Rapport intérimaire - Rapport No. 334, Juin 2004

1. 508. The complaints were made in communications from the Trade Union of Workers of Guatemala (UNSITRAGUA) dated 25, 26 and 27 October 2002, 4 September and 5 November 2003 and 3 May 2004, and from the Guatemalan Union of Workers (UGT) dated 9 July 2003. The Latin American Central of Workers (CLAT) and the World Confederation of Labour (WCT) endorsed the UGT’s complaint in communications dated 11 and 15 July, and 30 October 2003 and 27 April 2004.
2. 509. The Government sent its observations in communications dated 29 August, 21 November, 2 December 2003 and 9 January 2004.
3. 510. 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. 511. In its communications dated 25, 26 and 27 October 2002 and 4 September and 5 November 2003 and 3 May 2004, the Trade Union of Workers of Guatemala (UNSITRAGUA) alleges:
   • (a) the dismissal, without any justifiable cause being duly presented to the judicial authority, of the secretary-general of the Union of Workers of the Municipality of San Juan Chamelco, Alta Verapaz, Mr. Edwin Roderico Botzoc Molina, on 19 August 2002. UNSITRAGUA adds that the Labour Inspectorate verified the dismissal but that the judicial authority refused to process the judicial appeal that was lodged against the dismissal;
   • (b) the anti-union harassment of Mr. Macedonio Perez Julián by La Comercial S.A. from the moment this worker started taking part in the activities of the Union of Workers of La Comercial S.A., Distribuidora de Productos Alimenticios Diana S.A. and other enterprises belonging to the same economic unit. UNSITRAGUA adds that the aforementioned worker was dismissed in February 2002 and that, when the enterprise learned that he had initiated proceedings to be reinstated in his job, it instituted criminal charges against him, accusing him of embezzlement, possession of stolen goods and concealment. At the time the complaint was presented he was still in prison;
   • (c) the anti-union harassment of Ms. Rocío Lily Fuentes Velásquez by La Comercial S.A. when she started taking part in the activities of the Union of Workers of La Comercial S.A., Distribuidora de Productos Alimenticios Diana S.A. and other enterprises belonging to the same economic unit. According to UNSITRAGUA, this worker was dismissed for anti-union reasons; she was subsequently reinstated by court order but was assigned to a lower post. She is alleged to be harassed by the authorities of the enterprise and to have been threatened with dismissal;
   • (d) the refusal of La Comercial S.A. and Distribuidora de Productos Alimenticios Diana S.A and other enterprises belonging to the same economic unit to recognize and enter into collective bargaining with the works’ union unless it gives up its affiliation to UNSITRAGUA;
   • (e) the harassment by La Comercial S.A. of members of the Union of Workers of La Comercial S.A., Distribuidora de Productos Alimenticios Diana S.A. and other enterprises belonging to the same economic unit because of the union’s opposition to the illegal deductions from the workers’ wages made by the enterprise. Specifically, it is alleged that the enterprise exerts pressure on workers belonging to the union (threatening them with dismissal, refusing to supply them with goods for sale or to allow them to engage in the sale of goods, etc.), that Mr. Manuel Rodolfo Mendizábal has been harassed by unmarked vehicles to discourage him from playing an active part in the union and that other union members have been the victims of a series of thefts and aggressions. Finally, the enterprise is alleged to have refused to deduct union dues from workers’ wages;
   • (f) the anti-union dismissal of Mr. Edgar Alfredo Arriola Pérez and Mr. Manuel de Jesús Dionicio Salazar on 23 October 2002 after they applied to join the Union of Workers of the Higher Electoral Tribunal on 17 October of the same year;
   • (g) the anti-union harassment of the members of the Union of Workers of Rafael Landivar University by the university authorities after the union submitted a draft collective agreement on working conditions. UNSITRAGUA adds that the members of the union were aggressed verbally and physically and that its secretary-general, Mr. Timoteo Hernández Chávez, was attacked by armed men on his way home (the official recognized one of his aggressors as an agent of a private security company working at the university);
   • (h) the dismissal of all the members (including its officials) of the Union of Workers of the La Torre Estate, of the municipality of San Miguel Pochuta in the department of Chimaltenango, on 1 January 2002. UNSITRAGUA adds that, although the judicial authority ordered the reinstatement of the dismissed workers, it had not ruled on the request for effect to be given to their reinstatement;
   • (i) the dismissal of 50 members of the Union of Workers of the Asociación Movimiento Fe y Alegría in work centres located in the department of Guatemala on 31 October 2001 in reprisal against the trade union for the activities carried out in order to obtain equality of remuneration between the permanent and contract workers.
