarly, they state for the record that they are short of food, medicines and drinking water and request the inspectors to report immediately to their higher authorities to intervene.
   • On the Bananera Panchoy plantation, the intruders barricaded and cordoned off all access roads; this prompted the plantation owners to send in drinking water, provisions and medicines by helicopter to the besieged workers that were resisting the invasion.
4. 315. The complainants indicate that the representatives of the three plantations took all appropriate court action to obtain the evacuation and detention of those responsible who, in the case in question, are SITRABI leaders. In any event, the courts ruled in favour of the enterprises: the strike in the Bananera Mopá and Bananera Panorama plantations was declared illegal and, in each case, an order was issued to evacuate the plantations having undergone invasion. Nevertheless, these orders were not enforced by the competent authorities, with the exception of one instance on 25 March 1998 when 400 police officers attempted to carry out the instructions to seize and evacuate the responsible parties from the Bananera Mopá and Bananera Panorama plantations; this attempt failed, given that the police were not prepared for dealing with a crowd of more than 3,000 persons, mobilized and urged on by SITRABI; they had not asked for the necessary reinforcements to execute the court order. This was the first and only attempt made by the authorities to fulfil their duty.
5. 316. Accordingly, Guatemala experienced an income shortfall of millions of dollars, hundreds of persons became unemployed, private property rights and freedom of movement and of work were violated with impunity.
6. 317. In the complainants' view, the Government failed throughout to fulfil its constitutional obligation to apply and enforce the law; by negligence or intent it did not comply with the court orders that were designed to re-establish law and order that had been overturned by the occupiers, i.e. to preserve the rule of law.

B. The Government's reply

1. 318. In its communications of 27 August 1999, 25 February and 4 May 2000, the Government states that all of the alleged action against the Mopá and Panorama plantations was taken by workers and trade unionists and not by the Government of the Republic. The complaint reveals no restriction placed upon the right to organize, freedom of trade union action or freedom to engage in union activities; consequently, no act has been committed in violation of freedom of association. The Government indicates that, as stated in the complaint, when the police attempted to evacuate the plantations, the command of the approximately 400 officers discovered that there were about 3,000 persons on the land and that it was a matter of good judgement to avoid a blood bath which, at that stage, would have been tantamount to a barbaric act committed by the Government. Legal theory teaches that it is always preferable to avoid the greater evil; if, at that point, the evacuation did not take place but a massacre was avoided, logic and reason indicate that the chief of police acted correctly. In any event, this is unrelated to freedom of association.
2. 319. The Government refers to earlier observations that it submitted in relation to Case No. 1960, regarding the events having taken place on these banana plantations; it had emphasized the repeated action taken by the Government to resolve the dispute on the plantations but which subsisted on account of the dismissal of hundreds of workers. The Government states that this dispute was settled on 8 February 2000, as a collective agreement was signed.

C. The Committee's conclusions

1. 320. The Committee observes that the complainant organizations allege that: (1) the Government permitted the occupation of, and damage to, three banana plantations by workers and other persons led by the trade union SITRABI, who used force and coercion, taking possession of vehicles and installations of two plantations (Mopá and Panorama), invaded a further one (Paraíso) meeting with the resistance of the workers who were harassed and threatened and not allowed to leave, as the intruders closed off the access roads; these incidents caused major damage to private property; (2) the Government did not respect the orders to evacuate the occupied plantations, with the exception of one instance in which there was an insufficient number of police officers present and the necessary reinforcements were, nevertheless, not requested; and (3) accordingly, hundreds of people became unemployed, private property rights were violated as well as the freedom of movement and of work, with ensuing income shortfalls for the country of millions of dollars.
2. 321. The Committee notes that this case is related to Case No. 1960 (complaint presented by the International Confederation of Free Trade Unions) also examined in this report (see paragraphs 214-247).
3. 322. In the case at hand, the Committee takes note of the Government's statement and, in particular, that: (1) the acts of violence on the Mopá and Panorama plantations were carried out by workers and trade unionists and not by the Government and that no acts were committed in violation of freedom of association; (2) the police did not evacuate the Mopá and Panorama plantations for the sake of avoiding a massacre whereas 3,000 persons were on the plantations and there were approximately 400 police officers.
4. 323. In view of Case No. 1960 and this case, the Committee deplores the general climate of violence in this dispute.
5. 324. The Committee wishes to bring to the Government's attention that, by virtue of Article 8, paragraph 1, of Convention No. 87: "In exercising the rights provided for in this Convention workers and employers in their respective organizations, like other persons or organized collectivities, shall respect the law of the land." In these circumstances, the Committee profoundly deplores the action taken by certain workers; according to the complainant there were criminal acts against individual freedoms, property rights and the freedom to work, together with threats and coercion. The Committee recalls 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." (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 47.) The Committee considers that occupation of plantations by workers and by other persons is contrary to Article 8 of Convention No. 87.
6. 325. Consequently, whereas it takes note of the Government's explanation regarding the reasons why, in this case, it was unable to evacuate the Mopá and Panorama plantations, the Committee requests the Government, in future, to enforce the evacuation orders pronounced by the judicial authorities whenever criminal acts are committed on plantations or at places of work in connection with industrial disputes.