2. 512. In its communication of 9 July 2003 the Guatemalan Union of Workers (UGT), backed by the World Confederation of Labour (WCL) and the Latin American Central of Workers (CLAT) in communications of 11 and 15 July and 30 October 2003 and 27 April 2004, alleges that Mr. Rigoberto Dueñas Morales, deputy secretary-general of the General Central of Workers of Guatemala and deputy representative of the UGT on the Board of Directors of the Guatemala Social Security Institute (IGSS), was arrested and charged with the crimes of fraud and possession of stolen goods. The complainants add that he was arrested after he denounced the decision of the board of directors of the institute to invest its technical reserves on the international financial markets, which gave rise to anomalies such as the disappearance of over US$43 million. In its communications of 30 October 2003 and 19 February 2004, the WCL adds that the official denounced and fought against abuse of privilege, influence peddling, corruption and absence of accountability within the institute and that, because of his attitude and his defence of the interests of the dues-paying members and of the institute itself, he was the victim of pressure and repressive measures by the institution’s authorities (his allowances were cut off and he was no longer invited to attends meetings). Finally, the WCL alleges that: (1) the rules of due process have been violated inasmuch as a person charged with the offences of which Mr. Rigoberto Dueñas Morales is accused can be released from prison on oath or on bail, and yet it was decided to keep him under arrest since June 2003, despite a petition from the Attorney-General’s Office that the case be provisionally dropped; (2) the Tenth Criminal Court of First Instance for Narcotics Activities and Crimes against the Environment decided to initiate criminal proceedings against Mr. Rigoberto Dueñas Morales; and (3) the management of the prison in which Mr. Dueñas Morales is detained raises obstacles to the application of the regime concerning visits.

B. The Government’s reply

1. 513. In its communications of 29 August, 21 November and 2 December 2003 and 9 January 2004, the Government states that an investigation was conducted by the Regional Director of the Ministry of Labour and Social Security into the dismissal of Mr. Edwin Roderico Botzoc Molina of the Municipality of San Juan Chamelco, Alta Verapaz. The investigation reveals that on 18 September 2002 Mr. Botzoc Molina presented a memorandum to the regional headquarters of the Ministry of Labour indicating that he was the secretary-general of the Union of Workers of the Municipality of San Juan Chamelco, Alta Verapaz, and that, although he benefited from immunity against removal, he had been dismissed by his employer on 19 August 2002 without justifiable cause. The Government adds that the worker thereupon requested that the staff of the Ministry of Labour mediate his reinstatement and that, in the event of his employer’s refusal, it should be considered that the administrative channels had been exhausted; two labour inspectors were accordingly appointed to undertake the requested mediation. On 19 September 2002 the inspectors held a meeting at the Municipality of San Juan Chamelco, Alta Verapaz, in order to make arrangements for Mr. Botzoc Molina’s reinstatement, drawing the employer’s attention to the relevant provisions of sections 209 and 223, clause (d), of the Labour Code; upon the employer’s refusal, the administrative channels were considered to be exhausted and the worker was informed of his right to pursue his claim through judicial channels. In the course of inquiries conducted at the Municipality of San Juan Chamelco, it was learnt that Mr. Botzoc Molina is pursuing his claim for reinstatement through the appropriate court and that Mr. Arturo Jesús Chuc is acting as interim secretary-general of the Union of Municipal Workers of San Juan Chamelco, Alta Verapaz.
2. 514. With regard to the allegations concerning events that occurred at La Comercial S.A., the Government states that, following a complaint lodged by one of the enterprise’s workers, Mr. Macedonio Pérez Julián, an investigation was carried out by labour inspector Mr. Willian Henry Mazariegos Concoha, who on 6 March 2002 held a meeting on the premises of La Comercial S.A. at which he informed the enterprise of the rules that were applicable in such a case. Following the enterprise’s failure to take the requisite action, an administrative sanction was imposed on La Comercial S.A. by resolution No. R.I.I. 410?2002-1318, of which it was duly notified on 24 October 2002 of the same year.
3. 515. Concerning the situation of Mr. Macedonio Pérez Julián, the Government notes that it is aware that this worker applied to the Office of the Defence Attorney of the Ministry of Labour on 21 June 2002, which he informed of his dismissal and whose legal services he wished to engage; the office accordingly prepared the relevant documents for him to lodge an appeal with the Seventh Labour and Social Security Court and Third Notifying Office, where a hearing was set for 14 August 2002. Mr. Macedonio Pérez Julián was thereupon invited to meet at the address indicated in the appeal, but he failed to appear. On 24 September 2002, at the request of UNSITRAGUA and Mr. Macedonio Pérez Julián, the case was taken up again and Mr. Romeo Chinchilla was appointed as inspector. The latter then sent a cable to Mr. Macedonio Pérez Julián inviting him to a meeting on 2 October 2002; in a verbal agreement with the acting inspector he undertook to meet on 22 October 2002 at the office of La Comercial S.A. The labour inspector accordingly went to the office of La Comercial S.A. on 22 October 2002, but, since on that day Mr. Macedonio Pérez Julián did not appear as agreed, he was unable to take any action. The worker was again convened to a meeting, and again failed to attend; as a result, the acting labour inspector dismissed the case for lack of interest on the part of the appellant and submitted a report to that effect. In the view of the Assistant Labour Inspector, the inspectorate acted fully in accordance with the law and with its powers in the matter. Finally, the Government notes that Mr. Macedonio Pérez Julián never indicated that he had been dismissed in reprisal for his trade union activities.
4. 516. With regard to Ms. Rocío Lily Fuentes Velásquez, this worker had already obtained her reinstatement through the Courts of Law, and labour inspector Mr. Saulo Servando Chamale Cotzojay had been appointed to verify compliance with the court order.
5. 517. Regarding the alleged dismissal of workers at La Torre Estate in San Miguel Pochuta, Chimaltenango, the dispute has been resolved by means of a definitive agreement between the employer and the employees concluded in the city of Chimaltenango at 10 a.m. on 8 May 2003 at the Court of Inquiry presided over by labour court judge Coralia Carmina Contreras Flores de Aragón. The first part of the agreement declares that the two parties have reached an understanding providing for the following arrangements: (a) payment to 26 workers of the total amount of the benefits due to them to 31 December 2002; (b) payment to the 26 workers of wages due, and amounting to eight months’ pay; (c) payment of 1,000 quetzales for the transport of the belongings of each of the 26 workers; (d) presentation to each worker of a package of galvanized sheet metal. Finally, the court was requested to verify in person that the agreement was carried out in full on 15 May 2003 on the premises of the La Torre Estate. The agreement was approved by the labour court judge and was legally notified. On 15 May 2003 the execution of the agreement between the parties was officially recorded at the La Torre Estate, in the presence of the judge of the Labour and Social Security Court of First Instance, the secretary and recording officer, and the representatives of the employer and employees. It was accordingly verified that the calculation of the benefits due to each worker was correct and corresponded to the cheques drawn up in their names; these cheques were then handed over to the workers in payment of all the employment benefits due to them, along with a cheque for 1,000 quetzales for each worker to cover the cost of transport of their belongings. It was also duly recorded that the employer’s representative handed over to the workers’ representatives a cheque for 12,000 quetzales which UNSITRAGUA requested for the advisory services it had rendered; the cheque was received by the workers to be handed over to UNSITRAGUA. Following these proceedings, the parties present indicated their acceptance of the arrangement and signed the record, thus putting an end to the dispute.
6. 518. Concerning the alleged arrest of Mr. Rigoberto Dueñas, the Government states that this is not a reflection of any anti-union policy on the part of the Government or the Office of the Attorney-General but is the outcome of a fraud involving millions of quetzales that was discovered at the IGSS, an institution which is in the service of the workers. Other persons with executive responsibilities at the IGSS have been arrested along with Mr. Dueñas. All of them have been charged with embezzlement and fraud involving more than 350 million quetzales. In addition to those arrested some 24 others involved in the fraud against the IGSS are on the run. The Government notes that the Office of the Attorney-General subsequently requested the case against Mr. Dueñas be provisionally dropped but the request was denied by the judge. The case is being heard by the Tenth Criminal Court of First Instance for Narcotics Activities and Crimes against the Environment. It can be inferred from the foregoing that Mr. Rigoberto Dueñas’ arrest cannot be assimilated to any kind of anti-union policy but is part of the campaign against impunity and corruption.

C. The Committee’s conclusions

1. 519. The Committee observes that in the present case the complainant organizations allege: (1) anti-union dismissals at the Municipality of San Juan Chamelco, La Comercial S.A., the La Torre Estate, the Higher Electoral Tribunal and work centres located in the department of Guatemala; (2) the refusal of La Comercial S.A. to recognize and enter into collective bargaining with the works’ union unless it gives up its affiliation to UNSITRAGUA and the adoption of anti-union measures against members of the works’ union; (3) physical and verbal aggression against members of the Union of Workers of Rafael Landivar University following their submission of a draft collective agreement on working conditions; and (4) the arrest and charging of union official Mr. Rigoberto Dueñas Morales for having denounced abuse of privilege, corruption and absence of accountability within the Guatemala Social Security Institute (IGSS).
2. 520. Regarding the alleged anti-union dismissal of the secretary-general of the Union of Workers of the Municipality of San Juan Chamelco, Alta Verapaz, Mr. Edwin Roderico Botzoc Molina, on 19 August 2002, the Committee notes the Government’s statement that: (1) on 19 September 2002 labour inspectors went to the Municipality to make arrangements for the union official’s reinstatement in accordance with section 223, clause (d), of the Labour Code on immunity against removal of members of the executive committee during the course of their mandate, and for 12 months thereafter; (2) the employer refused to reinstate the worker and the administrative channels were therefore considered to have been exhausted; and (3) Mr. Botzoc Molina submitted a request for reinstatement through judicial channels. The Committee observes that the Government confirms the dismissal of this union official and that the administrative authority concluded that the labour legislation had been violated with respect to the special protection to which union officials should be entitled. The Committee recalls that "one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 724]. In these circumstances, and given the gravity of the allegation, the Committee calls on the Government to take all the steps within its power to ensure that Mr. Edwin Roderico Botzoc is reinstated in his post, with payment of the wages due to him. The Committee further calls on the Government to keep it informed of the outcome of the judicial proceedings that have been initiated in this connection (according to the complainant organizations, the judicial authority refused to hear the complaint).
3. 521. Regarding the alleged anti-union dismissal of Mr. Macedonio Pérez Julián by La Comercial S.A. when he began to take part in the activities of the Union of Workers of La Comercial S.A. and Distribuidora de Productos Alimenticios Diana S.A. and other enterprises of the same economic unit, as well as the initiation of criminal proceedings (with the arrest of the worker concerned) against him by the enterprise when it learned that he had lodged a judicial appeal for his reinstatement, the Committee notes the Government’s statement that: (1) the labour inspectorate imposed a sanction on the enterprise for its dismissal of the worker; (2) the labour inspectorate convened the worker to meetings at the enterprise on several occasions, but the worker did not appear; and (3) the Office of the Defence Attorney of the Ministry of Labour assisted Mr. Macedonio Pérez Julián in lodging a complaint with the judicial authority. The Committee notes that the Government confirms the dismissal in question. The Committee also regrets that the Government did not send its observations on the criminal proceedings and on Mr. Macedonio Pérez Julián’s dismissal. In these circumstances, the Committee requests the Government to send its observations without delay on the criminal proceedings under way, indicating whether the worker concerned is still under arrest or has been released, and on the judicial proceedings initiated by the worker with respect to his dismissal.
4. 522. Concerning the alleged anti-union harassment of Ms. Rocío Lily Fuentes Velásquez by La Comercial S.A. when she started taking part in the activities of the Union of Workers of La Comercial S.A., Distribuidora de Productos Alimenticios Diana S.A. and other enterprises belonging to the same economic unit (according to the complainants the worker was dismissed for anti-union reasons and subsequently reinstated by court order, but was assigned to a lower level post and is currently being harassed by the authorities of the enterprise and threatened with dismissal), the Committee notes the Government’s statement that the worker has already obtained her reinstatement and that the labour inspectorate is to verify compliance with the court order. In this respect, the Committee regrets that the Government has not communicated any information on the alleged harassment of Ms. Fuentes Velásquez subsequent to her reinstatement and on her assignment to a lower level post. In these circumstances, the Committee calls on the Government to take steps for a full and independent inquiry to be made into this allegation and, if it is confirmed, to take steps to ensure that the anti-union acts cease immediately and that those responsible are duly punished.
5. 523. Concerning the alleged dismissal of all the members (including its officials) of the Union of Workers of La Torre Estate, of the Municipality of San Miguel Pochuta in the department of Chimaltenango, on 1 January 2002, the Committee notes the Government’s statement that the collective dispute has been ended by the signing of an agreement between the enterprise and the workers (providing inter alia for the payment of the benefits and wages due to the workers, transport costs, etc.) and that the agreement was approved by the judicial authority which also verified that it was properly executed. In these circumstances, the Committee will not pursue the examination of these allegations any further.
6. 524. Concerning the alleged arrest - since June 2003 - and trial in violation of due process and further restricting the regime concerning visits (on charges of fraud and possession of stolen goods) of Mr. Rigoberto Dueñas Morales, deputy secretary-general of the General Central of Workers of Guatemala (CGTG) and deputy representative of the Guatemalan Union of Workers (UGT) on the Board of Directors of the Guatemala Social Security Institute (IGSS), after this worker denounced abuse of privilege, influence peddling, corruption and absence of accountability within the Institute, the Committee notes the Government’s statement that: (1) the arrest of the official concerned is not a reflection of any anti-union policy on the part of the Government but is the outcome of a fraud involving millions of quetzales that was discovered at the IGSS; (2) other persons with executive responsibilities with the IGSS have been arrested along with Mr. Dueñas; (3) 24 persons involved in the fraud are on the run; (4) the Office of the Attorney-General requested that the charges against Mr. Rigoberto Dueñas be provisionally dropped but the request was denied by the judge handling the case; and (5) the union official’s arrest cannot be assimilated to any kind of anti-union policy but is part of the campaign against impunity and corruption. Observing that the complainant organizations state that a person charged with the offences of which Mr. Rigoberto Dueñas Morales is accused can be released from prison on oath or on bail and above all that, as the Government confirms, the Attorney-General’s Office requested that the charges against the union official be provisionally dropped, the Committee considers that steps should be taken to have him released and calls on the Government to take such action immediately. The Committee further expresses the firm expectation that due process will be observed in the trial of Mr. Dueñas and calls on the Government to keep it informed of the final outcome.
7. 525. Finally, the Committee regrets that the Government has not sent its observations on the following allegations: (a) the anti-union dismissal of Mr. Edgar Alfredo Arriola Pérez and Mr. Manuel de Jesús Dionicio Salazar on 23 October 2002 after they applied to join the Union of Workers of the Higher Electoral Tribunal on 17 October of the same year; (b) the refusal of La Comercial S.A. and Distribuidora de Productos Alimenticios Diana S.A and other enterprises belonging to the same economic unit to recognize and enter into collective bargaining with the works’ union unless it gave up its affiliation to UNSITRAGUA; (c) the harassment by La Comercial S.A. of members of the Union of Workers of La Comercial S.A., Distribuidora de Productos Alimenticios Diana S.A. and other enterprises belonging to the same economic unit because of the union’s opposition to the illegal deductions from the workers’ wages made by the enterprise. Specifically, it is alleged that the enterprise exerts pressure on workers belonging to the union (threatening them with dismissal, refusing to supply them with goods for sale or to allow them to engage in the sale of goods, etc.), that Mr. Manuel Rodolfo Mendizábal has been harassed by people in unmarked vehicles to discourage him from playing an active part in the union and that other union members have been the victims of a series of thefts and aggressions. Finally, the enterprise is alleged to have refused to deduct union dues from workers’ wages; (d) the anti-union harassment of the members of the Union of Workers of Rafael Landivar University by the university authorities after the union submitted a draft collective agreement on working conditions (according to the complainants, the members of the union were aggressed verbally and physically and its secretary-general, Mr. Timoteo Hernández Chávez was attacked by armed men on his way home; and (e) the dismissal of 50 members of the Union of Workers of the Asociación Movimiento Fe y Alegría in the work centres located in the department of Guatemala on 31 October 2001, in reprisal against the trade union for the activities carried out in order to obtain equality of remuneration between the permanent and contract workers. The Committee calls on the Government to send its observations on these allegations without delay.